On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0862.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Messano and Newman.
Defendant Aric Taylor appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of second-degree reckless manslaughter in the death of Tamara Mitchell, N.J.S.A. 2C:11-4(b)(1); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. On appeal, defendant raises the following issues for our consideration:
THE COURT COMMITTED ERROR IN ADMITTING EXTENSIVE EVIDENCE OF "OTHER WRONGS" AND "BAD ACTS" OF THE DEFENDANT PREJUDICING HIS RIGHT TO A FAIR TRIAL.
THE PROSECUTOR'S IMPERMISSIBLE COMMENTS TO THE JURY WERE PREJUDICIAL AND WARRANT A REVERSAL OF THE JURY'S VERDICT. (Not Raised Below)
BY FAILING TO DEFINE THE TERM "REASONABLY BELIEVING" IN ITS CHARGE, THE COURT IMPROPERLY INSTRUCTED THE JURY WITH REGARD TO THE LAW OF ENDANGERING A VICTIM . (Not Raised Below)
IT WAS ERROR FOR THE COURT NOT TO INSTRUCT THE JURY THAT IN ORDER TO CONVICT THE DEFENDANT OF ENDANGERING AN INJURED VICTIM THAT IT MUST FIND THAT THE DEFENDANT'S FAILURE TO ACT CAUSED OR THREATENED SOME ADDITIONAL HARM TO THE VICTIM. (Not Raised Below)
THE COURT SHOULD HAVE MERGED THE CONVICTION OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH THE CONVICTION OF RECKLESS MANSLAUGHTER. (Not Raised Below)
THE COURT DID NOT PROPERLY APPLY AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE ON THE DEFENDANT.
We have considered these contentions in light of the record and applicable legal standards. We reverse and remand for a new trial.
This case involved the shooting death of Tamara Mitchell on March 30, 2003, in Paterson, following a confrontation between
1) Mitchell; 2) defendant, who was her boyfriend; 3) Kevin Roberts, defendant's friend; and 4) Calvin Scott, Mitchell's former boyfriend. Roberts and defendant were indicted in the same indictment. While defendant was charged only with those offenses for which he was convicted, Roberts was charged with the first-degree purposeful and knowing murder of Mitchell, N.J.S.A. 2C:11-3(a)(1); first-degree attempted murder of Scott, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. Roberts was also indicted for a series of weapons offenses, the operative date of which was August 1, 2003, and which were severed from the indictment.*fn1 Scott was also indicted in the same indictment as defendant and Roberts and charged with second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
The site of the homicide was the rear parking lot area of 360 East 18th Street, Paterson, a home owned by the victim's mother, Patricia Stewart. At trial, Gloria Dennis, a friend of Stewart's, who resided at the house and considered herself to be the victim's aunt, testified as the State's first witness. Also residing in the house at the time along with Stewart and Dennis was Shashana Reynolds, the victim's sister, her husband and their child, as well as Stewart's other daughter, Zahara. Dennis testified that in December before the shooting, Mitchell moved out of the home and took up residence with her aunt, Joy Dixon.
Dennis further testified that Mitchell had dated Scott but broke up with him and started dating defendant. Scott, however, remained friendly with the family and had "business transaction[s]" with Stewart that required him to visit the home at least once a week, usually on the weekend. Dennis claimed that Mitchell told her she planned to break up with defendant, and move from her current apartment on Monday, March 31, 2003. After the shooting, Dennis claimed she went to Dixon's home and saw the victim's and defendant's belongings packed and ready to move. Dennis testified that Mitchell arrived at the house on Sunday, March 30, to pick up some sheets for her apartment. When Mitchell left, Dennis went to a window and saw her walk to her car parked in the rear of the house.
From this point in her testimony, when she described the critical events of the actual shooting, Dennis' recollection differed significantly from some of the State's subsequent witnesses. She observed defendant drive into the parking lot at the rear of the house and remain in his car, and then saw Scott arrive in his car, exit the vehicle, and walk toward the house.
Dennis claimed she heard gunshots, saw defendant with a gun in his hand as he stood next to his car, and told Reynolds, who was also in the house, to call the police. She saw another person with a gun standing next to defendant's car. Dennis heard someone yelling to "come and help Tamara," but she was frightened and did not leave the house immediately. She testified that when she went outside, she saw a neighbor holding Mitchell who was bleeding from her mouth. Dennis further testified that Mitchell died before the ambulance arrived at the scene, some twenty-five minutes later.
Reynolds, Mitchell's sister, testified that on the day of the incident, she arrived home at approximately 4:00 p.m. and was resting in her room when Dennis banged on her door. She went to a window and observed Mitchell and Scott "chit-chatting" in the parking lot with Scott's hand resting gently on Mitchell's upper arm. Reynolds saw defendant exit his car, "bend down, grab his gun and start firing." She ran to the kitchen to call 9-1-1 and when she returned to the window, she saw Roberts, the other man standing next to defendant's car, firing his gun. Reynolds saw Roberts get in defendant's car prior to it speeding away from the yard. Reynolds then went outside to assist Mitchell and await the arrival of the ambulance. However, it was too late, and Mitchell died in her sister's arms before the ambulance arrived, by Reynolds's estimate some five minutes later.
Reynolds also testified that approximately one month before her sister's death, she was in the kitchen of the house when defendant approached Mitchell and threatened to kill her and Scott if she ever left him and returned to Scott. On cross-examination, Reynolds acknowledged that when she looked out into the back parking lot area, she also saw Scott with a gun, standing near her sister, and pointing it in defendant's direction.
