February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARKEITH WHITFIELD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 clip and I ran back to the car.
After the shooting, McFadden told defendant "Yo, you just wrote your own ticket," because defendant had missed Grimsley. McFadden "kept calling me stupid" and "said you still owe me because [you] missed Dana." McFadden and Wilson dropped defendant off, but two hours later, McFadden called him at his grandmother's house, cursing. When defendant asked "What more you want from me[?]," McFadden replied "You gonna keep doing this shit until you kill [Grimsley.] . . . [H]e know that I behind this now. [McFadden] said I will make you look like chill Will."
DeMaio testified that, in his statement to the police, defendant did not "mention anything about cross fire or anyone shooting at him."
On cross-examination, defense counsel questioned DeMaio at length about the timing of the statements police took from Wilson and from defendant, stressing that Wilson was arrested first, on October 28, 2002, and charged with murder. In response to counsel's question, DeMaio confirmed that defendant was arrested later in the day on October 28, based on Wilson's statement to police. Defense counsel then elicited from DeMaio the fact that while Grimsley identified Wilson, McFadden and Christian on October 28, he did not identify defendant as the shooter until October 29. Defense counsel then continued questioning DeMaio about the substance of Wilson's statement, implying that Wilson had implicated defendant without directly asking that question:
Q: And then [after taking Grimsley's statement,] you went and picked up Keon Wilson. Right? Shortly thereafter?
A: Shortly thereafter.
Q: And he told you some information, too. Correct?
A: Yes, he did.
Q: And you set that forth in his statement. Correct?
Q: And ah, essentially, what he told you was in the beginning what led up to the events at South Orange Avenue and Cedar. Right?
Q: And then he told you a little bit about what happened there that night. Right? At that scene, right?
A: Yes. . . . .
Q: And then after that statement was given, that's when you went and picked up Markeith Whitfield. Correct?
A: Shortly thereafter.
Defense counsel also elicited from DeMaio that Grimsley had expressed to police his belief that Wilson, Christian and McFadden knew what was going to happen, that they were involved, and that the situation at South Orange Avenue was "[a] set up or . . . a premeditated hit." DeMaio also testified that when police arrested Wilson they found two shotguns in his house.
On the next trial day, defense counsel continued cross-examining DeMaio about Wilson's statement, including the fact that Wilson had been shown "two photographs." Defense counsel then questioned DeMaio about the fact that "when Dana Grimsley came back to the precinct . . . on [October] 29th" he was shown a photo array that included photo number three which was of defendant. DeMaio confirmed that Grimsley identified photo number three "as the shooter." Demaio also testified that in Wilson's statement, he said he was wearing a beige leather jacket on the night of the shooting.
On redirect examination, the prosecutor asked DeMaio "[w]hose pictures" Wilson picked out. Defense counsel objected that the answer would be hearsay and that in his cross-examination
I didn't address which pictures were shown and which pictures were picked out . . . because I believe it's hearsay and my question was merely directed at the fact that he was shown photographs and that a statement was taken from him.
The judge responded that
[Y]ou started delving into [Wilson's] statement and . . . opening it up . . .
[N]ow that's a problem and you get to pick and choose what you want to take out of the statement? . . . I severed [Wilson's and defendant's] cases so that statements wouldn't come in and so now, you started delving into aspects of the statement.
The prosecutor also argued that defense counsel opened the door on the issue:
Judge, counsel deliberately, repeatedly went into this thinking that he could avoid the content of this statement. And now this jury thinks there's evidence that I'm not showing[.] [T]he State is very prejudiced, if we can't bring this out - -
Counsel can't bring out this information and make this jury think that maybe somebody else is identified. He's also brought out remarkably that that's the basis of why this officer goes to arrest his client, making this jury think that there's something unfair in that.
THE COURT: You [defense counsel] went into a description of the clothing and now you're [prosecutor] gonna bring out the photographs to counteract that information. [Prosecutor]: Yes.
THE COURT: Right? I'm gonna allow it.
Over defense counsel's objections, the prosecutor then elicited from DeMaio the facts that Wilson admitted to driving the car in the incident and identified a picture of defendant as "the only person doing the shooting that resulted in the death of Lillian Spann[.]" He also elicited DeMaio's agreement that Wilson had identified McFadden "[a]s the person who set this whole thing in motion," and that Wilson had described in detail "what he and Markeith Whitfield and all the individuals involved in this case did[.]" DeMaio then confirmed that, based on this information from Wilson, he arrested defendant.
