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State v. Myrtle

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOEL MYRTLE, JEAN, JOE, JONAL, MYRTIL, MYTIL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1941.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Parrillo, Gilroy and Baxter.

Following a ten-day jury trial, defendant Joel Myrtle, who represented himself, was convicted of the first-degree murder of Diana Ahiahornu, N.J.S.A. 2C:11-3(a)(1), (2). He was sentenced to a term of thirty years of imprisonment with no possibility of earlier parole.

Defendant, again pro se, appeals, challenging his judgment of conviction on numerous grounds including 1) the prosecutor improperly instructed an investigator to testify at trial that defendant's palm print had been found on Ahiahornu's automobile; 2) investigators took possession of defendant's suit for testing purposes without his consent; 3) defendant was improperly precluded from cross-examining the State's investigators at trial; 4) defendant was denied a fair trial because the jury was not randomly selected; 5) defendant's initial counsel improperly abandoned him during the hearing on defendant's motion to suppress certain evidence; 6) the trial court erred in denying defendant's motion to suppress certain evidence; 7) an investigator tampered with a defense witness at trial; 8) defendant's conviction should be reversed because it is purportedly based, in part, upon a forged document; 9) an investigator testified falsely at trial concerning the home address of Ahiahornu and her mother; 10) the trial court erred in precluding defendant from addressing a particular topic during his cross-examination of a prosecution witness; and 11) the trial court erred in precluding "defendant's key witness" from testifying at trial. We affirm.

The events leading to Ahiahornu's bludgeoning death on August 6, 2000 occurred earlier that summer when defendant, a native Haitian who emigrated to the United States in 1982, was forty-five years old and his victim, who emigrated from her native Ghana in 1998, was thirty-one years old. According to the State's proofs at trial, Ahiahornu lived with her parents, William Damakloe and Martina Attipoe, in an apartment building in Newark. She worked as a security guard at the Newark Museum, and also attended classes at a college, where she was studying to be a nurse.

Ahiahornu attended services at the Love of Jesus Family Church in East Orange on Sunday evenings in 2000. Defendant also attended the church, where he met Ahiahornu. Prior to purchasing her own car in July 2000, Ahiahornu rode to church with George Ukandu, her co-worker at the Newark Museum, whom she had invited to attend weekly sessions back in January 2000.

Ukandu had not known defendant until one Sunday evening in mid-June when defendant sat next to Ukandu during church services and, while Ukandu was praying, asked him where Ahiahornu was, obviously aware that she usually rode with Ukandu to church. Earlier that evening, Ukandu had driven to Ahiahornu's apartment to pick her up, but when she did not appear, he proceeded to church without her. Pressing Ukandu as to her whereabouts, defendant explained that he had an "appointment" to meet with Ahiahornu that evening. When defendant refused to accept Ukandu's explanation that he had not seen Ahiahornu that day, Ukandu angrily ended the conversation.

Ukandu told Ahiahornu about the incident the next day at work. However, she "denied she has [any] friend in the church." When Ukandu described defendant, Ahiahornu "started laughing and say [sic] that the man calls her house on the phone, and they talk on the phone, and they had no formal arrangement to meet at church that day." Yet, Ahiahornu never mentioned defendant's name, apparently because she did not know it.

Following that incident, Ukandu and Ahiahornu arranged that he would sit two rows behind her at the church services at the next Sunday evening service in late June 2000, so he could observe defendant's actions toward her. On that evening, Ukandu saw defendant approach and sit beside Ahiahornu and that "both of them talked all through the service time," even though Ukandu had never seen them together at the church before. At the end of services, Ahiahornu told Ukandu that "the Haitian man" had offered to drive her home, but Ukandu persuaded her to decline the offer, pointing out that neither she nor her mother (Attipoe) knew defendant very well. Ahiahornu then informed defendant that she would be riding home with Ukandu.

Actually, Attipoe had met defendant on two occasions prior to her daughter's death. On the first occasion, she and Ahiahornu were at a bus stop, when defendant drove up and offered them a ride to their destination. Ahiahornu introduced defendant to her mother as a member of her church, and the two women entered defendant's car and were driven by him to their destination.

On the second occasion, Ahiahornu's car had broken down in the church parking lot and defendant, who was an automobile mechanic, volunteered to repair it. After he fixed the car, defendant followed her home at her request to make sure that she arrived without problems. Attipoe met defendant in the apartment's parking lot, when he and Ahiahornu returned the car to Ahiahornu's parking space.

