On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-11-2686 and 05-11-2687.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 28, 2010
Before Judges Cuff, Payne and Waugh.
Defendant Omar Bridges was charged and tried by a jury under two indictments. Under Indictment No. 05-11-2686, defendant was found guilty of first degree attempted murder, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-2 (Count One); two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts Two and Four); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Five); second degree unlawful possession of a firearm, N.J.S.A. 2C:39-4a (Count Six); second degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f (Count Seven); third degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Nine); and second degree eluding, N.J.S.A. 2C:29-2b (Count Ten). Under Indictment No. 05-11-2687, a jury found defendant guilty of second degree certain person not to have weapons, N.J.S.A. 2C:39-7b.
On Indictment No. 05-11-2686, the judge merged Count Two with Count One and Count Six with Counts One and Four. On Count One, defendant was sentenced to a twenty-year term of imprisonment with an 85% No Early Release Act (NERA)*fn1 period of parole ineligibility. On Count Four defendant was sentenced to a term of ten years imprisonment subject to NERA, consecutive to Count One. On Count Five, defendant was sentenced to a five-year term of imprisonment, consecutive to Count One. On Count Seven, defendant was sentenced to a five-year term of imprisonment with a two-year six-month period of parole ineligibility, consecutive to Count One. On Counts Nine and Ten, defendant was sentenced to five-year terms of imprisonment, concurrent to Count One. On the certain person not to have a weapon charge in Indictment No. 05-11-2687, defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility, consecutive to Count One of Indictment No. 05-11-2686. His aggregate term is fifty years in prison with a thirty-three-year period of parole ineligibility.
Defendant was the passenger in a stolen Jaguar when a gun battle erupted between pursuing police officers and the occupants of the Jaguar. One of the officers was shot in the shoulder and face. The evidence against defendant consisted of defendant's cell phone found several blocks from the shootout near a gun and gloves, and eyewitness testimony by one of the pursuing police officers and a co-defendant, Alphonse Ollie. The State's witnesses contend defendant was sitting in the back seat of the Jaguar and was the only person to fire at the officers. Defendant asserts he was in the front seat and Ollie was the shooter.
We reverse and remand for a new trial due to the absence of a jury charge to guide the jury's evaluation of the wounded police officer's identification of defendant and the persistent denigration of defense counsel by the prosecutor, repeated efforts to have defendant characterize the State's witnesses as liars, the prosecutor's disparagement of defendant as a liar, and several instances of wholly improper comments during the prosecutor's summation.
At about 3:45 a.m. on October 9, 2004, Police Officers Eduardo Patinho and Kimberly Gsavatich were on routine patrol in Newark. As they approached the intersection of Orange Street and Boyden Street, they observed an exchange of gunfire between the occupants of a silver Jaguar and a black Subaru.*fn2 Both officers witnessed shots being fired at the Subaru from the passenger seat behind the driver of the Jaguar.
Officer Patinho, the driver of the squad car, testified he pulled within half a car length from the Jaguar. Officer Gsavatich, who testified that she and Officer Patinho approached within one car length of the Jaguar, observed four people in the Jaguar. Although she recorded four passengers in the Jaguar in her report prepared shortly after the incident, she equivocated on the number on redirect examination.
As the officers approached, both vehicles sped away. The Subaru drove southbound on Boyden Street, and the Jaguar drove westbound on Orange Street. The officers activated their sirens and spotlight and pursued the Jaguar, at times reaching speeds between ninety and 100 miles per hour. During the pursuit, the Jaguar hit the rear of a tractor trailer but continued. Both the Jaguar and the squad car went airborne after passing over a railroad crossing and hitting an embankment. This caused the Jaguar to "bottom out its transmission." The Jaguar continued very slowly until it finally stopped approximately ten yards from the intersection of 6th Street and 7th Avenue.
Officer Patinho stopped the squad car behind the Jaguar, and both officers exited the car with their weapons drawn. Patinho walked towards the driver's side of the Jaguar; Officer Gsavatich walked towards the passenger side. Patinho ordered all of the occupants in the vehicle to show him their hands. The passenger in the rear driver side seat "peeked" his head out of the window, fired a gun through the open back window and struck Officer Patinho in the shoulder. Patinho was approximately ten feet from the car. Patinho testified he did not clearly see the gun or the shooter because the shooter was crouching down in the back seat as he fired. Nevertheless, he was able to identify defendant as the rear driver side passenger. He testified he saw defendant when he "peeked out" the window immediately prior to firing.
Both officers immediately opened fire concentrating on the rear driver's side of the car. Patinho, shot in the mouth and bleeding profusely, continued to fire his gun until his ammunition was spent. He then returned to the police car, sat on the ground, and awaited medical assistance.
