On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-1785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Sabatino and Simonelli.
Following a jury trial, defendant Michael Damon was convicted of the murder of Michael Vanderhurst, who he allegedly shot to death in a Camden alley one evening in January 2003.
The sole alleged eyewitness to the shooting was a drug dealer, Giles Broome, who had been selling crack cocaine with Vanderhurst that evening. Although Broome initially told police that he had seen defendant speak with Vanderhurst in the alley and then shoot him, Broome recanted that accusation at trial. The gun was never recovered, and no forensic proofs linked defendant to the crime scene. Consequently, the State's proof of the shooter's identity hinged upon Broome's out-of-court statement to the police inculpating defendant.
At trial, after the State rested, the defense attempted to present testimony from Jeremy Rodriguez, a neighbor who had heard the shots from the alley, and who had brought Vanderhurst a blanket as he lay bleeding on Rodriguez's steps. Rodriguez stated that he asked Vanderhurst if he had seen "anybody" before he was shot, to which Vanderhurst allegedly replied in the negative, that he "didn't see anything." That testimony was offered to negate Broome's claim that defendant and the victim had been speaking with one another in close proximity right before the shots were fired. The court struck this testimony and told the jury to disregard it, because defense counsel had not supplied the State with a summary of Vanderhurst's statement to Rodriguez in pre-trial discovery.
Although defendant raises several issues on appeal, many of which clearly lack merit, we are satisfied that defendant is entitled to a new trial because the court should not have excluded Jeremy Rodriguez's testimony as a discovery sanction. The court instead should have explored less drastic measures, such as a brief adjournment of the trial, to address the asserted surprise to the State. We are also persuaded that the court's mistaken exclusion of Rodriguez's testimony was not harmless given the substantial identification issues that permeated the trial.
Vanderhurst, then age twenty-three, was shot in the upper abdomen on January 19, 2003, while selling crack cocaine on the streets of Camden. A few hours later, he died on the operating table at Cooper Hospital.
The proofs at the five-day trial focused upon the pivotal question of who shot Vanderhurst. According to the State's witnesses, Vanderhurst belonged to a four-man narcotics operation, or "set." His set sold crack from an alley between Boyd and Rand Streets, near the intersection of Boyd Street and Midvale Avenue in East Camden. The other three members of the Boyd Street set were Broome, Cinque Dredden, and Jeffrey Whye (a/k/a "Jay F"). Whye and Dredden were considered the managers of the set, although both men denied having that title.
Defendant ran a competing set, which sold crack on Rand Street. His twin brothers, Max Damon and Tyrock Damon ("the twins"), ran a third set that sold marijuana on nearby Marlton Pike. Vanderhurst had once worked for defendant's brothers but had switched to the Boyd Street set, supposedly because the latter's drug trade was better. Vanderhurst had the reputation of being a hard worker, and various sets in the area wanted him to sell drugs for them.
Vanderhurst and Broome first met one another when they worked for the twins' Marlton Pike set. Broome, who was age nineteen at the time, considered Vanderhurst a friend. He enjoyed working with him, describing Vanderhurst as a "true hustler." According to Broome, he and Vanderhurst left the Marlton Pike set because they could make more money working for the Boyd Street set, where crack was selling for about one-half of the usual price in that part of the city. Because of its price discounting, the Boyd Street set's brisk business came at the expense of the other sets in East Camden.
On the evening of January 19, 2003, Vanderhurst and Broome were working as a two-man team at the Boyd Street alley. On instructions from Whye, Vanderhurst was selling the drugs, and Broome was acting as lookout. As such, Vanderhurst stood near the alley entrance, which was flanked by abandoned houses on Boyd Street. The drugs were stashed in the rear of the alley. Meanwhile, Broome, as the lookout, stood across the street from the alley entrance.
At around 6:30 p.m., Vanderhurst and Broome ran out of drugs. They called Whye from a nearby pay phone on Marlton Pike to request more supply. In response, Whye and Dredden drove to the location. They provided Vanderhurst with two more packages of individually-wrapped five-dollar bags of crack cocaine. Dredden claimed that the packages were entrusted solely to Vanderhurst, because Broome's job was only to act as the lookout. After Whye and Dredden drove off, Vanderhurst and Broome resumed their respective positions in the alley and on the street.
Broome, after getting out of Whye's car, remained on Boyd Street while Vanderhurst went into the alley to stash the new supply of drugs. Vanderhurst then spoke briefly with a person who pulled up in a blue car. After that car pulled away, he went into the alley. Moments later, Broome allegedly saw Vanderhurst talking with a man with braids at the far end of the alley. Broome claimed to have observed the braided man pull a gun and shoot Vanderhurst. As Broome fled the scene, he heard three gunshots.
Neighbors who lived near the alley also heard the gunshots. Jeremy Rodriguez and his sister Jenice, who lived in a duplex on Boyd Street near the alley entrance, looked out of their window. They saw Vanderhurst emerge from the alley and collapse on their front steps. They went out to render aid to him. The police and ambulance arrived shortly thereafter.
