August 12, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-12-3704-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Skillman, Collester and Graves.
After a bench trial before Judge Irving J. Snyder, defendant was found guilty of the following offenses: first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); third-degree possession of a weapon (knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-5(d); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b). Defendant was sentenced on September 19, 2003, to an aggregate prison term of fifty years with a thirty-year period of parole ineligibility.
At a Land hearing, State v. Land, 124 N.J. Super. 303 (1973), certif. denied, 66 N.J. 323 (1974), on June 9, 2003, Judge Snyder determined that the defendant had knowingly and voluntarily waived his right to a jury trial. The bench trial commenced on June 10, 2003 before Judge Snyder. After a Wade*fn1 hearing, the court held that identifications made of the defendant by two witnesses from a photo array were admissible. Defendant was represented by counsel both at the Wade hearing and throughout the trial.
At trial the State presented testimony that the murder of seventeen-year-old Karon Robinson was the result of a drug turf war between Robinson and defendant, twenty-five-year-old Anthony Brown. The crime occurred about 4:30 p.m. on January 9, 1999, outside Spencer's Caribbean Lounge (Spencer's) on Liberty Street in Camden. Pamela Stephens testified she lived across the street about forty-five feet from Spencer's. On January 9, 1999, she saw two individuals in a "scuffle" on the porch of Spencer's. She did not recognize either man but said both men were over six feet tall and that one had a Jamaican accent. She said the men were pushing each other and moved from the porch to the street. The man with the Jamaican accent reached into his waistband and "went with his hand to the body of the person he was scuffling with." The other man fell to the ground, and the man with the Jamaican accent pointed the gun toward the victim's head and shot the fallen man on the ground. Ms. Stephens recalled hearing one to three shots. The Jamaican man then ran away, and Ms. Stephens immediately went back into her house. She testified she did not get a good look at the gunman's face and was unable to make an identification.
Camden Police Officer Tracy Hall responded to a "gun call" shortly after 4:30 at Mount Ephraim and Liberty Streets. When she arrived, she saw the person she recognized as Karon Robinson face down on the sidewalk. He had been shot in the head and was obviously dead. After the emergency medical responders arrived, Officer Hall roped off the crime scene and searched for shell casings and other evidence. Shell casings from a .45 caliber handgun as well as a knife handle and knife blade were found on the porch of Spencer's Caribbean Lounge.
The State called Aaron Blakney, who was a regular patron at Spencer's and knew Karon Robinson well. He said on the afternoon of January 9, 1999, Karon was arguing with a man known as "Gargalore" over "turf" for selling drugs. He heard defendant tell Karon that he "didn't want no trouble" and that he "don't want to go to jail for the rest of his life. He don't want to have to kill none of us." When Blakney left Spencer's, Karon and defendant were arguing on the front porch.
Reginald Medley, another regular at Spencer's, testified that he knew defendant by his nickname "Gargalore" and saw him four or five times a week on Liberty Street. Medley said that defendant "used to sell wet to us." Medley said that he arrived at Spencer's in the morning and went in and out of the tavern all day long selling "weed" inside and on the street. He said Karon was upset because defendant was selling "loose bags" and told defendant he couldn't "hustle" drugs in the area.
Defendant said he wanted to sell dime bags of marijuana on the corner, but Karon did not want him selling there since he and his associates were also selling dime bags there. Medley said that the argument between Karon and defendant escalated because Karon kept "nagging at" defendant. Medley could not specifically recall what defendant said, but he remembered that he said something about a gun. Earlier in the bar Medley saw the gun's handle in defendant's right pocket, and Medley knew it was a .45 caliber because defendant had "flashed it to us before." Medley was inside Spencer's watching a football game when he heard a thump and then three shots. He "peeped" out the door, walked out onto the porch, and saw Karon lying in the street and defendant running with a gun in his hand which Medley said was the same .45 caliber he had seen defendant waving around earlier.
Kenneth Warren also saw Karon and defendant arguing at Spencer's on January 9, 1999. He was very friendly with Karon and also familiar with "Gargalore" over the past year. He said the argument was about defendant "being in the area." Warren testified that the argument developed into a fistfight and that defendant pushed Karon off him and shot him, causing Karon to fall into the street. He said that defendant then walked up to Karon and fired more shots into him.
Warren testified that after the shooting he went to tell Karon's mother about it. Three days later, he provided a statement to police and identified defendant's photo from an array as the person he knew as "Gargalore" and had shot Karon.