Both officers saw the driver and the front passenger of the Jaguar exit the car and run. Gsavatich never saw the purported shooter get out of the car or where he went. She never saw his face, and did not identify him at trial.
Arthur Hilton, a security officer at the Garden Spires Housing complex in Newark, was notified at approximately 3:50 a.m. that a man, later identified as defendant, hopped over the complex's steel fence. Hilton observed defendant on the security monitor enter and exit two buildings before he proceeded to the security office. Defendant asked Hilton if he could call for a cab, and Hilton lent him his cell phone. A cab pulled up a few minutes later; defendant left the complex in the taxi at 4:18 a.m.
Detective Thomas Kelly of the Essex County Prosecutor's Office arrived on the scene at approximately 6 a.m. He observed seven or eight bullet holes in the Jaguar dispersed throughout the rear driver's side door, quarter panel and windshield. He reported that officers recovered a total of twenty-two shell casings in the vicinity of the Jaguar and police vehicle. Thirteen came from Patinho's gun, two from Gsavatich's gun. Only one nine millimeter shell casing was discovered inside the Jaguar, seven non-police casings were found on the street. Additionally, Detective Kelly testified that he and other officers found five nine millimeter shell casings at the scene of the initial shootout between the Jaguar and the Subaru near the intersection of Orange and Boyden and two more at the intersection of North 5th Street and 7th Avenue. Officers also found a silver Nextel cell phone lodged between the driver's side seat and the door abutment of the Jaguar. Detective Kelly later determined that the phone belonged to co-defendant Ollie.
Officers also found blood in the back of the Jaguar. The blood did not match defendant's DNA. Blood samples were not taken from the co-defendants.
Police recovered the Subaru later on the morning of the shootout. No one was found inside the vehicle. It bore two bullet holes, one through the windshield and one through the passenger side door.
Defendant was injured during the exchange of shots. Shortly before 7:00 a.m., co-defendant Ollie asked his girlfriend, Kimberly Moore, to assist defendant. Moore, a nursing assistant, informed Ollie she could not remove a bullet, but gave him a first aid kit.
At this time, Ollie told Moore that he lost his phone when he was running from the police and defendant was with him at the time. In her statement to police, Moore reported that Ollie told her defendant was shot in the leg and another person was shot in the "butt." She did not know the identity of the other wounded person.
By 8:30 or 9 a.m., defendant was on his way to a hospital in Easton, Pennsylvania by car. The trip was organized by Johntaya Turner, a friend of defendant. When they arrived at Easton Hospital, defendant sought only emergency care. He identified himself to an emergency room nurse as Shariff Johnson and said he was shot in a nearby club. Defendant eventually consented to emergency surgery.
The next day, Detective Barry Golazeski of the North Hampton County District Attorney's Office interviewed defendant at the hospital. Detective Golazeski testified defendant identified himself as Shariff Johnson and stated he lived in Nagituck, Connecticut. Defendant told the detective he was shot when an argument erupted in a bar in Easton, but he did not immediately realize he was injured. Golazeski took defendant's photograph and fingerprints and later discovered his true name and address.
Further investigation revealed a person, Nelson Nieves, who observed four people running from the Jaguar, two running up 7th Avenue and two running down it. Johntaya Turner, the woman who drove defendant to the hospital, also identified a photograph of DeShawn Davis, also known as "Nitti," who defendant maintained was also in the back of the Jaguar. He has never been located.
Alfred Santiago, who lives approximately two-and-a-half blocks from the shootout between the occupants of the Jaguar and police, found a gun in a pile of trash approximately four or five feet behind his house. Police recovered a loaded Tech Nine gun, two gray Nike batting gloves, and a Motorola cell phone approximately fifteen to twenty feet from the gun. Police were unable to recover any fingerprints from any of these items. The gloves were tested for DNA, but the results only proved that the wearer was male. The cell phone belonged to defendant.
Co-defendant Ollie was arrested on October 12, 2006. At trial, Ollie admitted he had entered a plea agreement and had not been sentenced.*fn3 He explained that his nickname was "Speedy" due to his ability to steal cars quickly. He admitted he stole the Jaguar from the Sheraton Hotel. He testified he was with defendant and Kareef Ford, known to him as "Shoeshine," when he stole the car. Ollie returned to Newark around midnight and went to a Bloods street gang meeting at Minks, a local bar. When he left the meeting at approximately 2 a.m., members of a rival gang, the Crips, pulled up in a black Subaru and asked him, "what was cracking." Ollie testified the statement is disrespectful to Bloods, so he found defendant and co-defendant Rasheem Woods and they searched for the Subaru.
Ollie identified himself as the driver of the Jaguar. Woods sat in the front seat; defendant sat behind Woods armed with a Tech Nine. He further stated that, when they found the Subaru, defendant shot at it and an unidentified blue car. As he drove down Orange Street towards 1st Street, Ollie noticed the sirens and lights of a police car behind the Jaguar. He sped away.
