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State v. Jackson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRELL JACKSON A/K/A DERRELL SAUNDERS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 04-07-2685-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 31, 2009

Before Judges Wefing, Parker and Yannotti.

Tried to a jury, defendant was convicted of first-degree aggravated manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4(a), and of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was found not guilty of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial court sentenced defendant to an aggregate term of eighteen years in prison, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On the night of March 8, 2004, Amir Wilkins was driving a vehicle in the vicinity of 18th Avenue and Alexander Street in Newark. Witnesses testified that they assumed that the car was stolen because of the reckless manner in which he was driving--speeding and doing "donuts." That assumption later proved to be correct. There was also testimony that someone yelled out to the driver that there were children in the area. Two witnesses, Dorothea Adu and Catasha Newsome, had gone with friends to a Chinese restaurant to get food; Adu was inside the restaurant and Newsome was standing outside when they heard four to five gunshots. One of the bullets struck Wilkins in the head, killing him.

Immediately after the shooting when police responded, both Adu and Newsome denied any knowledge about what had happened, and they left the scene. Later, they both identified defendant, whom they recognized from the neighborhood and knew as "Rell," as the shooter. Newsome admitted on cross-examination that she was intoxicated at the time from smoking marijuana. Defendant testified and denied any involvement in the incident. He said he was in a different area of the city, with his friend Yakeema and her sister Shuby.

Through counsel, defendant raises the following contentions:

POINT I

JURY INSTRUCTIONS SHOULD HAVE BEEN GIVEN ON DEFENSE-OF-ANOTHER (Raised Below) AND PASSION/PROVOCATION MANSLAUGHTER (Not Raised Below)

A. Defense of Another

B. Passion/Provocation Manslaughter

POINT II

THE TRIAL JUDGE SHOULD NOT HAVE ALLOWED THE PROSECUTOR TO CROSS-EXAMINE OR ARGUE TO THE JURY REGARDING DEFENDANT'S FAILURE TO CALL A FORMER FRIEND AND HER SISTER AS WITNESSES TO SUPPORT HIS ALIBI; FURTHER, A CLAWANS INSTRUCTION TO THE JURY ON THE SAME SUBJECT WAS INAPPROPRIATELY GIVEN, AND WAS NOT JUSTIFIED BY THE TRIAL JUDGE'S APPARENT DESIRE TO PUNISH DEFENSE COUNSEL FOR HIS FAILURE TO PROVIDE A NOTICE OF ALIBI

POINT III

NO ONE--NOT THE TRIAL JUDGE NOR EITHER COUNSEL--APPEARS TO HAVE UNDERSTOOD THE EVIDENCE RULES REGARDING IMPEACHMENT OF A WITNESS; THE STATE WAS IMPROPERLY ALLOWED TO CROSS-EXAMINE DEFENDANT ON HIS USE OF AN ALIAS AS AN ACT WHICH DEMONSTRATED HIS ALLEGED LACK OF CREDIBILITY--A CLEAR VIOLATION OF N.J.R.E. 405 AND 609, WHICH FORBID IMPEACHMENT USING PRIOR ACTS NOT THE SUBJECT OF A CONVICTION (Not Raised Below)

These arguments do not warrant extended discussion. With respect to the first, that the trial court should have instructed the jury on the concept of defense of another, the trial record does not satisfy the elements of N.J.S.A. 2C:3-5. Nor does it contain evidence which would support the four elements of passion/provocation manslaughter. State v. Mauricio, 117 N.J. 402, 411-13 (1990). Further, we note, as did the trial court, that such charges would have been wholly inconsistent with defendant's defense at trial that he was not even present at the time of the shooting.

After the State rested its case, defendant elected to testify. Just before he took the stand, defense counsel advised the assistant prosecutor that defendant would testify that he had been with his friend Yakima and her sister Shuby at a point some twenty minutes away from where the shooting occurred. This was the first notice that an alibi defense was being proffered.

We find no error in the manner in which the trial court handled the complete failure by defendant to comply with the provisions of Rule 3:12-2. It outlined, in accordance with the model jury charge, the various factors that the jury could take into account in reaching its decision on this issue. The trial court appropriately left it up to the jury whether to draw an adverse inference from defendant's failure to produce Yakima or Shuby to corroborate his testimony.

Defendant was indicted under the name Terrell Jackson, and the matter proceeded in that manner until defendant took the stand and identified himself as Derrell Saunders, a/k/a Terrell Jackson. He explained to the jury that he had been charged in 2001 with narcotics offenses and that when he was arrested for those offenses, he gave the name Terrell Jackson, rather than his real name, Derrell Saunders. The prosecutor cross-examined defendant about his use of this different name and argued to the jury in summation that it was another indication that defendant was not credible. Here, contrary to defendant's argument, the prosecution did not introduce defendant's use of an alias to argue that defendant was more likely to commit the crime charged; defendant himself put the matter before the jury. We see no error. United States v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997), rev'd on other grounds sub nom, United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed. 2d 388 (1999) (upholding cross-examination of defense witness on defendant's use of another name); United States v. Levy, 865 F.2d 551 (3d Cir. 1989) (upholding admission of defendant's false passports and false identities).

Defendant has filed a pro se supplemental brief in which he raises the following arguments:

POINT I

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO MISUSE DEFENDANT'S PRIOR CONVICTION AS OTHER CRIMES EVIDENCE UNDER THE GUISE OF IMPEACHING DEFENDANT'S CREDIBILITY, THEREBY, DENYING DUE PROCESS OF A FAIR TRIAL

POINT II

THE TRIAL COURT ERRED BY GIVING A CLAWANS CHARGE ON DEFENDANT'S FAILURE TO PRODUCE WITNESSES, BUT NOT ON THE STATE'S FAILURE TO PRODUCE A WITNESS WHO DID, IN FACT, TESTIFY BEFORE THE GRAND JURY, IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS, WHEREFORE A NEW TRIAL SHOULD BE GRANTED

POINT III

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHEN THE PROSECUTOR EXCESSIVELY MADE USE OF DEFENDANT'S PRIOR CRIMINAL CHARGE, PLEA AND PROBATION; AND WHEN THE PROSECUTOR EXCESSIVELY MISUSED DEFENDANT'S ALIAS TO PREJUDICE HIM IN THE EYES OF THE JURY, WHEREFORE A NEW TRIAL SHOULD BE GRANTED

We reject these arguments for the reasons we have previously set forth.

Defendant's convictions are affirmed.

20090519

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