The State's next witness was Passaic County Sheriff's Officer Craig Goodson. Goodson testified that at approximately 4 p.m. on the day in question, he was home in bed trying to sleep when he heard gunshots. He looked out his window and observed three individuals "ducking and running around inside the parking lot" at 360 East 18th Street. Goodson observed a green car leave the lot and saw one man leaving the area on foot, armed with a gun. Goodson left his house, and, after searching in vain for the armed man, later revealed to be Roberts, Goodson went to the parking lot where he saw Mitchell mortally wounded.
When a police unit arrived at the scene, Goodson jumped in the car and attempted to locate Roberts. Scott, who had also left the area, returned and was standing across the street from the scene of the shooting. When Goodson and his fellow officers ordered him to the ground, Scott "blurted out [']I wasn't the shooter. The shots were for me. That was my girl friend' . . . ." Scott was placed under arrest but had no gun in his possession at the time.
Patricia Stewart, the victim's mother, testified that her daughter had been involved romantically with defendant, but, because defendant was not welcomed in her home, her daughter moved out of her house in November 2002. Stewart testified that the night before the shooting, defendant had repeatedly called her home looking for Mitchell.
Dr. Chase Blanchard, the State's medical examiner, performed the autopsy on Mitchell and opined that she died from a gunshot wound to the chest. He noted that a single projectile passed through Mitchell's left wrist, through her chest, and into her upper right arm, from where he recovered the badly deformed bullet. Blanchard testified that Mitchell "was alive and pumping blood" after she was shot, and noted that "[t]his type of injury would not have immediately caused the victim to die."
Calvin Scott testified that he had a prior romantic relationship with Mitchell but they had ceased dating, and he remained friendly with her and her family. He was a business partner of Stewart and would often go to her home. Scott testified that he had seen Mitchell on March 28, 2003, and that she had told him she was leaving defendant. Scott claimed Mitchell told him that defendant had "beat her up and  put a gun to her head and sa[id] if she ever s[aw] [Scott] again he would kill both of [them]." At this point, the judge gave a limiting instruction advising the jury that the evidence was admitted "for the limited purpose of explaining from  Scott's perspective why he was carrying a handgun."
Scott further testified that on March 30, 2003, he went to Stewart's home armed because of the threats defendant had made. As he parked his car in the rear lot, he noticed defendant standing beside his own car. Upon seeing defendant, Scott placed his gun in his waistband and then walked toward the house. At that point, Mitchell exited the house and defendant called for her to come to him. Scott testified that he took Mitchell's hand to walk her back inside the house, and as he did so, he heard two gunshots.
Scott pulled Mitchell down to the ground next to him and as he arose, he saw defendant and Roberts running toward him with guns. Scott then pulled out his own gun and ran across the street, heading toward East 19th Street. As he fled, he tossed his weapon into the yard of a house. Scott claimed that he did not know Mitchell had been shot, returned to the scene to see if she was okay, and was arrested by Goodson and another officer.
On cross-examination, Scott acknowledged that he had pled guilty to unlawful possession of a handgun and was awaiting sentencing. He confirmed that his plea bargain contemplated that he would receive a probationary sentence "if he testified against [defendant and Roberts]."
Leona Markham, who lived in an apartment below Mitchell, also testified for the State. One or two weeks before the incident, Markham claimed that she heard noise coming from Mitchell's apartment. She "knew" defendant was there at the time and she described the noise as "fighting, tumbling" and thought it sounded like "somebody banging around or trying [to] escape." She also stated that the day before Mitchell was killed, defendant and another male were sitting in a car outside of the building. Markham observed defendant watching the victim's apartment from across the street.
Kirk Simon was Mitchell's cousin and an acquaintance of defendant's. At an N.J.R.E. 104 hearing conducted outside the jury's presence, Simon, who was serving a sentence in Georgia at the time, testified that approximately six months before the shooting, he worked on defendant's car and noticed a gun under the driver's seat. He described the gun as having a black barrel with a brown handle and that it looked like a .357 revolver. The judge interrupted the testimony, and advised the prosecutor, "I am starting to think that . . . I have to make an analysis under State v. [Cofield]."*fn2 After the testimony was completed, the judge conducted that analysis, and permitted Simon to testify about finding a gun in defendant's car, "six to nine months before the incident." We discuss in greater detail below the judge's rationale for this decision. Simon's testimony before the jury was similar to that which he gave during the hearing, and was followed by a limiting instruction by the judge.
Detective Scott Heath of the Passaic County Prosecutor's Office was the State's final witness. He investigated the scene and recovered four shell casings, three near Mitchell's body and one toward East 18th Street. One bullet was recovered from the front passenger side tire of Stewart's truck, one was found in the siding of a house across from the parking lot, and one was recovered from Mitchell's body at the autopsy. The fourth bullet was never recovered, though there was evidence that it had struck Stewart's house. Scott's gun was recovered in the rear yard of a nearby house, but ballistic tests revealed that none of the shell casings or bullets came from that weapon.
Heath testified that defendant came to police headquarters the day after the shooting and at first denied that there had been anyone with him at the scene of the shooting. Eventually defendant changed his story, now claiming he picked up Roberts and his girlfriend earlier in the day, and that Roberts brought two guns with him. Heath testified he took a formal written statement from defendant that he then read to the jury.
In that statement, defendant claimed that he arrived at the house with Mitchell, Roberts, and Roberts's girlfriend. When Mitchell went into the house to get some sheets, defendant saw Scott arrive, walk toward the house, and confront Mitchell. He heard Mitchell tell Scott to "behave [him]self, calm down, and don't be stupid." Defendant told Mitchell to go in the house and get the sheets and then saw Scott pull out a gun and point it at him. Defendant heard shots fired as he ducked behind one of the cars, and saw Roberts with a gun. Defendant retrieved a gun, a revolver, from the car, but never fired it. After the shooting, defendant gave his gun to Roberts, who left the parking lot on foot. Scott was no longer at ...