On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-12-01571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Waugh.
Defendant Ronnell Davis appeals his conviction for attempted murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Davis was sentenced to imprisonment for an aggregate of twenty-five years, subject to the eight-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.
We discern the following facts and procedural history from the record.
On October 29, 2004, at approximately 7:30 p.m., Dale Foat was shot twice; once in the head and once in the chest. As a result of the shooting, a portion of his left lung was removed.
On October 30, 2004, Foat identified Davis as the shooter and Albert Snell as being involved in the shooting. After Foat was arrested on unrelated drug charges in November 2004 and released on bail, he recanted his identification, denying that Davis had any involvement in the shooting. He subsequently identified Snell as the shooter.
Davis was indicted on December 14, 2005, and charged with: first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1),(2) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count four). The fourth count related to allegations that Davis had caused Foat to recant his original identification of Davis as the shooter.
The trial commenced on July 18, 2006. There was no forensic evidence tying Davis to the shooting and, as noted, Foat had recanted his statement that Davis shot him. The State presented testimony, including Foat's recorded statement under oath, that Davis shot Foat and that, when Foat was subsequently arrested on unrelated drug charges, Davis arranged for his bail to be posted in exchange for Foat recanting his story and implicating Snell in the shooting. The State called Foat and his bail bondsmen, Robert Ellison, as witnesses at trial, but neither witness implicated Davis in the shooting or supported the State's theory of his involvement in the posting of Foat's bail.
Foat had initially refused to appear as a witness at all, and it was suggested by the State that it would seek to have his sworn statement introduced pursuant to N.J.R.E. 804(a)(2) and (b)(1)(A).*fn1 Ultimately, Foat did appear as a witness, repudiated his earlier statement to the effect that he was shot by Davis, and testified that Snell shot him. The audiotape of the statement implicating Davis was played for the jury pursuant to N.J.R.E. 613 and 803(a).
Prior to the indictment against Davis, Ellison had given the police a sworn statement to the effect that he was approached by Davis, whom he knew as "Love," and asked how much cash would be required to obtain a $50,000 bail bond, but without mentioning Foat. He told "Love" that it would cost $2,500. Shortly thereafter, Foat's relatives came to Ellison's office with $2,500 and arranged for the bail bond. Just before the start of the trial, however, Ellison also recanted his identification of Davis as the "Love" involved with Foat's bail, contending that it had been someone else whom he also knew as "Love."
During his direct examination, the prosecutor asked Ellison if he was providing Davis with favorable testimony because he feared Davis's "reprisals." Ellison responded, "I fear no man." The prosecutor then approached a muscular man wearing a tank top in the audience and asked, "Even a guy with biceps this big?" Defense counsel objected and requested a mistrial.
Counsel then went to sidebar, where the following discussion took place:
[Defense Counsel]: Your Honor, this is the second time that he insinuated that my guy is behind -- first, the first objection I made was when Dale Foat was on the stand and he said Dale Foat is getting pressured by inmates in the jail so that he won't testify against Ronnel Davis.
He just, just so the record reflects, he just walked over to a gentleman that's in the courtroom, has somewhat of a tank top type of shirt or a shirt with the sleeves cut off and just so happens to have big arms. He walked, the prosecutor just walked over to this individual, stood by this individual while the witness Robert Ellison is testifying and insinuated,  we cannot sugar coat this, that my client has this individual in the courtroom, in the courtroom as a sign of force or some threat to this particular witness.
The, the prosecutor has asked the witness on the stand does he know any individuals in the courtroom. Then he walks over to an individual and says not even this, not even an individual with arms this big.
I'm moving for a mistrial at this particular point. I think the State has clearly violated the rules of evidence, has prejudiced my client, that none of it has anything to do with the charges, what he's charged with in the indictment.
And, your Honor, furthermore, the State is adding things that's not even in evidence into this case. And what I mean by not in evidence, I mean he's bringing in stuff that there is no reports on, an individual sitting in the courtroom. The courtroom is open to everyone. It's a public courtroom.
THE COURT: Let me ask, [prosecutor], do you know who this person is?
[Prosecutor]: Judge, all I know is your sheriff's officer has gone to another person who is currently in this courtroom to tell him not to be staring at witnesses, and we can lay a foundation if you want and put that on the record. I know Officer Eckel told you that happened earlier.
There are a lot of people in this courtroom in the back staring at all the witnesses as they come in, and this one particular individual [has been] here since the morning. He [stated he] was here under oath for Ronnel Davis. Nobody understood what he meant by that, but that's what he said. And he's a big man. He seems to be a weight lifter type because his arms are large and he appears to have a negative influence on all the witnesses here because in my view from what I'm seeing, and I'm not staring at these people because, of course, they're behind me and I'm focusing on the witnesses, but it appears they're trying to intimidate the witnesses.
I'm not saying Mr. Davis is behind that. It might very well be that Mr. Ellison is afraid to be labeled a rat and there are people on the street who are coming in here to make sure he doesn't testify against one of their own so-to-speak.
[Defense Counsel]: Your Honor --[Prosecutor]: And, also, one other thing that I want to put on this record. I didn't ask the court to do this, but the court sealed this courtroom this morning when Mr. Foat was on the stand and the windows were covered with paper so that no one could look inside the courtroom and the doors were locked.
Now, I discovered that well into Mr. Foat's testimony, and I assume the court did that because of security problems that are attending to this trial. And I'll remind your Honor what -- the court what your Honor said at the very beginning. There is something very unusual and suspicious of how people are changing their story and not complying with subpoenas and making all these la[st] minute provisions to --revision to their previous statements prior to trial. Your Honor did say something to that effect.
[Defense Counsel]: Your Honor, that was at a hearing . . . that your Honor conducted, and that is not a part of this case. And there's a serious miscarriage of justice that's being carried out through this trial, your Honor.
Oh, my God, I mean I can't believe it. I mean the State has said that this witness has been looking -- we just opened the courtroom back up just now. . . . This is the only witness, and for him to say that these people are looking at witnesses is crazy, as if to give a sense of threat.
This man is entitled to a fair trial. His family can, if he wants to put each one of the family members on the stand, this is his family, and they're entitled to attend a trial.
[Prosecutor]: Are you suggesting, counsel, the person with the biceps ...