On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0975 and 05-09-0976.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant Khalil Patrick appeals from his conviction by a jury on the following charges: four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); two counts of fourth-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful weapons possession, N.J.S.A. 2C:39-5d; and certain persons not to have weapons, N.J.S.A. 2C:39-7b (second-degree) and N.J.S.A. 2C:39-7a (fourth degree). He also appeals from his aggregate sentence of fifty-five years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We affirm the conviction. However, we are constrained to remand for re-sentencing because, as the State concedes, any discretionary extended sentence imposed must be reconsidered in light of State v. Pierce, 188 N.J 155 (2006), which was decided after the trial court imposed sentence in this case.*fn1
The charges in this case arose from the beating and stabbing of seventeen-year-old Corey Williams, followed by an altercation in the courtyard of an Elizabeth apartment complex during which two children were wounded by gunfire.
Immediately before jury selection on June 19, 2006, defendant asked the judge to adjourn the trial so that he could obtain a new attorney. He indicated that he had several disagreements with his attorney, who was a Public Defender assigned counsel. These disagreements included his belief that defense counsel should have filed a motion to dismiss the indictment because the State relied on hearsay evidence in its Grand Jury presentation, and that counsel should have asked for a Wade*fn2 hearing, although defendant admitted that all of the witnesses who identified him were people who had known him for years. Defendant also contended that his attorney had made racial remarks to him and that they had been close to a physical confrontation; his attorney denied both allegations on the record. The judge reviewed in camera several letters defendant had sent to the Public Defender's Office complaining about his counsel, and concluded that they did not provide a basis to grant an adjournment.*fn3 In denying the application, the judge also noted that the case had been scheduled for trial several times before. At no time did defendant ask to represent himself or broach the subject of self-representation.
The following is the most pertinent trial testimony. According to Elizabeth Police Officer David Turner, he was called to an apartment at 350 Irvington Avenue in the Oakwood Plaza housing complex. In the apartment he found Corey Williams, bleeding from wounds to his face and the back of his head. Williams, and the many assembled family members in the apartment, were all "very upset." According to Officer Turner, Williams was "very agitated" and "kept trying to walk around" despite the officer's efforts to keep him seated. Turner described Williams as "very excited and upset at what had happened to him." An ambulance arrived five minutes after Turner was called to the scene, and transported Williams to Trinitas Hospital, approximately a five-minute drive. Shortly after Williams was taken to the emergency room, Turner began interviewing him. Williams was "still very upset." According to Turner, Williams was sitting on the bed "and he was yelling . . . that he got stabbed in the face and he was just very visibly upset about the whole incident."
After hearing the defense objection to Officer Turner's testimony concerning what Williams told him at the hospital, the trial judge issued a lengthy and cogent oral opinion, ruling that the statement was admissible as an excited utterance. She concluded that Williams was seriously injured, had no opportunity to calm down between the time he was injured and the time Officer Turner interviewed him, and in fact was still under the traumatic stress of the injury when he made the statement. The statement was made a short time after the traumatic incident, and the only question Turner asked Williams was "what happened?"
Following the judge's ruling, Turner testified that Williams responded that he had initially gotten into a fight with defendant and two other people on Broad Street. When Williams returned to his apartment building, three men "jumped him," and beat and stabbed him. According to Williams' statement, defendant was one of the three men and had a knife. Turner also testified that as he was responding to the call to Williams' apartment after the attack, he saw defendant and another man leaving that apartment building.
In addition to finding the wounded Williams at the apartment complex, police found two children who had suffered gunshot wounds. They also found bullets and shell casings on the ground outside the buildings. According to expert testimony, these came from a forty caliber semi-automatic handgun.
