On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 83-06-2297.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.S. Fisher and C.L. Miniman.
The State appeals by leave granted from an order on application for post-conviction relief (PCR) that vacated the judgment of conviction and ordered a new trial. This was the fourth PCR petition filed over the last twenty-three years by defendant Ajamu Shomari, who was formerly known as Craig Pristell and used the name Al Craig as a street name. Because we conclude that a new trial should not have been ordered, we reverse the order vacating the judgment of conviction.
Defendant was charged in a three-count indictment with murder, third-degree unlawful possession of a handgun and second-degree possession of a handgun for an unlawful purpose. His first trial ended with a hung jury and a second trial was conducted. Defendant was convicted on all three counts and was sentenced to life in prison on the murder conviction with no possibility of parole for thirty years. The third-degree gun charge was merged with the second-degree gun charge and he was sentenced to a term of ten years concurrent to his life sentence with no possibility of parole for five years. The sentence on the second-degree gun charge has been fully served. The issues presented on this fourth PCR are best understood in the context of the evidence proffered at trial.
On March 23, 1983, the victim, Eugene Richardson, was shot in the back and killed on North Ninth Street in Newark. At trial Eddie King, Jr., who gave a statement to the police on the day of the murder, testified that there was an incident that day between Richardson and Eddie King's brother, Ricky King. Ricky told Eddie that he was having problems with Richardson, who was accusing Ricky of stealing pills worth about $400. Ricky and Eddie were in front of their house with Eddie's friend when they entered a car and drove around the corner to meet co-defendant John Singleton, whom Eddie identified in court. Defendant, whom Eddie also identified in court, was driving a black Thunderbird with a burgundy top and burgundy interior and he pulled up to the curb down the street from where Ricky, Eddie and his friend were parked. Singleton was sitting on the passenger's side and the victim was in the back.
Defendant, Singleton and the victim got out of the car and walked over to Eddie, Ricky and their friend. Singleton spoke with Ricky and Eddie. Defendant was leaning against a wall with his hands in his coat pockets and was present during their discussion. The victim was standing five to eight feet away in an alley on the side of a bar, Hawk's Patio, on North Ninth Street. Two witnesses, Percilla Smith and Denise White, were standing nearby. Singleton, to whom the allegedly stolen pills belonged, told Eddie and Ricky that he knew Ricky did not steal the pills and that he knew that Gene had "beat him." Defendant then said "let's shoot the nigger." Singleton continued to talk to Eddie and Ricky and then Eddie went home. Smith, White and Ricky remained at the location of this discussion. Sometime later Ricky returned home and told Eddie that someone had been shot.
Smith testified that earlier in the day on March 23, 1983, she and Ricky, her boyfriend at the time, met her friend Denise White near Hawk's Patio. Ricky left and went to his mother's house, rejoining them later. While he was gone, defendant, Singleton and Richardson argued at the bar about a stash that had been stolen from Singleton. Smith heard Singleton say he "wanted his stuff" and that "you can't stick up a stickup man."*fn1
Richardson told Smith that "if Ricky has that boy's stuff, you better tell me because these boys is not playing." Richardson blamed Ricky for stealing Singleton's stash.
Smith went outside two or three minutes after the men left the bar and observed the continuation of the argument. When Ricky returned, she told him that Richardson was saying that Ricky had Singleton's stash and Richardson then began arguing with Ricky. Because Ricky was scared, he ran back to his mother's house with defendant, Singleton and Richardson in pursuit part of the way. Shortly after leaving Ricky returned to the scene of the argument with Eddie and his friend.
At some point while defendant and Singleton were outside, Smith overheard Singleton say he was "going to squeeze one off in [Richardson] if he don't get his stuff." The last time Smith saw Singleton and defendant they were walking down the block with Richardson. Smith walked around the corner and heard three shots fired but did not see what happened. No more than a minute had elapsed. She saw Ricky standing in the street and she walked down to see what happened and found Richardson laying on the sidewalk across the street from the bar.
White testified that she was present at the scene on the day of the murder and heard defendants arguing inside the bar. When they were outside, Singleton was telling defendant to "just forget about it" but defendant said "I am going to cap that nigger." The police arrived at the scene but soon left. White was talking to Singleton, telling him not to act stupid or be foolish. Defendant told Richardson, "I am going to mess you up . . . if you don't get my stuff." Then White saw defendant, whom she identified in court, take Richardson up the street. She saw that defendant had a gun. When White heard the first shot, she and Singleton ran.
Another witness to the shooting, Frank Marian, who was 61 at the time of the murder, also testified at trial. On March 23, 1983, he was repairing North Ninth Street in Newark after Public Service Electric & Gas Co. had repaired a gas line in the street. Marian heard shots and saw Richardson running toward him yelling that he had been shot. Richardson fell on the sidewalk at the foot of the machine where Marian was working. Marian looked in the direction of Richardson's path of travel and saw the smoke of the gun and two men, one in the street by the driver's side of a black Thunderbird and the other on the sidewalk by the passenger side of the car. The two men got into the car and took off in the direction of Orange Street. The driver had a gun. Marian was not able to identify defendant or Singleton in court. He could only testify that the two men he saw were black.
In addition to the assistant medical examiner, two police officers testified. The first was Detective Gary Miller from the Newark Police Department. He testified that he arrested defendant on April 27, 1983, at which time he seized defendant's black Ford Thunderbird. Singleton had been arrested the day before but had been a suspect since Eddie and Ricky gave statements to the police prior to the issuance of the April 5, 1983, warrant for Singleton's arrest. When Miller was recalled to the stand, the prosecutor showed him an address book that the police recovered from Singleton's person after his arrest. Miller testified that he got the telephone number of Al Craig from Singleton's address book, which led to the arrest of defendant. When defendant was arrested, he admitted that he used the alias of Al Craig. During cross-examination by Singleton's attorney, the following exchange, which is a predicate for the issues before us, occurred:
Q: And at the time you looked into the book prior to speaking to Mr. Singleton or did you speak to Mr. Singleton first?
A: We spoke to Mr. Singleton first.
Q: And after you spoke to Mr. Singleton, you noticed that there was the name of Al Craig in the address book, is that correct?
A: After he told us who the person involved - - - Defendant's attorney objected, citing Bruton*fn2 and Young.*fn3 The trial judge sustained the objection, but he did not instruct the jury to disregard the question and answer at that time. Immediately thereafter, defendant's ...