September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR ALFORD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZIAIR T. MCDANIELS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Cuff, Payne and Waugh.
A jury found defendants Lamar Alford and Ziair T. McDaniels guilty of first degree murder, N.J.S.A. 2C:11-3a(1) (Count 1); first degree felony murder, N.J.S.A. 2C:11-3a(3) (Count 2); first degree robbery, N.J.S.A. 2C:15-1 (Count 3); first degree conspiracy/murder/robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1; N.J.S.A. 2C:11-3a(1) (Count 4); second degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 5); and third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count 6). Alford and McDaniels were also found guilty of second degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (Counts 7 and 8, respectively).
After merging Counts 1, 3 and 5 into Count 2, each defendant was sentenced to life imprisonment with an 85% No Early Release Act (NERA)*fn2 period of parole ineligibility. On Count 4, each defendant was sentenced to a concurrent term of twenty years imprisonment with a ten-year period of parole ineligibility. On Counts 7 and 8, respectively, each defendant was sentenced to a term of ten years imprisonment with five-year periods of parole ineligibility consecutive to Counts 2 and 4. In short, each defendant is serving life plus ten years in prison subject to a parole ineligibility term of 68.75 years.*fn3 The appropriate penalties and assessments were also imposed.
On May 22, 2005, Salvador A. Martinez, known as Twin by some and Alex by others, was shot and killed. The victim was in an alley on Merriel Avenue in Camden at about 9:30 p.m. when two men dressed in dark clothing, one tall and one short, entered the alley and pushed the victim to the ground. Lillian Davis heard one of the men say, "don't move, just stay there," and the victim ceased his attempts to stand. She observed the men stand over the victim and rifle through his pockets. Then she saw the taller man run from the alley, and "[the shorter one] was getting ready to run, but he turned back around like . . . pulled it out and shot one time." Then the shorter assailant ran from the scene. Davis could not identify either man because, as she stated numerous times at trial, "I didn't see no faces."
Carol Lofland, standing near the alley with Davis and a man known as Beans, saw the shorter man rifle through the victim's pockets and saw both men start to run. Lofland then saw the shorter man stop, turn, return to the victim, and fire one shot. Thia Kim, sitting in the park across from the alley, saw both men run from the alley, cross the street, run through the park, and across nearby railroad tracks. Kim testified that he saw the faces of both men and recognized both men. Kim recognized Alford because "I seen [him] around." He testified he recognized McDaniels as a person who hung around his middle school. Kim also stated he had seen McDaniels in the neighborhood but had not seen him with Alford. The victim was pronounced dead at the hospital.
Carol Lofland identified Alford, known on the street as Bling and by some as Blaze, as the taller of the men. She did not identify McDaniels as the shorter man. She, unlike Kim, gave inconsistent testimony about seeing McDaniels, known on the street as Sugar Hill, with Alford on a regular basis. Initially, she testified that she saw them together rarely. When confronted with her statement given about a month after the shooting in which she stated she saw them together often, she changed her testimony.
Jacob Eller testified he knew the victim and Alford because he was a drug user and had purchased drugs from both men on numerous occasions. He also recounted an encounter with defendants earlier on May 22, when he went to a street corner in Camden to buy drugs.
According to Eller, as he awaited his turn to purchase drugs, someone arrived in Alford's car. Eller heard the driver say to Alford, "you're not getting your money he owes you," and he heard Alford respond, "go get my gun, I'll get my fg money." Eller said someone obtained a gun, and gave it to Alford, who entered the passenger seat of his car and drove away. Eller also testified that Alford had an "associate," who he identified as McDaniels. He stated he had seen them together "a hundred times."
On appeal, defendant Alford raises the following arguments:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING DEFENDANT'S ALLEGED DRUG DEALING WITH HIS CO-DEFENDANT VIOLATED N.J.R.E. 404(B) AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10.
THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY FROM INVESTIGATOR GREER, WHICH BOLSTERED THE TESTIMONY OF THE STATE'S THREE IDENTIFICATION WITNESSES, AND NECESSITATES REVERSAL. U.S. CONST., AMENDS. VI, AND XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).
