On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-05-0329.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman and Lyons.
Defendant Tyrius Green appeals from a July 11, 2005 judgment of conviction based upon a May 11, 2005 jury verdict finding him guilty of murder, N.J.S.A. 2C:11-3(a)(1), second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On July 8, 2005, the court sentenced defendant to life in prison with a thirty-year period of parole ineligibility for the conviction of murder; it merged the two weapons offenses and imposed a concurrent prison term of ten years on count four for the crime of second degree charge of possession of a weapon for an unlawful purpose.*fn1 We affirm the convictions and the sentence imposed for murder, but we reverse and remand that portion of the judgment of conviction relating to the sentences imposed for counts four and five, the weapons offenses.
The charges against defendant stem from the events of August 14, 2003. At trial, Kenute Brown testified that at about 10:00 p.m. that night, while Brown was purchasing crack-cocaine, he heard defendant shout out, "Dred, Dred," one of Brown's nicknames. However, when Brown started to approach defendant, defendant made it clear that he was referring to another person, Edgerton Munroe, who also went by the nickname, "Dred." Brown told Munroe that defendant wanted to speak to Munroe, and Munroe made his way over to defendant. Brown could not recall what defendant was wearing that night, but he "could see his face." Defendant and Munroe walked into an area known as "The Hole", a dark, wooded area where people "stopped to go get high, and [be] away from police." A few minutes later, Brown heard three to four gunshots coming from the area where defendant and Munroe had just entered. About ninety seconds from the time of the gunshots, Brown saw Munroe run from "The Hole" and fall to the ground.
Patrolman Brian Kowalczyk of the Trenton Police Department responded to the scene of the shooting. He observed Munroe, near a curb, lying on the ground with a gunshot wound to his chest area. Attempts to revive Munroe were unsuccessful; he was transported to a local hospital, but Munroe died as a result of excessive bleeding from a bullet wound. The medical examiner, Dr. Rafaat Ahmad, testified there was an entrance wound in the back and an exit wound in the front abdomen area. The bullet "entered his stomach, the liver and damaged his kidney and his spleen, which were removed by the surgeons, and it perforated his small intestine, large intestine."
At the outset of the police investigation, members of the Trenton Police Department interviewed and took written statements from a number of individuals who had been in the vicinity of "The Hole", including Kenute Brown, Carol Guerra, Avia Fowler, Linda Brown and Willie Peters. Guerra indicated she was in "The Hole" at the time of the shooting, getting high. According to Guerra's August 17, 2003 statement, two males came into the area and chased another man who was wearing a light-colored shirt. She described one of the pursuers as between five-eight and five-nine; the other was shorter. Both men were dressed in black. The taller man had a black fedora type hat; the shorter one wore a black ski mask. The taller man held a "Dirty Harry [type of] gun." Guerra heard gunshots and saw the taller man following the male in the light-colored shirt, shooting at him. Although she did not see their faces, when the two men in black entered "The Hole", Guerra had thought the taller man was defendant, Tyrius Green, because of "his build and the way he walked. Tyrius has a very distinctive walk, especially when he thinks he is being macho." Guerra had known defendant for between ten and fourteen years.
Guerra had certain doubts about her recollection, however, when she was called to testify at trial. On cross-examination, she stated that her main concern at the time of the shooting had been "getting high." She was not paying a lot of attention to how the men in black were walking or to what actions they were taking. She testified she was high both at the time of the shooting and at the time she gave her police statements.
Avia Fowler was also in "The Hole" at the time of the shooting. She was there "smoking 'coke.'" She had known defendant "since he was a little boy" and "s[aw] him everyday." She related in her statement that on the night of the shooting, defendant was wearing all black with a black mask across his face. Nevertheless, she asserted "I know Tyrius anywhere." Like Guerra, Fowler also claimed to know defendant's walk. In her statement, Fowler gave the following account of what happened:
Tyrius told him [Dred Brown] to tell Dred [Munroe] that there was a hundred dollar sell. [Munroe] came back a few minutes later, and when he came back, as soon as he came through the walkway, Tyrius reached out and tried to grab him from the back, but Dred dodged him and started to run . . . . That is when Tyrius pulled the gun out, aimed it at Dred and said 'Freeze.' He said it again and then fired. That is when I heard "Dred" say ouch but he kept running. The second time that Tyrius fired the gun I saw "Dred" hop up off the ground a little bit. I don't think he was hit I think he was just saying ouch because somebody was firing at him. Tyrius shot three times back to back. Every time he shot the gun I saw sparks come out of it. Then Tyrius and the short guy chased after "Dred". Then I left to go find my boyfriend everyone else that was back there ran out in different directions.
