On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2-11-04083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Graves and Alvarez.
Tried by a jury, defendant Brian Wyatt was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). He was sentenced to thirty years imprisonment subject to thirty years of parole ineligibility on the murder count. See N.J.S.A. 2C:43-7.2; N.J.S.A. 2C:43-6. On count two, he was sentenced to five years concurrent with count one, and count three was merged into count one. Appropriate monetary penalties were also assessed. This appeal followed. We affirm.
During an evening cookout on June 23, 2002, the victim, Clydell Leakes, attempted to hold a conversation with a woman identified only as defendant's niece. Apparently, the conversation soured quickly and developed into an argument. Defendant's niece called Leakes a "crackhead" and he called her a foul name. Defendant then interceded and told Leakes he could not "disrespect" his niece in that fashion. The two men stepped into the street as if to engage in a fistfight and Leakes swung at defendant but did not connect.
The two men then walked away from the quarrel and nothing further occurred until the following night, June 24, 2002, while another cookout was ending in the same alley. Terrence Sheffield appeared at the cookout in order to sell drugs and actually sold three bags of crack cocaine to Leakes. Shortly afterwards defendant approached Leakes and told him that "he was not allowed to be around anymore." Sheffield intervened, and told defendant that it was not up to him to decide who did and did not come into the area to buy or sell drugs. Defendant left, saying "I be right back." Minutes later, defendant returned to the alley and walked toward Leakes until he was standing approximately three feet away from him. Defendant's hand was covered by a white rag; he raised his arm to chest height. According to Sheffield, at that point four shots rang out. Leakes grabbed his chest and fell to the ground; he died before the authorities arrived.
When Leakes was shot, everyone in the area fled before the police responded. Sheffield was the only eyewitness who eventually came forward. Shortly after midnight on the night of the shooting, Sheffield called an Essex County Prosecutor's Office detective who was a longtime friend, Wilson Carter. Sheffield told Detective Carter about the murder and identified defendant as the shooter. That same night defendant visited the home of his child's mother, Tiheisha Liggins, and told her, as she testified at trial, "that somebody had got shot or whatever and they thought he did it."
Two neighborhood residents, Sean Bell and Martin Kemp, also testified at trial. Bell testified that he owned two guns for "protection" that he shared with Kemp, Sheffield and others from the neighborhood, including defendant. One of the guns was a .357 revolver, and the other a chrome .380 semi-automatic. Bell had seen a man he identified as "Malik," with the .380 semi-automatic on the day before the shooting. Bell admitted at trial that Malik's real name was Brian Wyatt, but refused to identify defendant as the person he knew as Malik. Kemp also placed defendant, Sheffield and Leakes at the cookout on the day of the murder, although he claimed that he left prior to the shooting.
Sheffield, Kemp and Bell all had charges pending when they testified at trial and all had prior criminal histories. Although the three men denied having received any consideration in exchange for their testimony, they were awaiting sentence. Bell admitted that he was hoping he would get some sentencing benefit in exchange for his testimony.
Despite extensive forensic testing of the items found in the alley, only an empty food container with defendant's fingerprints tied defendant to the scene. Bullets recovered from Leakes's body and spent shell casings discovered at his feet came from a .380 semi-automatic.
On appeal, defendant raises the following points:
THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF AN EYEWITNESS, CONCERNING BIAS FROM PRIOR COOPERATION WITH LAW ENFORCEMENT AS AN INFORMANT, INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. ...