THE TRIAL COURT ERRED IN CHARGING THE JURY THAT LOFLAND HAD "IDENTIFIED THE [CO-DEFENDANT] BY BUILD AND STATURE AS THE PERSON WITH [DEFENDANT] AT THE SCENE," WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10.
THE JURY'S EXPOSURE TO JUROR 7'S COMMENT THAT DEFENDANT'S TWO TEARDROP TATTOOS MEANT HE KILLED TWO PEOPLE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
BY IMPROPERLY IMPOSING CONSECUTIVE TERMS, THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In a pro se supplemental brief, Alford raises the following points:
SUPPLEMENT TO OTHER-CRIMES/ACTS ISSUES RAISED BY COUNSEL.
SUPPLEMENT TO TAINTED-JURY ISSUES RAISED BY COUNSEL.
SUPPLEMENT TO CUMULATIVE-ERROR ISSUES RAISED BY COUNSEL.
On appeal, McDaniels raises the following arguments:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING CO-DEFENDANT'S ALLEGED DRUG DEALING WITH HIS DEFENDANT VIOLATED N.J.R.E. 404(B) AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE 404(B) EVIDENCE WITHIN THE CONTEXT OF THIS CASE. (Not Raised Below).
THE TRIAL COURT ERRED IN CHARGING THE JURY THAT LOFLAND HAD "IDENTIFIED THE [DEFENDANT] BY BUILD AND STATURE AS THE PERSON WITH [CO-DEFENDANT] AT THE SCENE," WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY FROM INVESTIGATOR GREER, WHICH BOLSTERED THE TESTIMONY OF THE STATE'S THREE IDENTIFICATION WITNESSES, AND NECESSITATES REVERSAL. (Not Raised Below).
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
A FAR GREATER JUSTIFICATION FOR A PARTICULAR MURDER SENTENCE MUST BE GIVEN THAN WAS GIVEN HERE, WHEN THAT SENTENCE, UNDER THE NO EARLY RELEASE ACT (NERA), COULD POSSIBLY INVOLVE SUCH WIDELY VARYING AMOUNTS OF PAROLE INELIGIBILITY; TO REQUIRE LESS THWARTS THE GOALS OF THE CRIMINAL CODE WITH REGARD TO SENTENCING.
BY IMPROPERLY IMPOSING CONSECUTIVE TERMS THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
Prior to trial, the State sought a ruling that it would be able to introduce evidence through Eller that he knew defendants because he purchased drugs from them on numerous occasions and the victim owed Alford money for drugs. The motion judge held the State could not introduce evidence of a drug debt between Alford and the victim based on Eller's assumption that such debt existed. The judge ruled, however, that Eller could testify that the victim owed Alford money based on the exchange he heard on the street between Alford and the driver of the car.*fn4
The motion judge also ruled that Eller would be permitted to testify that he knew Alford, McDaniels, and the victim because he was a drug user and had purchased drugs from all of them on numerous occasions. The judge found that this testimony had "enormous probative value" because it underscored the degree of familiarity and trust between Eller and Alford. The judge recognized the prejudice inherent in this evidence but contemplated that the prejudice could be minimized by a limiting instruction. Any concerns about Eller's desire to curry favor with the State due to his personal criminal charges could be addressed during cross-examination. At trial, Eller testified in conformity with this pretrial ruling. Eller, however, was not permitted to identify McDaniels as the driver of Alford's car and no other witness placed him in that car.
At the conclusion of Eller's testimony, the trial judge gave the following instruction:
Members of the jury, you've also heard evidence that the defendants in this matter, Lamar Alford and Ziair McDaniels may have been involved in drug-dealing.
Normally, this evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when it's offered only to show he has a disposition or tendency to do wrong and there[fore] must be guilty of the charged offenses.
Because you can give any weight to this evidence -- I'm sorry. Before you can give any weight to this evidence, you must be satisfied that the defendant committed other crimes, wrongs, or acts. If you are not satisfied, you may not consider it for any purpose.
However, our rules do permit evidence of other crimes, wrongs, or acts when the evidence is used for certain specific, narrow purposes.
In this case, it was admitted solely to prove the knowledge and the identity of the defendants and a possible motive for the incident.