Another time during the summer of 2000, defendant telephoned Attipoe and told her that he was dropping off a letter for her daughter at the apartment building's security desk. However, Ahiahornu returned to the apartment earlier and retrieved defendant's letter herself. She later showed Attipoe defendant's letter, which she described as a "marriage proposal letter." On yet another occasion, defendant also sent her a greeting card containing a marriage proposal.

On Saturday evening, August 5, 2000, Attipoe overheard a ten-minute telephone conversation in which Ahiahornu and defendant were obviously arguing. Attipoe heard her daughter shouting "no, no, no" in the course of the argument.

The next evening, Sunday, August 6, 2000, Ahiahornu drove herself to church services at 8:00 p.m. Ukandu was also present, having arrived late and seating himself two rows behind Ahiahornu, who was seated between two women. They did not communicate that evening other than when she waved to him during the "call to prayer." When the service ended at 11:00 p.m., Ukandu left the church and drove away without ever seeing defendant in church or Ahiahornu leave the church that night.

Ahiahornu did indeed drive home later that evening and parked her car in the parking lot area assigned for residents of her apartment building. At the time, Betty Powell, a resident on the seventh floor of a nearby apartment building, was sitting by a window in her apartment. From this vantage point, she had a view of the well-lit parking lot where she saw Ahiahornu's car enter, only about a thousand feet away. Powell heard a "death scream" from the direction of the car and saw a tall, slim black man with a "close haircut" and wearing a beige shirt exit from the car's passenger side front door. The man peered into the car and then ran away.

Powell called a security guard and the two of them went to the car, where they found Ahiahornu unconscious, bleeding profusely, and "lying part in and part out of her car." Ahiahornu was transported to a hospital, where she died the next day. An autopsy revealed that the cause of her death was blunt force trauma to her head, as represented by six deep wounds on her scalp that resulted in multiple fractures in her skull.

The police investigation was headed by Detective Vincent Vitiello of the Newark Police Department and Investigator Nicole Berrian of the Essex County Prosecutor's Office. Following the autopsy, the medical examiner gave Vitiello and Berrian a "DNA card" that contained a sample of Ahiahornu's blood to be used in later DNA analysis, and as well a vial of Ahiahornu's blood for the same purpose.*fn1

Vitiello took the vial of Ahiahornu's blood to the police department's "evidence refrigerator," where it was stored, along with other items related to the autopsy. These items, including the DNA card, were subsequently sent to the New Jersey State Police Forensics Laboratory for analysis.*fn2

Vitiello's and Berrian's attention soon turned to defendant after Attipoe provided them with the marriage-proposal letter and greeting card that he had sent to Ahiahornu. On August 8, 2000, the two officers went to defendant's apartment, where they informed him that Ahiahornu had been brutally murdered two days earlier. Defendant's emotionless response and lack of curiosity "definitely piqued" the officers' interest.

Defendant agreed to accompany them to police headquarters to provide a formal statement. While defendant was changing his clothes prior to leaving, Berrian observed a newspaper on a coffee table, opened up to "an article about Diana Ahiahornu's death." Apparently, then, defendant was aware of Ahiahornu's death even before the two officers told him about it, which was at odds with his later statement implying that he first learned of Ahiahornu's death from the officers on their visit to his apartment.

Later at the police station, after he was advised of his Miranda*fn3 rights, defendant gave a signed statement, wherein he said that he had attended Sunday church services on August 6, 2000, was seated beside Ahiahornu during those services, and was wearing "a light black suit, brown shirt, black and white tie, and black shoes." He admitted to being "[v]ery friendly" with Ahiahornu, but denied any sexual relationship with her. In fact, he "wished to marry her," but had not yet proposed. Defendant also indicated that Ahiahornu appeared to be bothered by something while at church, but she did not discuss any of her concerns with him. He further stated that Ahiahornu had told him that she was "involved with a guy," but she provided no other details.

According to defendant, church services ended around 10:45 p.m., after which Ahiahornu entered her car alone and drove away. Defendant drove back to his apartment and did not leave during the night. At that late hour, he watched a documentary that had been televised in place of a program he usually watched at that time called "West 54th Street" on Channel 13.*fn4

After his written statement, Berrian and Vitiello asked defendant to take a polygraph test and provide a blood sample for DNA analysis. Defendant at first agreed, but later changed his mind. He was then driven back to his apartment.

