On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 00-09-2486.
The opinion of the court was delivered by: WEFING, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Wecker and Fuentes.
Defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3); attempted robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; aggravated assault, N.J.S.A. 2C:12-1(b)(1); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Tried to a jury, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1)*fn1 , as a lesser-included offense of murder and found not guilty of felony murder and attempted robbery. He was convicted of the balance of the charges. The trial court sentenced defendant to twenty-five years in prison for aggravated manslaughter and twenty years in prison for attempted murder. The trial court directed defendant to serve these terms consecutively; both were subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court also merged the conviction for aggravated assault into the conviction for attempted murder and made the terms for the weapons' convictions concurrent. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded defendant's convictions must be reversed and the matter remanded for a new trial.
In the early morning hours of May 17, 2000, Khalfani Slue was standing on Vermont Avenue in Newark, talking with Gregory Mark Dubbissette. Both young men lived on Vermont Avenue, and Slue had been waiting for his girlfriend to come out from a nearby house. While the two were talking, another friend, Carlton Elliott, pulled up in his car to pick up his girlfriend. He remained in his car, and Slue and Dubbissette went over to talk with him. Another car then pulled up and a passenger asked Dubbissette and Elliott if they had any marijuana; they replied they did not, but the man persisted, asking if they knew where he could purchase some. Slue later identified the defendant as this man. There was testimony that this second car pulled to the side of the street and parked, and the occupants, including Kalief and Lonnie Spruiel and Jihad Lassiter (sometimes referred to as Jihad Green), began to get out of the car.
Slue became concerned that he was about to be robbed and he and Dubbissette ran and got into Elliott's car, Slue in the front passenger seat, Dubbissette in the rear, and yelled for him to drive away. As Elliott pulled out, gun shots rang out. Both Slue and Dubbissette were shot. Elliott drove them directly to the hospital, where Dubbissette died later that night. Although a bullet struck Slue in the head, he survived and was discharged from the hospital several days later.
Slue could not see who was firing, but Lassiter later testified that defendant had a gun with him that night and fired the shots. Lassiter also testified that when they all got back into the car, defendant pointed his gun at Kalief Spruiel's head and said, "if you say anything, I'll shoot you." Kalief and Lonnie Spruiel gave statements to the police to the effect that they had seen defendant shooting a gun and that defendant, on re-entering the car, had threatened to shoot Kalief. At trial, however, they testified they had not seen defendant with a gun and said defendant had not threatened Kalief.
Police responded to the scene of the shootings. They canvassed the area and recovered four spent .380 shell casings.
Several days later, on the evening of May 22, the Newark police stopped a car that bore marks as if its locks had been pried open. Defendant was the driver; Alterique Robinson and Corey Webb were his passengers. They had earlier stopped at a liquor store and purchased a bottle of gin, which they were drinking as they were driving. Lieutenant O'Connor of the Newark Police Department testified that he approached the car and asked defendant for his license and registration. He said he was using a flashlight and that when he directed it into the car, he saw the open bottle of gin and two cups. Lt. O'Connor testified that the center console of the car was partly open and that he saw "two colored eyes staring at me." He thought it was a toy in the console and then immediately realized they were the reflective night sights of a real gun. The men were ordered out of the car, and the gun was seized. Ballistics tests later linked the gun to the May 17 shootings in Newark. The prosecution sought to link defendant to the gun through the testimony of Webb and his then-girlfriend, Monique Daniels.
Defendant presented one witness, Michael Petrillo, an investigator retained by defense counsel. Mr. Petrillo testified that he tried to interview Khalfani Slue but that Mr. Slue refused to discuss the incident with him beyond saying that the statement he had provided to the police department was incorrect.
On appeal, defendant raises the following arguments:
POINT I DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE JURY TO DISREGARD DEFENSE COUNSEL'S CLOSING ARGUMENT THAT THE STATE HAD FAILED TO CARRY ITS BURDEN OF PROVING THE OFFENSES "BEYOND A REASONABLE DOUBT" BECAUSE IT FAILED TO PRODUCE SUFFICIENT CREDIBLE EVIDENCE CONNECTING DEFENDANT TO THE GUN.
POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF HOW TO EVALUATE SEVERAL OF THE DEFENDANT'S ORAL STATEMENTS DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below). POINT III TESTIMONY FROM STATE WITNESS MONIQUE DANIELS THAT SHE COULD NOT "COUNT HOW MANY TIMES" SHE SAW DEFENDANT WITH A GUN, DENIED DEFENDANT A FAIR TRIAL, IN VIOLATION OF N.J.R.E. 404(b). (Not Raised Below).
POINT IV BECAUSE THE LIEUTENANT'S TESTIMONY WAS NOT CREDIBLE, THE COURT ERRED IN RELYING ON THAT TESTIMONY IN DETERMINING THAT THE SEIZURE OF THE GUN WAS JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT.
POINT V DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS BY THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION FOR A PRETRIAL HEARING PURSUANT TO UNITED STATES V. WADE.
POINT VI DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
A. The Court Abused its Discretion by Running the Aggravated Manslaughter Conviction ...