Whether this evidence does, in fact, demonstrate that specific purpose is for you to decide. You may decide the evidence does not demonstrate that knowledge of the defendants or the identity of the defendants and a possible motive is not helpful to you at all.
In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate that specific purpose and you may use it for that specific purpose only.
However, you may not use the evidence to decide that the defendants have a tendency to commit crimes or that they're bad persons. That is, you may not decide that just because a defendant has committed other crimes, wrongs, or acts, he must be guilty of the present crime.
I have admitted the evidence only to help you decide the question of knowledge of the defendants' identity and possible motive for the incident.
You may not consider it for any other purpose and may not find the defendant[s] guilty now simply because the State has offered evidence that they committed other crimes, wrongs, or acts.
In the final instructions to the jury, the trial judge addressed the drug-dealing activity by defendants as follows:
Members of the jury, the State has introduced evidence that the defendant[s] Lamar Alford and Ziair McDaniels previously sold drugs in the area of the shooting. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when it is offered only to show that he has propensity or tendency to do wrong and therefore must be guilty of the offense charged.
Before you can give any weight to this evidence you must be satisfied that the defendant committed the other offense. If you are not satisfied, you may not consider it for any purpose.
However, our rules do permit evidence of other crimes, wrongs, or offenses when the evidence is used for [a] specific certain narrow purpose. In this case, the evidence was admitted solely to prove a knowledge of the defendant's identity prior to the shooting by the witness.
Whether this evidence does, in fact, demonstrate prior knowledge of the defendant's identify is for you to decide. You may not decide that the evidence does not demonstrate prior knowledge of the defendant's identity and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, if you decide that the evidence does demonstrate prior knowledge of the defendant's identity[,] you may use it for that specific purpose.
However, you may not use the evidence to decide that a defendant has a tendency to commit crimes or is a bad person. That is, you may not decide that just because the defendant may have committed another crime, wrong, or act he must be guilty of the present crime.
I've admitted the evidence only to help you to decide the specific question of whether the witness may have had prior knowledge of the defendant's identity. You may not consider it for any other purpose and may not find the -- the defendant guilty now, simply because the State has offered evidence that he may have committed another crime, wrong, or an act in the past.
Alford argues that this other crimes evidence is not admissible pursuant to N.J.R.E. 404(b), and the prejudice caused by this evidence far outweighed its probative value. Alford asserts that Eller could have simply testified that he knew him from the neighborhood without any reference to criminal behavior. He also argues that the prejudice was compounded by a limiting instruction that was at variance with the final instruction on the use of this evidence. The limiting instruction informed jurors they could consider Eller's testimony of drug use and drug distribution on the issue of his knowledge of Alford's identity and motive; the final instructions did not mention motive.
McDaniels argues that evidence that Eller bought drugs from both defendants was not relevant to any material issue at trial, as Eller's identification of him was never contested. He emphasizes that other evidence could have been utilized to establish the same point.
The standard of review for an appellate court reviewing a trial court's evidentiary ruling is abuse of discretion. State v. Brown, 170 N.J. 138, 147 (2001); State v. Marrero, 148 N.J. 469, 484 (1997). The Supreme Court has held that a judge abuses or mistakenly exercises discretion when a decision, "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
N.J.R.E. 404(b) governs the admission of evidence of other crimes committed by a defendant. The rule provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith." Such evidence, however, "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).
The Court has distilled the extensive history of case law interpreting the exclusion of other crimes evidence into a four-part test:
"1. The evidence of the other crimes must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its prejudice." [State v. Cofield, 127 N.J. 328, 337 (1992) (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (19989) (footnote omitted)).]
In Cofield, the defendant was charged with drug offenses, and the State sought to introduce evidence that the defendant constructively possessed drugs subsequent to the charged offense to prove the defendant's possession of drugs in the charged offense. Id. at 330. The Court observed that the trial court had not abused its discretion in admitting the other crimes evidence, id. at 339-40, but reversed because the limiting instruction did not "narrowly focus the jury's attention on the specific use of the other-crime evidence," id. at 341.
Once a judge determines that evidence of other crimes is admissible under the four-prong test, the judge must instruct the jury on the limited use of the evidence. Id. at 341. The instruction must explicitly state the purpose for which the evidence is to be considered and the purposes for which it may not be considered. Ibid.
