On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-12-2621-B and 08-01-0021-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
Defendant was indicted together with Naim Robinson for the purposeful or knowing murder of Joseph Burton, in violation of N.J.S.A. 2C:11-3(a)(1), (2); conspiracy to commit second-degree aggravated assault, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); second-degree aggravated assault upon Khalif Roberts, in violation of N.J.S.A. 2C:12-1(b)(1); fourth-degree aggravated assault by pointing a firearm at Roberts, in violation of N.J.S.A. 2C:12-1(b)(4); fourth-degree aggravated assault by pointing a firearm at Burton, in violation of N.J.S.A. 2C:12-1(b)(4); hindering apprehension, in violation of N.J.S.A. 2C:29-3(a)(3); and tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1). Defendant was subsequently indicted by another grand jury for possession of a firearm by a convicted felon, in violation of N.J.S.A. 2C:39-7, based on the same incident as the other indictment.
A jury acquitted defendant of Burton's murder and possession of a weapon for an unlawful purpose, but found him guilty of the other offenses charged in the first indictment. Immediately following this verdict, the same jury found defendant guilty of possession of a firearm by a convicted felon under the second indictment.
Defendant filed a motion for judgment notwithstanding the verdict on the ground that the jury verdict was inconsistent, which the trial court denied.
The trial court sentenced defendant to concurrent nine-year terms, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for conspiracy to commit second-degree aggravated assault and the second-degree aggravated assault upon Khalif Roberts; a consecutive term of eighteen months for tampering with evidence; and a consecutive nine-year term, with five years of parole ineligibility, for possession of a weapon by a convicted felon. The court also imposed concurrent terms of five years for unlawful possession of a handgun and eighteen months for the two fourth-degree aggravated assaults.
The bulk of the State's case rested on the testimony of Khalif Roberts, who was Burton's companion the night of the murder and the victim of the second-degree aggravated assault; co-defendant Naim Robinson, who testified against defendant pursuant to a plea agreement; and Maurice Patterson, a relative of defendant who was picked up with him in Florida.
Roberts testified that on the night of September 25, 2004, he and Burton gathered with a number of other people drinking and possibly smoking marijuana outside a friend's apartment at the Marina Del Ray apartment complex in Pleasantville. At some point Roberts and Burton left the complex to get more beer, but upon returning they were told their friend had fallen asleep.
After attempting to go to another friend's apartment, they began to walk across a street and noticed defendant and Robinson down the street. Roberts, familiar with the alleged shooters from seeing them at the complex, told Burton, who was looking in the direction of defendants, "[f]uck them, let's go do what we about to do," which was drink on a porch across the street.
Roberts testified that as they crossed the street, "shots just started flying" from the area where defendant and Robinson were standing. Taking cover behind a car, Roberts looked towards the area where the shots were coming from, and saw defendant and Robinson standing there. Roberts, who was in front of Burton, heard Burton "give out, like, an ouch! sound or Ah!" and Burton fell. After the shots stopped, Roberts got off the ground and started to run away. Noticing that Burton was not following him, Roberts returned to the area and found Burton lying in the street "with his eyes up looking at me." Burton died from a single bullet that entered the left side of his torso, which ruptured the spleen, both lungs, and the aorta before resting behind the collar bone.
Robinson testified that defendant lived in an apartment at the Marina Del Ray complex with his uncle, Lonnie Hicks, and Robinson often hung out there with defendant, Lonnie, Burnell Bazemore, and Maurice Patterson, a relative of Robinson. On the night of the shooting, the five friends were at another friend's house drinking and smoking marijuana. During that time, a discussion took place regarding a shooting incident at Lonnie's and defendant's apartment the night before. The group was upset about the incident, and at some point defendant received a phone call from his girlfriend, Alisha Brown, who lived in Marina Del Ray. Defendant said that Brown saw Roberts and "somebody named Mushad" come by his apartment. Defendant indicated that he wanted to go to the apartment complex, so Patterson drove defendant and Robinson there.
At the complex, defendant and Robinson stopped in front of Brown's apartment where they talked with Brown and two of her friends. During the conversation, defendant saw two people walking along a street and said "he's about to cut at them, meaning shoot," and the three girls then ran away. Robinson heard a shot come from a semi-automatic nine millimeter pistol defendant was carrying and proceeded to pull out his .38 revolver and fire it in the direction of the two people, elevating his hand so he would not hit anyone. He estimated he shot three times and defendant shot eight or nine times.
