June 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIVON E. NEALS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-09-1061, 03-09-1213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 10, 2007
Before Judges Cuff, Winkelstein and Baxter.
Following a jury trial, defendant Tivon E. Neals was convicted of first degree murder, contrary to N.J.S.A. 2C:11- 3a(1) and 11-3a(2); second degree possession of a weapon (a handgun) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b. He was also convicted, on a separate indictment joined prior to trial, of fourth degree retaliation against a witness or informant, contrary to N.J.S.A. 2C:28-5b; and third degree terroristic threats, contrary to N.J.S.A. 2C:12-3a. After merging the possession of a weapon for an unlawful purpose charge with the murder charge, Judge Almeida sentenced defendant to a fifty-year term of imprisonment subject to a No Early Release Act*fn1 parole ineligibility term for the murder conviction. On the unlawful possession of a weapon conviction, the judge imposed a concurrent four-year prison term. He also merged the terroristic threat conviction with the retaliation conviction and imposed a consecutive prison term of four years with a one-year period of parole ineligibility on the retaliation charge. The appropriate fines, penalties and assessments were also imposed.
On August 2, 2003, defendant Tivon Neals, M.L., and Thomas T.*fn2 were traveling to their friend's house in New Jersey to spend the weekend together. They drove in Thomas T.'s mother's red, two-door Mitsubishi Eclipse. A nine millimeter gun that belonged to Thomas T.'s mother was in the car. Thomas T. brought the unloaded weapon to show it to his friends and then placed it on the floor in the backseat of the car.
Defendant and M.L. lived in the same apartment building in Brooklyn, New York, and shared a group of friends, all of whom referred to defendant as "T." M.L. had been to New Jersey on prior occasions to visit H.C., nicknamed "H.," and Thomas T., a close, long-time family friend*fn3 who lived in Cinnaminson. M.L. was "good friends" with defendant, but this was their first visit together to New Jersey. Thomas T. did not know defendant as well, although he met him previously at M.L.'s Brooklyn apartment.
The trio were staying in Camden for the weekend with H.C.'s grandfather. During the evening of August 4, 2003, defendant and H.C. got into an argument at the home of H.C.'s relatives. M.L. decided that he and defendant should return to Brooklyn. Despite the late hour, Thomas T. agreed to drive them to the train station in Trenton. At some point before leaving to take them to the train station, Thomas T. placed his mother's nine millimeter gun into the trunk because he did not want to have a gun in the car while driving such a noticeable car at a late hour. He explained that he gave the unloaded gun to M.L. to take with him to New York and that the gun was already in M.L.'s bag in the trunk.
At approximately 10 or 11 p.m., the young men were on their way to the station. Defendant occupied the passenger seat beside Thomas T. and M.L. sat in the backseat behind Thomas T. On the way to the train station, M.L. and defendant teased Thomas T. about "Jersey's country," so Thomas T. drove them to Burlington City to prove that New Jersey had a "hood." Thomas T. was unfamiliar with the Burlington City area and got lost. Meanwhile, in Burlington City, James Nesbitt, a thirty- year-old resident, sat in front of his house, which was located at the corner of York Street and Clarkson Street. At approximately 12:30 a.m., a heavy-set 5'7" tall, African-American male named Anthony McNair tried to sell Nesbitt pornographic DVDs, which he carried in his hands, but Nesbitt declined to purchase them. The man walked away towards Clarkson Street while Nesbitt continued speaking with a friend.
Moments later, Thomas T. reached the intersection of York and Clarkson Streets and began making a right-hand turn. Thomas T. noticed a heavy-set black man motioning to him. The man was the same person who had tried to sell the pornographic DVDs to Nesbitt. Thomas T. stopped the car. M.L., who had been lying down in the backseat, sat up thinking they were at the Trenton train station. He did not recognize the area and noticed that a black, middle-aged man was standing behind the car, motioning towards them. Thomas T. put the car in reverse towards the black male and stopped the car in front of him.
McNair approached the driver's side window and either leaned forward towards the window or actually leaned into the car.*fn4 McNair asked Thomas T. "what do you need?" to which Thomas T. responded "what's you mean?" Thomas T. believed that McNair was trying to sell him something, although he did not see anything in his hands.
McNair reached toward his side with his right hand as he started to pull up his shirt. Thomas T. testified that he was not alarmed by McNair's action and did not see anything at the man's waistband or underneath his shirt. Although the dynamics of the car and Thomas T.'s head slightly obstructed M.L.'s view from the backseat, he was able to see McNair and saw him motion towards his navel. Like Thomas T., M.L. was not alarmed by McNair's movement and noticed that Thomas T. did not appear anxious.
