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State v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMA SMITH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment 04-03-0359.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Defendant Jama Smith appeals from his conviction by a jury on charges of murder, conspiracy to commit murder, and firearms offenses. He also appeals from his sentence of life imprisonment with forty years to be served before eligibility for parole. We affirm the convictions and sentence.

The relevant facts are summarized from the record of the trial and pretrial hearings. At about 10:00 p.m. on November 12, 2003, Terryl Lee, a drug dealer known as "Turk" on the streets of Paterson, was shot five times and killed. The only eyewitness who talked to the police was his drug-dealing partner, Kashawn Coleman. Coleman was with Lee at the time of the shooting but did not see the persons responsible. He saw a black SUV, a dark-colored automatic weapon, and shots fired from the back passenger-side window. At the time of his initial statements to the police, Coleman believed the SUV was a Chevrolet Tahoe. He followed the SUV in Lee's car for some distance and said he saw an Enterprise rental car sticker on the back of the vehicle.

Paterson police also learned that Willie Evans, a drug dealer whom Coleman knew as "Bill," may have been involved in the shooting. Coleman testified at trial that he and Lee were dealers of crack cocaine to other street drug dealers. In October 2003, they had sold "weight" to Bill, meaning a wholesale quantity of cocaine. On November 4, 2003, Lee sent one of his workers, Kenneth "Slim" Lucky, to deliver a large quantity of crack cocaine to Bill in exchange for $2,700. Lucky returned very shaken and reported that he had been robbed of the cocaine and had not received payment. Lee was very upset. Coleman then heard Lee on his cell phone arguing with Bill.

During a pretrial hearing on admissibility of evidence pertaining to the drug dealing, Coleman had testified that the prior sale of cocaine was to Bill. He had not named defendant as being involved in those transactions. At trial, however, he testified that defendant, whom he knew as "Sincere," was present during the October drug deal with Bill.

On the night of the murder, the police learned that Bill's sister, Shawanda Evans, had rented a GMC Yukon SUV from an Enterprise car rental business in Hawthorne, and she was scheduled to return the vehicle the next day. On November 13, 2003, the police staked out the Enterprise facility. At about 11:00 a.m., they saw a dark-colored Yukon driven into the parking lot by a woman with a male passenger. Willie Evans's parole officer approached the vehicle to try to identify Evans. The driver of the Yukon was Shawanda Evans. The male passenger fled on foot, but was soon apprehended. That individual was defendant Jama Smith, who was also wanted for parole violation.

At police headquarters, defendant was given Miranda*fn1 warnings, and he made a brief statement before invoking his right to counsel and terminating police questioning. He said he had driven the Yukon the previous night but had parked it near Shawanda's residence and walked to his girlfriend's house, where he spent the night. He said he accompanied Shawanda that morning as she was returning the vehicle.

In the Yukon, which is similar in appearance to a Chevy Tahoe, the police found a shell casing for a .40 caliber bullet. That casing matched four shell casings recovered from the street at the scene of the shooting. A forensic firearms expert testified at trial that the shell casing in the vehicle and the four found at the murder scene were fired from the same gun, probably an automatic weapon.

In early December 2003, another witness, Davon Forbes, volunteered information to the police about the homicide after he was arrested on a drug charge. Interviewed by Detective Florence Ackerman, the lead detective on the homicide investigation, Forbes signed a written statement typed verbatim by the detective.

Forbes said that on the night of the shooting, he was in a chicken store shortly after 10:00 p.m. when Willie Evans and "Sincere" entered. Evans was unusually nervous and shaky. A short time later, Forbes saw police cars passing and learned of the shooting and the involvement of a black "truck." Earlier on that day, November 12, 2003, Forbes had seen Evans in a black SUV and saw that he had a weapon on his lap. Later, the same day, he saw Evans and defendant riding in the SUV. He identified a photograph of defendant as the person he saw in the SUV with Evans and whom he knew as "Sincere."

At the time of trial, Forbes recanted his signed statement. In a pretrial hearing, he refused to take the oath to testify. The prosecutor represented that Forbes had been willing to testify as late as five days earlier but was now refusing because he had been threatened while in the county jail. After repeated warnings by the court that he would be charged with contempt and jailed if he refused to take the oath, Forbes was finally sworn and testified that he did not remember making the statement, that he was unable to read the statement, that he had been under the influence of illegal drugs and prescription medication at the time of the interview by Detective Ackerman, that he was physically exhausted and had gone without sleep when the statement was taken, and that he had not been in the chicken store at the time stated in his statement but was instead on the other side of the city. The court ruled that Forbes's written statement would be admissible at trial as a prior inconsistent statement under N.J.R.E. 803(a)(1). At trial, Forbes was sworn to testify and testified before the jury in the same way as in the pretrial hearing. His signed statement was admitted in evidence.

Another important witness for the State at trial was Rashawn Barrett. He testified that he had been incarcerated at the Passaic County Jail in March 2004, several months after the homicide. Defendant was also incarcerated then in the same cell block as Barrett, and they became friendly. Defendant told Barrett about the charges and the case against him. He also described discrepancies and deficiencies in the State's case, such as the absence of an Enterprise sticker on the rented GMC Yukon and the police's negative results when they examined him on the date of his arrest for gunpowder residue.

Inculpating defendant as a participant in the murder, Barrett testified that defendant told him he and his brother, Willie Evans, were "beaten" on a drug deal by "Turd" and that they, in turn, staged a robbery to get drugs from Turd without paying. He said defendant told him that word on the street was that Turd intended to retaliate, and so, he and Evans decided to strike first. They watched for an opportunity to kill Turd and found him in an isolated area on the night of the shooting. Defendant was driving the SUV and Evans was in the back seat and fired the shots. Defendant and Evans then went to the chicken store for Evans to "get himself together."

The defense challenged the credibility of Barrett, implying that he had obtained information about defendant's case by finding discovery materials from the prosecutor's office in defendant's cell. The State presented the testimony of an Assistant Prosecutor on the timing of discovery disclosures to refute the defense's implication.

In the defense case, two other inmates at the Passaic County Jail during the relevant time period were called to testify, one of them defendant's cousin. Both witnesses testified they did not see any special relationship between Barrett and defendant and defendant did not talk to others about his case. Defendant's cousin denied Barrett's testimony that he had introduced Barrett and defendant at the jail.

Defendant also presented the testimony of his aunt and a female cousin, both of whom testified that defendant was in the cousin's apartment on the night of November 12, 2003, at the time of the murder.*fn2

The jury convicted defendant of all charges in the indictment: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a(1); first-degree murder, N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7.

At sentencing, the court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:44-3d because of defendant's prior convictions for violent offenses with the use of firearms. The court merged the conspiracy count and the count for possession of a firearm for an unlawful purpose into the murder count. On the murder charge, the court sentenced defendant to life imprisonment with thirty-five years before parole eligibility. The court imposed a concurrent sentence of four years' imprisonment for unlawful possession of a weapon, and a consecutive sentence of seven years' imprisonment, with a mandatory five-year term of parole ineligibility, on the conviction for possession of a firearm by a convicted person.

Thus, the aggregate sentence imposed was life imprisonment with forty years before parole eligibility. The sentences were to run consecutively to another sentence defendant was then serving. Money penalties as required by statute were also imposed as part of the sentence.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN NOT DECLARING A MISTRIAL AFTER DAVON FORBES REFUSED TO TAKE AN OATH TO TESTIFY TRUTHFULLY BECAUSE THE OATH THAT WAS SUBSEQUENTLY PROFFERED BY THE WITNESS WAS ILLEGITIMATE AND WAS COERCED BY THE COURT ONLY AS A MEANS TO PERMIT THE PROSECUTOR TO ADMIT FORBES' STATEMENT INTO EVIDENCE AS A PRIOR INCONSISTENT STATEMENT.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT DAVON FORBES' WRITTEN STATEMENT WAS SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS A PRIOR INCONSISTENT STATEMENT PURSUANT TO N.J.R.E. 803(A)(1).

POINT III

THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON IDENTIFICATION AND ALIBI CONSTITUTED PLAIN ERROR (NOT RAISED BELOW).

(A) THE IDENTIFICATION OF THE DEFENDANT AS THE ACTOR WAS A LEGITIMATE ISSUE AND THE STATE'S EVIDENCE CONCERNING IDENTIFICATION WAS NOT UNDISPUTED (NOT RAISED BELOW).

(B) THE TRIAL TESTIMONY OF DORIS BROWN AND LATONYA BROWN REQUIRED AN INSTRUCTION ON ALIBI (NOT RAISED BELOW).

POINT IV

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S KNOWING VIOLATION OF DISCOVERY AND THE TRIAL COURT ABUSED ITS DISCRETION IN CONDONING THE VIOLATION IN A RULING THAT INFERRED THAT THE PROSECUTOR'S DISCOVERY OBLIGATIONS UNDER N.J.R.E. 404(B) IS LESS SEVERE THAN THE DISCOVERY OBLIGATIONS IMPOSED BY R. 3:13-3.

POINT V

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW WAS VIOLATED (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S PRO SE POST-VERDICT MOTION FOR A JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE, THE DEFENDANT'S PRO SE POST-VERDICT MOTION FOR A NEW TRIAL.

(A) THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE OF GUILT.

(B) THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT VII

IMPOSITION OF AN AGGREGATE CUSTODIAL SENTENCE OF LIFE IMPRISONMENT PLUS 7 YEARS WITH 40 YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM BASE SENTENCE OF LIFE IMPRISONMENT WITH 35 YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT TWO.

(B) THE DISPARITY IN THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT TWO AND ON CO-DEFENDANT EVANS' CONVICTION ON COUNT TWO WAS SO GRIEVOUS THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

(C) HAVING THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS RUN CONSECUTIVE TO THE SENTENCE THE DEFENDANT WAS SERVING AT THE TIME OF TRIAL WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

In a supplemental pro se brief, defendant argues the following additional point:

THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING TWO DEFENSE WITNESSES TO TESTIFY IN PRISON ATTIRE AT DEFENDANT'S JURY TRIAL, AND ALSO BY FAILING TO PROVIDE, IN THE WAKE OF ITS ERROR, A CAUTIONARY INSTRUCTION DIRECTING THE JURY TO UTTERLY DISREGARD THE WITNESSES' PRISON ATTIRE WHEN WEIGHING THE CREDIBILITY OF THEIR TESTIMONY; THE PREJUDICE ENGENDERED BY THIS ERROR DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY TRIAL, U.S. Const. Amends. V. VI, & XIV; N.J. Const. Article I, ¶ X (1947).

Having reviewed the record of proceedings in the trial court, we conclude there was no error in defendant's trial or sentence.

I.

We reject defendant's argument that the trial court erred in admitting the prior signed statement of Davon Forbes when he recanted the statement at the time of trial and refused for a time to take the oath to testify.

Before testifying, Forbes was brought into court for a hearing outside the presence of the jury related to the admission of other crimes evidence pursuant to N.J.R.E. 404(b). Forbes said he would not testify. The following exchange took place between Forbes and the judge:

THE COURT: You gave a sworn statement to police, did you not?

FORBES: Yes.

THE COURT: Now the State is calling you to testify in accordance with that statement. Are you prepared to testify?

FORBES: No.

THE COURT: Do you understand if you don't testify, if you refuse willfully to testify, I can hold you in contempt of court and sentence you to six months in the county jail?

FORBES: Yes.

THE COURT: And I can continue to sentence you so until you comply by testifying.

FORBES: Yes.

THE COURT: And you refuse to testify?

FORBES: Yes.

With regard to the oath, Forbes then told the judge that he would not tell the truth.

THE COURT: You're going to lie under oath?

MR. FORBES: Yes.

THE COURT: Is that what you were just sworn to?

MR. FORBES: Yes.

THE COURT: Do you understand, sir, if you continue that, you can be charged with perjury as well as contempt of court?

MR. FORBES: So be it.

THE COURT: Go ahead and question him.

At the hearing, Forbes said he did not recognize the statement or recall his responses to questions recorded in the statement.

The following day, Forbes was again called to testify outside the presence of the jury, and he again refused to take the oath. The court warned Forbes of a possible contempt charge:

THE COURT: Do you understand that by refusing to take the oath, I could hold you in contempt?

FORBES: Yes.

THE COURT: Because I'm ordering you to take the oath. But you are refusing to take the oath?

FORBES: Yes.

The judge ordered that Forbes be held in the county jail until further order.

Defense counsel moved for a mistrial because the prosecutor had relied heavily in his opening statement upon Forbes's anticipated testimony. Before ruling on the motion for mistrial, the court gave Forbes a final opportunity to comply with the court's order to be sworn and testify. After the court told Forbes that it was not telling him what to say in his testimony but that he had to take the oath and testify, Forbes agreed and took the oath.

Defendant contends that the trial court erred in compelling Forbes to take the oath when he said he would not tell the truth. Defendant argues the court should either have granted his motion for a mistrial or proceeded through the trial without Forbes's testimony and statement. We disagree with these contentions. The trial court followed procedures approved in State v. Burns, 192 N.J. 312, 332 (2007), in addressing a witness who refused to testify. It ordered Forbes to take the oath and testify at the risk of being held in contempt if he refused. Subsequently, Forbes took the oath and testified at both the hearing outside the presence of the jury and at trial before the jury. We find no error in the trial court's denial of defendant's motion for a mistrial or its addressing Forbes's recalcitrance until he took the oath and testified.

After hearing Forbes's recantation and the testimony of Detective Ackerman about the circumstances of preparing the written statement, the court ruled that the statement was admissible under State v. Gross, 121 N.J. 1 (1990). Defendant challenges that ruling as error contending that the statement was not reliable.