Leron Green, Karon's cousin, also witnessed the argument in Spencer's. When asked whether he knew anything about anyone dealing marijuana on the corner of Liberty and Mount Ephraim Streets, Leron replied, "that's what they were arguing about." He described the argument as calm at first, but after they stepped outside, they started tussling. He said that Gargalore swung a knife and cut Karon's jacket. He also saw the knife break. When defendant and Gargalore moved off the porch Leron decided to run and get Karon's mother. After he heard the first of two or three shots, he stopped, turned around and saw Karon falling. Leron was about ten or twelve feet away and started running after he heard the shots. When he got halfway down the street he turned and saw Karon on the ground and Gargalore coming toward him. Leron then ran around the block.
In his testimony Leron said he did not see a gun or any shots fired. However, in two taped statements given to police he said he saw Gargalore firing the shots and described how Karon was still moving when Gargalore approached and shot him in the face. Leron testified some of the information provided in the statement to police was not what he had seen but what others had told him. Moreover, prior to trial Leron identified defendant's photograph from a photo array, and said he had no doubt that the person he identified was Gargalore and that he was the man who shot Karon. However, when Leron testified, he said that he could not identify anyone in the courtroom as Gargalore. Leron said that he had been arrested that morning and was incarcerated in the Camden County Jail, but he denied knowing anyone who had a connection with the case that was also in the county jail.
Camden Police Detective Monica Davenport testified that she was the on-call homicide detective on January 9, 1999, and responded to Tenth and Liberty Streets after receiving a report of a shooting. The area was known to her for "all day, all night" narcotic sales, particularly marijuana. Later she interviewed witnesses at the Camden police station and heard the name Gargalore from several people. She then investigated places where Gargalore "hung out" and found out that he had a girlfriend in Camden. Detective Davenport found the woman who told her Gargalore was actually Anthony Brown. Detective Davenport obtained a photograph of Anthony Brown from the identification bureau and showed it to the girlfriend, who confirmed it was a photograph of Brown a/k/a Gargalore. She included that photo in the photo arrays shown to Kenneth Warren and Leron Green, both of whom identified Anthony Brown as the man they knew as Gargalore.
Although an arrest warrant issued for defendant, he was not located until a year later incarcerated in New York on Riker's Island under the name Brian McLean. Davenport testified that when she went to Riker's Island, she recognized by just looking at him that Brian McLean was actually Anthony Brown, the man known as Gargalore.
Dr. Robert Catherman, a retired forensic pathologist, was the Deputy Medical Examiner in Camden County in 1999 and performed the autopsy on Karon Robinson. Dr. Catherman testified that Karon had suffered three gunshot wounds that caused his death. One was an entrance wound above and to the right of his bellybutton that exited over the back of the right hip, a wound Dr. Catherman described as survivable. The second gunshot wound was just under Karon's right armpit, passing through his lungs and the aorta and lodged in the back of his left arm. Dr. Catherman said that the wound was devastating internally and not survivable. The third gunshot wound to the back of the left side of Karon's head caused profound disruption to the brain and would have resulted in death. The spent .45 caliber projectile was found on the right side of Karon's brain.
Defendant did not testify and called no witnesses. The parties made the following stipulations: the New Jersey State Police records did not reveal a permit to carry a firearm for defendant Anthony Brown; the knife handle and blade found outside Spencer's had no readable fingerprints; the ballistic examination revealed that both the spent projectiles and shell casings all originated from .45 caliber rounds; and finally, the gun Medley saw on the day of the murder was the same gun he had seen in defendant's possession several weeks before.
In his decision on June 12, 2003, Judge Snyder found Patrolman Hall, Detective Davenport, and Assistant Medical Examiner Catherman to be reliable and credible witnesses. He also gave Pamela Stephens' testimony credibility and stated that her testimony of the distance between the shooter and victim was not inconsistent with the physical evidence and other testimonial evidence that the distance was between two-and-a-half and four feet. The judge further found that Medley's testimony was credible and noted that he and the other witnesses did not attempt to place blame on initiating the argument on defendant but rather on the victim. He further found that Medley observed defendant jogging down the street holding a weapon that Medley identified as a .45 caliber handgun. He further found no reason to doubt the out-of-court identification by Medley, Kenneth Warren, and Leron Green. Moreover, the court stressed that he believed Warren's testimony that he saw the shooting and identified defendant as the shooter.