Suddenly, M.L. heard a "bang" like a gunshot. At the same time, Thomas T. saw a flash in front of his face as he heard the sound of a loud "big pop." Both M.L. and Thomas T. noticed that McNair was no longer standing at the car window. M.L. thought McNair fired into the car and hid down. Then he smelled gun powder and felt a ringing sensation in his ears. Thomas T. was in shock and did not move. M.L. thought Thomas T. had been shot because he remained motionless.
M.L. saw defendant nudge Thomas T., who started the vehicle and sped off. He drove into Pennsylvania and returned to New Jersey. During this ride, M.L. saw Thomas T. retrieve a bullet shell from somewhere in the car and hand it to defendant. M.L. does not know what defendant did with the bullet shell, but believes he threw it out the window. Afterwards, M.L. laid down, traumatized, and listened to the music in the car. He does not recall the particulars of any conversation with Thomas T. or defendant. Thomas T. recalled that M.L. and defendant told him McNair had a gun.
Thomas T. drove M.L. and defendant to the Hamilton station, but no trains were running. He then drove them to the Trenton station where they took a train to Brooklyn.
Back in Burlington City, McNair was dead, lying face down in a pool of blood. A crowd had already formed by the time the paramedics and police officers arrived. Patrolman William Hunt unsuccessfully attempted to resuscitate McNair. Hunt then noticed a DVD case on the ground near McNair's body. A search of the victim's pocket revealed only a miniature bottle of alcohol, a lighter, two quarters, lip balm, and a pack of cigarettes.
Moments before the shooting, Chief John Lazzarotti and other patrolmen of the Burlington Police Department had been executing a warrant four blocks from York and Clarkson Streets. At approximately 12:38 a.m., they were dispatched to the corner of York and Clarkson Streets for a shooting and responded within seconds to find five or six individuals on that corner frantically waving them down and pointing to the victim who was lying face down on Clarkson Street in a large pool of blood.
The witnesses, who waved down the police officers, stated that around 12:30 a.m., they saw an unfamiliar red, two-door sports vehicle*fn5 stop at the York and Clarkson Streets intersection and reverse towards McNair. Some witnesses recognized the victim because they attended high school with his son. Earlier in the night, they had seen the victim holding CDs and DVDs he was trying to sell. When the car stopped, the victim leaned over into the driver's side and spoke to the occupants of the vehicle. The witnesses did not see anything in the victim's hands when he approached the car, but saw him reach towards his waistband during the conversation. They were unable to hear anything or see any activity in the car, although they noticed that the driver wore a green and yellow shirt and/or hat.
The witnesses then heard a loud bang and saw a spark as they watched the victim reel backwards and try to run until he collapsed on Clarkson Street. The red sports car sped off down Clarkson Street towards the highway.
Thereafter, two witnesses, A.J. Reed and Markell Wilder, approached the victim to check on him. He was lying face down on the ground in "a lot" of blood, making gurgling noises as he struggled to breathe, so Wilder turned his head to the side to ease his breathing. The police and paramedics arrived shortly thereafter. An autopsy revealed that McNair died of a gunshot wound to the mouth.
On August 7, 2003, Thomas T. and M.L. discovered that the victim died from a gunshot and that the driver of a red coupe was suspected. Later that day at approximately 8:05 p.m., detectives at the Burlington County Prosecutor's Office and other law enforcement agencies executed a search warrant at Thomas T.'s residence in Cinnaminson where he resided with his mother and his stepfather. When they arrived, Thomas T. was not home, but his mother was present and called him on the phone to return home. The police recovered a green and yellow baseball cap with a Negro League Baseball Museum emblem on it.
Thomas T., then seventeen years old, returned. His mother gave the police officers permission to take him to the Prosecutor's Office to question him. Detective Michael Sperry of the Burlington County Prosecutor's Office Major Crime Unit and Detective Joseph Caruso of the Burlington City Police Department arrived at the Prosecutor's Office with Thomas T. at approximately 9:45 p.m. Thomas T.'s mother did not ride to the police station with her son because she had to work that night. She did not arrive at the Prosecutor's Office until 10:55 p.m.
Detectives Sperry and Caruso decided to interview Thomas T. without his mother. Initially, he provided no information related to the shooting. The police told him that they learned from his girlfriend that he had information about the August 5 shooting and was present when it happened. Thomas T. then agreed to give a tape-recorded statement summarizing his recollection of the shooting.
At 10:59 p.m., Thomas T. provided a recorded statement to the police. It concluded at 12:10 a.m. In his statement, he described the shooting incident and stated that defendant and M.L. told him that the victim was armed with a gun. He also stated that he took his mother's gun without her permission and without obtaining a permit.