Two witnesses testified that they saw defendant with a handgun outside the apartment building. Kim Colbert had known defendant for about ten years. On the afternoon of April 8, 2005, Colbert was visiting her sister at the Oakwood Plaza apartment complex. Between 5:30 and 6:00 p.m. Colbert heard "about four" gunshots. She immediately "jumped up" and looked out the window and saw three men outside, including defendant, who was wearing a white t-shirt. According to Colbert, defendant was "holding a black gun" and pointing it with his arm outstretched. She did not see defendant give the gun to anyone else. Colbert ran outside because her children were out in the courtyard. On the way out of the building, she passed defendant going in. Colbert did not find her children outside and returned to her sister's apartment. Shortly after she returned, defendant brought a young girl to the sister's door and said to Colbert, "[h]ere is your daughter." When Colbert replied that the child was not hers, defendant responded, "I'm sorry, I'm sorry, I'm sorry." Colbert was absolutely certain of her identification, since she had known defendant for many years.
The jury also heard testimony from Lakia Patterson, the mother of one of the children who was shot. She testified that she was in her apartment, on her way out the door when she heard gunshots. She saw her son outside, trying to get into the building. As Patterson was trying to open the front door, she saw defendant standing outside holding a gun which he pointed toward the doorway. Patterson was sure she recognized defendant because she had known him for a long time. She heard gunshots at the same time that she saw defendant pointing the gun in her son's direction. Patterson later clarified that she saw defendant "shooting and running" at the same time. She also saw Antoine Adams, previously identified as Williams' uncle, trying to enter the building. Patterson opened the door, dragged her son inside, and saw that he was wounded. After she was shown her prior statement to the police, Patterson also testified to her recollection that she saw Adams holding a gun, pointed down. She did not see Adams point the gun at anyone or fire it. During Patterson's testimony, the jury was also shown a videotape from a security camera which showed the children and Adams at the door to the building at the time of the shooting. She testified that defendant was wearing a white t-shirt.
When called as a trial witness, the stabbing victim, Corey Williams, confirmed that he had been assaulted but claimed to have no recollection of who assaulted him.*fn4 He also claimed that he did not remember making any statements to the police. He did, however, identify a seven-page written statement that he gave to police on April 9, 2005 as being his "voluntary statement" and he identified his initials on every page of the statement. He claimed he did not remember giving the statement. He testified that its substance was not true and that he had not actually given the statement voluntarily.
At the State's request, the trial judge excused the jury and conducted a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), to determine whether to permit the State to offer the document as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1). During the hearing, Williams was confronted with the statement, in which he specifically identified defendant as the person who stabbed him. Williams testified that he was taking pain medication during the police interview and claimed to have no memory of who stabbed him. He also testified that he had no memory of making the statement to the police. In response to the judge's questions, he clarified that he did not know the statement to be false; he simply claimed to have no present memory of the attack. However, on answering additional questions, he then contended that the statement was false in accusing defendant of the stabbing.
At the Gross hearing, the State also presented testimony from Detective Thomas Koczur, who first interviewed Williams at the hospital on the night of the stabbing. According to Koczur, Williams did not appear to be under the influence of alcohol or narcotics at that time. On that evening, Williams was able to identify photographs of the three assailants and to describe the role each assailant played in the attack. He also agreed to come to the police station the next day to give a statement. When Williams appeared for the interview, he was not in custody or a suspect. He "was very cooperative" and did not appear to be under the influence of pain medications or alcohol. Koczur denied that Williams was placed under any pressure to make the statement. Williams was "very sure" that defendant stabbed him and expressed his hope that the police would "get these guys."
In an oral opinion placed on the record on June 26, 2006, the trial judge concluded that the statement was admissible. Relying on State v. Brown, 138 N.J. 481, 542 (1994), she reasoned that the statement was inconsistent with Williams' trial testimony concerning his inability to recall making the statement or the facts contained therein. As in Brown, she concluded that "the lapse of memory was feigned."
[W]ell before [Williams'] interview with Det. Koczur before he received any medication when he first arrived at the hospital he was seen by . . . Officer Turner and provided information at a time he was angry, he was upset, when . . . the only influence he was under was the fact he had just ...