At the time of trial when she was asked about the statement she had given to the police, Fowler testified she did not remember being in "The Hole" at the time of the shooting. Although she remembered being brought to the police station for questioning and signing papers, she did not remember reading any of the papers that she signed. Fowler testified she believed that the papers she had signed were blank and that she signed them only because the detective had instructed her to do so. Fowler explained that at the time she was questioned by Detective McMillan, she "was out of it," i.e., she was "cracked out" and had "been up for three weeks." In fact she stated, "I never seen [defendant] back there in "The Hole" with a gun shooting or none of that." When the prosecutor asked if her signature was on the police statement, she responded
And at the time I was cracked out, to get out of there, I was all ready to go, all I wanted was my $10 that man offered me, the money, he offered me money, and when he told me he was going to get it, all I wanted to do was go smoke the rest of my crack. Get up out of that police station and get his ten dollars and get me some more crack.
Linda Brown was also in "The Hole" at the time of the shooting. She indicated she saw two individuals, one noticeably taller than the other, enter the area. They were dressed all in black with black scarves around their faces. The taller man shouted "Don't move" to a person who entered. He then proceeded to fire four shots. When asked about defendant, Brown said she had known him her entire life and, at first, she thought the taller man who fired the gun was defendant. However, she could not positively identify him. She indicated she had tried to get the taller man's attention by calling out "Young'n", one of defendant's nicknames, but he did not respond. Because of this, she concluded that the taller man was someone other than defendant.
Willie Peters was in the vicinity of "The Hole"; but he did not see the shooting. He heard three gunshots and he thought that he saw defendant running from "The Hole" after the shots were fired. Like Brown, Peters had known defendant since he was a child.
Detective James McMillian of the Trenton Police Department was assigned to investigate Munroe's death. Based on statements he had obtained, an arrest warrant was issued for defendant. McMillian went to defendant's residence on several occasions. Despite knocking on the door and leaving his card three separate times, he could not locate defendant. Defendant's mother, who testified on behalf of defendant, indicated defendant frequently visited his sister in the Bronx and that she, the mother, was staying with her boyfriend between August 14 and August 19. Eventually, on August 19, 2003, law enforcement officers in the Bronx informed Detective McMillian that they had arrested defendant at defendant's sister's residence.
On May 26, 2004, a Mercer County grand jury returned an indictment against defendant Tyrius Green containing five counts: first degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five). The matter was tried before the judge and a jury on May 3, 4, 5, 10 and 11, 2005. At the close of the proofs, defense counsel moved for judgments of acquittal on all counts. The court granted the motion only in part, entering judgments of acquittal and dismissing the felony murder count and the robbery count. The three remaining counts were considered by the jury, which found defendant guilty on each count.
Defendant has appealed and urges that we consider the following points of asserted error:
POINT I: GUERRA, FOWLER AND BROWN'S LATE-NIGHT, DRUG INDUCED MUSING ON THE IDENTITY OF THE MASKED SHOOTER FAILED TO SUFFICIENTLY ESTABLISH BEYOND A REASONABLE DOUBT THAT THE SHOOTER WAS TYRIUS GREEN. THEREFORE, THE TRIAL COURT ERRED IN DENYING GREEN'S MOTION FOR A JUDGMENT OF ACQUITTAL. ALTERNATIVELY, THIS COURT SHOULD SET ASIDE THE JURY'S VERDICTS OF GUILT AS BEING AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II: THE TRIAL JUDGE'S ERRONEOUS IDENTIFICATION CHARGE, WHICH WAS UNACCEPTABLY VAGUE AND CONTAINED GROSS MISSTATEMENTS OF FACT, WAS CLEARLY CAPABLE OF LEADING THE JURY TO A VERDICT IT OTHERWISE WOULD NOT HAVE REACHED. THE SEVERE POTENTIAL FOR PREJUDICE CAUSED BY THIS ERRONEOUS CHARGE IS EVEN GREATER WHEN THE CHARGE IS EVALUATED AGAINST THE PROSECUTOR'S INSIDIOUS PRESENTATION OF GUERRA'S AND BROWN'S IDENTIFICATION TESTIMONY. (NOT RAISED BELOW).
POINT III: THE TRIAL JUDGE ERRED IN INSTRUCTING THE JURY THAT IT COULD NOT CONSIDER EVIDENCE OF PREMEDITATION OR THE LACK THEREOF IN DETERMINING WHETHER THE STATE PROVED BEYOND A REASONABLE DOUBT THAT GREEN WAS GUILTY OF KNOWING OR PURPOSEFUL MURDER. (NOT RAISED BELOW).
POINT IV: THE PROSECUTOR'S IMPROPER REFERENCES TO THE WARRANT FOR GREEN'S ARREST WERE HIGHLY PREJUDICIAL AND CLEARLY ...