Thereafter, Detectives Sperry and Caruso asked Thomas T. to conduct a consensual intercept. Detective Sperry testified that he explained to Thomas T. that the consensual intercept would enable the police to listen to and record his phone conversation with third parties.
After discussing the consensual intercept, Sperry and Caruso requested Thomas T. to call M.L. and defendant for purposes of listening to and recording their conversations. At 1:20 a.m., the detectives spoke to Thomas T.'s mother and asked for her permission to have her son conduct the consensual intercept because he was a juvenile. She agreed.
At 1:55 a.m., the officers supervised Thomas T. as he called M.L. to discuss the shooting and find a contact number for defendant, but M.L. was unavailable. The police took Thomas T. home between 2:30 to 3 a.m.
The following afternoon, at approximately 1:30 p.m., the detectives asked Thomas T. to contact M.L., defendant or both for purposes of the consensual intercept. Detective Sperry spoke to Thomas T.'s mother on the phone and again requested her permission to conduct another consensual intercept with her son. She agreed.
The detectives and Thomas T. returned to the Prosecutor's Office where Thomas T. contacted M.L., while Detectives Sperry and Caruso listened to and recorded the conversation. During the intercept, Thomas T. asked M.L., "So why T overreact like that, man? . . . Why he even pull that shit out, man?" M.L. believed that Thomas T. was questioning why defendant overreacted and pulled out a gun. M.L. then responded, "See, I don't even know 'cause [defendant] said [the victim] pulled out something. I seen it too." M.L. then provided Thomas T. with the pager number of "T." The police recorded the pager number and discovered that it belonged to Tivon Neals.
Thomas T. tried to contact T. twice. Thomas T. made the first phone call at 7:27 p.m. and left a numeric message in the page. At 7:29 p.m., he dialed T. again and left a voice message requesting a return phone call at a number provided by the police. At 7:50 p.m., T. called back and they spoke. Thomas T. recognized the voice on the other end of the phone as that of his friend T..
During the conversation between the two, Thomas T. mentioned that a shooting involving a red Eclipse was being broadcasted in the news. He stated, "I don't know how that shit happened, yo" to which defendant responded, "Nigger got the fever. (Laughing) That shit ain't no mother fucking play toy. You understand? . . . When it bangs on a nigger, it takes niggers out." The State contends defendant then made the following statement:
Word to mothers, so nahmean, I, nahmean? I didn't wanna do it but, at the same time, it's better him than us. Nahmean? It's better him than you. 'Cause that nigger had an ax. He was gonna give it to you. And I know he got, you know, got laid with something on his waist so, unless niggers took it off him, that's how they found him.
The State alleges the following colloquy occurred between Thomas T. and defendant:
[THOMAS T.]: I didn't even see that shit but son, yo, this shit crazy. I didn't even see that shit pull out, yo.
VOICE: Yeah, son. I had it in my lap, son.
VOICE: Fucking niggers nahmean? Niggers, I told niggers, yo, don't, nahmean? I ain't sleeping on niggers or whatever. Soon as, son, see, you see the black on that hammer,*fn6 nahmean, nigger hold some for a second and that's all it took, man. He out the game now, so, fuck him. Dead men don't talk. You know? Nahmean?
VOICE: No. No. Fuck that. What are, what're they gonna say? They need, son, the shell is out the game, the hammer's out the game.
[THOMAS T.]: Yeah. What'd you do with, what'd you do with that shit?
VOICE.: Shit, I threw that shell in the fucking woods, "B". That shit is out.
[THOMAS T.]: Oh, you threw it, you threw it in the City?
VOICE: Son, after we, no, we was in fucking, uh, Philly when that shit happened. Remember when you got on the mother-fucking causeway and just went through?
[THOMAS T.]: Oh, that bridge?
VOICE: Yeah. After that, son, this is like one. Nahmean? We went to Philly already. Nahmean? So fuck it. And then we just came back. . . . It was three niggers in the fucking car.
[THOMAS T.]: . . . you still got the broom handle,*fn7 son? Or you ditched that shit?
VOICE: Son, fuck, nigger, I didn't boost no mother fucking broom handle. Nigger, I got that shit. Them shit's too hard to come by to fuck around. . . .
VOICE: Nobody. I didn't see nobody. It was just dark. Fucking, what time was it? Fucking twelve/one o'clock in the morning almost. Nahmean?
VOICE: Yo, but also just, yo, just also just wipe down your little car and shit. Try to get, nahmean, make sure there ain't no mother fucking bullshit residue or nothing in there from no mother fucking, nahmean, the gun powder type shit. Just wipe it down. Put some nice little mother fucking turpentine, whatever you gonna do with it, and that shit.
[THOMAS T.]: This nigger died, yo. That nigger died, though, son.
VOICE: Well, he was weak then. Man, that was the only one. Nahmean?
