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State v. Parrish

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERICK PARRISH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-11-2639 and 05-11-2640.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 4, 2009

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.

I.

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 not know at that point what happened to the backseat passengers, although he thought they fled the scene. The videotape was played after this testimony with Jones describing what was happening.

Although Jones testified at trial that he knew defendant was the shooter, he admitted that he did not identify him to the police until August 22, 2005, claiming that he was afraid of defendant. However, he also admitted that he learned the identity of the shooter from Howard's family. He also explained that he changed his story because he learned that Howard had died and Howard's brother wanted him to tell the truth.

Jones testified at trial that he described the shooter to the police as having brown skin, a chubby face, and low-cut cornrows, although he admitted on cross-examination that he only told the police defendant had low-cut hair, making no reference to cornrows. However, on redirect he claimed that defendant had cornrows at the time of the shooting but, before giving a statement to the police, he had been told that defendant cut his hair short and so he gave that information to the police. He also testified on cross-examination that he first gave police defendant's street name on August 22, 2005, when he selected defendant's photograph from an array presented to him by the police. He denied discussing the crime with Howard's sister during Howard's funeral or at any other time. On cross-examination, Jones admitted that he had never been charged in connection with his presence in the stolen Lexus nor had he been charged with possessing the stolen property found in it. Jones denied that he stole the Lexus.

Scott, a convicted felon who was incarcerated at the time of trial, testified that Jones stole the Lexus while he, Howard, and another individual were with him on July 31, 2005. They had been out that day stealing things, including car parts, DVDs and CD players, which they put into the Lexus and then drove to the intersection of Ellis and Springfield Avenues in Irvington where they stopped for a red light. Scott was in the backseat when he saw a long work van with one person in it turn the corner from Springfield Avenue and the driver started shooting at the Lexus.

The driver held a black nine millimeter gun in his right hand. Howard was yelling that he was shot, and the other passengers were yelling, "Pull off!" Scott kept moving back and forth in the rear seat while looking at the gun and shooter to avoid getting shot. After shooting at the Lexus, the driver of the van proceeded on Ellis Avenue toward 20th Avenue. The Lexus moved slowly toward Madison. When the Lexus came to a halt, Howard fell out of the car and Scott jumped out and ran.

Scott never went to the police to tell them about the shooting. However, when he was in the Essex County Jail in February 2006, he was brought to the Prosecutor's Office to make a statement. At that time, Scott described the shooter's characteristics as "short hair with facial hair, big, brown skin, a little heavy-set," weighing 210-220 pounds, and having a "low-cut type fade," that is, short hair with the sides trimmed almost to the skin. He testified this did not mean cornrows. After Scott said that he would recognize the shooter, the prosecutor showed him six photographs. He could not recognize the shooter, but asked to see three of the photographs again. On the second viewing, Scott identified defendant as the shooter and identified him again in court. Defendant was the only one with a full beard. Scott testified that he was positive about the identification.

On cross-examination, Scott admitted that he was looking at the gun to avoid getting shot and that the shooting only took a few seconds. He testified that the van had fancy rims with holes in them, which usually have low profile tires on them, although he did not tell the prosecutor that the van had fancy rims. Defense counsel showed Scott a photograph of a grayish van, but Scott testified that the van on July 31, 2005, "was like a champagnish [sic] gray type of color," although he described it as grayish brown in his statement to the prosecutor.

Scott also testified on cross-examination that he ran into Jones not long after the shooting. He asked Jones if he knew who the shooter was and Jones said that he did not.*fn5 He also admitted that in September 2006 he told an investigator for the defense that he picked defendant's photograph because he was the only one with a full beard and for no other reason. He also told the defense investigator that it was the prosecutor's investigator who made him look at three of the photographs a second time. On redirect, Scott testified that he picked defendant's photograph because he recognized him and had told the prosecutor's investigator that he was "one hundred percent sure he could go with [photograph] three."

II.

On November 7, 2005, defendant was indicted and charged with the following offenses: first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); 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. On the same date under a separate indictment, defendant was charged with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b.

On October 30, 2006, a hearing was held before the trial judge, who considered among other things the proposed admission of evidence that defendant and the victim belonged to rival gangs. The judge questioned the relevance of this evidence, and the prosecutor explained that gang rivalry motivated the shooting. The prosecutor intended to use the testimony of Jones or K.H. to show that defendant and the victim were members of rival gangs, an ongoing conflict existed between the gangs, and the victim had gone beyond his gang's territory into defendant's gang territory. Defendant's counsel objected, arguing that the court did not know the basis for the witnesses' knowledge of the gang membership and rivalry. He argued that the judge was required to conduct a hearing pursuant to N.J.R.E. 104 to determine the admissibility of the evidence. The judge declined to make any in limine ruling, but cautioned that any hearsay evidence would be inadmissible.