On re-cross, defense counsel returned to the issue of the shooter's identity and the clothing the shooter wore. DeMaio admitted that another witness to the shooting, Joyce DeLoach, told him that after the shooting she saw someone in a beige jacket, black pants, white sneakers and a black skully hat get into a car and drive away. DeLoach told police that "[s]he saw a gun in that person's hand." She did not see that person firing the gun, but she saw the person wearing a beige jacket. This was consistent with Grimsley's statement that "the shooter was wearing a beige jacket." DeMaio added that Grimsley said the shooter was wearing a gray hoodie. He admitted that a tan or beige leather jacket was seized from Wilson's house when he was arrested.
In his testimony, defendant denied any involvement in the crime. Defendant testified that he never heard of Grimsley until after he was arrested. He testified that he and McFadden were friends but he only met Wilson shortly before October 27, 2002. Defendant testified that he encountered Wilson and McFadden in front of his grandmother's house as he was on his way to the hospital to be examined for an infection in his neck.
He denied that either of them told him of any problems with Grimsley or asked him to kill anyone.
He testified that on October 27, 2002, he spent the entire day and night at his grandmother's house because he was feeling sick from the infection. He denied having any contact with Wilson or McFadden. At this point, the prosecutor objected that while defendant had given pre-trial notice of a duress defense, he had not given notice of an alibi defense. The judge overruled the objection.
Defendant then testified that on the afternoon of October 28, 2002, the police came to his grandmother's house, arrested him, and took him to the police station. There, he claimed, they handcuffed him and beat him. He testified that Detective Powell was in the room watching the beating and that DeMaio was not present at all. He testified that he was brutally coerced into signing the Miranda forms and the waiver, as well as signing the backs of photographs of Wilson and McFadden, and several blank sheets of paper. He denied telling the police any of the incriminating information in the document DeMaio had identified as defendant's confession. Defendant insisted that he had never confessed to the crime, that he had not been present at the scene of the shooting, and that he had nothing to do with it.
During cross-examination, the prosecutor asked defendant whether any of the family members whom he claimed were home with him during the time of the shooting would testify. As defendant attempted to explain why they would not, the prosecutor interjected "They don't like having a murderer in the family?" In response to defense counsel's objection, the trial judge gave an immediate curative instruction to the jury to disregard the question and the comment, and the prosecutor apologized in the presence of the jury.
During the charge conference, defense counsel requested a duress charge, because a claim of duress was implicit in defendant's confession, although it was inconsistent with defendant's testimony as to his complete non-involvement in the crime. The prosecutor objected. The judge held that he would not charge duress.
In his summation, defense counsel's theory was that Lillian Spann was killed in an exchange of gunfire between Wilson and Grimsley. He argued that Wilson could have been the one shooting at Grimsley, because there was "bad blood" between Wilson and Grimsley and Wilson had previously threatened Grimsley with a gun. Also, witnesses had described the shooter as wearing a leather jacket, and police found a beige leather jacket at Wilson's house. He also argued that more than one person was shooting, based on witness statements that "they're shooting." Defense counsel also argued that because the bullet that killed Lillian Spann went through her chest first, it must have come from in front of her, implying that it was from a gun fired by Grimsley who was running in front of her.*fn3 He argued that "it doesn't take a genius to realize that Dana Grimsley might have been out there with a gun too," and that Grimsley went to the police because he feared he would be accused of shooting Spann. And he argued that Wilson implicated defendant to protect himself. Then, he argued, armed with Grimsley's and Wilson's statements, the police fabricated a confession for defendant.
Before making his own closing argument, the prosecutor indicated to the court that he wanted to argue to the jury that even if Grimsley was firing back in self-defense because defendant was shooting at him, that would not constitute a defense for defendant. He also asked the judge to give a charge to that effect. Defense counsel indicated that "if that's the charge the Court is gonna give and it's gonna mention self-defense, then the self-defense charge has to be given [for defendant] as well". The judge agreed that he would give a self-defense charge. Although the judge initially gave a self-defense charge tailored only to Grimsley's possibly defending himself, at defense counsel's specific request he later gave the jury a more general self-defense charge. In response to the judge's question as to whether either counsel objected to the recharge, both attorneys indicated they had no objections.
In his summation, the prosecutor stressed that there was no evidence of any cross-fire and that Spann was shot from the side, not from the front. In the middle of the State's summation, the judge called counsel to sidebar to ask the prosecutor if he had asked for an accomplice liability charge. He responded that he believed he had, although it was primarily a conspiracy case. Over defense counsel's objection, the judge indicated he would give an accomplice charge. Thereafter, the prosecutor continued his summation, arguing to the jury that even if Wilson was the shooter, defendant was still guilty if he was involved in planning or committing the attack. The prosecutor did not refer to the information elicited from DeMaio concerning Wilson's having identified defendant as the shooter. Defense counsel then declined the judge's offer to let him reopen his summation to address the issue of accomplice liability.
On this appeal, defendant raises the following issues:
POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED THE PROSECUTOR TO ELICIT TESTIMONY FROM A POLICE OFFICER REGARDING INFORMATION OBTAINED FROM A CO-DEFENDANT WHOSE CASE HAD BEEN SEVERED WHICH IDENTIFIED THE DEFENDANT AS THE INDIVIDUAL WHO FIRED THE GUN WHICH KILLED THE VICTIM IN THE PRESENT CASE.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S UNEXPECTED INTRODUCTION OF ACCOMPLICE LIABILITY PRINCIPLES INTO THE CASE FOR THE FIRST TIME DURING HIS SUMMATION, COMBINED WITH THE TRIAL COURT'S DECISION TO CHARGE THE JURY REGARDING ACCOMPLICE LIABILITY OVER DEFENSE COUNSEL'S OBJECTION.
POINT III: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING DURESS.
POINT IV: THE TRIAL COURT'S CHARGE TO THE JURY REGARDING SELF-DEFENSE WAS INADEQUATE AND INSUFFICIENT, DENYING TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
POINT V: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ESSENTIALLY CHARACTERIZING HIM AS A "MURDERER".
POINT VI: THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S MOTION FOR AN ADJOURNMENT BASED UPON THE STATE'S FAILURE TO ABIDE BY ITS DISCOVERY OBLIGATIONS, FURNISHING DEFENSE COUNSEL WITH INFORMATION ON THE EVE OF TRIAL REGARDING THE VICTIM'S PHOTOGRAPHIC IDENTIFICATION OF THE DEFENDANT.
POINT VII: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT I CHARGING CONSPIRACY TO COMMIT MURDER INTO COUNT III CHARGING ATTEMPTED MURDER. (Not Raised Below).
POINT VIII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
POINT IX: ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE AS MANIFESTLY EXCESSIVE ABASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
Turning first to defendant's Point III, we conclude that the trial judge erred in denying the defense request for a duress charge. Duress can be a defense under the following conditions:
a. Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.
[N.J.S.A. 2C:2-9 (emphasis added).]
See State v. B.H., 183 N.J. 171, 186 (2005). Although defendant presented an alibi defense, the State's case included his confession which clearly presented a defense of duress. Indeed, central to defendant's confession was his contention that he only agreed to shoot Grimsley because of McFadden's immediate threat to kill defendant and his grandmother. See State v. Alston, 311 N.J. Super. 113, 122-23 (App. Div. 1998)(duress charge warranted where defendant's family was threatened). If the jury believed the confession, the duress continued up to the moment of the crime, because McFadden and Wilson drove defendant to the scene, put the gun in his hand, and remained on the scene to watch him commit the shooting. Afterward, McFadden cursed at defendant for missing Grimsley and told him he was obligated to try again or McFadden would make defendant into "chill Will."
We recognize that duress is not a complete defense to murder; rather a successful duress defense only serves to reduce the charge to manslaughter. N.J.S.A. 2C:2-9(b). In this case, defendant was convicted of aggravated manslaughter, a conviction amply justified by the evidence that he fired the entire magazine of a nine-millimeter handgun in Grimsley's direction, hitting Spann in the process. Consequently, we conclude that failure to charge duress was harmless error with respect to the aggravated manslaughter conviction.
We cannot reach the same conclusion, however, with respect to the convictions for attempted murder, conspiracy to commit murder and the two weapons convictions. If the jury believed defendant's confession, defendant's participation in the conspiracy to murder Grimsley and in the attempt to murder him was as much a product of duress as the killing itself. The weapons possession was likewise a product of duress, as McFadden placed the gun in defendant's hand after threatening to kill him and his grandmother. We do not imply that the jury was required to believe defendant's confession, but they might have believed it, and defendant was entitled to the requested duress charge.*fn4
Consequently, we reverse the convictions for attempted murder, conspiracy to commit murder, and the two weapons convictions, and we remand for retrial only on those charges.
