On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-01275.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Nugent.
The decision of the court was delivered by FUENTES, J.A.D.
Defendant Omar Tindell*fn1 was indicted by an Essex County Grand Jury and charged with first degree conspiracy to commit murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3a; first degree purposeful or knowing murder, N.J.S.A. 2C:11-3a (1) and (2); first degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third degree receiving stolen property, N.J.S.A. 2C:20-7; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree endangering the welfare of children, N.J.S.A. 2C:24-2; and third degree terroristic threats, N.J.S.A. 2C:12-3a. Hassan Reeds was indicted as a co-defendant and charged with committing the same offenses as Tindell, except for the charge of third degree terroristic threats.
Defendant and Reeds were tried together before the same jury. Reeds was convicted of third degree receiving stolen property and acquitted of all of the other charges.*fn2 The jury convicted defendant of second degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser included offense of murder, third degree receiving stolen property, third degree possession of cocaine, one count of third degree unlawful possession of a handgun, and one count of third degree terroristic threats. Defendant was acquitted of the remaining charges.
The court sentenced defendant to five consecutive maximum terms, with maximum periods of parole ineligibility. Specifically, the court sentenced defendant on the reckless manslaughter conviction to a term of ten years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a term of five years on the receiving stolen property conviction, with two and one-half years of parole ineligibility; a term of five years on the possession of a controlled dangerous substance conviction, with two and one-half years of parole ineligibility; a term of five years on the unlawful possession of a weapon conviction, with two and one-half years of parole ineligibility; and a term of five years on the terroristic threats conviction, with two and one-half years of parole ineligibility. This resulted in an aggregate sentence of thirty years with eighteen and one-half years of parole ineligibility.
After reviewing the record before us, we affirm defendant's convictions of second degree reckless manslaughter, third degree possession of cocaine, and third degree unlawful possession of a weapon, reverse and remand for a new trial the conviction of third degree terroristic threats, and vacate the conviction of third degree receiving stolen property and remand for the entry of a judgment of acquittal on that charge. We also vacate the sentence imposed by the court in its entirety and remand for re-sentencing before a different judge.
The following facts will inform our analysis of the legal issues presented on appeal.
The first link in the tragic chain of events that led to the death of a police officer was forged in the context of a seemingly banal event: an altercation between two teenaged girls who attended the same high school, one of whom is defendant's sister.
In the afternoon hours of July 18, 2005, unarmed School Security Officer Alice Thomas and armed plain-clothes Special Police Officer*fn3 Dwayne Reeves intervened to break up a fight between these two girls. The officers brought the girls to the principal's office, Reeves called for medical assistance, and both girls' parents were notified of the incident.
Shortly thereafter, the school principal and a number of school security officers and special police officers noticed a white Chrysler 300 driving up and down Chancellor Avenue, the street directly in front of the school's main entrance. Defendant was the driver of the car and Reeds was a passenger.
Tracy Whidbee was one of the school security officers present at the time. She testified that on at least one occasion she saw defendant exit the car and yell to a group of girls standing nearby: "which one of y'all jumped . . . my sister, if I find out who jumped my sister, they're going to be planning their funerals today -- tonight."
Kevin Batty, the high school's assistant dean of discipline, was also present when defendant confronted a separate group of teenaged students who were standing near the school's athletic field. Batty testified that he heard defendant yell to this group of juveniles that the person who jumped his sister "would be going on a long vacation." According to Batty, as he escorted defendant away from the students he noticed that defendant appeared "angry."
Security Officer Kameleh Williams also interacted with defendant that day. She testified that after breaking up the altercation between the girls, she saw defendant drive the white Chrysler up to the school's main entrance. Defendant then walked up the "four stairs" leading to the school's main doorway and demanded to know "who touched [his] sister," because those who touched his sister "were going to die tonight." According to Williams, defendant referred to the school's principal as "a punk ass." With respect to Special Police Officer Akhia Scott, who was standing in the school's doorway, Williams testified that defendant stated "[f]uck that cop" and threatened to "shoot him, too" because defendant "didn't give a fuck."
Minutes before this interaction, defendant and Reeds had attempted to drive on Aldine Street toward the high school; when they reached a police barricade blocking the road, Reeds exited the car and removed the barricade. According to Police Officer Kenneth Irvin, when he told Reeds to replace the barricade, Reeds did not respond immediately; defendant, however, told Reeds to "[d]o what the officer says, give him his respect . . . ." Reeds complied and replaced the barricade. The two men then proceeded to the school in a different direction.
Special Police Officer Reeves was in the principal's office when he received a radio report that defendant was threatening a group of students standing near the athletic field. After calling for back-up, Reeves, fellow Special Officer Scott, and Security Officer Thomas proceeded to the athletic field. Reeves and Scott were in one car; Thomas drove in a different car. When the three officers arrived, they saw a white Chrysler double-parked in the middle of the street near the field; defendant and Reeds were outside of the vehicle talking to the group of juveniles.
Reeves told Thomas to drive up the street and block the white car to prevent it from moving. Security Officer Dejauhitha Sabahtino, who was standing in an area where she could see and hear what was taking place, testified that she saw Reeves attempt to calm defendant down. Reeves asked defendant for identification and to produce documentation with respect to the vehicle, to which defendant responded, "I'm moving it now."