Ollie recounted the high-speed attempt to elude the police and how the Jaguar stopped after its oil pan was damaged. According to Ollie, he fled immediately on foot. During his flight, he heard shots behind him. Ollie also testified that Woods climbed out of the front passenger-side window, and defendant also got out of the car. He insisted neither he nor Woods had a weapon, and defendant was the only one who fired at the police. Ollie said that the next time he saw defendant was at defendant's mother's house, and defendant was bleeding from a gun shot wound.
Defendant testified on his own behalf and admitted that he drove Ollie and Shoeshine to the Sheraton Hotel where they stole the Jaguar. He asserted that Ollie and Shoeshine drove off in the Jaguar and he did not see Ollie again until approximately 11:30 p.m. in Newark when Ollie and his friends were playing "chase" with the occupants of the Subaru. Defendant said he also saw Ollie and Woods later that night at Minks, and he left with them at approximately 2:50 a.m. Woods, or "Rocky" as defendant referred to him throughout his testimony, was going to drive him to his girlfriend's house. He also said he lent Ollie his cell phone.
Defendant testified that Woods drove and he was in the front passenger seat. He explained he is six feet six inches tall and never sits in the back seat of any car because he cannot fit. Defendant maintained that Ollie was in the back behind Woods and Nitti was in the seat behind him. Defendant said he was drunk, fell asleep, and awoke to the sound of gun shots as they approached his girlfriend's house near the Orange Street and Boyden Avenue intersection. The next thing defendant knew, they were being chased by police.
Defendant insisted when the car came to a stop on 6th Street, Ollie was the shooter. He said he climbed out of the car window and felt a burning sensation in his stomach, but continued to run around the car and down 7th Avenue. He claimed that Nitti was also injured. Defendant testified he went to the Spires Housing complex to get a ride home from a friend. When he learned his friend was not at home, he borrowed a cell phone, called a cab, and went home.
Defendant explained that he did not feel any pain until the next day, and did not realize he was bleeding until he showered and saw blood. He then called Turner to pick him up. Turner, Ollie, Woods, and Nicole, a friend of Turner, arrived shortly thereafter. Ollie went to his girlfriend's house to get a medical bag and, when he came back, reported that his girlfriend refused to help. Defendant testified he went to Latesha Green's home because her mother was a nurse, but her mother just looked at the wound. Turner then arranged a meeting at a gas station and they left from there to go to a hospital.
On appeal, defendant raises the following arguments:
BECAUSE THE IDENTITY OF THE SHOOTER WAS THE CENTRAL ISSUE IN THIS CASE, AND BECAUSE THE ONLY IDENTIFICATIONS OF THE DEFENDANT WERE EXTREMELY UNRELIABLE, THE TRIAL COURT'S FAILURE TO GIVE THE JURY AN IDENTIFICATION CHARGE AND INSTRUCT THEM THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT IN THIS CASE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., (1947), ART I., 1, 9, 10 (Not Raised Below).
THE ACCOMPLICE LIABILITY CHARGE, WHICH WAS GIVEN OVER THE OBJECTION OF DEFENSE COUNSEL, WAS INAPPLICABLE HERE AND SERVED ONLY TO CONFUSE THE JURY, DENYING THE DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. Const., Amend. XIV; N.J. Const., Art. 1, ¶ 10.
THE PROSECUTOR'S OUTRAGEOUS AND PERVASIVE MISCONDUCT DENIED THE DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (Partially Raised Below).
A. The Prosecutor Repeatedly Denigrated the Defense and The Defense Attorney.
B. The Prosecutor Persisted in Calling the Defendant A Liar and Tried to Goad the Defendant into Labeling State's Witnesses as Liars.
C. The Prosecutor Impermissibly Vouched For His Witnesses.
D. The Prosecutor Misstated Law and Facts.
E. The Prosecutor Improperly Appealed to the Jury to Do Its Duty.
BECAUSE, AS THE TRIAL COURT ACKNOWLEDGED, DEFENDANT WAS NOT THE DRIVER OF THE CAR AND THE STATE PRESENTED NO EVIDENCE THAT HE SOLICITED OR AIDED THE DRIVER TO ELUDE THE POLICE, THE CHARGE OF ELUDING SHOULD HAVE BEEN DISMISSED AND MUST BE REVERSED. (Not Raised Below).
In a pro se supplemental brief, defendant raises the following arguments:
UNITED STATES SUPREME COURT DECISION IN HOLMES V. SOUTH CAROLINA AND THE NEW JERSEY DECISIONS, STATE V. COOK AND DEMARCO REQUIRE THIS COURT TO REVERSE AND REMAND FOR NEW TRIAL.
DEFENDANT WAS DENIED THE RIGHT TO CONFRONT THE DNA ANALYST IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND ...