On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-08-2977.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Lisa, Lihotz and Simonelli.
Tried to a jury, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4a (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3a or 3b (count four); third-degree hindering apprehension or prosecution by concealment or destruction of evidence, N.J.S.A. 2C:29-3b(1) (count five); third-degree tampering with witnesses and informants, N.J.S.A. 2C:28-5a(1) (count seven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count eight).*fn1 After merging counts two and four with count one, Judge Millenky sentenced defendant on count one to thirty-five years imprisonment with a thirty-year parole disqualifier. On counts five and seven, the judge imposed four-year terms of imprisonment, and after merging count three with count eight, he imposed a term of seven years imprisonment with a five-year parole disqualifier on count eight. All sentences were ordered to run concurrently.
On appeal, defendant argues:
THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below).
THE TRIAL COURT ERRONEOUSLY EXCLUDED STATEMENTS OF DEFENDANT TO ALPHONSO HARRIS AND OF HARRIS TO INVESTIGATORS WHICH WERE ADMISSIBLE UNDER THE "OPENING THE DOOR DOCTRINE," THE "COMPLETENESS DOCTRINE," N.J.R.E. 106, AS PRIOR INCONSISTENT AND PRIOR CONSISTENT STATEMENTS, AND AS STATEMENTS UNDER THE STATE OF MIND EXCEPTION TO THE HEARSAY RULE.
THE TRIAL COURT PERMITTED AND FACILITATED THE INTERJECTION OF EXTRANEOUS CONSIDERATIONS INTO THE JURY DELIBERATIONS.
THE COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE EVIDENCE OF AN OTHER BAD ACT OF A DEFENSE WITNESS.
THE COURT IMPROPERLY PERMITTED IRRELEVANT TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT. (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
On the evening of May 31, 2002, four young men, all Camden residents and friends, went to a club in Philadelphia, Pennsylvania. They were defendant, Donnell Jakes, Jose Alvarez, and Angelo Lopez.*fn2 They went in Alvarez's car, a 1991 white Chevy Lumina. Defendant was wearing dark blue shorts, a white t-shirt, and a white "do rag." At the club, Jakes suggested that defendant was not able to hold his liquor, and the two argued. Alvarez and Lopez intervened. When the four men left the club, defendant and Jakes argued again over who should drive home, Jakes contending that defendant was too drunk to drive. Alvarez directed that defendant drive. During the trip, defendant and Jakes resumed the argument, calling each other names, and threatening each other. Jakes said to defendant, "you seen my work, Sixth Street," and defendant told Jakes, "you need my work," and, making a gesture with his hand and index finger in a trigger-like fashion, he said, "Pussy, I'll kill you," and "the reason why you are living right now is because I'm letting you live."
When the group returned to Camden, they made a stop at a bar, and then dropped Lopez off at his home. Defendant then stopped the car near the intersection of Pierce and North 26th Streets.
Defendant got out of the car and walked toward a nearby corner, while Alvarez and Jakes walked to a grassy area to urinate. Defendant had left the sight of the other men. Alvarez walked to the corner and looked up and down the block, but could not see defendant. Standing at the corner, Alvarez began yelling and screaming defendant's name. According to Alvarez, he was holding a bottle of Corona beer. While Alvarez was in that location calling for defendant, Jakes remained near the car.
A few minutes later, Alvarez saw defendant running down the block toward him. Alvarez asked defendant for his car keys. When defendant ran past Alvarez, he shoved the keys at Alvarez and continued on toward Jakes.
When defendant reached Jakes, he began to talk to him, then put his arm around Jakes's shoulders, hugged him and began walking in Alvarez's direction. Suddenly, defendant spun around, removed a gun from his pocket, and shot Jakes twice in the head at point-blank range. When Jakes fell to his knees, defendant fired one more shot. It was later determined that two gunshot wounds entered Jakes's head near his right ear, causing his death. The third shot grazed the front of his throat.
Defendant lived in the immediate area with his father, Alphonso Harris, at 1123 North 26th Street. When a backyard light turned on, defendant ran up Pierce Street around the corner and down North 26th Street, in the direction of his home.
Alvarez got into his car and circled the area for twenty to thirty minutes to see if Jakes was getting help. Alvarez claimed that when he saw police arrive on the scene, he left the area rather than talking to them because he was on parole and did not want to be caught out after hours.
The shooting occurred in the early morning hours of June 1, 2002, between 3:00 and 3:30 a.m. Later that morning, defendant approached Alvarez in Alvarez's backyard, and asked him if he had talked to anyone about what happened the night before. He told Alvarez, "we been friends for a long time, I know where you rest your head at, and I know where your son go to school at." Alvarez interpreted those comments as a threat. Defendant left.