We address the admission of this evidence against each defendant separately.
A. Lamar Alford
Here, the State introduced evidence that Alford was a drug dealer. It did so through the testimony of Eller, one of Alford's buyers, to prove that Eller knew Alford. Alford presents many arguments relating to the policy behind the N.J.R.E. 404(b) exclusion, but focuses primarily on the undue prejudice prong. He argues that the admission of the evidence was highly prejudicial and, therefore, not admissible. He also contests the motion judge's statement that the evidence was relevant to "why somebody would make an incriminating statement such as this in front of somebody," alleging that such is not a recognized exception to N.J.R.E. 404(b).
The reasoning challenged by Alford is directly related to one of the permitted uses of other crimes evidence -- identity. Eller relates an incriminatory statement by Alford, the "go get my gun, I'll get my f-----g money" statement. This utterance made in front of Eller and others suggests a level of comfort in the company of those who heard it. It is highly suggestive that Eller knew Alford and Alford knew Eller. Moreover, Eller's testimony that Alford was a drug dealer further explains not only the reason Eller could identify Alford but also the depth of their familiarity and the unlikelihood of mistaken identity.
Ultimately, Alford's objection to this testimony is grounded in its prejudicial nature. He argues that this prejudice could have been alleviated by simply directing Eller to state that he knew Alford from the neighborhood. In the context of this case, however, it is highly unlikely that simply using the "knew him from the neighborhood" euphemism would ameliorate prejudice to Alford because drug use and the drug trade permeated this trial.
The jury quickly learned that the victim was a drug dealer, who regularly sold crack cocaine in the immediate vicinity of the alley in which he was robbed and killed. The witnesses who knew the victim, particularly Carol Lofland and Lillian Davis, were drug users who purchased crack cocaine from the victim and others. Lofland admitted she had smoked cocaine just before the shooting. Eller admitted he had a serious drug habit. He admitted that in May 2005, he used a copious amount of crack cocaine. Eller admitted he was in Alford's company hoping to buy more cocaine and that he had used cocaine throughout the day.
Due to the drug use of these three principal witnesses, defense counsel concentrated on whether their ability to observe, concentrate and remember had been impaired and argued forcefully that they may have misperceived anything and everything they heard and saw that night. Moreover, defense counsel thoroughly cross-examined these witnesses about their vulnerability to police pressure to provide information in accordance with their perception of what they actually saw and heard. Eller, Lofland, Davis and Kim had criminal histories, and each gave statements helpful to the State's case while incarcerated on other charges, some of which were drug related.
In the context of a record in which every witness, other than the police, had criminal records and all but one of the eyewitnesses to a critical element of the event was an admitted drug user, evidence that Alford was a drug dealer and may have sold drugs at one time with the victim could hardly have been a surprise to the jury. It is also clear that without this evidence, the jury would have been left to speculate how Alford related to these witnesses in this drug- and crime-infested neighborhood. Moreover, the trial judge provided timely and appropriate instructions to the jury at each instance when this issue arose and in his final instructions to the jury. We, therefore, hold that the motion judge did not mistakenly exercise her discretion by allowing Eller to testify that Alford was a drug dealer and one of the persons from whom he acquired crack cocaine.
B. Ziair McDaniels
We reject McDaniels' argument that the evidence of his drug dealing activities was not admissible pursuant to Rule 404(b). On the other hand, the limiting instruction delivered by the trial judge did not properly focus the jury's attention on how the other crimes evidence could be considered as to McDaniels.
Eller provided evidence not only of prior and current drug dealing but also related a conversation between the driver of Alford's car and Alford and a statement by Alford to someone in the crowd to get his gun. The limiting instruction, however, simply referred to "evidence that the defendants in this matter, Lamar Alford and Ziair McDaniels may have been involved in drug- dealing." Then the judge advised the jury that it could consider this evidence for only two purposes: identity and motive. The latter purpose is relevant to the case only with reference to the statement made by the driver, Alford's response, and his departure from the corner armed with a gun. Yet, Eller was not allowed to identify McDaniels as the driver of the car or as the person who related that the victim had no intention of paying Alford money owed to him. Moreover, no other witness placed McDaniels in Alford's car or even at that corner on the evening of May 22. Consequently, the limiting instruction delivered by the trial judge only partially focused the jury's attention on the use of the other crimes evidence offered by Eller. Once the judge informed the jury that it could consider the evidence of drug dealing by defendants for the specific purpose of motive, all of the efforts to bar evidence that McDaniels was the driver of Alford's automobile were negated.