Judge Snyder described Leron Green as "an apprehensive witness" who gave two statements to police identifying defendant as the shooter but recanted the statements in his testimony. He did, however, provide evidence that the defendant was arguing with the victim and slashed at the victim with a knife. Despite the inconsistency between Green's testimony and his prior statements, the judge found that Green's courtroom testimony should be given credibility. In his decision, Judge Snyder said that "there is no question in my mind" that defendant shot and killed Karon Robinson. He found beyond a reasonable doubt that defendant was guilty of purposeful murder. He then considered all of the weapons charges individually and found defendant guilty of each one beyond a reasonable doubt.
At the sentencing hearing on September 19, 2003, the court denied defendant's pro se motion for a new trial and imposed the sentence of fifty years with a thirty-year period of parole ineligibility for first-degree murder and concurrent terms for the remaining charges. Defendant filed his notice of appeal on April 21, 2004.
On February 28, 2006, a brief was filed on behalf of defendant by the Office of the Public Defender. Defendant expressed dissatisfaction, requested that the brief be withdrawn and that new counsel be appointed to substitute a new brief.
Pursuant to our order, the trial judge conducted a hearing on August 17, 2006 concerning defendant's request at that time to proceed pro se with his appeal. Judge Snyder denied defendant's motion for recusal for the hearing and determined that defendant's desire was to proceed with counsel but not the public defender who had filed the appellate brief. The court then ordered the public defender to appoint pool counsel to represent defendant on appeal. However, on September 15, 2007, defendant made a motion to relieve his assigned pool attorney, withdraw the brief filed on his behalf, and proceed pro se on appeal with a substitute brief.
On October 29, 2007 we remanded the matter to the trial judge to conduct a hearing to determine whether defendant's request to waive his right to counsel on appeal had been made voluntarily, knowingly and intelligently and with full awareness of the dangers and disadvantages inherent in that choice. The remand hearing was conducted on November 26, 2007, and the court found that defendant's waiver of counsel and election to proceed pro se on appeal was made knowingly and voluntarily. Therefore, the defendant has proceeded pro se on this appeal. He makes the following arguments:
POINT I - TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT RECUSE ITSELF UNDER CANON 3 A (6); C (1) (a); AND D, CODE OF JUDICIAL CONDUCT; AND R. 1:12-1 IN ACCORDANCE WITH THE DICTATES OF FAIRNESS AND IMPARTIALITY, AFTER THE COURT ADMITTED NOT ONLY TO HAVING READ THE DISCOVERY BUT ALSO AS REVEALED AT THE SENTENCING HEARING EVEN NOTING WHAT THE VERDICT WAS AND PREPARED JURY INSTRUCTIONS PRIOR TO HEARING THE WAIVER APPLICATION AND THE COMMENCEMENT OF BENCH TRIAL.
POINT II - DEFENDANT'S CONSTITUTIONALLY GUARANTEED RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND DUE PROCESS WERE VIOLATED, WARRANTING REVERSAL, BECAUSE THE TRIAL COURT IMPERMISSIBLY ASSUMED THE ROLE OF ADVOCATE IN CROSS EXAMINING THE STATE'S WITNESS MR. GREEN, WHO RECANTED ON THE STAND, ADMITTING HE WAS UNABLE TO IDENTIFY DEFENDANT AS THE SHOOTER.
POINT III - DEFENDANT'S CONSTITUTIONALLY GUARANTEED RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND DUE PROCESS WERE VIOLATED, WARRANTING REVERSAL, BECAUSE THE TRIAL COURT IMPERMISSIBLY ALLOWED EVIDENCE OF PRIOR BAD ACTS TO BE INTRODUCED NOT ONLY BY WITNESSES, BUT BY THE STATE AND, AT THE CLOSING OF TRIAL, DID NOT CREATE A RECORD ACCOUNTING FOR WHETHER ANY OF THESE PRIOR BAD ACTS WERE EXCLUDED FROM CONSIDERATION IN CONFORMITY WITH THE DICTATES OF N.J.R.E. 404(B).
POINT IV - DETECTIVE MONICA DAVENPORT'S TESTIMONY THAT SHE INCLUDED DEFENDANT'S PICTURE IN A PHOTOGRAPHIC ARRAY SHOWN TO WITNESSES, BASED ON PRIOR IDENTIFICATION OF DEFENDANT BY NON-TESTIFYING DECLARANT DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS AGAINST HIM; TRIAL COURT'S ADMISSION OF THE DETECTIVE'S UN-OBJECTED TO HEARSAY TESTIMONY AND THE RELIANCE THEREUPON WAS PLAIN ERROR.