N.J.R.E. 803(a) permits the admission of:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(1) is inconsistent with the witness' testimony at the trial . . . . However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability . . . .

The State has the burden of proving the reliability of the prior statement by a "fair preponderance of the evidence." Gross, supra, 121 N.J. at 15-16.

When, as in this case, a witness claims he cannot remember a previous statement, the trial judge may consider the witness's claim a feigned loss of memory and admit the statement under N.J.R.E. 803(a)(1). State v. Brown, 138 N.J. 481, 538-46 (1994); State v. Soto, 340 N.J. Super. 47, 66 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled on other grounds by State v. Dalziel, 182 N.J. 494 (2005).

Defendant argues that Forbes's refusal to take the oath was not testimony that was inconsistent with a prior statement. However, unlike the witnesses in State v. Williams, 182 N.J. Super. 427, 431-34 (App. Div. 1982), and State v. Caraballo, 330 N.J. Super. 545, 555 (App. Div. 2000), Forbes eventually took the oath and testified. He testified inconsistently with the substance of his statement in denying any memory of it and in disputing particular facts contained in the statement.

Regarding reliability of the statement, defendant argues that "the trial court did not credit, or chose to ignore" the relevant facts, including that Forbes gave the statement in anticipation of receiving a benefit on his own charges, that Forbes was physically exhausted, that he had a broken jaw and was admittedly under the influence of prescribed and illegal substances on the date of his arrest, and that Forbes's statement regarding how long he knew defendant was not credible because defendant was then serving a prison sentence. Defendant further contends that the judge should have permitted him to call Detective Vasquez, who had arrested Forbes to support his contentions that Forbes's statement was not reliable.

We find no abuse of discretion in the trial court's denial of defendant's request to call Detective Vasquez to impeach the statement. Defendant sought to have Vasquez testify about "the circumstances surrounding the arrest and the use of any medication." More specifically, defendant wanted Vasquez to testify whether any prescription medications were confiscated from Forbes upon his arrest as relevant to one of the factors that the court should consider, "the physical and mental condition of the declarant at the time" the statement was made. Gross, supra, 121 N.J. at 10.

Vasquez turned Forbes over to Ackerman at approximately 12:00 to 12:30 p.m. on December 3, 2003, and, after being interviewed by Ackerman, Forbes provided his written statement from 2:18 p.m. to 5:15 p.m. on that date. Ackerman was present when Forbes provided the statement; Vasquez was not. Ackerman testified about her observations of Forbes's physical and mental condition. The additional information about what prescription medication Forbes had with him hours earlier would not have established his condition in the late afternoon. The trial court did not err in relying on the police reports rather than live testimony of Vasquez to establish that Forbes was taking prescription medication.

Furthermore, although Forbes testified that he had taken medication and smoked marijuana before making his statement, Ackerman testified that she had experience with people who were intoxicated or under the influence of drugs, and she did not find Forbes to be impaired. Ackerman also testified that Forbes did not appear drowsy or listless. Moreover, when she asked Forbes whether he was under the influence of drugs or alcohol, he said no.

Ackerman testified that she asked Forbes what he knew, and he began to tell her events leading up to and following the homicide that were then unknown to the police. Ackerman said that Forbes did not ask for anything in exchange for his statement, and that she could not promise him anything. She noted that his jaw was wired, but that "he was able to articulate." Ackerman testified that Forbes "was very cooperative, informative, calm [and] forthcoming." She stated she made no promises or threats to get Forbes to cooperate.

The trial court found Ackerman's testimony credible and applied the fifteen factors listed in Gross to determine reliability of Forbes's prior inconsistent statement. Gross, supra, 121 N.J. at 10. To admit a statement under N.J.R.E. 803(a)(1), the court need not find each Gross factor to weigh in favor of reliability. Rather, it must find the statement to be reliable by a "fair preponderance of the evidence." Gross, supra, 121 N.J. at 15-16. Here, the trial court's conclusion that the statement was reliable was well supported by "a fair preponderance" of the credible evidence in the record.

Defendant also contends that Forbes's statement was not credible because his claim regarding the length of his acquaintance with defendant was discredited by Department of Corrections records showing that defendant was incarcerated at the time. In the statement, Forbes told police that he knew "Sincere" for about five or six years, going back to 1997 or 1998. On cross-examination at trial, Forbes said he did not know "Sincere." Defense counsel used this argument in summation to impeach the accuracy of Forbes's written statement. It was the jury's function to determine which version by Forbes -- the one presented in his written statement or his testimony at trial -- was more credible. See Soto, supra, 340 N.J. Super. at 66. "Although the judge, in admitting the statement, is essentially making a finding that the feigned memory loss is a lie, the jury is able to observe the witness and make its own decision about which account is true." Ibid.