McDaniels, however, did not object to the limiting instruction when given. We must, therefore review the error in accordance with the plain error standard. R. 2:10-2. That is, we must consider whether the failure to properly instruct the jury on the limited purpose for which the other crimes evidence may be used contributed to an unjust result. State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 333 (1971). Viewing this record in its entirety, we conclude that it had the capacity to contribute to an unjust result.
Only one witness, Thia Kim, identified McDaniels as a person close to the shooting scene. Kim testified that he saw McDaniels running through the park with Alford soon after the shooting. Eller testified that McDaniels was a constant companion of Alford but did not testify that McDaniels was at 34th Street on the evening of May 22. Others testified that McDaniels was known in the neighborhood. No one other than Thia Kim, however, placed him in Camden or in the alley on that night. The reference to motive in the limiting instruction directed at the manner in which the jury could consider the other crimes evidence as to both defendants overstated the evidence as to McDaniels. It had the clear capacity to produce an unjust result.
Alford argues that evidence of a drug debt was presented to the jury during the testimony of Investigator John Greer contrary to the motion judge's ruling. We also note that the prosecutor referred to a drug debt as a motive for the shooting in his opening statement. Alford notes correctly these references directly contradicted the pretrial ruling of the motion judge.
As to the latter statement, the trial judge issued a timely instruction advising the jury about the limited nature of an opening statement and its obligation to decide the case only on the basis of the testimony and exhibits. Investigator Greer read to the jury a statement obtained from Eller in which he referred to a drug debt. Although the motion judge's prior ruling precluded any reference to a drug debt, we do not consider this single reference by Greer an error requiring a new trial.
Alford did not object to this statement. We, therefore, review this error in accordance with the plain error standard. R. 2:10-2. We must be satisfied that the error had the clear capacity to produce an unjust result. Daniels, supra, 182 N.J. at 95; Macon, supra, 57 N.J. at 333. This error does not meet this standard.
The evidence adduced at trial allowed the jury to surmise that any money taken from the victim was the proceeds from his sale of crack cocaine. Several witnesses, including Eller, testified that the victim carried large wads of cash, and "flashed" the wad. Some witnesses testified that they warned him that he could be the victim of a robbery. The jury could have easily inferred that Alford and his companion knew that the victim carried large sums of money earned through sales of crack cocaine. Whether Alford and his companion shot the victim to satisfy a drug debt or simply robbed him of the proceeds of drug sales matters little in light of the evidence in this case.
Alford and McDaniels also argue that the trial judge allowed inadmissible hearsay when Investigator Greer testified to statements made to him by Eller, Lofland, and Kim, during his investigation. They also argue that such testimony impermissibly bolstered the respective witnesses' testimony and falls within no exception to the hearsay rule.
The trial judge gave an immediate limiting instruction after Greer's testimony, but also announced that he would give another instruction in the final charge. The judge, however, never included such an instruction in his final charge, and Alford claims that was also an error. Neither defendant raised these issues at trial.
