On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2007
Before Judge Lintner, S.L. Reisner and Seltzer.
In connection with the shooting death of Lillian Spann and a shooting attack on Dana Grimsley, defendant, Markeith Whitfield, was indicted on charges of second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1*fn1 (count one); purposeful and knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and -3(a)(2) (count two); first-degree attempted murder, contrary to N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count three); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count four); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five). The court amended the indictment during trial such that count one charged defendant with first-degree conspiracy to commit murder.
A jury convicted defendant on counts one, three, four and five. He was found not guilty on count two, first-degree murder, but was convicted of the lesser-included offense of first-degree aggravated manslaughter.
For the aggravated manslaughter conviction, the trial judge sentenced defendant to a thirty-year term of imprisonment, eighty-five percent to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was given a concurrent twenty-year term of imprisonment on count one, first-degree conspiracy to commit murder, eighty-five percent of which had to be served without parole. On count three, first-degree attempted murder, he was given a concurrent twenty-year sentence, eighty-five percent without parole, and on count four, third-degree unlawful possession of a weapon, he was given a five-year concurrent term. Count five was merged with count two. Defendant's aggregate sentence was thus thirty years with twenty-five and one-half years parole ineligibility.
Defendant appeals from his conviction and the sentence. We affirm the conviction for aggravated manslaughter but remand for reconsideration of the thirty-year sentence pursuant to State v. Natale, 184 N.J. 458, 466 (2005), and State v. Thomas, 188 N.J. 137, 154 (2006). We reverse the convictions for attempted murder, conspiracy to commit murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. We remand for a re-trial on those charges. At the retrial, if the State introduces defendant's confession, the jury shall be charged on the defense of duress.
We begin by reviewing the most pertinent trial procedure and evidence.
On October 6, 2004, prior to jury selection, defense counsel requested an adjournment, contending that the State had just provided him with a statement from Dana Grimsley identifying defendant as the shooter. The judge denied the adjournment request on the grounds that the case was the oldest on his docket, defendant had been in jail for two years, the defense was aware of Grimsley's identity and could have interviewed him earlier, and the defense still had until October 12, when the trial would actually commence, to interview Grimsley.
We now turn to the pertinent trial events. The prosecutor's opening statement emphasized that the murder was the product of a conspiracy between defendant and two drug dealers who had a grudge against Dana Grimsley. He contended that defendant tried to shoot Grimsley and instead shot an innocent bystander, Lillian Spann. The prosecutor admitted that the State's case rested heavily on defendant's confession, noting that defendant had admitted the shooting but had tried to place "a little spin on it to try to put himself in as good a light as he can." In his opening statement, defense counsel suggested, without directly stating, that defendant's confession was the product of coercion and that Grimsley would not be a reliable witness.
Officer Wohltman, of the Newark Police Department, testified that at about 7:45 p.m. on October 27, 2002, he was in the mini-precinct on South Orange Avenue, near the scene of the shooting, when he heard "between six and eight shots." When he went to the door of the mini-precinct, he saw a crowd of people running and "pointing back [and] yelling [']they're shooting, they're shooting.[']" Near the intersection of Isabella Street and South Orange Avenue, he found Lillian Spann lying on the sidewalk. Testimony from the medical examiner established that she died from one gunshot wound to the chest.
In his testimony, Dana Grimsley, the intended victim, identified defendant as the person who shot at him. According to Grimsley, he had a dispute with his "associates," Shawn McFadden and Keon Wilson, in which Wilson had threatened to shoot him. Several weeks later, on the evening of October 27, 2002, Grimsley was standing on Cedar Street when he saw Wilson driving by in a green car. Defendant was in the passenger seat, and McFadden and another man known as "Jig" were in the back seat. The four men got out of the car and defendant walked past them to a house at 26 Cedar Street. Defendant, whom Grimsley had never met before, approached him, asked if he knew a resident of the house, and then asked for change for a fifty dollar bill. Feeling uneasy, Grimsley began walking away and crossed the street. He testified that "[w]hen I got to the other side of the street I look towards the sidewalk and [defendant] started shooting." Grimsley confirmed that defendant drew a gun from his waistband and began shooting at him.
Grimsley ran to South Orange Avenue "straight out into the traffic" toward Isabella Street. When the shooting stopped and he turned around, he saw defendant getting into a car driven by Wilson; the car drove away "up South Orange Avenue." Grimsley also saw the female victim "on the ground" near a church.