[THOMAS T.]: He didn't have to die.
[THOMAS T.]: Yo, you shot that nigger in the face, though, son.
VOICE: Did I?
[THOMAS T.]: Yeah.
VOICE: You want me, you want me to cry for him, man? What if that've been you? 'Cause that's exactly what he would've did to you.
He'd've did the same fucking thing to you. Sacrifice for it.
VOICE: . . . Niggers did what they had to do to stay alive. You, you still breathing.
I'm still breathing. M[.L.]'s still breathing. . . .
[THOMAS T.]: My mom needs her gun.
[THOMAS T.]: My mom needs her hammer, though, man.
VOICE: She need that?
[THOMAS T.]: Yeah.
VOICE: Um, niggers gonna have to see about that in a minute. Just let shit chill for a minute.
[THOMAS T.]: My mom fucking, 'cause I know my, I think my mom get suspicious 'cause she asked me where it's at and shit. I was like I don't know what you're talking about.
On August 25, 2003, at approximately 6 a.m., Detective Sperry along with the Federal Bureau of Investigation's (FBI) S.W.A.T. team and the New York City Police Department, executed arrest and search warrants for defendant and M.L. at their respective residences. The FBI S.W.A.T. team knocked on the door, announced their presence and then broke it down. Someone observed defendant jumping out of a pull-out couch bed and running towards the balcony door.
As defendant ran onto the balcony, Officer William McGovern saw a flash and heard a loud noise. The officer saw another law enforcement officer on foot in front of defendant's building pointing and waving to a Nike shoe box. The Nike shoe box contained ammunition, two .45 caliber automatic Colt pistol cartridges, bullets, a Norenko nine millimeter semi-automatic pistol, .45 AC, and automatic Colt pistol bullets. The gun used to kill McNair was .45 caliber. The nine millimeter gun recovered from the Nike box was later identified as the weapon reported as missing by Thomas T.'s mother.
Defendant was arrested on the balcony of his apartment and placed in Sperry's custody. One of the law enforcement officers recognized defendant from his picture.
Detective Sperry helped defendant get dressed because he was handcuffed. Defendant asked Sperry if he could get his attorney's business card and Sperry told him he could get it at a later time. Sperry recognized defendant's voice as that of "T." on the August 8, 2003 recorded conversation with Thomas T.
Sperry took defendant to the police station and read him his Miranda*fn8 rights. Defendant stated that he understood the warnings. Defendant agreed to speak with the detectives but provided no information about the shooting. After speaking with detectives for approximately an hour to an hour and a half, defendant requested his attorney and the questioning stopped.
On appeal, defendant raises the following points.
THE JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE TAPE OF A MONITORED CONVERSATION THAT PURPORTEDLY TOOK PLACE BETWEEN THE DEFENDANT AND A JUVENILE.
BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT IT WAS THE DEFENDANT WHO MADE CERTAIN REMARKS ON THE CONSENSUAL INTERCEPT TAPE, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL (Partially Raised Below).
BY JOINING THE INDICTMENT ALLEGING RETALIATION WITH THE MURDER INDICTMENT, THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. Amend. VI, XIV; N.J. CONST. (1974), ART. I, Para. 9, 10.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE STATE TO ELICIT TESTIMONY REGARDING THE RECOVERY OF THE BOX CONTAINING A 9 MILLIMETER GUN NEAR THE APARTMENT BUILDING IN WHICH THE DEFENDANT AND A CO-DEFENDANT LIVED, THEREBY VIOLATING N.J.R.E. 404b AND DEPRIVING THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY ON IMPERFECT SELF-DEFENSE, AND TO EXPLAIN HOW IT MIGHT RESULT IN A VERDICT OF AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER RATHER THAN MURDER, DEPRIVED THE DEFENDANT OF DUE PROCESS AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. Amends. V, VI AND XIV; N.J. CONST. (1947), Art. I, Paras. 1, 9, AND 10.
THE PROSECUTOR KNOWINGLY PRESENTED FALSE TESTIMONY, IMPERMISSIBLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY, AND MADE A SUBSTANTIAL MISSTATEMENT OF FACT IN SUMMATION. THESE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST., Amends. V, VI, XIV; N.J. CONST. Art. I, Para. 10 (Partially Raised Below).
A. The Prosecutor Allowed His Witness to Present False Testimony Without Correcting It.
B. The Prosecutor Blatantly Misrepresented a Fact That W[ent] to the Heart of the Case.
C. By Telling the Jury That The Defendant Had Not Refuted The State's Evidence, The Prosecutor Both Attempted To Shift The Burden Of Proof And Commented On Defendant's Right to Remain Silent.
