On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1284.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Skillman, Fuentes and Simonelli.
A jury found co-defendants Raheem Venable and Malik Simmons guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1),(2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court sentenced Venable to life imprisonment, subject to the sixty-three year and nine-month period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder, and a concurrent ten-year term of imprisonment for possession of a handgun without a permit. The court sentenced Simmons to a forty-year term of imprisonment, subject to the thirty-four year period of parole ineligibility mandated by NERA for the murder, and a concurrent five-year term for possession of a handgun without a permit.
The court merged defendants' convictions for possession of a weapon for an unlawful purpose.
Defendants' convictions were based on the death of Fahiym Phelps as a result of a shooting outside a bar in Irvington on the night of November 27, 2004. Before the shooting, Phelps was inside the bar with his brother, Sharif, and a cousin, Tashon Young. During that time, Phelps had a verbal altercation with Venable, which was witnessed by Sharif, Young, and the manager of the bar, Sean Dubose. The altercation was interrupted by Dubose, who had a security guard, Michael Gibbs, escort Venable outside the bar, while Dubose stayed inside with Phelps.
The bar closed approximately ten minutes later, at which time Phelps, Sharif, and Young walked outside, where they encountered Venable and Simmons, both of whom were armed with handguns. Defendants began shooting in Phelps's direction, discharging between six and ten bullets. Six of the bullets struck Phelps, causing fatal injuries.
After the crime, Sharif and Young identified both Venable and Simmons as the shooters from photographic arrays shown to them by the police. Sharif and Young also identified Venable and Simmons as the shooters at trial. In addition, although he did not witness the shooting, Gibbs identified Venable as the person who had the altercation with Phelps and was escorted out of the bar.
Neither Venable nor Simmons testified or presented any other witnesses in their defense.
Venable and Simmons have both appealed from their convictions and sentences. We consolidate the appeals.
On appeal, Venable's private counsel has presented the following arguments on his behalf:
POINT I: FAILURE OF THE COURT TO PROPERLY CHARGE THE JURY DENIED THE DEFENDANT OF A FAIR TRIAL.
POINT II: THE USE OF THE DEFENDANT'S ALIAS WAS PREJUDICIAL DENYING THE DEFENDANT OF A FAIR TRIAL.
POINT III: INEFFECTIVENESS OF DEFENSE COUNSEL DENIED DEFENDANT OF A FAIR TRIAL.
Venable has also submitted a supplemental pro se brief, which presents the following arguments:
POINT I: EXCLUSION OF DEFENDANTS' AND VICTIM'S FAMILIES DURING JURY SELECTION VIOLATED THE FEDERAL CONSTITUTIONAL RIGHTS OF DEFENDANTS.
POINT II: THE PROSECUTOR'S SUMMATION VOUCH- ING FOR THE CREDIBILITY OF STATE WITNESSES VIOLATED THE RIGHT TO FAIR TRIAL AND DUE PROCESS.
POINT III: THE JURY CHARGE PROVIDED WAS UNCONSTITUTIONAL.
POINT IV: EXTRANEOUS INFLUENCES ON DEFEN- DANTS' PETIT JURY SERVED TO COMPROMISE HIS RIGHT TO FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
POINT V: THE FAILURE TO CONDUCT A VOIR DIRE WADE HEARING REGARDING THE PHELPS AND YOUNG IDENTIFICATIONS SERVED TO VIOLATE DEFENDANTS' RIGHTS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS.
POINT VI: DEFENDANTS WERE DENIED THE EFFEC- TIVE ASSISTANCE OF COUNSEL VIOLATIVE OF THE SIXTH AND FOURTEENTH AMENDMENTS.
The Public Defender has presented the following arguments on Simmons's behalf:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE SHARIF PHELPS BECAUSE THE STATE'S PROFFER FAILED TO SATISFY THE "RULE OF FORFEITURE BY WRONGDOING DOCTRINE" AND BECAUSE THE TRIAL COURT FAILED TO RECOGNIZE THAT THE PROSECUTOR'S CONDUCT RESULTED IN A "HOLD" OVER THE WITNESS WHICH THE DEFENDANT WAS ENTITLED TO EXPLORE (NOT RAISED BELOW).
POINT II: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE, CONTRARY TO REPRESENTATIONS MADE TO THE TRIAL COURT AND TO DEFENSE COUNSEL, THE PROSECUTOR INTRODUCED INTO THE TRIAL THE ISSUE OF SHARIF PHELPS'S FEAR OF THE DEFENDANT (NOT RAISED BELOW).
POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW). POINT IV: THE TRIAL COURT ABUSED ITS DIS- CRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.
(A) THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ACTORS.
(B) THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND REPRESENTED A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.
POINT V: THE 40 YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.
POINT VI: THE TRIAL COURT'S JURY CHARGE ON COUNT ONE ALLEGING MURDER WAS INADEQUATE AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (RAISED IN PART BELOW).
(A) THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT'S REQUEST FOR A JURY INSTRUC- TION ON THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT.
(B) ABSENT A SPECIFIC INSTRUCTION ON ACCOMPLICE LIABILITY, THE TRIAL COURT'S JURY INSTRUCTIONS ON CAUSATION CONSTITUTE PLAIN ERROR (NOT RAISED BELOW).
Simmons has also submitted a supplemental pro se brief, which presents the following arguments:
POINT I: EXCLUSION OF DEFENDANTS' AND VICTIM'S FAMILIES DURING JURY SELECTION VIOLATED THE FEDERAL ...