Two-and-one-half weeks later, on August 28, 2000, Vitiello and Berrian returned to defendant's apartment and asked him to accompany them to the police station to provide buccal or cheek swab samples for DNA analysis and whole-hand prints for comparison with a palm print that had been lifted from one of the windows in Ahiahornu's car. Defendant agreed to the investigators' request, accompanied the officers to the police station, provided the samples, and was taken back to his apartment.*fn5

Shortly thereafter, the officers realized that they had neglected to ask defendant to provide them the clothing that he had been wearing at church on the evening of August 6, 2000. Berrian then telephoned defendant and asked if they "could come and get" the clothing. After defendant agreed to the request, the officers returned to defendant's apartment building where they were met by defendant in the driveway, carrying an olive-drab colored suit.*fn6 Berrian, who was in the car's front passenger seat, rolled down the window and was told by defendant that the suit was the one that he had been wearing at church service on August 6, 2000. According to both Vitiello and Berrian, defendant then gave Berrian the suit, she thanked him, placed the suit in a paper bag, and the two officers drove away.*fn7

Two days later, on August 30, 2000, Berrian delivered the suit, buccal swabs, and the items gathered from Ahiahornu's autopsy, including the DNA card with Ahiahornu's blood sample, to the State Police laboratory for analysis. That analysis took about six months. Two blood stains were found on the left side of the suit pants; one stain was located on the waistband and the other on the pocket lining. Both blood stains could be seen with the naked eye. Appropriate cuttings were made from the pants fabric and subjected to DNA testing. As a result of that testing, it was determined that the blood that stained defendant's suit had come from Ahiahornu. Based on the results of the DNA testing, defendant was arrested on February 21, 2001 for Ahiahornu's murder.

(I)

(A)

Defendant first argues that his constitutional rights were violated when the prosecutor instructed Berrian to testify falsely at trial. This contention is completely devoid of merit.

The contention centers on a palm print that was found on one of the windows of Ahiahornu's car, which Vitiello clearly testified at trial did not match defendant's palm print, and arises from the following questions posed to Berrian by the prosecutor:

[PROSECUTOR:] Was there any . . . direct evidence saying that the print that was found on the victim's car was made by her killer?

THE COURT: Do you understand the question?

[DEFENDANT:] Objection, your Honor.

THE COURT: Sustained.

[DEFENDANT:] I object, your Honor.

THE COURT: Sustained.

[BERRIAN:] I'm not quite certain what it is.

THE COURT: Ma'am, sustained anyway.

[PROSECUTOR:] Now, do you know when the print was - - let me ask it this way. The print that was found on the victim's car, do you know when it was made?

[BERRIAN:] No, sir.

[PROSECUTOR:] Could you tell this jury that it was made by her killer on the night of her death?

[DEFENDANT:] Oh, your Honor, object to that.

THE COURT: Sustained.

[(emphasis added).]

Defendant contends that the prosecutor's question to Berrian -- "Could you tell this jury that it [the palm print on the car] was made by her killer on the night of her death?" --was actually a command to Berrian to tell the jury that the palm print had been made by defendant specifically, who was thus Ahiahornu's killer. Defendant is mistaken.

First, the question posed to Berrian by the prosecutor is just that, a question, and could not reasonably be construed as a command, much less an explicit directive to Berrian to testify that the palm print came from the killer, that the palm print belonged to defendant, and that defendant was therefore Ahiahornu's killer. Indeed, nothing in the structure or content of the question supports defendant's gloss.

Second, the question did not identify defendant either as the person who left the palm print on the car or as Ahiahornu's killer. Instead, the prosecutor's question referred only generally to the palm print and to the "killer," without any explicit connection of the two with defendant. Clearly, the purpose of the question was, as the State explains, "to elicit testimony to support its theory that the palm print could have been left by anyone at anytime and that defendant cannot be exonerated by the mere fact that the prints did not match."

Third, Vitiello had previously testified that the palm print lifted from Ahiahornu's car did not match defendant's palm print and thus, it would serve no purpose for the State to offer a contradictory, inconsistent theory. And last, even assuming such an alternate theory, there was no prejudice to defendant because there was an entirely plausible explanation for the presence of defendant's palm print on the car, having previously repaired it; and moreover nothing in the record ties the palm print to Ahiahornu's killing, since the palm print apparently was not made from her blood. Thus, defendant's contention fails.