Defendant contends that Thomas T.'s consent to the consensual intercept was invalid because it was the product of police coercion or, at the very least, was given involuntarily. He argues that Thomas T.'s mother, or some other adult, should have been present during the interrogation of Thomas T. and that her absence rendered his statements to the police involuntary and inadmissible. Moreover, defendant argues that the State has offered no proof that Thomas T.'s mother consented to her son's participation in the consensual intercept and that the recorded conversations therefrom must be suppressed. Resolution of this issue requires us to consider the law governing telephone intercepts and the protocol governing interrogations of minors.
Defendant filed a motion to suppress the recordings of the intercept on the grounds that the State failed to prove that Thomas T. or his mother consented to the consensual intercept. Judge Almeida denied this motion and found that the intercepted telephone conversations between Thomas T. and defendant were admissible because the procedural requirements for a lawful consensual intercept were met. The judge also held that defendant offered no evidence in support of his contention that Thomas T. and/or his mother did not consent to the consensual intercept, thereby obviating the need for an evidentiary hearing.
Section Three of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-3, provides that any person who purposely intercepts any wire, electronic or oral communication is guilty of a third-degree crime. The Wiretap Act, however, provides certain exceptions. Specifically, N.J.S.A. 2A:156A-4c states:
It shall not be unlawful under this act for: . . . .
c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception[.]
Under the Wiretap Act, parents may consent on behalf of their children to a wire, electronic or oral communication intercept. This court has stated that a parent may vicariously consent on behalf of his or her minor child to a recording, provided that "'the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations. . . .'" D'Onofrio v. D'Onofrio, 344 N.J. Super. 147, 156 (App. Div. 2001) (quoting Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998)).
The New Jersey Supreme Court has also held parents should be present during police interrogation of their children. The Court noted that "[t]he role of a parent in the context of a juvenile interrogation takes on special significance." State v. Presha, 163 N.J. 304, 314 (2000) (citing In re Carlo, 48 N.J. 224, 240-41 (1966)). The Court also recognized the changing realities of juvenile crime, noting that many juveniles are charged with serious crimes and are subject to treatment as adults in the criminal justice process. Ibid. Now, the parent serves as an advisor, a supporter, and a buffer between the juvenile and the police. Id. at 314-15. Thus, the Court "reaffirm[ed] [its] belief that a parent or legal guardian should be present in the interrogation room, whenever possible." Id. at 315. Moreover, the absence of a parent from an interrogation is a highly significant factor when considering whether a statement given by a juvenile is voluntary. Ibid. Nevertheless, the presence of a parent or guardian is only one factor, albeit a highly significant one, among many factors that must be considered in any assessment of the voluntariness of a juvenile's statement. Ibid.
In Presha, the juvenile suspect was almost seventeen. His mother had accompanied him to the police station, she was present at the beginning of the interrogation and left the interrogation room at the request of her son. Id. at 317-18. In addition, she remained at the police station throughout his interrogation. Id. at 311. Coupled with the juvenile's extensive prior record and concomitant familiarity with the criminal justice system, the Court held that the juvenile's statement was voluntary, notwithstanding the absence of his mother. Id. at 318.
Notably, in State in the Interest of J.D.H., 171 N.J. 475 (2002), the Court held that Presha did not require the presence of the juvenile-suspect's parent or guardian when he was a party to an intercepted telephone conversation initiated by the victim. Id. at 481. The Court held that the protections highlighted in and afforded by Presha did not apply to situations in which the juvenile suspect was not in custody. Ibid.
J.D.H. also addressed whether the Wiretap Act authorized the interception of communications of juvenile suspects. The Court rejected the juvenile's contention that the statute did not allow a consensual intercept with a minor suspected of criminal conduct. Id. at 482.
The record supports Judge Almeida's findings. At the suppression hearing in August 2004 and at trial in January and February 2005, Detective Sperry testified that he obtained consent from Thomas T.'s mother prior to the consensual intercept. The State also submitted a Consensual Interception Authorization form, which documents that "[Thomas T.] (juvenile)" and "[mother]" were the consenting parties to the August 8, 2003 intercept attempt at 1:20 a.m. Detective Sperry's testimony about his procurement of Thomas T.'s and his mother's consent comports with the parties, date, and time noted on the authorization form. Defendant, on the other hand, offered no evidence to question the validity of the consents.
As noted, a parent may consent to recordings on behalf of a minor child. J.D.H., supra, 171 N.J. at 477. The parent or guardian of a juvenile should also be present during an interrogation. Presha, supra, 163 N.J. at 315. The absence of a parent or guardian is a highly significant factor in the assessment of all of the circumstances surrounding the interrogation. Ibid. On the other hand, the absence of a parent from the interrogation does not vitiate an otherwise voluntary statement. Id. at 308.
