On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-11-2639 and 05-11-2640.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman, Baxter and King.
Defendant Frederick Parrish appeals from his February 16, 2007, conviction of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant thereafter submitted to a bench trial and was convicted of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. We conclude that prosecutorial excesses, in the context of the trial as a whole, deprived defendant of a fair trial. Accordingly, we reverse and remand for a new trial.
On July 31, 2005, at approximately 5 p.m., the Irvington Police Department and the Essex County Prosecutor's Office responded to a report of a homicide on Ellis Avenue near its intersection with Madison Avenue. They found the body of Taquan Howard on the pavement of Ellis Avenue near a blue Lexus. The vehicle's engine was running, the doors were open, and the vehicle was pierced with bullet holes. Investigator James Marinaro of the Essex County Prosecutor's Office learned from bystanders that Howard was the driver of the Lexus and that an injured passenger had left the scene on foot, limping. While he was at the scene with Howard's body, Marinaro was approached by K.H., Howard's fifteen-year-old sister, who was not a witness to the crime but provided certain information. That information and her trial testimony are discussed below.
The investigation revealed that the shooting took place on Ellis Avenue at its intersection with Springfield, where the police recovered spent bullet casings and a headlamp assembly. They also recovered a videotape from a surveillance camera inside the Chicken Shack restaurant on Ellis Avenue. The videotape, on which the second-by-second time was recorded, depicted the Lexus stopped at the traffic light at 4:25 p.m. with an SUV behind it. Howard could be seen speaking with a woman on the street when a gray work van with fancy rims and wheels turned from Springfield Avenue onto Ellis Avenue headed toward the Lexus. As it pulled along side the Lexus, the van stopped and the driver fired six shots into the Lexus over the course of four to five seconds. The van then pulled away, traveling at a normal rate of speed, until it was no longer captured on the videotape. The Lexus then proceeded through the intersection, continuing on Ellis Avenue toward Madison Avenue. The SUV behind it also proceeded into the intersection, turning onto Springfield Avenue.
While the investigation proceeded that evening, Irvington police responded to Irvington General Hospital on a report of a gunshot victim, Joseph Jones, who had been admitted to the hospital and was being treated for a gunshot wound to the pelvis. Jones said that the shooting occurred at the intersection of Ellis and Springfield Avenues and that he was standing outside the Lexus retrieving car parts from Howard when a green van pulled along side it and started shooting. He described the shooter to the police as having brown skin, a chubby face, and low-cut hair, but he did not recognize him or know his name. When the police interviewed Jones the following day, he changed certain aspects of his story, but not his description of the shooter.
At about 9:00 p.m. on July 31, 2005, Carole Walker went to the Irvington Police Department to report that she had seen a shooting that evening. Walker was alone in her Ford Explorer behind the Lexus at the traffic light. There were only two people in the Lexus, both in the front seat. Walker saw a dark gray passenger van make a right turn on Ellis Avenue and stop, she assumed to talk to the driver of the blue Lexus. Walker then heard gunshots, and when she looked to see where they were coming from, she realized the driver of the van was shooting into the blue Lexus. The van's driver had a black nine millimeter gun held sideways in his right hand with his right hand crossed over his left. She kept her eyes on the shooter.
She described the shooter as a "not very dark" black male, thirty-five to forty years old,*fn1 with a diamond stud*fn2 in his left ear, a very low-cut beard, not a lot of hair on his head with no long hair or dreadlocks,*fn3 and a "stocky build with a full face." She could see the driver's head from above the eyebrows down to his shoulders. He wore a blue shirt with red, white, and blue trim around the neck.
On August 1, 2005, the police recovered a stolen gray work van. It did not contain any gunpowder residue; no identifiable fingerprints were found on it. Upon comparison with the van in the videotape, the police concluded that it was not a match. From the bullets recovered from the Lexus and the shell casings recovered from the street, a police expert determined they all came from the same gun, a Glock forty-caliber, semi-automatic handgun. The gun was never recovered nor was any van matching the one depicted on the videotape ever located. In short, no forensic evidence connected defendant to the shooting and the State's case depended entirely upon identifications by B.K., who did not see the shooting; Jones; and Nujuane Scott, who claimed to be an eyewitness. Walker presumably was not able to identify defendant as the shooter; she was not asked to do so at trial.
On the day of the shooting, K.H. told the police that she was at a friend's apartment on Berkeley Terrace when she heard gunshots. She looked out a window and observed a gray box-style van with tinted windows driving on Ellis. She was able to see the operator of the van because the van had a partially open window. She gave the police the driver's street name and said that he was a dark-skinned black male, heavy set, about five foot eight inches tall, with cornrows in his hair. She elaborated on this statement at trial.