(B)

Defendant next contends that his constitutional rights were violated when the officers "forcefully" took possession of his suit, and that this "warrantless seizure" was compounded by the State's subsequent removal of the victim's blood from the vial and placing it on the clothing. We reject the contention as equally meritless.

At the suppression hearing, Berrian testified that defendant agreed to give her the suit, whereupon she and Vitiello drove to defendant's apartment building and defendant met them in the building's driveway, carrying the suit. Berrian rolled down the passenger-side window and inquired if that was the suit, and defendant replied that it was. Defendant then "passed me the suit, I put it in the brown paper bag and I said thank you and left." Berrian explicitly denied that she "snatched" the suit from defendant's hands as he showed it to her.

In contrast, defendant testified at the hearing that one of the officers telephoned him and asked if they could "see" the suit that he wore on the night that Ahiahornu was murdered. According to defendant, when the two officers arrived, he showed them the suit, Berrian took it from him and handed it to Vitiello, who dropped it on the seat between the two, said they were "going to send it to the lab," and then "took off" before defendant could protest. According to defendant, he voluntarily handed the suit to Berrian for the officers' immediate examination, but did not intend to turn over possession of the suit.

Evidently crediting the State's proofs, the judge denied defendant's suppression motion, and we obviously defer to his credibility determination and findings of fact. See State v. Locurto, 157 N.J. 470-71 (1999). This is particularly so since defendant's account on appeal differs from his own sworn version at the suppression hearing. Specifically, he now alleges that Vitiello, apparently without any help from Berrian, "forcefully grabbed" or "snatched" the suit from his hands and drove away rapidly. Moreover, nowhere in his motion testimony did defendant ever assert that when he "voluntarily" handed over the suit to Berrian, he told her that he was giving her the suit only for her immediate and temporary perusal. Under the circumstances, there was no error in concluding that defendant voluntarily handed over the suit pursuant to the officer's request.

(II)

Defendant next argues that the trial court violated his right to represent himself by precluding him from cross-examining Vitiello and Berrian at trial. We reject this argument as well.

Some background is in order. At the commencement of trial, defendant represented himself pursuant to a knowing and voluntary waiver of his right to counsel, and his attorney was designated as standby counsel. On the second day of trial, however, defendant asked that counsel conduct the remainder of defendant's cross-examination of Vitiello, which counsel did. In response to a question from the trial court, defendant stated both that his decision to allow counsel to cross-examine Vitiello was voluntary and that he understood that he (defendant) remained the defense attorney of record.

A short time later, defendant rescinded his request to represent himself and asked that counsel be allowed to assume the role of the attorney of record for the defense. The trial court granted defendant's request, after determining that defendant's request for counsel's representation was voluntary and the product of defendant's own free will. Significantly, defendant indicated to the judge both that he had no "objection to the fact that [counsel] questioned Detective Vitiello" and that he was "satisfied" with the cross-examination that counsel conducted. When asked why defendant wanted counsel to represent him at that time, defendant indicated that it would be in his "best interests" if counsel did so and that counsel could do a "thorough job." Thereafter, counsel cross-examined State's witness Ukandu, following which the State began its direct examination of Berrian.

On the next trial day, defendant requested that he be permitted to act as his own attorney again, accusing counsel of lying to him, which counsel denied. After finding that defendant was again knowingly, voluntarily, and intelligently waiving his right to counsel, the trial judge allowed defendant to represent himself with counsel again acting as standby counsel.

At that juncture, the State continued its direct examination of Berrian, following which defendant began his extensive cross-examination of her. After Berrian left the witness stand, the judge inquired of defendant whether he had had a "full and fair opportunity" to cross-examine her, to which defendant responded in the affirmative. Additionally, defendant expressly indicated that he was "satisfied" that he had been given sufficient time by the court to conduct his cross-examination of Berrian. Subsequently, defendant called Berrian as a defense witness, questioning her again, this time on direct examination.

On appeal, defendant essentially argues that, pursuant to "a pre-planned scheme to dupe defendant and to take control of the trial," his right to represent himself was violated when counsel became the defense attorney, thereby precluding defendant "from questioning the State's witnesses Nicole Berrian and Vincent Vitiello."

As is apparent from the record, defendant's contention is baseless. The record reveals that defendant knowingly and voluntarily requested counsel first be allowed to cross-examine Vitiello and then be permitted to act as defense counsel; that defendant was pleased with counsel's performance in cross-examining Vitiello; and was later satisfied that the trial court had provided him (defendant) with ample opportunity to question Berrian.*fn8

(III)

Defendant next argues that the trial court erred when it purportedly personally selected fourteen women in the jury box initially as potential jurors, rather than randomly selecting the initial fourteen jurors without regard to gender. This argument also fails.

The contention was first raised at sentencing when defendant alleged that the trial judge had conspired with several other persons, including the prosecutor and standby-counsel to place twelve women as the first twelve jurors in the jury box. The trial judge responded by referring to his notes and pointing out that the first fourteen persons who were seated in the jury box were four men and ten women. Furthermore, the judge represented that defendant had subsequently used nine of his twenty peremptory challenges to exclude males from the jury, and defendant admitted that this was so.

Defendant offers nothing more on appeal.*fn9 In any event, defendant's assertions of gender prejudice are unfounded in light of the fact that he himself excluded nine males from the jury. Also, if defendant had any real concern about gender bias on the jury, he would presumably have raised them at the time of jury selection. Just as significant, it appears that the jury that convicted defendant consisted of both men and women. Although the record does not include the jurors' names, this circumstance may be gleaned from defendant's comment that he "never argued that the jurors who pronounced the verdict were composed of women only," as well as the judge's greeting of "ladies and gentlemen" to the deliberating jurors. Thus, the record simply does not support defendant's allegation of prejudice from the jury's composition.

Defendant also lodges two more challenges concerning the jury. He argues the jurors were intimidated by the removal of sheriff's officers, which supposedly forced them to reach a verdict quickly for fear for their safety. Secondly, the jurors were also intimidated by Berrian, whose gun hung on her waist during her testimony. These contentions lack merit.

As to the former, the trial judge explained that the absence of sheriff's officers on the morning of deliberations was attributable to a training exercise that delayed some matters at the courthouse for about an hour until 10:00 a.m. Consequently, when the jurors arrived at the courthouse at 9:00 a.m., they had been "let into the courtroom by the one officer who's assigned to this floor. They were sequestered, and the courtroom was locked. They were given the evidence by the court clerk, and they were deliberating outside the presence of you [defendant], myself [the judge], and both attorneys." The jurors reached their verdict about forty minutes later. Thus, the allegation of juror intimidation has no basis in fact.

As to the latter, the record does not indicate that Berrian had a holstered handgun within sight of the jurors. Nor does the record suggest that the jurors were in any way intimidated by Berrian while she was on the witness stand. Indeed, defendant, who cross-examined Berrian, did not raise any objection on that basis. Thus, this contention similarly fails.

(IV)

Defendant next contends that his original counsel abandoned him at the suppression hearing and was part of a conspiracy against him. He cites three instances: (i) counsel advised him at the suppression hearing: "When you testify do not tell the Court that the evidence was planted[;]" (ii) counsel's cross-examination of Berrian, by eliciting testimony about the newspaper article in defendant's apartment, was "designed to substantiate detective Berrian[;]" and (iii) counsel failed to file the initial motion to suppress. We reject all these contentions.

Some background is in order here too. The suppression hearing began on May 3, 2002 and was continued to July 24, 2002, at which time defendant first requested to represent himself. Defendant did not explicitly state a reason for his request for self-representation, which the motion judge granted. Significantly, defendant expressly requested that counsel act as his standby counsel, and the judge granted that request.

Subsequently, defendant was referred to the Forensic Center for a psychiatric evaluation, which resulted in an order, after a hearing on February 3, 2003, that defendant receive extended psychiatric treatment. It was at that hearing that defendant first alleged that counsel had been part of a conspiracy and had been working with the prosecutor to convict him of murder. Defendant repeated this allegation against counsel at later hearings, and consequently, the judge ultimately relieved counsel from his role as defendant's standby counsel.

Subsequently, at trial, defendant sought to call his former counsel as his witness, and to question him concerning his alleged failure to perform his duties as well as his purported conspiracy with the prosecutor. At a preliminary hearing to determine whether counsel's testimony would be allowed, counsel testified that defendant had alleged early on that the prosecutor and police had conspired to "plant" Ahiahornu's blood on his pants in an effort to frame him. Thereafter, the judge declined to allow defendant to elicit most of counsel's testimony, but permitted him to testify about defendant's early allegation of conspiracy and the alleged effort to frame him, in order to show the jury that those allegations were not of recent fabrication. Defendant refused the judge's offer, and counsel was excused.

Defendant's present contentions must be viewed against this backdrop. Surely defendant's declination of the judge's offer to allow counsel to testify about the alleged conspiracy suggests that defendant himself did not believe that counsel's proposed testimony had any evidential value. Moreover, any prejudice inhering in counsel's purported legal advice at the suppression hearing has been negated entirely by the circumstance that defendant's conspiracy theory was thoroughly aired at trial, and evidently rejected by the jury.

Defendant's second contention fares no better. A review of counsel's cross-examination of Berrian reveals that he was simply trying to establish exactly what she allegedly saw on defendant's coffee table, by testing her powers of observation and recall. In any event, Berrian first testified about the newspaper article on direct examination, and presumably considered her observations of the newspaper article a "fairly critical" event at that time. Simply put, the record does not support the argument that counsel's cross-examination of Berrian was an act in furtherance of the purported conspiracy.

Lastly, at trial, defendant at first asserted that counsel had filed a suppression motion on his behalf, but later asked counsel whether he had filed such a motion, to which counsel answered that he had done so. When defendant inquired further whether counsel had provided him with a copy of that motion, counsel replied that he did not recall, and did not have a copy of the motion because he did not have his file, which had been "turned over to whoever became your [defendant's] next attorney."*fn10

This is hardly supportive of defendant's allegation of abandonment, the failure of counsel to file a suppression motion. On the contrary, the very fact that counsel and defendant appeared, gave testimony and argued a suppression motion belies defendant's contention that counsel failed in this regard. Accordingly, none of defendant's arguments, singly or in combination, demonstrate abandonment by counsel or deprivation of a fair trial.

(V)

Defendant next argues that because the State failed to file a responsive brief required under court rule, the trial court erred in denying his motion to suppress. We disagree.

Rule 3:5-7(b) states that "[i]f the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing." Here, the record does not indicate that the State ever filed a brief in conformance with the requirements of Rule 3:5-7(b). In fact, at a pre-trial hearing on March 1, 2005, following the court's denial of his suppression motion, defendant argued that such denial, without an opposing brief from the State, was error. The judge disagreed, responding that the suppression hearing had already taken place and that the evidential record supporting his decision had been fully developed. We agree.

Rule 1:1-2 states that "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." In State v. Brooks, 201 N.J. Super. 10 (App. Div. 1985), although we recognized "that the State has the obligation on a suppression motion to file a brief in support of its position," we concluded that "[w]hatever sanction, if any, may be appropriate to enforce [Rule] 3:5-7, the remedy for the State's failure to file a brief is certainly not that the evidence objected to by defendant automatically will be suppressed." Id. at 13.

Here, the court's refusal to automatically suppress the clothing obtained from defendant, and instead proceed to a full evidentiary hearing on, and ultimate resolution of, the motion was proper.

(VI)

Defendant contends that he was denied a fair trial because Berrian tampered with defense-witness Betty Powell. This contention of witness tampering arises from the fact that at trial on March 15, 2005, when defendant called Betty Powell as a witness, he was informed that she was on the third floor of the building, apparently at the Prosecutor's Office, and that Berrian, who was evidently in the courtroom at that time, volunteered to go down to the third floor and to bring Powell back.

When defendant raised this claim at trial, the judge questioned Powell. The witness stated that earlier in the day, she was transported by police officers, unknown to her, from her apartment to the court building. She had not spoken to anyone on the way to court and had not been told "what to say" regarding her testimony at trial. Based on her sworn representations, the trial judge determined that Powell had not been tampered with despite her unexplained presence on the third floor of the building. We see no reason to disturb the trial judge's finding in this regard.

Defendant's remaining contention on this point is that someone took the suit he wore to court from the courtroom storage area and that unidentified "officials" asked his son to bring a replacement beige suit and brown shirt from defendant's apartment for defendant to wear in court. This was done, according to defendant, so that the prosecutor could point to the shirt and suit that defendant would be wearing while Powell was on the stand, and he could ask her if they were similar to the clothing that Powell had observed on the man who fled from Ahiahornu's car.

