On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-02-0170; 05-02-0249; 04-05-0693.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Messano and Newman.
Middlesex County Indictment Number 05-02-0170 charged defendant, Nathaniel Hall, with first degree attempted murder, in violation of N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3(a)(1); and N.J.S.A. 2C:11-3(a)(2) (count one); second degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count two); third degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7) (count three); second degree possession of a weapon for unlawful purposes, in violation of N.J.S.A. 2C:39-4(a) (count four); and third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count five). Filed the same day, Middlesex Indictment Number 05-02-0249 charged defendant with second degree possession of a weapon by a previously convicted person, in violation of N.J.S.A. 2C:39-7(b).
The jury acquitted defendant of the charges of attempted murder (count one), and the first count of aggravated assault (count two). Defendant was found guilty of the second count of aggravated assault (count three), possession of a weapon for unlawful purposes (count four), and unlawful possession of a weapon (count five). In a subsequent proceeding on the same day, the jury found defendant guilty of possession of a weapon by a previously convicted person under indictment number 05-02-0249.
The State moved for an extended term sentence which was denied. The court imposed a ten-year sentence with a five-year period of parole ineligibility for count four, possession of a weapon for unlawful purposes. On counts three and five, aggravated assault and unlawful possession of a weapon, respectively, the court imposed two concurrent five-year terms. With regard to Indictment Number 05-02-0249 charging defendant with possession of a weapon by previously convicted person, the court imposed a consecutive ten-year sentence with a five-year period of parole ineligibility. The court subsequently accepted defendant's guilty plea to a violation of probation under Indictment Number 04-05-0693, and then sentenced defendant to a five-year custodial sentence consecutive to the sentences under Indictment Number 05-02-0170 and Indictment Number 05-02-0249. The court imposed the requisite monetary penalties. Defendant appeals. We affirm.
The criminal charges grew out of an earlier fist fight between defendant and Lawrence Cody shortly followed by a shooting at Cody by someone identified by Cody as defendant. Cody testified that he resided at the Hamilton Road Apartments (Apartments) when the event in question took place on December 5, 2004. On that date, at approximately 5:30 p.m., while coming home from a movie with his son, he ran into defendant at the Apartments. He and defendant began talking and his son went to play with some of his neighbor's children.
Cody had known defendant for a few years because defendant had two children by Cody's cousin-in-law. While the conversation started out friendly, at some point, defendant became upset and "got real loud [and] threatening." Cody told defendant to stop yelling because children, including his son, were watching. Defendant became more upset and even threatened to kill Cody. At this point, Cody called his son and told him to go on the step where Cody's neighbor was, and asked the neighbor to keep an eye on his son. He then turned to walk up the step and away from defendant, but defendant sucker punched him. They engaged in a fist fight at this point. Some people from another building came to break it up. Cody was angry and challenged defendant to continue the fight as defendant got into a friend's car. Defendant replied that he "would be back".
Cody then went into his apartment with his son, but within a short time span returned outside to smoke a cigarette. Cody sat on a bench and smoked a cigarette while talking to two individuals, the superintendent of the apartments' husband and another person whom he did not know. As he was telling them about the earlier event, he saw defendant and two other men walking across the parking lot towards him.
Cody recognized defendant's walk. He also noticed that defendant had his hand in his pocket. Cody's initial thought was that defendant had returned to fight him. When defendant got a little closer, he noticed the barrel and chamber of a gun sticking out of defendant's pocket. When defendant got within thirty feet of him, defendant stated "I told you I'll be back mother f'r". Cody recognized defendant's voice. Defendant began shooting. Cody had raised his hands at the time and the first shot went between his head and his hand. The second shot went through his pants and hit the piece of wood behind him. At this point, he began running. As he was running, a third shot grazed the upper part of his left buttock cheek. He continued to run until he went around the corner of the building and was out of sight.
He did not leave until he heard a car accelerate. The gun used by defendant looked like a .38 revolver because it had a spinning chamber. Cody indicated there was no question in his mind that defendant was the one who shot at him.
On cross-examination, Cody testified that after the incident, he told, Officer Byrom, one of the officers who arrived to investigate the shooting that he was grazed by a bullet. He testified that the swelling from the graze had gone down significantly by the time the investigating officers arrived and that he did not bleed from the injury. He also testified that the holes found in his clothing after the shooting were bullet holes that were not in his pants or tee shirt when he put his clothes on before the incident.
Detective Frederick DeLong of the New Brunswick Identification Bureau testified that defendant came into headquarters following the shooting. He testified that he met with Cody and Detective David Smith from the New Brunswick Police Major Crimes Unit. He stated that because Cody did not have a change of clothing with him, they escorted Cody to his apartment so that they could collect the clothing that he had on at the time of the shooting. After collecting Cody's shirt and jeans, the two detectives went outside to search for any bullets or shell casings.
During their search of the area where the shooting took place, Detective Smith found a bullet lodged in the landscaping alongside of the building. He testified that officers did not send Cody's clothing to the lab for testing because it was not standard procedure. He stated that "[a]s a matter of fact, the State police no longer even conducts gunshot residue tests". Detective Delong also testified that although he could not state with absolute certainty when the bullet he recovered was fired, he thought that it was fired within a short period of time before it was found because of fresh wood shavings surrounding the bullet on the pavement.
On cross-examination, Detective DeLong testified that he did not find any wounds in the buttock area where Cody alleged he was grazed by a bullet. The detectives never recovered a gun in their investigation of the incident.
On cross-examination, Detective Smith testified that in his opinion, the holes in Cody's clothing were bullet holes even though they were different in size. He indicated that it was possible that the difference in size could be explained by a trajectory of a bullet, depending on which way it entered an object, resulting in a bigger or smaller hole. On cross-examination he acknowledged that defendant never informed any of the detectives or officers that there were two witnesses, including the Apartments superintendent's husband who Cody claimed was present at the time of the shooting.
Larry Dukes appeared for the defense. He testified that on the day in question, he was staying at the Hamilton Road Apartments with his fiancée. He knew defendant from seeing him over the course of years and was on speaking terms with him. Dukes also knew Cody and used to hang out with Cody on occasion. He considered Cody basically a friend. He was in front of one of the buildings at the Apartments, smoking a cigarette by himself, when three men walked up and passed right by him. He testified that he recognized one of the three men as Kareem, someone he also knew, and another, whose name he did not know as Kareem's cousin. He did not know the third man's name, but he had played basketball with him.
Dukes testified that he spoke to Kareem when the three men walked past him and he was surprised when Kareem did not reply. After the men passed him, gun shots started ringing out and he saw Cody run away. Immediately after the shots, the three came running back down the sidewalk, entered a car and drove away. On the night of the incident, he did not tell officers what he had seen because of a warrant out for his arrest.
On appeal, Hall raises the following issues:
BY EXPRESSING HIS OPINION THAT THE VICTIM WAS TELLING THE TRUTH, DETECTIVE SMITH DENIED DEFENDANT HIS RIGHT TO A ...