On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment 04-03-0359.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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.
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).
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).
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.
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW WAS VIOLATED (NOT RAISED BELOW).
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.
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 ...