Here, Thomas T.'s mother met her son at the police station and gave her consent to the questioning and to the intercept. Undoubtedly, Thomas T.'s mother perceived that her son would benefit from cooperating with the police.*fn9 Indeed, the transcript of the intercepted call and his written statement betray no reluctance to participation in the call. Although the record does not suggest that Thomas T. was familiar with the criminal justice system, the record demonstrates that Thomas T. and his mother perceived that cooperation with police was in his best interest. The information provided by Thomas T. and his participation in the intercepted telephone calls have all of the hallmarks of voluntary undertakings.
Defendant argues that the State failed to prove that defendant is the individual who made inculpatory statements to Thomas T. on the consensual intercept tape on August 8, 2003. He maintains that segments of the tape are inaudible, that the transcript identifying Thomas T. and "T." as the speakers is confusing, and that a third voice heard on the tape created a reasonable doubt that defendant was the speaker on the consensual intercept. We disagree.
Before admitting an audio tape into evidence, the Court requires the State to make a preliminary showing that the speakers are identified and that "(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement." State v. Driver, 38 N.J. 255, 287-88 (1962).
Here, Judge Almeida found that the recorded conversation between Thomas T. and defendant was admissible because the State satisfied all five Driver requirements. In addition to the tape, portions of which are quoted in this opinion, Thomas T. and M.L. both testified that Thomas T. drove his mother's red car to Burlington City and that M.L. sat in the backseat while Thomas T. drove and defendant rode in the front passenger side. Both Thomas T. and M.L. admit that they, along with defendant, were present at York Street and Clarkson Street at approximately 12:30 a.m., the place and time that the victim was shot to death. Their testimony further explains the implausibility that either man was the shooter, leaving defendant as the only possible shooter.
Moreover, Thomas T. testified that he brought his mother's nine millimeter gun for show, that he gave it to M.L. and defendant on August 5, 2003, and that he never saw it again. Thereafter, his mother reported the gun missing. When the police executed the arrest and search warrant on defendant's apartment on August 25, 2003, the nine millimeter gun was found in a shoebox that defendant threw out of his apartment window. Also, the bullet shells of a .45 caliber gun were found, which coincided with the caliber of the gun used to shoot the victim.
Finally, Thomas T. and M.L. testified that defendant's nickname among themselves and a mutual group of friends was "T." Thomas T. identified the speaker on the intercepted call as defendant, the pager number used to contact was assigned to defendant and Detective Sperry testified that the voice on the tape of the intercepted call was that of defendant. In short, the weight of the evidence overwhelmingly supports a finding that the speaker on the consensual intercept who made incriminating statements was defendant.
Defendant maintains that Judge Almeida erred by granting the State's motion for joinder because joinder of the two indictments introduced evidence of criminal behavior other than the murder and weapons charges that was highly prejudicial.
Thus, defendant urges that the trial judge should have conducted a thorough analysis as required by N.J.R.E. 404(b) to determine whether the terroristic threat and retaliation charges would have been admissible in the trial of the murder charges and, if so, whether the prejudicial impact of the admission of evidence of those offenses outweighed their probative value.
Pursuant to Rule 3:7-6:
Two or more offenses may be charged in the same indictment . . . if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
Similarly, Rule 3:15-1(a) provides:
The court may order 2 or more indictments or accusations tried together if the offenses and the defendants, if there are 2 or more, could have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indictment or accusation.
The September 9, 2003 indictment charged defendant with first-degree murder; second-degree possession of a weapon for an unlawful purpose; and third-degree unlawful possession of a weapon. This indictment concerned the shooting of Nesbitt in Burlington City.
The second indictment against defendant was based on threatening statements he made to M.L., a State's witness, on August 19, 2004. On August 17 and 19, 2003, M.L. testified as a State's witness during a court-ordered deposition because he was potentially unavailable to testify at trial. M.L. testified that he called defendant "T" and that "T" was his nickname. M.L. then testified about the August 8, 2003 shooting as detailed in this opinion.
However, M.L. added that Thomas T. did not appear anxious when McNair was standing at the driver's window and reached toward his waist. M.L., like Thomas T., did not find this action alarming. M.L. also testified that he did not see a gun on McNair. From his vantage point, M.L. stated that he was able to see Thomas T. during his encounter with McNair and did not see Thomas T. with any weapons or fire a gun at any point. M.L. also testified that he did not see what defendant was doing because he had been focused on McNair and Thomas T.