Nothing in the record, however, supports this contention. Aside from the lack of proof, defendant fails to indicate why this circumstance amounts to reversible error.

(VII)

Defendant argues that his conviction should be reversed because it was based, in part, on a document (the church's offering receipts) forged by Berrian. This argument is similarly without merit.

In his written statement to the police, defendant said that he attended church services on the evening of August 6, 2000, and that he sat beside Ahiahornu during those services. In contrast, Ukandu testified that he had attended church services that evening, but had observed Ahiahornu seated between two women, and did not observe defendant.

As part of her investigation, Berrian approached the pastor and asked for any written documents that could show who was present in the church on August 6, 2000. The pastor kept photocopies in a binder of the "face sheets" or fronts of the "offering receipts" or "tithing envelope[s]," in which donors made their contributions.

Berrian evidently obtained from the pastor photocopies of offering receipts that had been given to the church by Ahiahornu and Ukandu on August 6, 2000. The photocopy of Ukandu's offering receipt apparently carried his handwriting concerning his donation. Significantly, the photocopy supported Ukandu's claim that he was in church that evening and thus further indicated that he had the opportunity to observe that Ahiahornu was seated between two women and not next to defendant.

At trial almost five years later, defendant's then-counsel cross-examined Ukandu, pertinently eliciting from him that he normally made offerings at church, that he made those offerings in the form of cash or checks that he either placed directly in the collection basket or placed in one of the envelopes that he then put in the basket, that he did not use the collection envelopes often, and that he did not recall whether he made a donation on August 6, 2000, and, if he did make a donation, he did not recall the amount.

At that juncture, counsel showed Ukandu the photocopies of the offering receipts that had been obtained by Berrian, including Ukandu's receipt, and asked him if he recognized them. Ukandu testified that he did not. Counsel then attempted to question Ukandu about the details shown on his offering receipt, but the court refused to allow those questions because Ukandu did not recognize the photocopy. See discussion infra Part IX.

Counsel then asked Ukandu generally whether "on that [offering receipt/collection] envelope is there a place for [the] name of [the] person, their address, the date, that sort of thing, on the envelopes that are used by the Love of Jesus Church." Ukandu replied that he did not remember, apparently because he did not often use the envelopes to make his donations. When counsel then attempted to ask Ukandu again whether his name was written on the photocopy, the judge directed counsel to "move to a different area" because Ukandu had not recognized or identified the photocopy. See discussion infra Part IX.

Somehow defendant uses Ukandu's inability to specifically recognize the document to argue that Ukandu's offering receipt was "forged by investigator Berrian to make it look[ ] as if George Ukandu penned it himself." This blanket allegation, however, is woefully lacking in proof. Contrary to defendant's assertion, Ukandu did not say that he did not place an offering receipt or envelope into the collection basket on August 6, 2000, and did not deny that he had written his name and telephone number on any such receipt. Instead, Ukandu testified that he did not know if he made a donation on that evening or, if he did, he could not recall the exact amount.

Moreover, the record does not indicate that Berrian ever had access to Ukandu's offering receipt/tithing envelope from which the photocopy was made. Instead, the record suggests that the church pastor gave Berrian the photocopies and that Berrian did not actually see Ukandu's receipt/envelope itself. Thus, as with defendant's other allegations of prosecutorial conspiracy, the record is absolutely barren of any supportive proof.

(VIII)

Defendant next contends that Berrian deliberately misstated the home addresses of Attipoe, Ahiahornu and Powell, in both her affidavit and report, in order to place Powell "closer to the parking lot where the incident was happening . . . . to identify [defendant] as the man" who fled from the victim's car. Defendant is once again mistaken.

At trial, Attipoe testified that she and Ahiahornu lived in an apartment building located at 250 Georgia King Village. Eyewitness Powell testified that she lives in an apartment building located at 200 Georgia King Village. There is a large parking lot that serves both buildings, where Ahiahornu was attacked.

In her report, Berrian indicated that the attack on Ahiahornu happened in the parking lot located at "200 Georgia King Village, Newark, New Jersey (Parking Lot)." Berrian explained that her report was somewhat misleading because, "[i]nitially, when I received the call I was told that it was 200, the parking lot. Once upon arrival I realized that it's one huge parking lot, and both occupants of [Building] 200 and . . . [Building] 250 . . . both utilized the parking area." Nonetheless, Berrian's report correctly indicated that Attipoe and Ahiahornu lived at 250 Georgia King Village, as did her affidavit that accompanied the request for a search warrant.