"Appellate courts should defer to trial courts' credibility findings that are influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We conclude that there was substantial credible evidence to support the trial court's findings and ruling. See id. at 471-72.

Also, admission of the statement did not violate defendant's right of confrontation because Forbes was a witness at trial and was subject to cross-examination. See United States v. Owens, 484 U.S. 554, 559-60, 108 S.Ct. 838, 842-43, 98 L.Ed. 2d 951, 957-58 (1988). He answered all of defense counsel's cross-examination questions aimed at impeaching the accuracy of the written statement. Thus, defendant was not deprived of his right to confront Forbes as a witness against him.

II.

Defendant argues that the trial court erred in its instructions to the jury because it failed to give a charge on identification and one on alibi. Defendant did not request either charge.

"[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003); accord State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005). The court should give such a charge even when defendant has not requested it in every case in which identification is a "key issue." Id. at 623 (quoting State v. Cotto, 182 N.J. 316, 325 (2005)). "In the absence of a request for the charge, we do not presume prejudice but review the charge and the corroborative evidence to determine whether the deficiency was harmless, clearly incapable of producing an unjust result." Ibid.

In this case, identification was not a "key issue." Contrary to defendant's argument, this case significantly differs from Davis, supra, 363 N.J. Super. 556. In Davis, the defendant was accused of selling drugs to an undercover federal agent, but he fled before he could be apprehended. Id. at 559. The agent subsequently identified the defendant after being shown a single photograph by local police. Ibid. At trial, the defendant asserted misidentification. Ibid. Counsel raised the issue in both his opening statement and closing argument, and cross-examination of the State's witnesses was in large part directed at their identification of defendant. Id. at 560. Defendant further filed a motion for acquittal based on the failure of the State to prove his identity as the person who had sold drugs to the agent. Ibid. We concluded that the trial court erred in not specifically instructing the jury on identification even though defendant had not requested such a charge. Id. at 561-62. Such an instruction was warranted because identification was clearly a key issue in the case. Ibid.

In this case, defendant did not raise misidentification as an issue or a defense. Defense counsel did not claim that defendant was misidentified by police. Rather, defendant's primary theory was that the State's witnesses, in particular, Forbes and Barrett, fabricated their testimony or statements against defendant to gain favorable treatment on their own charges.

There were no eyewitness accounts of the shooting, other than Coleman, and he did not see either occupant of the SUV. No one witness pointed to defendant as either the shooter or the driver of the vehicle. Rather, defendant's conviction was supported by circumstantial evidence -- including defendant's connection to the SUV, the discovery in the Yukon of a shell casing fired from the same weapon that was used to kill the victim, and Forbes's statement placing defendant in the area of the shooting around the time it occurred and in the company of Willie Evans in the SUV earlier that day. It was also based on Barrett's testimony that defendant admitted to him his involvement in the murder and the reasons it was committed.*fn3

Although the trial court did not use the word "identification," the charge to the jury specifically instructed that "the burden of proving each element of a charge beyond a reasonable doubt rests upon the State and that burden never shifts to the defendant." The court explained that "[t]he defendant in a criminal trial has no obligation or duty to prove his innocence or offer any proof relating to his innocence." The charge, when read as a whole, "clearly informed the jury of the State's 'burden of proving beyond a reasonable doubt that defendant is the wrongdoer.'" Gaines, supra, 377 N.J. Super. at 625 (quoting Davis, supra, 363 N.J. Super. at 326-27).

Defendant argues that the trial court's failure to charge on alibi was reversible error after his witnesses testified that he was at his cousin's apartment at the time of the shooting. Our courts have long held that the failure to provide a separate charge on alibi does not constitute reversible error. See, e.g., State v. Edge, 57 N.J. 580, 590-91 (1971); State v. Peetros, 45 N.J. 540, 544-45 (1965). In State v. Garvin, 44 N.J. 268 (1965), the Court explained:

There is no need to speak of alibi in such separate terms . . . . The important thing is to make it plain to jurors that to convict they must be satisfied . . . that guilt has been established beyond a reasonable doubt. If a defendant's factual claim is laid beside the State's and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State's, the jury has the issue in plain, unconfusing terms. [Id. at 274.]

The Supreme Court recently quoted and reconfirmed the holding of Garvin in State v. Echols, 199 N.J. 344, 364 (2009).

As previously stated, the jury charge, when read as a whole, informed the jury of the State's burden of proving beyond a reasonable doubt that defendant committed the crimes charged.