M.L. further stated that he assumed defendant shot McNair, although defendant never admitted to it. Defendant also never denied shooting McNair. M.L. testified that he listened to the recording of Thomas T.'s conversation with different individuals and identified one speaker's voice as his own, one as Thomas T.'s, and the other as defendant's. M.L. also explained that he never actually saw McNair with a gun. Lastly, M.L. testified that he saw a nine millimeter gun laying around defendant's apartment and that defendant told him that he was keeping the gun because "they were hard to come by." On August 19, 2003, at the conclusion of M.L.'s testimony, Detectives Edward Zubrzycki and Harrison Dillard of the Burlington County Prosecutor's Office escorted him from the courtroom. As they walked past the table where defendant was seated, Zubrzycki heard defendant say to M.L. "wait until you get back up north." John Steedle, one of the sheriff's officers, heard defendant say "you faggot, when you get up north, you're going to get popped." M.L. and Detective Dillard stated that they did not hear defendant make any such comment.
Separate and distinctive crimes, the same or similar in character, may be joined for trial in the interests of judicial expediency and economy. However, where there exists a real "possibility of prejudice to [a] defendant, a trial severance of the offenses should be granted." State v. Reldan, 167 N.J. Super. 595, 597 (Law Div. 1979), rev'd on other grounds, 185 N.J. Super. 494 (App. Div.), certif. denied, 91 N.J. 543 (1982). A key factor in determining whether prejudice exists from joinder of multiple offenses "is 'whether, assuming the charges were tried separately, evidence of the offense sought to be severed would be admissible under Evidence Rule 55 [now N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Urcinoli, 321 N.J. Super. 519, 542 (App. Div.) (quoting State v. Oliver, 133 N.J. 141, 151 (1993)), certif. denied, 162 N.J. 132 (1999). "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Ibid. (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
In Urcinoli, supra, the defendant had confessed to killing his girlfriend to his uncle and his uncle was scheduled to testify against the defendant on that charge. 321 N.J. Super. at 523. While in jail awaiting trial, he conspired with another inmate to kill his uncle and the uncle's family to prevent him from testifying. Ibid. The State charged the defendant with conspiracy and attempted murder and these counts were joined to the murder charge. Id. at 541.
This court held that the trial judge did not abuse his discretion in denying the defendant's motion to sever the counts of the indictment because "[a] plan by defendant to kill his uncle or his family in order to prevent him from testifying would obviously be relevant as to motive on the charges of attempted murder and conspiracy to murder." Id. at 542-53. We further found that "evidence of each of the crimes is so interrelated as to be admissible at separate trials." Id. at 542. Furthermore, the defendant's "attempt and plot to kill [or intimidate] the witness or his family would also be admissible on the charge of murdering [the victim] since it would illuminate defendant's consciousness of guilt." Ibid. See State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.) (threats made by defendant to induce a witness not to testify are admissible to illustrate defendant's consciousness of guilt), certif. denied, 135 N.J. 468 (1994).
Defendant's threat to M.L. is admissible as evidence of a plan by defendant to intimidate M.L. to prevent him from testifying and relevant as to motive on the murder charge. Furthermore, it cannot be considered other crimes evidence subject to exclusion under N.J.R.E. 404(b) or a limiting instruction. Rather, the threat should be considered as evidence directly related to the underlying offense or res gestae evidence. State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div.), certif. denied, 130 N.J. 6 (1992).
Defendant argues that the testimony of Detectives William McGovern and Michael Wiltsey was "extremely prejudicial" and should have been excluded under N.J.R.E. 404(b). These officers were involved in defendant's arrest and the retrieval of the weapon. He contends that "evidence of [his] other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith." N.J.R.E. 404(b). Defendant suggests that the jurors could have drawn prejudicial conclusions and impermissible inferences about his character based on their testimony.
Defendant failed to raise this issue at trial. When this court considers allegations of trial error raised for the first time on appeal, a defendant must show plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. In other words, the error must raise a reasonable doubt as to whether it "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
In State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995), this court held that Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury. A jury "cannot be expected to make its decision in a void--without knowledge of the time, place and circumstances of the acts which form the basis of the charge." [Ibid. (citation omitted) (quoting U.S. v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)).]
We reasoned that testimony that "relates directly to the crimes for which defendant was then standing trial and its admission serves to paint a complete picture of the relevant criminal transaction." State v. Martini, 131 N.J. 176, 242 (1993), overruled in part by State v. Fortin, 178 N.J. 540 (2004).
Testimony regarding a "continuing course of conduct" is admissible as res gestae. Ortiz, supra, 253 N.J. Super. at 244. The nine millimeter gun and the .45 caliber bullets were evidence of defendant's continuing course of conduct because they link him to Thomas T's car and the shooting. Although the murder weapon was a .45 caliber semi-automatic handgun, Thomas T. testified that he had placed his mother's nine millimeter gun in the trunk of the car and that it was not there after the shooting.
