On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
On April 15, 2004, a Mercer County Grand Jury charged defendant with various criminal offenses arising out of two incidents that occurred on October 3, 2003, in the City of Trenton. The first three counts of the indictment charged defendant with committing criminal offenses during an incident between himself and another individual named Antwan Leary: second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count One); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); and third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (Count Three). The remaining counts of the indictment charged defendant with committing criminal offenses against Trenton Patrolmen Luddie Austin and Adrian Mendez: two counts of first-degree criminal attempt to commit murder of Austin and Mendez, N.J.S.A. 2C:11-3 and 2C:5-1 (Counts Four and Six, respectively); two counts of second-degree criminal attempt to commit aggravated assault upon Austin and Mendez, N.J.S.A. 2C:12-1b(1) and 2C:5-1 (Counts Five and Seven, respectively); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Nine); third-degree resisting arrest, N.J.S.A. 2C:29-2a(1)(a) (Count Ten); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7b (Count Eleven).
On January 10, 2006, the trial court conducted an N.J.R.E. 104(a) hearing to determine the admissibility of prior inconsistent statements of witnesses Walter Funderburg and Leary, pursuant to N.J.R.E. 803(a)(1). Following the hearing, the court determined the witnesses' prior statements admissible, and also denied defendant's motion for severance, that is, for a separate trial on the offenses arising out of each of the two incidents.
Tried to a jury, defendant was found guilty of third-degree aggravated assault as a lesser-included offense on Count One, and on Counts Two, Three, Nine, Ten and Eleven; defendant was found not guilty on the remaining counts.
On March 24, 2006, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9) and mitigating sentencing factor N.J.S.A. 2C:44-1b(11) (defendant's health and drug use), the court sentenced defendant on Count Two to a ten-year term of imprisonment with a five-year period of parole ineligibility; on Count Eleven to a ten-year term of imprisonment with a five-year period of parole ineligibility, to run consecutive to the sentence imposed on Count Two; and on Count Ten to a five-year term of imprisonment with a two-and one-half year period of parole ineligibility, to run concurrent with the sentences imposed on Counts Two and Eleven. The convictions on Count One, Three and Nine were merged with the conviction on Count Two. The aggregate sentence is twenty years with a ten-year period of parole ineligibility. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON SELF-DEFENSE ON THE CHARGES OF AGGRAVATED ASSAULT AND RESISTING ARREST, AND IT SHOULD ALSO HAVE GIVEN A PROTECTIVE PURPOSE INSTRUCTION ON THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Partially Raised Below).
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS ON AGGRAVATED ASSAULT. (Not Raised Below).
THE JURY INSTRUCTION ON REASONABLE DOUBT VIOLATED DEFENDANT'S BASIC RIGHTS TO THE PRESUMPTION OF INNOCENCE AND PROOF BEYOND A REASONABLE DOUBT. (Not Raised Below).
THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTOR TO ELICIT PRIOR INCONSISTENT STATEMENTS THAT DID NOT CONFORM WITH THE ADMISSIBILITY REQUIREMENTS OF THE EVIDENCE RULES AND CASE LAW, AND IT ALSO ALLOWED THE PROSECUTOR TO IMPROPERLY BOLSTER THE STATE'S EFFORTS TO IMPEACH STATE WITNESSES' RECANTATION TESTIMONY IN VIOLATION [OF] DEFENDANT'S CONSTITUTIONAL RIGHTS.
THE TRIAL COURT ERRED IN APPLYING THE TEST FOR DETERMINING THE RELIABILITY OF WITNESSES' OUT-OF-COURT STATEMENTS AND IN FAILING TO INSTRUCT THE JURY ON THE SUBJECT. (Partially Raised Below).
A. THE TRIAL COURT ERRED IN APPLYING THE TEST FOR DETERMINING THE RELIABILITY OF WITNESSES' OUT-OF-COURT STATEMENTS.
B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE SUBJECT.
THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.
A. INSUFFICIENCY OF THE EVIDENCE.
THE SENTENCE WAS MANIFESTLY EXCESSIVE.
We affirm the convictions and sentences imposed on Counts Nine, Ten and Eleven; and we reverse the conviction of the lesser-included offense of third-degree aggravated assault on Count One, and the convictions on Counts Two and Three.*fn1
II - A. The Incident with Antwan Leary
At approximately 8:15 p.m. on the evening of October 3, 2003, Leary and Funderburg, also known as Walter White, entered the Adrianna Liquor Store on North Clinton Avenue, Trenton, to purchase alcohol. Thereafter, while outside the store, defendant shot Leary in both legs.
Trenton uniformed police officers and members of the Tactical Anti-Crime Unit (TAC) were dispatched to the store. Two members of the TAC unit, Supervisor Detective Sergeant Anthony Manzo and Detective Timothy Thomas, arrived, finding Leary "laying in front of the store,... shot in both legs[,]" with Funderburg kneeling next to him. Manzo approached Leary and asked who had shot him, to which Leary responded "I don't know." When questioned, Funderburg also responded that he did not know the shooter.
Although Funderburg initially informed Manzo that he did not know the identity of the assailant, Funderburg informed the detective that he would take care of the situation on his own. Manzo advised Funderburg against taking that course of action, and promised that he would be pursued if he took matters into his own hands. At that point, Funderburg stated that he would speak to Manzo in the detective's unmarked vehicle, not out in the open. Once inside the vehicle, Funderburg informed Manzo "that Lord had shot [Leary] in the legs." Specifically, Leary and Funderburg had entered the store, and when "Lord" attempted to shake Leary's hand, Leary refused. After Leary went back outside, "Lord" pulled a.38 caliber handgun out of his right pocket and shot Leary in both legs.
Funderburg provided Manzo with a description of an individual known to Funderburg by the street name "Lord," and stated that Lord drove off in a silver vehicle. Realizing that the description fit that of defendant, Manzo radioed the descriptions of defendant and his vehicle to other officers.
Manzo transported Funderburg to the Criminal Investigation Bureau (Bureau) where he turned him over to Detective Thomas. Thomas interviewed Funderburg and recorded a formal statement approximately one hour after the shooting. Thomas found Funderburg responsive and not under the influence of drugs or alcohol.
Funderburg provided the following statement to Thomas:
I was sitting in the car at the corner of Sherman Avenue and North Clinton Avenue. Saw Li'l Lord pull up. Got out of the car, and gone in the liquor store. Me and [Leary] gone in the liquor store. Li'l Lord said, what's up? And [Leary] said, what's up. Li'l Lord tries to shake [Leary's] hand. [Leary] said, I don't want to shake your hand. Li'l Lord said, so what's up then? Then [Leary] said what's up? So then, Li'l Lord said let's go outside so we could talk. They go outside. I couldn't hear what was said between them. Then Li'l Lord backed up a step, pulled a gun out of his right pants pocket and shot [Leary] twice in his legs. Li'l Lord ran across the street and jumped in his car and whipped off.
According to Funderburg, at the time of the shooting, he was standing "on the step of the liquor store," about two or three feet from Leary, and about six feet from defendant.
Additionally, Funderburg not only admitted to knowing "Li'l Lord" his whole life, but also identified defendant by his real name, Albert L. Barnes. When asked whether Leary and defendant had a prior dispute, Funderburg answered "Yeah, they have had a beef, but I don't know what it's about." When shown a picture of defendant, Funderburg identified him as the individual who shot Leary. After Thomas typed the statement, Funderburg reviewed it and signed it.
Manzo obtained a photograph of defendant and proceeded to the Helene Fuld Hospital to interview Leary. After Manzo informed Leary that the identity of the assailant was known to him, Leary said "Lord shot me." Manzo then showed Leary the photograph of defendant, after ...