We conclude there was no reversible error in the trial court's omission of an identification or alibi charge in the absence of a request or other basis to make those charges necessary.

III.

Next, defendant contends he was denied a fair trial because the prosecutor knowingly violated the rules of discovery and elicited testimony of his alleged involvement in the October 2003 drug deal between Lee and Evans through the trial testimony of Coleman that differed from his pretrial testimony.

A pretrial hearing was held on February 22, 2006, to determine the admissibility of other crimes or bad acts evidence under N.J.R.E. 404(b) against defendant and Evans, who had been indicted jointly. At the hearing, Coleman and Kenneth Lucky testified about drug transactions between Lee and Willie Evans. Neither witness was asked about or mentioned any involvement by defendant, although Coleman said he knew "Sincere." Later, the prosecutor said that the State was withdrawing its application under N.J.R.E. 404(b) against defendant. The prosecutor moved to sever the trial of Evans from that of defendant because the testimony of Barrett would not have been admissible in a joint trial with Evans.

When Coleman testified before the jury on March 7, 2006, his testimony differed from the pretrial hearing in that he said "Sincere" accompanied "Bill" during the drug transaction with Lee. Following this testimony, the judge spoke with counsel at sidebar, but no record was made of the sidebar colloquy. Back on the record, the judge gave a lengthy limiting instruction to the jury that the evidence of defendant's involvement in a drug transaction with Lee was permitted "for the purpose of establishing the defendant's motive, plan or intent on November 12th, 2003." The judge instructed the jury that this evidence may not be used to conclude "that the defendant is a bad person and thus has a disposition which shows that he's likely to have done the acts with which he is now charged or to show a general disposition to commit bad acts." He also instructed the jury:

[B]efore you can give any weight to this evidence, you must be satisfied that the defendants were involved in drug transactions with the victim prior to November 12th, 2003, and that such acts demonstrate the defendant's motive, intent or plan insofar as it relates to the incident that's charged in the indictment.

If you are not so satisfied, you cannot consider it for any other purpose.

On cross-examination, Coleman said he had not previously mentioned that defendant was present during the drug transaction because he was not asked that question. Later, the trial judge placed on the record further explanation for admitting Coleman's testimony about defendant's involvement in the drug deal. He said the allegation was the same as Barrett's anticipated testimony to that effect, and he had previously ruled under N.J.R.E. 404(b) that Barrett would be permitted to testify about the prior drug dealing.

"An inadvertent prosecutorial error in withholding discovery will not, if harmless, result in penalty or impugn the validity of the conviction." Pressler, Current N.J. Court Rules, comment 7.1 on R. 3:13-3 (2010) (citing State v. Koedatich, 112 N.J. 225, 319 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989); State v. Zola, 112 N.J. 384, 416-19 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989)). "A willful violation by the prosecutor of his discovery obligations may, however, require reversal of the conviction if defendant is thereby deprived of a fair trial." Ibid. (citing State v. Blake, 234 N.J. Super. 166 (App. Div. 1989)).

The prosecutor was obligated to inform the defense of any change in Coleman's anticipated testimony. Rule 3:13-3(g) establishes a continuing duty to comply with discovery obligations. Coleman testified that he told the prosecutor at a meeting in January that "Sincere" was with Bill during the October 2003 transaction, but his testimony at the pretrial hearing in February did not include that information. The State asserts that Coleman provided a written statement that was given to defendant during discovery and that his trial testimony was consistent with that statement.

There is no evidence on this record that the prosecutor intentionally withheld from the defense information about the changes in Coleman's testimony. Moreover, any surprise in Coleman's changed testimony was harmless because the defense was aware that Barrett's testimony placed defendant into the October 2003 drug deal. The defense was fully aware that the prosecution intended to use evidence of prior drug deals as providing the motive for the killing of Lee. Coleman's single reference to defendant being present during a transaction between Bill and Lee was unlikely to prejudice defendant and produce an unjust result. In addition, the court's immediate limiting instruction focused the jury on proper use of that evidence.

We conclude defendant was not deprived of a fair trial because of Coleman's unanticipated testimony at trial.

IV.

Defendant contends for the first time on appeal that he was denied his right to full appellate review by the trial court's refusal to record sidebar conferences.

Pursuant to Rule 1:2-2, all trial court proceedings "shall be recorded verbatim" with listed exceptions not applicable here. In State v. Paduani, 307 N.J. Super. 134, 143 (App. Div.), certif. denied, 153 N.J. 216 (1998), we stated "that where a defendant contends that error was made in an unrecorded sidebar conference, prejudice may result from our inability to review the alleged error." Accordingly, great care must be exercised by the trial judge to assure preservation of a verbatim recording of the proceedings required by R. 1:2-2 and R. 2:5-3(a). The complete transcript is of crucial importance for a meaningful review to both the appellate court and to new counsel on appeal. All side bar conferences which pertain in any way to the trial or the conduct thereof must be "on the record" and a verbatim recording made. [State v. Green, 129 N.J. Super. 157, 166 (App. Div. 1974) (citations omitted).]