The ammunition found at the scene of the arrest was compatible with the murder weapon. Moreover, on the consensual intercept the speaker admitted to possessing Thomas T.'s mother's nine millimeter gun and made inculpatory statements regarding the shooting of the victim. The testimony of Officers McGovern and Wiltsey about their discovery of the Nike shoe box and its contents was necessary to paint a complete picture of defendant's participation in the August 5, 2003 shooting.
Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevant evidence is generally admissible unless "its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury or undue delay or needless presentation of cumulative evidence." N.J.R.E. 403. The admissibility of evidence lies within the sound discretion of the trial judge. State v. Nelson, 173 N.J. 417, 470 (2002). The trial judge is accorded broad discretion in deciding whether to admit or exclude evidence because the judge is present at trial to observe the proceedings as they unfold. Ibid. Consequently, a trial judge's evidentiary rulings will not be disturbed unless the "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
The testimony of Officers McGovern and Wiltsey is relevant because it has a tendency to prove that defendant was present at the intersection of York Street and Clarkson Street at the time the victim was shot and killed. It links him to the murder weapon, and makes it likely that he is the speaker on the consensual intercept. The officers' testimony is not so highly prejudicial as to render their statements inadmissible.
Moreover, defendant had ample opportunities to object to the introduction of the officers' testimony at trial, but he neglected to do so and fails on appeal to allege any reasons why he was unduly prejudiced by such testimony.
Defendant contends that the Judge Almeida's refusal to instruct the jury on the concept of imperfect self-defense and how it relates to defendant's state of mind at the time of the shooting requires a new trial. In support of his arguments, defendant alleges that the victim leaned his head into the car occupied by defendant and that he was armed.
When a defendant raises error in the jury charge, an appellate court shall disregard such error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." Pressler, Current N.J. Court Rules, R. 2:10-2 (2007). Furthermore, the charge must be read as a whole. The court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973).
No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. Largey v. Rothman, 110 N.J. 204, 206 (1988). "The court should instruct the jury with respect to requests involving essential and fundamental issues and those dealing with substantially material points." State v. Green, 86 N.J. 281, 290 (1981) (citations omitted). "Generally, the judge is bound to comply with requests for instructions that correctly state the controlling legal principles in relation to the evidence, and concern the material issues and points of the case." State v. Spruill, 16 N.J. 73, 81 (1954).
In order to prove that the use of force or deadly force in self-defense is justifiable, a defendant must have an "honest" and "reasonable belief" that the use of "such force is necessary to protect himself against death or serious bodily injury." State v. Kelly, 97 N.J. 178, 198-200 (1984); State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997). On the other hand, "imperfect self-defense" is "'an honest subjective belief on the part of the [actor] that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable.'" State v. Tierney, 356 N.J. Super. 468, 483 (App. Div.) (quoting State v. Bowens, 108 N.J. 622, 630 (1987)), certif. denied, 176 N.J. 72 (2003).
New Jersey does not recognize the theory of imperfect self-defense as legal justification for the use of force. State v. Branch, 155 N.J. 317, 329 (1998). In State v. Williams, 168 N.J. 323 (2001), the Court specifically discussed the circumstances in which imperfect self-defense applies. The Court stated:
We agree entirely with the dissenters that if the jury found that Williams's belief in the need to use force in defense of his wife was honest but unreasonable, that belief could not serve to exonerate him of attempted murder and aggravated assault because we do not recognize "imperfect self-defense" in this State. But nothing in that conclusion eliminates the right of a defendant like Williams to challenge the proofs advanced on the State's case in chief by showing that he lacked the intention to use his weapon unlawfully. He had a right to show that he, in fact, was motivated by an honestly held but unreasonable belief that such force was required to protect his wife.
It simply does not follow that because Williams's honest but unreasonable belief could not exonerate him of attempted murder and aggravated assault, it did not bear on the State's burden to prove that he intended to use his weapon unlawfully. [Id. at 334 (citation omitted).]
At trial, Judge Almeida held that defendant was not entitled to an imperfect self-defense instruction on the murder charge, but agreed to so charge on the possession of a weapon for unlawful purpose charge. He subsequently charged the jury using the model jury instructions on aggravated manslaughter, reckless manslaughter, and self-defense. The charge delivered to the jury, read as a whole, accurately reflects controlling legal principles. Defendant was not entitled to an imperfect self-defense instruction on the attempted murder and aggravated assault charges. Ibid. Defendant was, however, entitled to an imperfect self-defense instruction about his state of mind on the lesser-included aggravated assault charge, and he received that instruction. See Bowens, supra, 108 N.J. at 641.
Defendant's final contentions that the prosecutor knowingly presented false testimony, impermissibly commented on defendant's failure to testify, and made substantial misstatements of fact are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).