A nine-day trial commenced on November 2, 2006, and the jury returned a guilty verdict on November 17, 2006, as to the lesser-included charge of aggravated manslaughter, aggravated assault with a firearm, and both weapons counts, but found defendant not guilty on the attempted murder charge. After a bench trial, defendant was found guilty of second-degree possession of a weapon by a convicted felon. On February 16, 2007, the judge denied defendant's motion for a new trial and imposed an extended-term sentence of thirty years on the aggravated-manslaughter conviction with an eighty-five percent NERA*fn6 parole disqualifier. He sentenced defendant to a concurrent eighteen-month term of imprisonment on the aggravated assault, with nine months to be served without parole, and sentenced him to a concurrent five-year term for unlawful possession of a firearm, with thirty months to be served without parole. Defendant's conviction for possession of a firearm for an unlawful purpose was merged with his aggravated manslaughter conviction for sentencing purposes. On the same date, defendant was sentenced on the second indictment to a term of ten years imprisonment with five years of parole ineligibility, to be served concurrently to the other charges. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL.

A. THE PROSECUTOR ENGAGED IN MISCONDUCT BY THE USE OF HIGHLY INFLAMMATORY, PREJUDICIAL AND EMOTIONAL REMARKS.

B. THE PROSECUTOR ENGAGED IN MISCONDUCT BY VIOLATING THE HOLDING OF SINCLAIR.*fn7

C. THE PROSECUTOR ENGAGED IN MISCONDUCT BY MAKING REFERENCES TO FACTS NOT IN EVIDENCE.

POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S REQUEST FOR A N.J.R.E. 104 HEARING PRIOR TO THE ADMISSION OF EVIDENCE RELATING TO GANG AFFILIATION.

III.

A conviction may be reversed where the prosecutor engaged in conduct so egregious in the context of the trial as a whole that defendant was deprived of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008). As the Wakefield Court explained,

Thus, "[t]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Also, "the Court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Next, "[the] court must also decide whether the prosecutor's misconduct constitutes grounds for a new trial... because, in order to justify reversal, the misconduct must have been so egregious that it deprived the defendant of a fair trial." In sum, "to warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." [Id. at 438 (citations omitted).]

See also State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005) (holding that prosecutorial excess "must be so severe as to deprive defendant of a fair trial"), certif. granted, 188 N.J. 219 (2006), certif. dismissed as improvidently granted, 189 N.J. 420 (2007). Although no single instance of prosecutorial excess may be reversible, the cumulative effect of several errors may be. State v. Feaster, 156 N.J. 1, 60 (1998); State v. Rodriguez, 365 N.J. Super. 38, 47-48 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Prosecutors have considerable leeway in summarizing the State's case, State v. Williams, 113 N.J. 393, 447 (1988), and may do so graphically and forcefully, State v. Johnson, 287 N.J. Super. 247, 265 (App. Div.), certif. denied, 144 N.J. 587 (1996). However, they may not make "inflammatory and highly emotional" appeals that have the capacity to distract the jury from a fair consideration of the evidence of guilt. State v. Marshall, 123 N.J. 1, 161 (1991). The prosecutor must confine her comments to the evidence and the reasonable inferences that may be drawn therefrom. Johnson, supra, 287 N.J. Super. at 265.

The goal that the test for determining prosecutorial excess "seeks to foster is that 'juries [will]... reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting Williams, supra, 113 N.J. at 453). Curative instructions can overcome inflammatory remarks. State v. Ramseur, 106 N.J. 123, 323 (1987); State v. Koedatich, 112 N.J. 225, 325-26 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989).

Defendant asserts that the prosecutor made three types of excessive comments that require a new trial: (a) highly inflammatory, prejudicial, and emotional remarks; (b) remarks that could be construed to improperly comment on defendant's silence; and (c) references to facts not in evidence.

A.

In presenting her summation, the prosecutor repeatedly asked the jurors to imagine what it was like to be the victim of the shooting. Specifically she said:

Imagine what it must have been like at the scene that day. Imagine what it must have been like in that car. Imagine what Taquan Howard felt like while he was in that car, hanging out on a summer day with his friends, talking to a girl. Imagine what it must have been like when a hail of bullets came down upon him. Sitting duck. Imagine what that would be like? Imagine what it would be like to hear the words "pull off, pull off," and what it felt like when you couldn't. Imagine what it felt like to have a perfect stranger's hand rest upon your chest while the last words you hear are "hold on, hang in there, help is on the way."