Defendant's Points I, II, IV, V, and VI are without sufficient merit to warrant discussion in a written opinion, beyond the comments we add below. R. 2:11-3(e)(2).
Defendant contends that during the re-direct examination of Detective DeMaio, the trial court erred in permitting the prosecutor to elicit testimony concerning Wilson's identification of defendant as the shooter. Ordinarily in prosecuting a defendant, the State may not introduce inculpatory statements of a non-testifying co-defendant. See Bruton v. United States, 391 U.S. 123, 131-32, 88 S.Ct. 1620, 1625-26, 20 L.Ed. 2d 476 (1968); State v. Roach, 146 N.J. 208, 224, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Hence, absent an exception to the rule, the State would not be permitted to introduce Wilson's statement implicating defendant as the shooter.
However, in this case we agree with the trial judge, substantially for the reasons he stated on the record, that defense counsel opened the door on the issue by extensively cross-examining DeMaio about Wilson's statement. The "opening the door" doctrine permits one side to introduce otherwise inadmissible evidence "when the opposing party has made unfair prejudicial use of related evidence." State v. James, 144 N.J. 538, 554 (1996). In this case, defense counsel sought to discredit the police investigation of defendant by asking questions designed to raise in the jury's mind either the belief that Wilson had identified someone other than defendant as the shooter, or that Wilson had falsely identified defendant and the police had taken the bait and framed defendant. The prosecutor was entitled to rebut those implications by directly asking DeMaio about what Wilson actually said in his statement. See ibid.
Based on our review of the entire trial transcript, we are also convinced that defense counsel's questioning of DeMaio about Wilson's statement was not inadvertent but was part of a deliberate trial strategy, which carried through to his summation. Moreover, the prosecutor did not make any unfair prejudicial use of the information he elicited on re-direct. He limited himself to questioning DeMaio and did not refer to Wilson's statement in his summation.
We likewise find no merit in defendant's objection to the judge's charge on accomplice liability. The charge was entirely appropriate in light of the defense contention that Wilson was the shooter. Because there were two bullet fragments that could not be matched to the casings found at the scene, and because fleeing witnesses said "they" were shooting, the jury might have concluded that there was more than one shooter. If the jury believed Grimsley's testimony that defendant was present at the scene, but believed that Wilson actually fired the shot that killed Spann, they could also conclude, based on defendant's confession, that he was Wilson's accomplice.
The self-defense charge, to which defendant now objects, was the one his counsel requested. A self-defense charge concerning Grimsley was first given at the prosecutor's request in response to defense counsel's assertion in summation that Grimsley may have shot Spann in the course of shooting at Wilson. Defense counsel then requested an additional, general charge on self-defense, which the judge gave the jury. Defendant did not file a notice of self-defense prior to the trial, and, having read the entire record, we conclude there was no evidence that defendant acted in self-defense. Consequently, we find no merit in his argument that the trial court's charge on self-defense was erroneous much less that it was plain error.
We will not disturb the judge's discretionary decision not
to adjourn the trial at defense counsel's request. We note that defense counsel's contention, that he had not seen Grimsley's statement identifying defendant as the shooter or that it had not previously come to his attention, was carefully phrased to avoid directly stating that the prosecutor had failed to turn it over in discovery. The prosecutor believed that the discovery had been provided. In any event, defense counsel sought only an adjournment and did not seek the alternate remedies of suppressing Grimsley's identification or an order requiring that he be permitted to interview Grimsley before his trial testimony. In any event, at the time the application was made, counsel still had time to interview the witness before the trial started.
As previously noted, defendant's remaining contentions do not warrant discussion. R. 2:11-3(e)(2). Accordingly, we affirm his conviction for aggravated manslaughter for killing Lillian Spann.
Finally we turn to the sentence for aggravated manslaughter. After the trial court imposed sentence, the Supreme Court decided State v. Thomas, supra, 188 N.J. at 154, and State v. Natale, supra, 184 N.J. at 466. Because defendant was given a sentence in excess of the then-presumptive term for first-degree aggravated manslaughter, those cases compel us to remand for reconsideration of the thirty-year sentence imposed.*fn5
In light of the remand, we deem it premature to address defendant's alternate contention that the sentence was excessive.
Affirmed in part, reversed and remanded in part.