The trial judge should not have permitted sidebar conferences without a verbatim record being made. Still, not every failure to comply with the recording requirement "constitutes a per se basis for reversal." Paduani, supra, 307 N.J. Super. at 141. Rather, the error "shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Defendant contends that the trial court failed to record approximately sixteen sidebar conferences. As the State argues, however, defendant has not asserted any specific prejudice from the failure to record those conferences.

We have reviewed the transcripts to provide context for each of the sixteen sidebar conferences that were not recorded. In almost every one, the court made statements on the record after the conference that revealed the purpose and subject of the sidebar. Several of the sidebars occurred while the jury was not in the courtroom, such as during the hearings pertaining to whether Forbes was willing to take the oath and testify.

In six sidebars, both in and outside the presence of the jury, the subject was either scheduling of the trial proceedings or a similar administrative matter, such as discussing a revised plea offer made to defendant, which was then rejected on the record.

Three sidebars followed objections by defense counsel, which the court sustained on the record. The transcripts reflect that the prosecutor did not pursue the stricken questions after those sidebar conferences.

On two occasions, defense counsel objected and went to sidebar, but he withdrew his objection on the record after the unrecorded conference. Also on two occasions, the court overruled defense counsel's objections on the record with statements indicating the general subject of the objection and its ruling. On one other occasion, the prosecutor asked to be heard at sidebar during defense cross-examination of a police detective. The court then stated on the record that the cross-examination could proceed but that the court would be alert to the issue raised by the prosecutor, apparently pertaining to the ability of the police to have recorded defendant's statement following his arrest. Nothing in the record indicates that the issue was revisited in subsequent questioning.

Finally, the court called for two sidebar conferences that contained substantive discussion of evidentiary or legal issues. The first was immediately after Coleman testified that defendant was present at the time of the October 2003 drug deal. Following the sidebar, the court gave the limiting instruction previously described on the permissible use of that evidence under N.J.R.E. 404(b), but the court did not strike Coleman's testimony. We have already discussed our conclusions regarding the admissibility of that evidence. Defendant has not demonstrated how the absence of a recorded sidebar conference at trial might have impeded our review of that issue.

The second unrecorded sidebar that may have affected substantive matters was at the conclusion of the court's charge to the jury. As required by Rule 1:7-2, the court gave the attorneys an opportunity to voice any objections to the jury charge. There is no indication in the record that defense counsel objected or made additional requests to charge. Because we have addressed the issue of whether jury charges were required on identification and alibi, and because defendant has not raised any other alleged errors in the jury charge, we find no reversible error in the trial court's failure to record the sidebar after the jury charge.

Based on our review of the record, we conclude that, although the court erred in failing to record sidebar conferences, the errors were harmless.*fn4

V.

In his supplemental pro se brief, defendant argues that he was prejudiced when his two witnesses from the Passaic County Jail were permitted to testify in jail garb. He argues that his conviction must be reversed for that reason under State v. Artwell, 177 N.J. 526 (2003).

The two witnesses called by the defense to contradict the testimony of Barrett were brought to court dressed in jail-issued pants and shirts rather than street clothing. The court and counsel, aware of the admonitions of Artwell against requiring defense witnesses to testify in jail clothing, discussed the matter on the record. Defense counsel indicated that the witnesses would testify that they were in custody at that time, and the subject of their testimony was occurrences at the county jail. Consequently, their clothing would not be a particularly troublesome issue. Defense counsel stated that he was less concerned with the jail attire than with scheduling matters so that all three of his witnesses scheduled for that date could testify.

The court then took steps to avoid the jury's observing the witnesses brought into the courtroom by sheriff's officers or having a full view of the jail clothing. The jury was excused from the courtroom before and after each of the witnesses testified, and the witness was sworn and seated in the witness chair when the jury entered and left. Thus, the jury was minimally exposed to the jail clothing.

Under these circumstances, with defense counsel's express waiver of any objection to the witnesses testifying as brought to the court, we find no abuse of discretion in the court's permitting them to testify in jail attire. See State v. Kuchera, 198 N.J. 482, 501 (2009) (abuse of discretion standard of review).

VI.