K.H. testified that at the time of the shooting she was visiting her friend in her second-floor apartment on Berkeley Terrace. She and the other people in the apartment heard a couple of gunshots, ran to a window overlooking Ellis Avenue, and saw people running down the street. K.H. then ran to a second window facing Berkeley Terrace from which she saw defendant driving a gray van with dark tinted windows at a normal speed down Ellis Avenue. Although the driver's window was open only "a little bit," K.H. could identify the driver as defendant because of the way he was driving, "like on top of the steering wheel." K.H. had seen defendant driving cars that way, but never before saw him driving that van. K.H. explained that she knew defendant from "being on Ellis Avenue" but she did not know his birth name. She also testified she could see his face and hair. K.H. testified that she described defendant on the day of the shooting as not tall but "kind of tall," chubby, medium complexion, facial hair, and corn rows down his neck. K.H. saw the van turn onto 20th Avenue and speed away; she flatly denied that the van turned onto Berkeley Terrace, contradicting Walker.
K.H. also testified that she made particular note of her observations of defendant operating the gray van because "as the gun shots was [sic] happening, I guess after he rolled down the street," she received a telephone call advising her that her brother had been shot. She left the apartment and ran to the scene of the shooting where she saw yellow tape, which an officer prevented her from crossing. She did not attempt to explain how this testimony could possibly be correct when the shooting took place at 4:25 p.m. and the police did not arrive until 5:00 p.m.
K.H. further testified that when she was again interviewed by the police on August 18, 2005, she told them that she had recently seen defendant when he passed her house in a burgundy Pontiac. She then testified that she told police he was sitting in a car in front of her house when she was out on the street.
She got the license plate number of the Pontiac and gave it to the police.
On August 19, 2005, K.H. went to the police station and the police showed her photographs of men with corn rows. K.H. identified defendant as the shooter. She was "one hundred percent certain" that defendant was the man driving the van that killed her brother. At the time she gave this statement, she told the police that defendant's first name was Freddie. On cross-examination, she denied learning this from talking to anybody, including at her brother's wake and funeral. Although Scott and Jones came to the funeral, she did not speak to them.
On cross-examination, K.H. admitted that she did not see big wheels on the van that defendant was driving and claimed that there was nothing unusual about its wheels and tires, contrary to what was depicted in the videotape. She admitted that there was nothing in either of her two statements to the police or in her testimony before the Grand Jury where she stated that she went to look out a second window in the apartment; the first time she said that was at trial. K.H. also admitted that she made a "snap decision" when she identified defendant and further admitted that she could not see the van driving down Ellis Avenue from the second window.
Jones, who had been indicted and was awaiting trial on an unrelated indictment at the time of defendant's trial, testified that on July 31, 2005, he, Howard, Scott, and a fourth individual unknown to Jones met on 22nd Street in Irvington. Jones, however, admitted that he told the police on August 1, 2005, that they met at 13 Madison Avenue. The four men began "riding around" in a stolen blue Lexus filled with stolen property, including DVDs and CD players. Howard was driving, Jones sat in the front passenger seat, and the other two men sat in the backseat. This was inconsistent with Walker's testimony that there were only two people in the Lexus.
At 4:30 p.m. that day, the Lexus stopped on Ellis Avenue at a red light at the intersection of Ellis and Springfield Avenues with the windows down. The men in the Lexus were talking to a woman named Mecca, a friend of Howard who was standing on the driver's side of the Lexus while they were talking. A gold work van stopped next to the driver's side of the Lexus, although he testified that the van was green before the Grand Jury. Jones testified that he saw two people in the van, although he had testified before the Grand Jury that it contained only one person. He testified that defendant was the driver,*fn4 although he testified before the Grand Jury that he could only recognize the driver "a little bit." Jones said defendant reached his right hand over his left and started shooting a black automatic firearm into the Lexus.
When the shooting started, Jones immediately ducked down into the passenger seat and curled up. He claimed that he watched through the driver's side window and kept his eyes on the shooter because he wanted to know who he was. Jones estimated that there were eight or nine loud shots fired. After the shooting, Jones saw the van go down Ellis Avenue heading towards 20th Avenue behind him. Howard's car rolled slowly toward the intersection with Howard behind the wheel vomiting blood. The vehicle came to a stop on Ellis Avenue near Madison. When Jones got out of the car, he realized he had been shot in the left hip. Some people, including a woman named Tainya who lived on 21st Street, came to help him, but he told them to help Howard. Jones testified that he did ...