The prosecutor, referring to the medical examiner's testimony that defendant aspirated 2700 cubic centimeters of blood, more than half of his total blood supply, then suggested that the jury "imagine how he felt, Mr. Howard. We all sip water, every single one of us has taken it down through the wrong pipe." Continuing, she said:

What a terrible and lousy feeling that is. You choke it up, you can't catch your breath. People are asking "are you o.k.?"

Can't answer them because you just swallowed down the wrong pipe. You just hope that it clears up soon because you're embarrassed because you can't breathe. Well, imagine that he swallowed twenty-seven-hundred c.c.'s [sic] of that. Imagine if it were your own blood.

Defense counsel objected, but the prosecutor did not withdraw her remarks and the judge did not strike them, merely instructing the prosecutor to move on without any instruction to the jury. The defendant subsequently moved for a mistrial on the ground that the repetitive comments made by the prosecutor were improper and prejudiced his fundamental right to a fair trial. The judge denied the application and ruled that the remarks were fair comment on the evidence because Howard drowned in his own blood, which the medical examiner indicated was the cause of death. Defendant subsequently moved for a new trial, but the judge again concluded that the prosecutor's comments were not improper and were fair comment on the evidence.

The above-quoted prosecutorial comments, although based on the evidence as the State points out, were clearly and unmistakably improper. The repeated requests that the jurors imagine what it was like to be shot in the chest and drown in their own blood served no purpose other than to inflame the passions of the jury, which reported at one point that the deliberations were "heated." There was no dispute about the shooting; there was no dispute about the manner of death.

What was in dispute was the identity of the shooter, and the evidence bearing on that issue was largely inconsistent. Each of the three eyewitnesses to the shooting described the shooter as having short hair, i.e., "low-cut hair," "not a lot of hair," or a "low-cut type fade." K.H. testified that defendant had long cornrows down his neck on the day of the shooting. Jones contradicted his earlier statements to the police by claiming that defendant has "low-cut cornrows." Although Jones identified defendant as the shooter at trial, he admitted that he did not identify him to the police until August 22, 2005, after he learned his identity from Howard's family. Walker could not identify defendant as the shooter even though she kept her eyes on him during the shooting and he drove right past her immediately afterwards, permitting her to observe that he had a diamond stud in his left ear, which she obviously could not have seen during the shooting.

There were other inconsistencies in the identification testimony as well and three out of these four witnesses were impeached in significant respects, either by prior inconsistent statements or by each other. Viewing the prosecutor's inflammatory and highly emotional appeal to the jury to imagine what the shooting must have been like for Howard, in the context of the trial as a whole, Wakefield, supra, 190 N.J. at 437-38, in the absence of any curative instruction, Ramseur, supra, 106 N.J. at 323, we have no confidence in the jury verdict. We are satisfied that the prosecutor's "imagine" remarks "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense,'" Wakefield, supra, 190 N.J. at 438 (citation omitted), and require a new trial. The remarks cannot be excused here because, unlike State v. Timmendequas, 161 N.J. 515, 589 (1999), the evidence of defendant's guilt was hardly overwhelming.

B.

Defendant next contends that the prosecutor transgressed the rule in Sinclair, supra, 49 N.J. at 548-49, by making the following comments during her summation:

Well, you know? We didn't have a weapon, ladies and gentlemen of the jury. It would have been helpful, but you know the individual seated next to Mr. Ferrante, Coo over here, Mr. Parrish, he controlled that situation. He controlled it by the fact that we have no weapon to examine, not Det[ective] Marinaro, not Det[ective] Marinaro. This defendant left that scene that day, fled that scene, ladies and gentlemen of the jury, as he shot up that car and he took the gun with him.

Defendant objected to this comment, but it was not withdrawn. The judge overruled the objection, did not instruct the jury, and denied the motion for a new trial based on fair comment.*fn8

In Sinclair, the prosecutor commented that the testimony of an eyewitness was uncontradicted. Id. at 549. Only the defendant and his co-defendant were in a position to deny the eyewitness's testimony. Id. at 549. The Court observed:

The prosecutor has the right to make fair comment on the evidence and to argue to the jury the significance of the testimony presented, but when he begins to discuss the significance of what testimony was not presented and if it does not clearly appear that persons other than defendant could have been called, there is a danger that he may reflect upon a defendant's Fifth Amendment right to remain silent. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed. 2d 106 (1965) and State v. Lanzo, 44 N.J. 560 (1965). Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated. [Id. at 548-49.]

