On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Payne and Baxter.
Defendant Tairahaan Mallard appeals from an October 6, 2008 Law Division order that denied his petition for post-conviction relief (PCR). We affirm.
On August 2, 2000 Eddie Allison stopped with his two sons, Jermesse, age eighteen, and Mikel,*fn1 age fifteen, at Crown Pizza on Main Street in Orange to buy take-out food. Mr. Allison remained in his van fifteen feet from Crown Pizza. Mikel stood in the front doorway while Jermesse waited at the counter for their food. Suddenly, Jermesse heard a gunshot and heard his brother yell. Turning around, he saw Mikel fall backward as two more gunshots were fired. Jermesse pulled Mikel back into the restaurant. Mikel died from the gunshot wounds.
Because Jermesse was positioned only a few feet from the shooter, he was able to observe him closely. Jermesse described the shooter as 5'7" tall, with a low haircut, no facial hair and dressed in a white tee-shirt, dark-colored long shorts and Timberland boots. When shown a photo array, Jermesse selected a photograph not of defendant, but instead of a man named Algermane Thompson, alias Tyree*fn2 Maye, whom police included in the array because of information that Mikel had been in an altercation with Maye a few days before he was murdered.
Shortly after his brother's death Jermesse went to his uncle's home in Virginia, where representatives of the Essex County Prosecutor's Office came to see him and told him that "the guy that [he] picked out [in the photo array] was the wrong one." Apparently, a detective involved in the investigation knew Tyree Maye to be well over six feet tall and therefore, Maye could not have been the shooter, because both Jermesse and Mr. Allison described the shooter as being more than six inches shorter.
The investigators presented Jermesse with a different photo array. This time he selected defendant's photograph. He later identified defendant in court as the person who murdered his brother. The testimony at trial was in conflict on whether the investigators told Jermesse that the shooter's photograph was in that second array, and there was also disagreement on whether Jermesse had been told afterward that a female witness, Crystal Carter, had selected the same photograph.
Carter testified that defendant, whom she identified in court and whom she had known from the neighborhood for years as "T," had asked her for a ride in her Toyota a few days before the shooting of Mikel Allison. She saw him again on the evening of August 2 near the border of East Orange and Orange when, while she was stopped at a stop sign, he jumped into the front passenger seat of her car while holding a small, gray gun. The clothing he was wearing matched the clothing descriptions provided by Jermesse and Mr. Allison. Although a bandanna was covering the lower half of the man's face, Carter recognized the man as "T" by his eyes, the top of his head and his voice. According to Carter, "T" "was very aggressive" when he jumped in her car, ordering her to keep driving. Carter was frightened that she was "going to get robbed or something bad was going on," but because defendant had a gun she did as she was told and drove him to Main Street.
Carter remained in the driver's seat while "T" exited her car. She saw him approach somebody on the sidewalk in front of Crown Pizza and shoot him "right there on the sidewalk." "T" immediately "jumped back in the car and told [her] to drive." A few blocks later, he left.
Shortly after Carter arrived home, an East Orange police officer arrived. Immediately after her father opened the door, Carter "just broke down" and started telling the officer what had happened. She was shown several notebooks containing mug shots, but was unable to find a photograph of the shooter. She did tell police that she knew the person who entered her car by the name "T" and suggested the names "Tairahaan" and "Tyrie." When police checked their database for the name "Tyrie," they came up with the name Algermane Thompson, who was the same person that Jermesse had selected in the first photo array.
When a photo array containing Thompson's photograph was shown to Carter, she selected his photograph from the array. Upon being told that the name of the individual she identified was Algermane Thompson, alias Tyrie Maye, ...