On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-10-1054 and 03-10-1055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Lintner, Parrillo and Sabatino.
In October 2003, a Union County Grand Jury returned Indictment No. 03-10-1055, charging defendant Isaiah Hunter with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count One); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); third-degree aggravated assault (bodily injury), N.J.S.A. 2C:12-1b(2) (Count Three); second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Four); second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Five); third-degree aggravated assault (attempt to cause bodily injury), N.J.S.A. 2C:12-1b(2) (Count Six); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (Count Seven); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Eight); and second-degree witness tampering, N.J.S.A. 2C:28-5a (Count Nine). A Union County Grand Jury also returned Indictment No. 03-10-1054, charging defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Defendant's pretrial motions to dismiss both indictments and for a Wade*fn1 hearing were denied. A jury trial commenced on October 5, 2004. On October 6, 2004, the jury returned its verdict, finding defendant guilty on Counts One, Two, and Three and not guilty on the remaining charges on indictment 03-10-1055. After defendant's first motion for new trial was denied, he entered a plea of guilty to indictment 03-10-1054 charging him with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Defendant's second motion for new trial was denied, following which the judge imposed a five-year term on the Count One conviction, a seven-year term with three and one-half years of parole ineligibility on the Count Two conviction and a five-year term on the Count Three conviction. The terms for each count were run concurrently with one another. On the guilty plea, the judge imposed a concurrent seven-year term with a five-year parole disqualifier. Defendant appeals. The State concedes that the judgment of conviction on Indictment 03-10-1055 failed to reflect defendant's 1003 days of jail credit. We affirm defendant's conviction but remand for correction of the judgment on Indictment 03-10-1055 to reflect defendant's 1003 days of jail credit.
On March 8, 2000, Benjamin Walker had a barbeque at his house on 969 West Third Street in Plainfield. At approximately 3:30 p.m., Walker saw Mack Brown and defendant arguing in the street. Walker knew defendant for approximately twelve years from high school. Walker testified that he watched the two men walk up the street approximately one block to a park. Although Walker did not see what happened at the park, he stated that Brown beat up defendant and that "[b]y the time [Walker] got to the middle of the block [Brown] was already coming back." On cross-examination, Walker stated that "[i]t was obvious" that Brown had "beaten up" defendant because Brown "was chanting 'Yo.' He knocked him out two punches." From that, Walker figured Brown had won.
Walker and Brown returned to Walker's house. Walker did not see where defendant went. Later, however, while standing on his porch, Walker saw defendant riding a bike up West Third Street towards his house. At the same time, Brown was standing by a fire hydrant located on the corner of the intersection at West Third Street and Monroe Avenue, in front of Walker's house. From a distance of twenty feet away, Walker saw defendant "kind of stumble off the bike" and "start shooting." According to Walker, defendant pointed an automatic gun at Brown from a distance of ten feet and fired two shots. The first shot missed but the second shot hit Brown "[b]ecause he fell." After defendant shot Brown, he ran south on Monroe Avenue. Walker ran through his house and saw defendant running through two backyards. Walker then ran back to the front "grabbed [Brown] . . . got in the car and . . . went to the hospital."
Walker gave a statement at police headquarters on the day of the shooting. On March 10, 2000, he went to the Plainfield Police Department and met with Detective George Jimenez. Detective Jimenez showed Walker a photo array from which Walker identified defendant as the shooter. Out of the six photos displayed, Walker recognized two other individuals besides defendant. Initially, Walker told the police that "Alwal" shot Brown and clarified at trial that Alwal was defendant's "street name."
On cross-examination, defendant brought out that Walker's March 8 statement did not indicate that the shooter was riding a bicycle. Although Walker's March 8 statement indicated that he did not know why Alwal shot Brown, he testified at trial that "[t]he shooting was due to disrespect."
On the morning of March 21, 2000, Walker saw two men in front of his house. The men asked Walker why he was "ratting" and "telling on Alwal." Walker responded by denying having talked to detectives and told the men to "[k]eep going." Walker then "kept going on with [his] daily routine" when he noticed defendant and another individual in a nearby alleyway. Walker stated that defendant and the other individual pointed guns at him and as Walker ran through a gate, he heard seven to ten shots. Walker continued to run to a nearby park and did not return home. Although Walker did not immediately report this incident to the police, he did inform them about it in a May 2003 statement given to the Union County Prosecutor's Office.
The only other witness at trial was Detective George Jimenez of the Plainfield Police Department. Jimenez and his partner, Detective Larry Brown,*fn2 "heard an open radio broadcast of shots fired at the area of Monroe and West Third Street and that the victim had been transported to Muhlenberg Hospital . . . ." Jimenez and Detective Brown went to Muhlenberg Hospital where Jimenez spoke with Brown. Brown told Jimenez that "he had been shot in the knee and he briefly described the actor . . . as a tall, light skinned black male." Brown told him that he did not know who shot him. He did not indicate the shooter's name nor that he had had a fight with the person who shot him.
Jimenez went to the scene where police had located two shell casings and a bullet. No fingerprints were ever taken off the shell casings because he "sen[t] the shell casings out for ballistics testing" and "didn't want to disturb them prior to that." Jimenez and Detective Brown conducted a neighborhood canvass but did not locate any witnesses. They learned that Walker was a witness to the shooting and had been transported to headquarters, where he had given a statement.
The following day, Jimenez and Detective Brown returned to the scene and spoke with several people. After obtaining defendant's name as a possible suspect, Jimenez prepared a six-photo array, which included defendant's photo. Jimenez then went to Muhlenberg Hospital where he showed Brown the photo array. Brown "immediately identified [defendant] as the shooter . . . the person that shot him on March 8, 2000."
Jimenez corroborated Walker's testimony regarding the March 10, 2000, photo array at headquarters. On May 6, 2003, Detective Jimenez, who was then employed by the prosecutor's office, took the additional statement from Walker respecting both the March 8 and the alleged March 21, 2000, shootings.
On appeal, defendant raises the following points:
THE COURT ERRED IN NOT DISMISSING THE INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT BY MISLEADING THE GRAND JURY.
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL IN LIGHT OF COURT'S FAILURE TO GRANT DEFENDANT'S [CLAWANS] MOTION, WHERE THE WITNESS WAS NECESSARY TO ASSIST THE JURY IN PROPERLY EVALUATING FACTS REGARDING IDENTIFICATION.
THE TRIAL COURT ERRED IN NOT ALLOWING DETECTIVE [JIMENEZ] TO TESTIFY TO STATEMENTS MADE BY [MACK] BROWN IN HIS POLICE REPORT AS BEING INADMISSIBLE HEARSAY.
THE COURT ERRED IN NOT DISMISSING THE INDICTMENT DUE [TO] UNREASONABLE DELAY IN THE ...