The State maintains that the statements related by Greer were prior consistent statements of the witnesses used for rehabilitation of those witnesses. It argues that the statements admitted were limited in nature and were specifically directed at rehabilitation. Although we consider the admission of portions of these statements questionable, we do not find that any error rises to the level of plain error.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible except as provided for in the New Jersey Rules of Evidence or by other law. N.J.R.E. 802. Pursuant to N.J.R.E. 803(a)(2), prior consistent statements are admissible as an exception to the prohibition of hearsay when they are offered to "rebut an express or implied charge against the witness of recent fabrication or improper influence or motive." Such statements cannot be offered to merely bolster a testifying witnesses' credibility, but they can be offered in response to allegations of fabrication or influence to prove a witness did not change his/her story. Neno v. Clinton, 167 N.J. 573, 580 (2001). Additionally, admission of a prior consistent statement is permissible for clarification when a witness is cross-examined about inconsistencies between his/her trial testimony and prior statement in an attempt to suggest that a witness has been untruthful. State v. Johnson, 235 N.J. Super. 547, 556 (App. Div.), certif. denied, 118 N.J. 214 (1989). Such statements are admissible to rebut the suggestion on cross-examination that a witness has a motive to lie. State v. Chew, 150 N.J. 30, 79 (1997), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999). Additionally, the prior consistent statement does not necessarily have to be made before there was an improper influence or motive to lie in order to be admissible to rebut allegations surfacing during cross-examination. State v. Muhammad, 359 N.J. Super. 361, 386-88 (App. Div.), certif. denied, 178 N.J. 36 (2003).
Here, Investigator Greer testified to the prior statements of three witnesses in an attempt to rehabilitate them. Each was cross-examined vigorously and thoroughly regarding their respective motives for testifying against Alford and McDaniels and seemingly contradictory statements made by them regarding defendants' identity. Additionally, defense counsel unquestionably suggested that each was only testifying and identifying defendants as the persons who killed the victim in order to further their own personal interests in receiving relief from their own pending criminal charges. Therefore, it was permissible, pursuant to N.J.R.E. 803(a)(2), for Greer to relate statements each made before they were aware that they were going to receive any help from the prosecutor. We note, however, that some of the statements were obtained before some of the witnesses were incarcerated. Moreover, a portion of Eller's statement read into the record by Greer went beyond rehabilitation. In fact, it seems to have been used to avoid the motion judge's pretrial ruling. However, the motives of Lofland, Davis, Kim and Eller were the subject of vigorous and thorough cross-examination by defense counsel. We cannot conclude that this final effort to enhance the credibility of Eller, Lofland, Davis and Kim detracted from the evidence presented by these witnesses and impermissibly interfered with the jury's ability to assess their credibility.
Defendants complain that the trial judge provided misinformation to the jury about Lofland's identification of the victim's assailants. In the course of introducing his instructions on the identification of defendants by eyewitnesses, the trial judge stated that Lofland identified McDaniels by build and stature. The judge was mistaken. Lofland did not identify McDaniels at the scene, before trial, or at trial. She did, however, identify Alford.
Although the judge provided an inaccurate summary of a portion of the testimony, the mistake could have no effect on Alford. Indeed, the judge properly summarized Lofland's identification testimony regarding Alford. She was unable to identify him as one of the men in the alley. The same cannot be said for McDaniels. Lofland did not identity McDaniels as one of the men in the alley. Kim was the only person who placed McDaniels in Camden that evening. The judge's comment, therefore, overstated the evidence about McDaniels' involvement in the shooting.
Alford argues that comments by a juror in the presence of other jurors before opening statements tainted the entire panel and require a new trial. Although the trial judge removed this juror at Alford's request, he did not seek a mistrial at the time. Therefore, the issue comes before us as plain error.
Following jury selection, a juror notified the trial judge that another juror had commented about a tattoo on Alford's face, questioned whether the defense attorneys were retained or court-appointed, wondered whether defendants were in jail or free on bail, and expressed some concern about retribution if the panel returned a guilty verdict. Juror No. 7 admitted that she made comments and admitted that someone had told her that a teardrop tattoo signified the person had killed someone in the past. She admitted she was curious about defendants' bail status and whether their attorneys were court-appointed or retained. She stated several times she realized these matters were not relevant, and she would not let any of this information or her curiosity about these issues influence her decision. Nevertheless, the trial judge excused her from service.
The trial judge then interviewed each juror about Juror No. 7's comments. The judge asked each juror if they had any discussions with Juror No. 7 or any other juror or overheard any discussions between or among other jurors about the case, the attorneys, or either defendant the prior evening or that morning. All but Juror No. 8 responded "No." Juror No. 8 advised the court and counsel that she had heard Juror No. 7 state that she had read about the case. She assured the court and counsel that she would decide the case solely on the evidence. Juror No. 14 advised the court and counsel of Juror No. 7's statements, and she stated that she would decide the case solely on the evidence adduced at trial and would not allow Juror No. 7's statements and speculation to influence her consideration of the evidence. Having received these responses, the trial judge decided there was no impediment to proceeding with the trial. Neither the prosecutor nor either defense counsel objected.