After the shooting, both defendant and Robinson fled the State. Robinson was apprehended in Georgia and gave a statement incriminating defendant.
However, after being returned to New Jersey, Robinson was incarcerated in the Atlantic County Justice Facility, where defendant was also incarcerated. Robinson subsequently received a series of messages threatening him with violence if he testified against defendant. As a result, Robinson wrote two statements disclaiming his earlier assertion that defendant was involved in the shooting.
Robinson was subsequently told by defendant that these statements were insufficient, so he wrote another statement in which he identified another person as the one who participated with him in the shooting. On another occasion, when defendant asked him to change his statement, Robinson refused, and defendant punched him in the jaw. Before defendant's trial, Robinson pled guilty to aggravated manslaughter for his role in the death of Burton and received a sentence of fourteen years imprisonment.
Defendant was apprehended in Florida with his uncle, Lonnie Hicks; Burrell Bazemore; and Maurice Patterson. Patterson gave the police a taped statement recounting incriminiating statements defendant made about his role in the shooting of Burton. Patterson said he received a call early in the morning on September 26, 2004, from defendant asking to pick him up. Defendant said a female caller told him that Burton, Roberts, and another person "knocked on his door in a threatening manner," appearing to have "a metal object on they hip." Defendant went to the Marina Del Ray complex "looking to talk to the guys that threatened him." When he saw them, he fired his gun intending to give warning shots, but someone was hit and died. The next night, defendant convinced Patterson to flee with him, Lonnie, and Burnell, and Patterson drove them to Florida. During the journey, defendant "kept saying I didn't mean it, I didn't mean to shoot him, it was an accident." What occurred when Patterson was called as a witness at trial and this statement was played to the jury is discussed at length later in this opinion.
The defense rested without calling any witnesses.
On appeal, defendant presents the following arguments:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED A CRUCIAL STATE'S WITNESS TO INITIALLY TESTIFY WITHOUT TAKING THE OATH OR MAKING AN AFFIRMATION (PARTIALLY RAISED BELOW).
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S SECOND TRIAL IN WHICH HE WAS CHARGED WITH POSSESSION OF A WEAPON (A FIREARM) BY A CONVICTED FELON PURSUANT TO N.J.S.A. 2C:39-7 (NOT RAISED BELOW).
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (PARTIALLY RAISED BELOW).
THE JURY'S VERDICTS FINDING THE DEFENDANT GUILTY OF COUNT II (CONSPIRACY TO COMMIT AGGRAVATED ASSAULT), COUNT V (AGGRAVATED ASSAULT), COUNT VI (AGGRAVATED ASSAULT) AND COUNT VII (AGGRAVATED ASSAULT) WERE INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.
THE TRIAL COURT ERRED BY FAILING TO EFFECTUATE VARIOUS MERGERS INVOLVING COUNT II ([CONSPIRACY] TO COMMIT SECOND DEGREE AGGRAVATED ASSAULT) INTO COUNT V (SECOND DEGREE AGGRAVATED ASSAULT), COUNTS VI AND VII (FOURTH DEGREE AGGRAVATED ASSAULT) INTO COUNT V ([CONSPIRACY] SECOND DEGREE AGGRAVATED ASSAULT) AND COUNT IV (POSSESSION OF A HANDGUN WITHOUT A PERMIT) INTO COUNT I OF INDICTMENT NO. 08-01-0021-B (POSSESSION OF A WEAPON BY A CONVICTED FELON) (NOT RAISED BELOW).
A. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING CONSPIRACY TO COMMIT SECOND DEGREE AGGRAVATED ASSAULT INTO COUNT V CHARGING SECOND DEGREE AGGRAVATED ASSAULT.
B. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS VI AND VII CHARGING FOURTH DEGREE AGGRAVATED ASSAULT INTO COUNT V CHARGING SECOND DEGREE AGGRAVATED ASSAULT.
C. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON WITHOUT A PERMIT INTO COUNT I OF INDICTMENT NO. 08-01-0021-B CHARGING ...