At trial, defendant called Berrian as a defense witness and insisted that she had deliberately falsified her report and affidavit, to make it appear that Attipoe and Ahiahornu lived in the building at 250 Georgia King Village, when, in fact, according to defendant, they lived in the building at 200 Georgia King Village. Interestingly enough, defendant altered his theory on summation when he argued, as he now does on appeal, that Berrian had switched the addresses of Attipoe/Ahiahornu and Powell so that Powell "would be closer to the parking lot."

Neither theory, however, has any support in the record. As noted, Berrian's report and affidavit indicate that Attipoe and Ahiahornu lived in the building located at 250 Georgia King Village, and Attipoe testified similarly. Moreover, Powell testified that she lived in the building at 200 Georgia King Village and nothing in the record, other than defendant's empty allegations, indicates otherwise.

(IX)

Defendant next argues that the trial court improperly precluded him from cross-examining Ukandu about the photocopy of his offering receipt. We disagree.

As previously mentioned, the judge refused to permit defendant's then-counsel to cross-examine Ukandu about the photocopies that Berrian obtained of the offering receipts, because Ukandu did not recognize them, and for want of authentication.

In State v. Jones, 346 N.J. Super. 391, 405 (App. Div.) (citation omitted), certif. denied, 172 N.J. 181 (2002), we indicated that "[t]he extent and manner of the [cross-]examination remains under the control of the trial judge, N.J.R.E. 611(a), subject to defendant's overriding constitutional right to present a defense."

Here, the court's refusal to allow further cross-examination of Ukandu on the subject of the offering receipts did not impair defendant's constitutional right to present a defense. After all, the core of defendant's defense was alibi: he maintained that he was at home watching television when Ahiahornu was being attacked. His claim that he was present earlier that evening at church, sitting beside Ahiahornu, has no direct relation to his alibi defense, although it does bear on his overall credibility, if shown otherwise. To be sure, the photocopies of the offering receipts tended to bolster Ukandu's testimony by showing that he had the opportunity to make the observations to which he testified. But just as plain, the photocopies have only marginal, if any, bearing on defendant's actual alibi defense.

Moreover, there was no error in limiting the extent of cross-examination about the photocopies in light of the fact that Ukandu testified that he did not recognize them and the defense, who introduced the exhibits, did not properly authenticate them or obtain the original offering receipts.

Although, on the other hand, the trial court permitted defendant to question Berrian later at trial about the photocopies, without any concern over their authenticity, the fact remains that Berrian was the person who asked for and procured the photocopies from the pastor. She was therefore in a position to verify the photocopies as the photocopies she received. As it stands, the photocopies were not actually authenticated as accurately depicting the offering receipts until the pastor testified much later at trial.

(X)

Defendant next argues that the trial court erred by precluding his original counsel from testifying at trial. We have touched on this contention earlier in this opinion.

At trial, defendant called his former counsel as a witness, seeking to question him concerning his alleged failure to perform competently, as well as his role in an alleged broad conspiracy against defendant. As noted, the trial court held a hearing to determine if and to what extent counsel would be allowed to testify.

At that hearing, the judge determined that any questions concerning counsel's legal ability or competence were irrelevant, as were questions related to other lawsuits, motions, or the fact that defendant previously dismissed counsel. The judge concluded that such inquiries, involving disparate matters occurring remote in time were not only irrelevant to any issues in the present prosecutions, but were unduly prejudicial to counsel and a waste of time.

The only exception carved out by the judge was counsel's putative testimony that defendant had alleged to him early on that there was a conspiracy to frame him for Ahiahornu's murder through the use of blood planted on his pants. That testimony was relevant, the judge reasoned, to show that those allegations were not of recent origin but were, instead, longstanding. We perceive no error in the court's ruling.

The information that defendant sought to elicit from counsel involves timeworn allegations of counsel's incompetence in representing him in 2002. Such information has no relevance to this trial, and no reasonable tendency to prove or disprove any fact of consequence in determining defendant's guilt.

N.J.R.E. 401. Accordingly, the court did not err in precluding the production of such information through counsel.

(XI)

We have considered the remaining issues raised by defendant on this appeal and conclude they are all patently without merit, not warranting discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.


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