Whether a new trial should be granted based upon juror taint is within the sole discretion of the trial judge. State v. R.D., 169 N.J. 551, 558 (2001). "A motion for a mistrial should be granted only in those situations where to deny it would result in manifest injustice." State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div.) (citing State v. Lozada, 257 N.J. Super. 260, 277 (App. Div. 1992)), certif. denied, 139 N.J. 442 (1995). It is "an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." Ibid.
Alford relies on State v. Bey, 112 N.J. 45 (1988), for the relevant procedure for determining whether there has been juror taint. Alford maintains that the Bey Court found, when potentially prejudicial outside information may have reached members of the jury, the judge should conduct an individual voir dire of each juror. Id. at 86-87. More recently, the Supreme Court held that there is no per se rule requiring the individual voir dire of each juror. R.D., supra, 169 N.J. at 560-61. The appropriate method for determining if an individual voir dire is necessary is explained in R.D. as follows:
An appropriate voir dire of a juror allegedly in possession of extraneous information mid-trial should inquire into the specific nature of the extraneous information, and whether the juror intentionally or inadvertently has imparted any of that information to other jurors. . . . [T]he court must then determine whether it is necessary to voir dire individually other jurors to ensure the impartiality of the jury. [Id. at 560.]
In R.D., after the victim's mother testified, a juror told the judge that he knew the witness. Id. at 554. The juror stated that he did not convey his knowledge to any of the other jurors. Ibid. The judge excused that juror, but did not question any of the other jurors regarding interactions with the dismissed juror. Ibid. The Court held that the trial judge did not abuse his discretion in failing to grant a mistrial. Id. at 562.
Here, the trial judge's actions were entirely consistent with the governing law. He posed appropriate questions and fashioned an appropriate response based on the answers to his questions: He excused Juror No. 7 and ordered the trial to proceed with the remaining jurors.
Alford and McDaniels argue that cumulative error requires a new trial. This was not a perfect trial. Greer should not have been allowed to reference the portion of Eller's out-of-court statement that a drug debt existed between defendant and the victim. Greer's reading of prior consistent statements of several witnesses presents a close question. However, we have rejected the principal issues advanced by Alford. Moreover, the record in its entirety presents compelling evidence that Alford was one of the two men who accosted the victim in an alley, rifled his pockets, and was present when the smaller man shot him once in the heart.
The evidence implicating McDaniels in the shooting is not of the same quality or quantity. Only one person identified McDaniels. Kim testified he saw McDaniels running through the park near the alley following the shooting. It was dark at the time, and Kim had been drinking. The limiting instruction about the use of other crimes evidence included a purpose that implicitly placed McDaniels as the messenger of the victim's refusal to pay money owed to Alford and the driver of his car. A fragment of the charge misinformed the jury that a witness identified McDaniels as the shooter. Under these circumstances, we have no confidence that McDaniels' conviction was not the product of these errors and misstatements and hold that these errors cumulatively require a new trial. State v. Orecchio, 16 N.J. 125, 133-35 (1954).
Finally, Alford argues that the trial judge imposed an excessive sentence. He contends that the judge should have imposed a concurrent rather than consecutive term for the second degree certain persons charge. Alford argues that the judge omitted the required analysis and seeks a reduction in sentence.
When imposing a consecutive term of imprisonment, a judge must consider the factors outlined in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). That was done here. The judge found that the weapons charge was a separate offense, and advances the public purpose of eliminating the harm posed by weapons in the possession of convicted felons. The judge, however, stated that he was required to impose a consecutive term. That is not the case. The trial judge may have recognized at various times during the trial that a consecutive term was optional rather than mandatory, but at sentencing, he expressly stated "by statute it must be consecutive."
We, therefore, remand for reconsideration of this portion of Alford's sentence.
In summary, we affirm Alford's conviction but remand for reconsideration of the consecutive term imposed on Count 7. We reverse McDaniel's conviction and remand for a new trial.