Later that day, Grimsley discovered that his own car, which had been parked near the shooting scene, had been impounded by the police, apparently because they knew he had been involved in the shooting incident. Grimsley met with Detective DeMaio and gave him a statement. He also identified photos of Wilson, McFadden and Joshua Christian, also known as "Jig." On October 29, Grimsley picked defendant's photo out of an array that police showed him.
Grimsley admitted that he had a lengthy criminal record for drug dealing and other offenses. He contended that he initially went to the police because they had impounded his car, but also because defendant had killed a little girl. On cross-examination, he admitted he was concerned that he might be accused of the shooting. He clarified that when Wilson threatened him weeks before the shooting, Wilson also pointed a gun at him. He admitted that in his statement to police he described the shooter as wearing a "cream colored leather coat . . . [a]nd a gray . . . or similar colored hoody." He agreed that he had never seen defendant before the day of the shooting and had had no reason to believe that defendant had "bad blood" toward him.
On redirect examination, he testified that when he went to the police station on the night of the shooting, the police shone a light on his hands to check for gunpowder residue and found nothing. He also specifically testified that he had not fired a gun.
Detective Vitiello testified that, pursuant to police policy, he was assigned to show Grimsley a series of photo arrays because he (Vitiello) knew nothing about the case and therefore could not cue Grimsley to choose a particular photo. From the array, Grimsley identified defendant as the person who shot at him.
Detective Cosgrove testified that, at the shooting scene, police recovered ten shell casings and several bullet fragments from a nine-millimeter handgun. However, because the gun was not recovered the casings and fragments could not be matched to a particular gun. Cosgrove testified that no one asked him to test Grimsley's hands for gunpowder residue and that the test Grimsley described as having been done on him was not a test for gunpowder residue.
According to Detective Alarcon, a firearms and ballistics expert, the ten shell casings were all fired from the same gun. The two bullet fragments were "positive to each other" thus indicating both fragments were shot from the same gun. He could not say whether the bullets came from the same gun as the shell casings. Hence, he admitted that the casings and the bullets could have been fired from different weapons.
Detective Michael DeMaio was one of two principal investigators on the case. The other investigator, Ben Powell, had died during the two years the case was awaiting trial. On direct examination, DeMaio testified that defendant was arrested on October 28, 2002, because Grimsley identified defendant as the person who shot at him. After Powell administered Miranda*fn2
warnings and defendant signed a waiver form, Powell conducted a calm, non-threatening interrogation. According to DeMaio, there was no intimidation or physical abuse by the police. Rather, defendant "wanted to tell his side of what happened."
DeMaio testified at length to defendant's confession. Defendant insisted that he shot at Grimsley because McFadden threatened to kill defendant and defendant's grandmother if he did not do so. According to defendant, "about five or six months" before the shooting, McFadden had given him $6500. "A few weeks later, he came with 150 grams of cocaine and told me to give him back $3,000." However, some of the drugs had been stolen from defendant and he told McFadden that he would pay him back later. Two weeks prior to the shooting, McFadden approached defendant and reminded him that he still owed the money, but told defendant he wanted him "to do something else" in lieu of repayment.
Some time later, McFadden visited defendant and told him that he wanted defendant to shoot Grimsley, who was "giving [McFadden] some problems." Defendant refused stating, "I ain't with this and I would rather pay . . . back his cash." In response, McFadden made a thinly-veiled threat to kill defendant and his grandmother:
[McFadden] said, yo man, I'm coming to you to do something and you know how I get down. He said, don't think that if you don't do this for me, then I will get somebody for you and him. He said don't think your grandmother can't get touched either. . . .
I then heard from him again on Sunday, yesterday, he called me at my grandmother's house. He had the number but he never called there before. He told me to come downstairs. . . .
When I got downstairs, I told him I didn't want to go through with this. [McFadden] said yo, you can walk away if you want to but you and your grandmother won't be walking too long. I got in the car with them and then his cousin [Wilson] started telling me about Dana [Grimsley]. . . . [McFadden] told me just to shoot him. [Wilson] told me that Dana wanted to run them off the block and [get] . . . them behind their back. We drove to the area of South Orange Avenue and Cedar.
According to defendant's confession, when they arrived at South Orange Avenue and Cedar Street, they saw Grimsley. At that point, defendant stated, Wilson tried to give him a small handgun, but McFadden "said: No, take my gun instead. He gave me a big black .9 mm." Defendant then approached Grimsley and asked first about a girl in the neighborhood, and then "for change of a 50 and he said he ain't got it." At that point, defendant "grabbed" the gun from his waist and started shooting at Grimsley.
[Grimsley] was on the side of the street by the wall and he started running when I started [shooting]. I emptied the whole ...