Broome, meanwhile, ran to the pay phone on Marlton Pike and called Whye, telling him that Vanderhurst had been shot. Whye, who also considered Vanderhurst a friend, was upset by the news. Whye and Dredden immediately drove to the scene, where they saw police and EMTs attending to Vanderhurst.
Whye testified that when he arrived, Vanderhurst was "wrapped up in a blanket" and laying on a step. Whye recalled that Vanderhurst "looked like bluish" and that he "could tell that he wasn't going to make it." The police were asking Vanderhurst what his name was, and Whye heard him respond that his name was "Mike." However, when Whye attempted to talk to the police, the officers supposedly instructed him to leave the scene.
Whye and Dredden then picked up Broome by the pay phone. They drove to the hospital to check on Vanderhurst. According to Whye, Broome appeared unusually calm and he did not seem upset by the shooting. Dredden similarly recalled that Broome acted "regular" and "calm." By contrast, Dredden recalled that Whye was "upset," "excited," and "afraid for [Vanderhurst]."
Whye repeatedly asked Broome who shot Vanderhurst, but Broome insisted that he did not know. Dredden also asked Broome what had happened. Broome responded only that he had heard shots and that he saw Vanderhurst come out of the alley "screaming."
Because Broome provided no details to their inquiries about the shooting, Whye and Dredden suspected that Broome might have been involved in it. Dredden testified that he was suspicious about Broome because, after they had picked him up from the pay phone, he returned one of the packets of drugs to Dredden. He did so even though both packets had been specifically entrusted to Vanderhurst. Broome never explained to Dredden and Whye how he came into possession of one of the packets of drugs.
Upon arriving at Cooper Hospital in downtown Camden, Whye, Dredden, and Broome were informed that Vanderhurst was in critical condition and that he was undergoing surgery. The trio then left the hospital and went out drinking. When Whye returned a few hours later, he learned that Vanderhurst had died.
Dr. Jan Hood, an Assistant County Medical Examiner, performed an autopsy of Vanderhurst. Dr. Hood determined that the cause of death was a single gunshot wound to the torso. Dr. Hood could not determine conclusively if Vanderhurst was shot in the abdomen or in the back, because the bullet had traveled through his body and out the other side. However, based on the nature of the bullet holes in Vanderhurst's body and in his clothing, Dr. Hood opined that it was more likely that Vanderhurst had been shot in the back.
The police never recovered the gun used to shoot Vanderhurst. Moreover, no forensic evidence was generated linking defendant to the crime in any way.
Investigator Jeffrey Long of the Camden County Prosecutor's Office and Detective Eric White of the Camden Police Department led the investigation into Vanderhurst's murder. The two officers interviewed Whye at the station house ten days after the shooting. Whye was interviewed for twelve hours before giving a formal statement. The officers allegedly told Whye that they believed the murder was over "gangs and drug territory," but Whye would not agree with that supposition. Whye contended that the officers threatened to charge him in connection with Vanderhurst's death if he did not go along with their theory of the case.
Dredden, who was in custody at the time of trial following his arrest in an unrelated matter, testified that he also had given a statement to Investigator Long. Dredden likewise claimed that Long had threatened to charge him with conspiracy to commit murder.*fn1
Meanwhile, following the murder, Broome had fled to Delaware to stay with relatives for a short time. He testified that he had left New Jersey to avoid being arrested on a probation violation. Eventually, Broome returned to Camden and police received an anonymous tip of his whereabouts. Following up on that tip, police picked up Broome at his girlfriend's apartment on the morning of February 5, 2003. He was taken to the police station for questioning. At the time, Broome was not considered a suspect.
About one and a half hours after Broome was taken to the station, he gave a twenty-one-minute taped statement. In that statement Broome identified defendant, whom he called "Mike," as the person who shot Vanderhurst. Specifically, when asked why Broome and Vanderhurst were on Boyd Street that day, Broome answered:
Selling drugs, we was selling cocaine on Boyd Street, we ran out, we went up to Marlton Pike and call Jay F [Whye] on his cell phone he said he was he'd be around there in fifteen minutes he came around there, we hopped in the car, we exchanged the money for the drugs... they had told [Vanderhurst] to go stash it in an alleyway, I was standing directly across the street from [the] alleyway. And like two minutes later it was three guns shots side alleyway, and I seen Mike [Damon] pull the trigger.
Later in the police interview, Broome repeated:
While I was watching out, [Vanderhurst] was, [Vanderhurst] was in the alleyway,... I thought he was packing stash up but I seen this purple hoodie from the corner of the alley, like he was talking to somebody and then he said a couple words, and three gunshots went off and I seen Mike [Damon] pull the trigger.
Broome was then shown a photograph by the detectives, which he identified as defendant.
After Broome identified defendant's photograph, the following dialogue occurred on the tape:
Q: Alright... and [defendant] it's who you saw point the gun at [Vanderhurst] and shot?
Q: Okay, could you see, could you see ...