On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-3543.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Defendant Quran Goodman appeals his conviction for the murder of Rashon Bryant, contrary to N.J.S.A. 2C:11-3(a) (count one); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three). We affirm.
We discern the following facts from the record, including the testimony given at Goodman's trial.
Goodman, whose street name was "Blak," was a member of the "Crips" gang. Prior to the events that gave rise to this case, he and Bryant had a longstanding friendship. Goodman regularly spent time at the corner located at the intersection of Ellis Avenue and Hopkins Place in Irvington. And, at various times, Bryant sold drugs at the same corner.
Goodman and other Crips members attempted without success to convince Bryant to become a Crip. In 2000, when Bryant was sentenced to state prison, he was not a member of any gang. However, according to Tauheedah Carney,*fn1 his girlfriend from 1999 until his death in 2004, Bryant became a member of the "Bloods" gang while incarcerated. Carney described the Crips and Bloods as rival gangs, each of which used certain colors and language as gang symbols.
Carney described the corner frequented by Goodman and Bryant as Crips territory. She related that, in 1999, when she was occasionally dropped off at the corner by Bloods members, Goodman would ask "[w]hy [she] was letting them slob n**gers drop [her] off [t]here."*fn2 Goodman even objected to her wearing brown scarves because brown was a Bloods color.
According to Carney, she remained Bryant's girlfriend during his incarceration, writing to him while he was in prison. After almost four and a half years of incarceration, Bryant was transferred to a halfway house in March 2004. Carney visited Bryant every week while he was at the halfway house.
On one occasion in 2004, Carney told Goodman that Bryant had asked about him. According to Carney, Goodman seemed angry and responded "that he don't want to talk to [Bryant] because [Bryant] turned to the other side on him."
Bryant was released from the halfway house on June 28, 2004. On the night of July 4, 2004, Carney agreed to go with Bryant to the corner of Ellis Avenue and Hopkins Place at 11:00 p.m., where Bryant intended to see Goodman. Bryant asked her to bring a gun to him at the corner, but did not explain why. Bryant left for the corner early and did not pick Carney up, so Carney had a friend drop her off.
When Carney arrived at the corner, she observed that an argument was taking place nearby, but she could not discern the participants. She called out to Bryant, who walked over to her with a man she had seen once before but did not know by name. Goodman approached them from another direction and gave Carney a hug. According to Carney, she witnessed no argument between Goodman and Bryant and there was no sign that Goodman possessed a weapon at that time. After hugging Carney, Goodman walked up to . . . the porch [of a nearby house], talked to some girl for a minute.
Then he left the porch, went around the house, came back around the house. He stood in front of us. He asked the guy that was with [Bryant] for some cigarettes. The boy say he was gonna save him something, that's when he shot [Bryant].
Carney related that she was standing not more than two feet away from Bryant when he was shot.
Carney heard three shots, began to run away, and then heard more shots. When she turned around, she saw Goodman running from the corner towards Springfield Avenue. The unidentified man was sitting on a nearby curb crying, but was gone by the time the police arrived. Carney returned to Bryant, but he appeared to be dead. He was subsequently pronounced dead at the scene.
Angela Smith and a friend were also at the corner of Ellis Avenue and Hopkins Place on the evening of the shooting, having purchased cocaine from Bryant. Smith observed that a crowd was gathered at the corner, and she saw Bryant and Goodman at the corner with a woman she did not know. Bryant and Goodman were having an argument. She heard someone say: "Go ahead, do what you gotta do," and saw Goodman walk out of sight. Smith then observed Goodman return, walk up to Bryant, and shoot him four or five times.
When the police and an ambulance arrived, Carney told the police officers that she was Bryant's girlfriend, but gave them a false name and told them that she did not see who had shot Bryant. She testified that she did so because she did not want people in the crowd to know her name or that she was supplying information to the police. Later, at the Irvington police station, Carney told Detective Harold Wallace what she had seen and identified Goodman as the person who shot Bryant. She eventually gave the police a complete statement.
Goodman was indicted in November 2004. In May 2005, Goodman and his cousin, Naim Jones, were both incarcerated at the Essex County Jail. Jones, who was known as "Murda," was a Bloods member, and had fathered a daughter with Carney's best friend. On May 11, 2005, during a search following a disturbance at the jail, Sergeant John Ferrante of the Essex County Department of Corrections found a letter written by Goodman in Jones's cell. The letter, as subsequently redacted for the jury, stated:
4/18/05, Murda, what's hood?, Yeah, this is ya lil cousin. Yo, I'm writing you because I just got indicted today in court and I truly need you to reach out to those mean streets and do your numbers. I'm sending you one page of my paperwork. I hope this is enough. If not, let me know. I was just in court with your dude Uzikas and he knew a lot about me and we was talkin on some real street shit about ol' girl, and he told me that y'all can't move off of word of mouth and that y'all needed some paperwork. So, here's the paperwork. Murda, I really need you. You are my only hope, so get back to me and let me know something, a'ight? Your lil cousin forever, Blak. P.S., let me know if you got the paperwork. I sent it with the letter. Okay.