Finally, defendant challenges his sentence. He contends that the trial judge abused his discretion by imposing an extended term sentence of life imprisonment with thirty-five years of parole ineligibility on the murder count, which was to run consecutively to a sentence he was then serving. He further contends that the disparity between the sentence imposed upon him and that imposed upon co-defendant Willie Evans "is so grievous" that it demonstrates the excessiveness of defendant's sentence.

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.

In this case, the sentencing judge found three aggravating factors applicable: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court found no mitigating factors applicable to the sentence under N.J.S.A. 2C:44-1b. These findings were fully justified by defendant's criminal record and the nature of the offenses for which defendant stood convicted. See State v. Breitweiser, 373 N.J. Super. 271, 287-88 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

At the time of sentencing, defendant had prior indictable convictions in 1995 for drug offenses and attempted murder based on separate indictments, for which he was sentenced to fifteen years in prison with five years of parole ineligibility. Nine months after he was released on parole from that sentence, defendant was arrested and charged with drug and weapons offenses and aggravated assault. He was convicted by a jury on those charges and sentenced in 2004 to forty years in prison with fifteen years to be served before parole eligibility. At the time that defendant committed the murder and firearms offenses in this case, he was out on bail on the latter charges. The sentencing court found defendant to be a dangerous violent offender subject to a mandatory extended term sentence because of his multiple convictions for violent crimes with the use of firearms.

The State moved for a mandatory extended term sentence pursuant to N.J.S.A. 2C:44-3d.*fn5 The court granted the motion, as it was required to do by the language of the statute. N.J.S.A. 2C:44-3 provides in relevant part:

If the grounds specified in subsection d. are found, and the person is being sentenced for commission of [murder or possession of a firearm with intent to use it against the person of another], the court shall sentence the defendant to an extended term as required by N.J.S.A. 2C:43-6c . . . .

d. Second offender with a firearm. The defendant is at least 18 years of age and has been previously convicted of . . . crimes [including attempted murder] . . . and he used or possessed a firearm, as defined in 2C:39-1 f., in the course of committing or attempting to commit any of these crimes, including the immediate flight therefrom. [Emphasis added.]

Defendant was also subject to a Graves Act, N.J.S.A. 2C:43-6c, extended-term sentence by virtue of the use of a firearm in the commission of a murder and his prior conviction for attempted murder with use of a firearm.

Pursuant to N.J.S.A. 2C:43-7a(6), a person convicted of murder shall be sentenced to an extended term of imprisonment "fixed by the court between 35 years and life imprisonment, of which the defendant shall serve 35 years before being eligible for parole." There was no presumptive term for murder.

N.J.S.A. 2C:44-1f(1); State v. Abdullah, 184 N.J. 497, 507 (2005); see also State v. Natale, 184 N.J. 458, 487-88 (2005) (eliminating presumptive terms for all other offenses). Accordingly, a "defendant's murder conviction [does] not impose a de facto ceiling below life imprisonment. Therefore, the trial court [has] discretion to impose a sentence within the statutory range . . . based on its consideration of the applicable sentencing factors." Abdullah, supra, 184 N.J. at 507-08.

Here, the sentencing judge did not abuse his discretion in imposing a term of life imprisonment with a thirty-five year period of parole ineligibility. The sentence is within the statutory range and is well supported by the record.

Defendant asserts that his sentence must be deemed manifestly excessive because of the much lesser sentence imposed on co-defendant Evans. After his trial was severed from that of defendant, Evans pleaded guilty to an amended charge of second-degree manslaughter, and he was sentenced to a custodial term of five years in prison with eighty-five percent of the term to be served before parole.

In Roach, supra, 146 N.J. at 232, the Court noted that "[d]isparity may invalidate an otherwise sound and lawful sentence." Acknowledging that a "sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter," ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)), the Court noted further that "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." Ibid. (quoting State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980)). "The question therefore is whether the disparity is justifiable or unjustifiable." Id. at 233. "The trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Ibid.

In this case, the disparity between the sentences occurred because Evans accepted the prosecutor's offer to plead guilty to a lesser charge. Defendant was also offered the opportunity to plead to a lesser charge, although not the same lesser charge as Evans, but defendant rejected the plea offer.*fn6 Evans's circumstances, therefore, were not "identical" to those of defendant. Evans was not subjected to the same statutory sentencing range that applied to defendant.

Defendant contends that the sentencing judge erred by ordering defendant's sentence to run consecutively to the sentence that defendant was already serving at the time of trial. In doing so, the judge applied the factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), including:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous; . . .

[Id. at 643-44.]

Defendant's charges in this case were separate and distinct criminal episodes, committed at different times and places, and involving different victims.

We find no error or abuse of discretion in the court's sentencing decisions.

Affirmed.


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