Alvarez later told his sister what happened and, on her advice, Alvarez went to the prosecutor's office on June 3, 2002, and told them about the shooting. He consented to have his car searched, and he agreed to place a cell phone call to defendant and allow investigators to record the conversation.
Throughout the conversation (the tape recording of which was played for the jury and placed in evidence, along with a transcript, which is in the appellate record), defendant repeatedly told Alvarez that he wanted to meet with him in person. He suggested they needed to get their stories straight. At the beginning of the conversation, Alvarez accused defendant of "pop[ping] that boy," but defendant denied it. Later, Alvarez said, "You wild out on the kid you know what I mean?" Defendant responded, "True and deed now listen." Using street jargon, defendant asked Alvarez if the phone was tapped. Defendant commented that his family had already called a lawyer. Again using street jargon, Alvarez asked defendant whether he threw the gun away, to which defendant responded, "Hell yeah!"
Alvarez met again with investigators on June 12, 2002, and gave a further statement, acknowledging that some of the information he had previously provided was not accurate, including where he was standing when the shooting took place. Alvarez testified for the State at trial, relating the events in the manner as we have described them.
Lopez also testified for the State. He described the argument between defendant and Jakes regarding who would drive home. According to Lopez, defendant said to Jakes, "I'm letting you live right now. I'll kill you." Lopez said that he and Alvarez tried to make peace, but defendant continued to instigate a fight with Jakes.
Three individuals who lived in the immediate area of the shooting testified for the State. David Monserrate said that at about 3:00 a.m. on June 1, 2002, he heard someone on the corner outside screaming, calling out for someone. He looked out his window and saw a heavy-set black man wearing jean shorts, a white shirt and a white hat walking down 26th Street toward the corner. A few minutes later, he heard four gunshots. He then saw the same individual running up the street in the opposite direction. When Monserrate looked out his back window, he saw Jakes lying on the ground.
Paul Rodriguez woke up around 3:30 a.m. when he heard dogs howling. Almost immediately, he heard three gunshots. He looked out his window and saw a white, four-door car parked near his house. An individual hurriedly got into it and drove away. Aida Rodriguez testified that she heard and saw the same thing. She added that after the police arrived she saw the white car driving slowly around the neighborhood, passing nearby three times, turning its headlights off as it neared the crime scene.
Investigator Ronald Moten of the Camden County Prosecutor's Office went to the crime scene. He found an empty shell casing near Jakes's body and a Corona beer bottle with some beer still in it across the street. Efforts to obtain fingerprints or DNA evidence from either item were unsuccessful. No murder weapon was ever recovered, and an examination of Alvarez's car produced no relevant evidence.
According to defendant's father, Harris, he heard defendant come in around 3:00 a.m. He went downstairs and saw defendant eating a snack at the dining room table. Because defendant was intoxicated, Harris helped him up to his bedroom, took his sneakers off and "almost put him to bed." He later checked on defendant several times, but defendant was "out like a light." When Harris woke up later that morning, defendant was gone.
Two days later, Harris learned that defendant was staying with defendant's cousin in Philadelphia. On that day, Harris went to Philadelphia to meet with defendant, who told him Jakes had been killed and there were rumors that defendant was involved in the death. Defendant told Harris he and Jakes had been arguing on the night of the murder and he had threatened Jakes. He explained, however, that the argument did not "go anywhere" and he did not shoot Jakes. He said Lopez started rumors about his involvement in Jakes's death by telling people about the argument. Defendant told his father he did not want to go to the police because it "was the summer time and he didn't want to be locked up," and he would "pay up when they catch up."
The investigation went cold for about six months, until December 12, 2002, when investigators learned defendant was in custody on unrelated charges in Vineland. Moten and another investigator went to Vineland to talk to defendant. As they entered the interrogation room, defendant blurted out, "I don't own a gun now and I've never owned a gun." He continued, "Donnell and me not only argued at the club -- Club Adrenaline that night, but we -- but we had several arguments and we made peace and everything was dobby." He said he would never shoot his friend over something as trivial as who was driving the car. He said that Jakes's family "kicked my door in looking for me and that was -- and that is why I moved my family out of Camden."
Defendant did not testify at trial. He called his father as a witness. Harris testified that no one threatened him in connection with Jakes's murder and no one kicked in the door of his home, where he and defendant lived. When asked if he ever told police that defendant complained about being threatened, Harris responded: "This is why Omar wasn't coming back --that's why he didn't come home." He admitted, however, that he never told the police that defendant was threatened.
The defense strategy at trial was to attempt to raise a reasonable doubt that defendant killed Jakes by ...