A copy of the first page of Carney's statement, with her identifying information and address, was attached to the letter. Jones's girlfriend told Carney about the letter at some point thereafter.
Carney was incarcerated in the Essex County Jail at the time of Goodman's trial. On August 22, 2006, while she was in a holding cell in anticipation of testifying at the trial, she saw Goodman being transferred within the jail. According to Carney, Goodman "walked up to the [holding cell] and said is I'm gonna testify against him and I asked him why he do that? He say, he could had done something to me, and I ain't never say nothing back to him. I just looked at him." She believed Goodman meant that he would have had "somebody do something" to her if he had known she was going to testify against him.
Goodman's jury trial started on August 29, 2006. Goodman sought to bar the introduction of any evidence related to gang membership, including expert testimony, arguing that it was irrelevant and unduly prejudicial. Judge John C. Kennedy held a Rule 104 hearing. After noting that there were no New Jersey cases specifically allowing the utilization of such evidence to demonstrate motive, the judge concluded that the proposed evidence satisfied the requirements of N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992) ("[E]ven if the other-crime evidence is relevant to prove some legitimate trial issue, the trial court must exclude it unless . . . its probative value outweighs its prejudicial impact."). He also cited case law from other jurisdictions that "generally agreed" that evidence showing that a defendant and victim were members of different gangs would be admissible for the purpose of showing motive.
[g]ang evidence is admissible, despite the prejudice that attaches, if it is relevant and particularly if it is crucial in establishing motive. And the State, in my view has cobbled together sufficient facts to warrant submitting to the jury this evidence on the issue of motive. And it's not a decision whether or not I would find that it clearly or convincingly establishes motive beyond a reasonable doubt. I don't think that that's a decision that I can come to. But I can say that a juror -- a reasonable juror could find it clear and convincing, and a reasonable juror could come to a conclusion beyond a reasonable doubt that there is evidence of motive in this case. So, I'm going to allow the evidence to come in.
As I indicated, the facts as testified by Miss Carney, in my view were very simple and straightforward. Number two, there was evidence that these folks were both members of rival gangs. Three, the site of the shooting was a Crip corner. Four, that the defendant -- that the victim was a Blood on a Crip corner. And five, that the defendant in this case had expressed distress and/or anger over the fact that the victim had become a member of the Bloods.
So, I'm going to allow the State to introduce into evidence that issue and I will give a limiting instruction to the jury at the same time that the State indicates that it's going to introduce this evidence. And I guess I should really be dealing with that maybe in my initial instructions, because I guess that both counsel are going to want to address that in their opening statements, so I'm going to have to say something about it during the course of my initial instructions to the jury.
Counsel agreed upon the following language, which the judge used during jury selection.
During the trial, you'll hear references to an allegation that the decedent and the defendant were members of rival street gangs. It would be up to you to determine if that is true or not true and whether, if true, that has any relevance to a possible motive for the charges set forth in the indictment. I can tell you, however, that you can never use that evidence to conclude that defendant has a predisposition to commit any crimes or that simply because you find he was a member of a gang, he must be guilty of the crimes charged in the indictment. I'll tell you more about that later. Is there anyone here who believes that such evidence alone would make it difficult for you to be a fair and impartial juror?
In addition, the judge gave the following preliminary charge to the impaneled jury at the start of the trial.
Now, when we were selecting the jury in this case, I told you that during the course of the trial you will hear references to an allegation that the decedent, Rashon Bryant, and the defendant were members of rival street gangs. It will be up to you to determine if that is true or not true, and whether if it is true, that it has any relevance to a possible motive for the charges set forth in the indictment. I can tell you, however, that you can never use that evidence to conclude that the defendant has a predisposition to commit any crimes, or that simply because you find he was a member of a gang, or that the victim may have been a member of a gang . . . the defendant, therefore, must be guilty of the crimes charged in the indictment.
In his final jury charge, after explaining the specific use for which the gang related evidence was admitted, the judge continued:
Whether this evidence does, in fact, demonstrate motive is for you to decide. You may decide that the evidence does not demonstrate motive and is not helpful to you at all. In that case, you must disregard it.
On the other hand, you may decide that the evidence does demonstrate motive and you may utilize it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person.
That is, you may not decide that just because the defendant is a member of a street gang, or that the decedent was a member of a street gang, the defendant must be guilty of the present crimes. I have admitted this evidence only to help you decide the specific question of motive. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he . . . was a member of a street gang.
Goodman also sought to bar testimony about Goodman's letter to Jones and his statement to Carney at the Essex County Jail. The trial judge held Rule 104 hearings on those issues. He determined that there was sufficient credible evidence and allowed the testimony, citing State v. Rechtschaffer, 70 N.J. 395 (1976) ("Declarations subsequent to the commission of the crime which indicate consciousness of ...