Defendant argues that only the shooter could testify as to the whereabouts of the gun. Thus, he contends that the prosecutor's remarks impermissibly commented upon his silence.

We are not persuaded that the remarks respecting the gun trespassed upon defendant's right to remain silent. His attorney in summation argued that all of the forensic work did not prove anything, commenting, "It would have been important for them to have a gun to compare the bullets to, isn't that what you are supposed to do as a cop?" We are satisfied that the trial judge properly took "into account defense counsel's opening salvo," State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991) (quotation omitted), and correctly concluded that "the prosecutor's remarks did no more than respond substantially in order to 'right the scale,'" ibid.

C.

Defendant next argues that the prosecutor's remarks in summation about his hairstyle and his lack of an earring made reference to facts not in evidence. Specifically, the prosecutor pointed to defendant, who was sitting at counsel table during summations, and suggested that the eyewitnesses to the shooting might have thought his hair was short if he styled it as he did that day in court with his cornrows pulled to the back of his head with a rubber band. She also suggested that Walker may have mistaken an ejecting shell casing for a diamond stud because they can be ejected backwards. The State responds that the remarks were all fair comments on the evidence presented at trial.

It is, of course, improper to argue facts that are not in evidence or inconsistent with the evidence, nor may the prosecutor draw unreasonable inferences from the evidence. State v. Mahoney, 188 N.J. 359, 376, cert. denied, 549 U.S. 995, 127 S.Ct. 507, 166 L.Ed. 2d (2006); State v. Papasavvas, 163 N.J. 565, 616, opinion corrected, 164 N.J. 553 (2000); Rodriguez, supra, 365 N.J. Super. at 48. However, we have found no case that prevents a prosecutor from describing the appearance of a defendant present in the courtroom before the jury, which can make its own observations. There was certainly forensic evidence presented respecting the manner in which shell casings are ejected from a gun. The balance of the prosecutor's remarks merely sought to have the jury draw inferences therefrom to explain the discrepancies in the various identifications of the shooter. As a result, we find no basis for a new trial in this respect.

IV.

Prior to the beginning of trial, the prosecutor sought a hearing pursuant to N.J.R.E. 104 to address the admissibility of evidence respecting gang affiliation. The State explained that defendant's alleged gang affiliation was relevant because, it alleged, the motive for the shooting was that Howard, a member of one gang, entered the area of Ellis Avenue, which was territory controlled by defendant's gang. The State also alleged that there was an ongoing dispute between defendant and Howard. Defendant expressed surprise at the allegation of an ongoing dispute and objected that testimony respecting his gang affiliation would all be hearsay as the witnesses could only have heard of it from other people and, thus, it was not competent evidence. Defendant also sought a hearing pursuant to N.J.R.E. 104. The judge observed that hearsay obviously was not admissible evidence, but denied both parties' requests for a preliminary hearing because gang affiliation, although not evidence of a crime, was not per se inadmissible as a prior bad act.

Defendant repeatedly objected that this was hearsay testimony without any established basis of knowledge. The judge repeatedly overruled his objections.

A "lay witness must have actual knowledge, acquired through the use of his or her senses, of the matter to which the he or she testifies." State v. LaBrutto, 114 N.J. 187, 197 (1989). N.J.R.E. 701 requires that the lay witness's testimony must be "rationally based on [his or her] perception." "The fundamental qualification for a witness is that he [or she] have personal knowledge of the subject matter of his testimony. Personal knowledge is based upon the impressions that a witness has gained by means of his [or her] own senses." Pierson v. Frederickson, 102 N.J. Super. 156, 161 (App. Div. 1968) (citations omitted).

The trial record does not establish that the State's witnesses had personal knowledge of the gang affiliations of defendant and Mecca or of any hostility between defendant and Howard. Without such personal knowledge, they were not qualified to testify to these subjects. Ibid. Although a preliminary hearing was not necessarily required, the judge failed to ensure that a foundation was laid before the witnesses testified to defendant's and Mecca's gang affiliations and also eliminate testimony that might constitute prior bad acts, such as the suggestion that Mecca was defendant's "runner," suggesting illegal drug distribution. On retrial, this must be remedied.

Reversed and remanded for proceedings consistent with this opinion.


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