POINT V - MEDICAL EXAMINER'S TESTIMONY AS TO HIS ANALYSIS OF GUNSHOT RESIDUE ON THE OUTERMOST GARMENT WORN BY THE DECEASED, WHICH FORMED THE BASIS FOR HIS OPINION REGARDING RANGE OF FIRE, FELL OUTSIDE THE SCOPE OF HIS EXPERTISE, HIS BARE CONCLUSIONS LACKED BOTH FACTUAL AND SCIENTIFIC BASIS TO BE RELIABLE, TRIAL COURT'S ACCEPTANCE AND RELIANCE UPON PROFFERED EXPERT OPINION WAS PLAIN ERROR.
POINT VI - DEFENDANT'S CONSTITUTIONALLY GUARANTEED RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND DUE PROCESS WERE VIOLATED, WARRANTING INTERVENTION AND CORRECTION BECAUSE THE TRIAL COURT NOT ONLY IMPERMISSIBLY FAVORED THE STATE, EVIDENCED BY ITS OPEN DISCUSSIONS WITH THE STATE DURING TRIAL AND SUMMATION, BUT IT ALSO ERRED IN ITS EVALUATION OF THE UNDERLYING FACTS AND THE IMPLICATION TO BE DRAWN THEREFROM, ITS FINAL DETERMINATION WAS SO WIDE OF THE MARK AS TO BE CLEARLY MISTAKEN RESULTING IN A PLAINLY UNJUST RESULT. THE EVIDENCE DOES NOT PROVE GUILT BEYOND A REASONABLE DOUBT.
After review of the record on appeal and the briefs submitted, we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
A motion for recusal must be made first to the judge sought to be disqualified. R. 1:11-2. It is clear that defendant made no such motion prior to the bench trial. Furthermore, we find that defendant's arguments that Judge Snyder should have been recused because he read the discovery in the case to be totally without merit. Indeed, Judge Snyder specifically stated to defendant, "Now you understand that I have in fact read the discovery. You're not asking me to remove myself from the case based on that are you?" The defendant's response was, "No, sir." When the judge added that a different judge might try the case who had not read the discovery, the defendant stated:
I'm not concerned with the fact that you read the discovery . . . I would assume that Your Honor would remain objective throughout the trial and would not draw any conclusions just from reading mere summaries. You stated earlier [you] would decide this case on the merits of what is presented by the State.
Since defendant requested a bench trial and agreed that Judge Snyder should try the case, we find that his argument for recusal is based solely on the guilty verdict handed down. See State v. Marshall, 148 N.J. 89, 186-87 (1997). Furthermore, as we stated previously,
[E]xposure to inadmissible evidence in the course of pretrial proceedings generally does not require disqualification of the judge even where the judge is to serve as the factfinder. . . . Trained judges have the ability 'to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention.' [State v. Medina, 349 N.J. Super. 108, 130 (App. Div.), certif. denied, 174 N.J. 193 (2002) (quoting State v. Kunz, 55 N.J. 128, 145 (1969)).]
See also State v. Kern, 325 N.J. Super. 435 (App. Div. 1999); Magill v. Casel, 238 N.J. Super. 57 (App. Div. 1990).
Our review of the record clearly convinces us that defendant's claims of judicial bias are totally without merit. In this difficult situation with a pro se defendant charged with murder Judge Snyder's conduct during the trial proceedings was impeccably fair and impartial.
Defendant's argument that the court impermissibly allowed evidence of prior bad acts involving drug trafficking contrary to N.J.R.E. 404(b) is not supported by the record. Indeed, in his decision Judge Snyder specifically stated
Now, I don't utilize the fact that the defendant or anyone was involved in the drug trade as any indication that because they engage in that conduct that that should be utilized against them. Again, 404(b) exclusion, I'm not utilizing it. Only again as background to ascertain why there was a discussion and argument.
Detective Davenport's testimony that defendant's former girlfriend told her Gargalore was Anthony Brown was not hearsay testimony. A statement can be characterized as hearsay only if its introduced to prove the truth of the matter stated. See State v. Buda, 195 N.J. 278 (2008); State v. Long, 173 N.J. 138, 152 (2002). Here the purpose of the statement was not to prove Gargalore was defendant but rather why his photograph was placed in the photo array. Proof that defendant was Gargalore was proved by these witnesses.