On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-12-2444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded: August 13, 2007
Reargued: October 1, 2009
Before Judges Stern, Sabatino and Newman.
Defendant was convicted of three capital murders but the jury could not reach a unanimous verdict as to the penalty and defendant was sentenced to three consecutive sentences of life imprisonment without parole. Defendant was also convicted of the attempted murder of Terrance Harris (Harris) for which he received a twenty-year sentence with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After merger of other offenses, the judgment provided for two additional sentences, which appear inconsistent with the sentence as orally imposed, and our remand opinion of August 13, 2007 required clarification of the aggregate sentence imposed. State v. Massey, No. A-1794-02 (App. Div. Aug. 13, 2007) (slip op. at 2). Unfortunately, that clarification never completely occurred, and because we affirm the convictions, we are compelled to remand once more for clarification of the sentence and entry of an amended judgment.
The judgment, as amended on May 13, 2008, provides for: a life sentence without parole on count one for purposeful or knowing murder; the same sentences for purposeful or knowing murder on counts two and three, to be served "consecutive to ct 1," (emphasis added); a twenty-year sentence, with eighty-five percent to be served before parole eligibility under NERA, for attempted murder on count four; and five-year sentences, "consecutive to each other and Ct. 1," on counts seven and eight embodying the unlawful possession of the assault firearm and hindering apprehension convictions (emphasis added). The statement of reasons on the amended judgment includes the following:
This may very well be the longest sentence ever meted out in Atlantic County, if not the State of New Jersey, but the massacre that this defendant perpetrated on 9/8/00, certainly justifies the extraordinary length of the sentence.
As we stated in our remand opinion, the judgment as originally imposed was not clear, because the consecutive sentences were all imposed consecutive to count one. The same is true of the sentence embodied in the amended judgment filed on the remand. It is therefore possible that, as all sentences were made consecutive to the sentence imposed on count one, the judgment can be read to provide an aggregate sentence based on count one, and a single life sentence among the numerous sentences made consecutive to it.
But, as we also noted in our remand opinion, the oral sentence imposed controls any inconsistency with the written judgment, Massey, supra, slip op. at 2 n.1, and it is clear that the judge originally endeavored to impose three consecutive sentences for the purposeful or knowing murders on counts one, two, and three. They may stand. See State v. Carey, 168 N.J. 413, 419 (2001); State v. Yarbough, 100 N.J. 627 (1985). A separate amended judgment entered on the remand as to counts seven and eight seems to resolve those terms and also suggests count four was intended to be consecutive to counts one, two, and three.*fn1
However, given the length of the terms, to run until after all the people related to the case are no longer available, we believe one clear judgment should be entered and the two judgments now extant embodied therein. This is significant, in part, because the present judgment provides a "[t]otal [c]ustodial [t]erm" of "88Y 88M 088D," which is clearly a ministerial or technical error. A statement of reasons addressed to the consecutive sentences as clearly imposed will be required. Yarbough, supra, 100 N.J. at 643-44.
A person identified as defendant fired an AK47 assault rifle into a car killing three occupants. The fourth, Harris, was able to get away. The State's proofs, which we incorporate from our remand opinion, included identification testimony and evidence that defendant had previously possessed an AK47, that all of the bullets came from the same AK47, and that defendant had a prior fight with a friend of the victims and a confrontation with one of the victims, Michael Demps, who had threatened defendant earlier on the morning of the 4:00 a.m. shootings.
The passenger in defendant's vehicle at the time of the shootings, Gary Way, was a witness, as were passing motorists including Karen Simpkins, and Harris, the surviving passenger. Harris did not identify the shooter, but he testified that he did not see Way with a gun as he approached the victims' vehicle and he knew Way had nothing to do with the shooting. A cellmate of defendant's testified that defendant said he killed the victims because they "pissed him off."
The shooting occurred at an intersection in Atlantic City. Way exited the car and was approaching the victims' vehicle when the driver exited defendant's car and started shooting. Karen Simpkins testified that the scene near casinos was "pretty bright" and that she made eye contact with the shooter. Her ultimate photo identification and her in-court identification of defendant were "positive." Her husband stated that the shooter was the driver of defendant's vehicle, and that he got back in the car and drove away. Way, whose skin was much darker than the shooter's was described to be, ran from the scene while defendant drove away.
The defendant asserts he was wrongly convicted: that Way was the shooter; that Simpkins, who made a positive identification of defendant, did so after seeing his photo "at least five times in three different arrays;" that the jail mate who reported the inculpatory statement was not in the same location of the jail as defendant; and that a Harrah's security officer believed he saw Way with a gun.
In his original brief on the appeal, defendant made the following specific arguments:
THE TRIAL COURT ERRONEOUSLY APPLIED N.J.R.E. 702 AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WHEN IT PRECLUDED DR. STEVEN PENROD FROM TESTIFYING AS AN EXPERT ON PROBLEMS WITH THE EYEWITNESS IDENTIFICATION IN THIS CASE.
THE DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY THE STATE'S FAILURE TO DISCLOSE UNTIL MID-TRIAL THAT IT HAD RECOVERED AND TESTED A NORINCO AK-47 ASSAULT RIFLE THAT MAY HAVE BEEN THE MURDER WEAPON; BY THE COURT'S FAILURE TO TAKE ANY MEANINGFUL REMEDIAL ACTION; AND BY HIS ATTORNEYS' FAILURE TO PRESENT EXCULPATORY EVIDENCE RELATED TO THE GUN.
THE DEFENDANT'S CONSTITUTIIONAL RIGHTS WERE VIOLATED BY THE TRIAL COURT'S RULINGS THAT THE STATE NEED NOT PROVIDE DISCOVERY RELATING TO GARY WAY'S FAILED POLYGRAPH EXAM; THAT NO EVIDENCE COULD BE PRESENTED AT THE GUILT PHASE RELATING TO WAY'S INTERVIEW WITH THE POLYGRAPH EXAMINER; AND THAT THE DEFENSE COULD NOT PRESENT TESTIMONY AT THE SENTENCING PHASE SHOWING THAT WAY HAD BEEN DECEPTIVE ON THE CRUCIAL ISSUE OF WHETHER HE WAS THE SHOOTER.
THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE STATE'S CONTINUING FAILURE TO TURN OVER EXCULPATORY EVIDENCE CONTAINED IN TWO AFFIDAVITS FILED BY ...