According to Scott, when Reeves touched defendant on the elbow and said "[l]et me talk to you for a minute," defendant pulled away and responded "don't put your fucking hands on me." This prompted an immediate physical response from Reeves resulting in the two men pushing each other. When Reeves attempted to subdue defendant to place him under arrest, defendant physically resisted and yelled out (presumably to Reeds), "Don't let him take me."
At this point in time, defendant was up on a brick ledge, behind which was a fence. Reeves had defendant up against the fence and was attempting to handcuff him, while defendant was attempting to climb the fence in order to frustrate Reeves' efforts. As this was taking place, Security Officer Thomas saw a handgun on defendant's waist. Thomas immediately informed Scott, who in turn responded to assist Reeves. Seconds later, Thomas heard two gun shots.
Two people without any connection to the event witnessed the shooting: Zenola Moncrease, who was driving in the area directly across the street from the scene, and Richard Ferguson, an on-duty bus driver. They testified that they saw defendant with a gun in his hand shoot Reeves in the head. According to Moncrease, Reeves dropped to the ground "like a piece of tissue." Scott was also shot in the hand.
Reeves died of a single gunshot wound to the neck. The bullet entered from the right side back of his neck, traveled in a downward direction, and exited at the left side of his chin, in the front of his face. There was no evidence of gun powder residue around the wound. Based on this evidence, the medical examiner testified that he could not determine the distance between Reeves and the shooter. However, the shirts worn by Reeves and Scott tested positive for gunshot residue, suggesting that a firearm had been discharged in close proximity.
Witnesses characterized what transpired immediately after the shooting as "chaos." Moncrease testified (without objection) that an unidentified girl became hysterical and kept repeating to defendant, "Why'd you shoot him? Why'd you have to do that? You didn't have to do that. Why'd you shoot him? You didn't have to do that."
Both defendant and Reeds ran from the scene immediately after the shooting. Scott was able to draw his weapon and shoot three times in defendant's direction, striking him once in the wrist. Defendant then continued running in a different direction than Reeds, taking clothes off as he ran. School security officers Whidbee, Williams, and Anthony Baskerville all testified that they saw defendant running with a gun in his hand.
Officer Irvin, who a few minutes before the shooting had encountered defendant and Reeds on Aldine Street, responded to the call of an "officer down." Irvin testified, again without objection from defense counsel, that "when [he] heard the call, [he] knew. [He] knew what happened. And [he] knew who did it." When he eventually arrived at the location of defendant's apprehension on Chancellor Avenue, near the corner of Aldine Street, and saw that defendant was not wearing a shirt and was bleeding from an apparent gunshot wound, Irvin testified that "[he] had no doubt about it. [He] knew."
Defendant was eventually transported to a hospital for treatment of his gunshot wound. Newark Police Officer Elmo Ruiz was assigned to guard defendant at the hospital. According to Ruiz, while waiting to be treated, defendant yelled, "Yeah, I did it. We [sic] going to get you all. We're going to kill you." Ruiz perceived this as a threat against him and his fellow officers.
Newark Police Officer Walter Melvin was also assigned to guard defendant. At one point Melvin was alone with defendant, with Ruiz within hearing distance. Melvin testified that defendant was going into a tirade about how we, meaning the Newark police officers, had started a war, what he did today was just a beginning, it was going to be a massacre . . . we don't know what we've started, you're not going to see the end of this, all ya'll going to get it, and this went on for maybe five minutes.
At the scene of the shooting the police took possession of a white Chrysler 300 with the engine running and music playing on the radio. The vehicle's steering column was not damaged, the key was in the ignition, and a temporary license plate sticker was pasted in the front window. The officers who searched the vehicle found a loaded, .40 caliber High Point semi-automatic pistol inside the car on the front passenger seat, leaning against the center console. They also found ten compact discs in the center console and vials of cocaine on the driver's side rear floor. Defendant's fingerprints were found on one of the compact discs.
At trial, the parties stipulated that neither defendant nor Reeds had a permit to possess a firearm at all times relevant to this matter. The parties also stipulated to the following facts concerning the white Chrysler:
Svetlana Kalantarov*fn4 was the registered owner on July 18, 2005, of a white 2005 300C Chrysler vehicle with the serial number 2C3AA63H65H170053. On June 23, 2005, Ms. Kalantarov reported the car stolen. Neither Hassan Reeds nor Omar Tindell had Ms. Kalantarov's permission to operate the vehicle.
We note, however, that the State did not present any evidence that the particular white Chrysler described in the stipulation was the car driven by either defendant or Reeds on the day of the shooting. Nor did the State call the victim of the alleged theft to confirm that the car seized at the scene of the shooting was the same car she had reported as stolen. Finally, neither defendant nor Reeds concedes that the vehicle described in the stipulation was the same vehicle they possessed or drove on the day of the shooting.
Both defendant and Reeds exercised their right to remain silent and did not testify in their own defense. Defendant called only one witness, Newark Police Officer Karama Thomas. Officer Thomas testified that she was with Special Police Officer Inspector Manuel Spruill at a daycare center located at 300 Chancellor Avenue when she heard gun shots. She immediately went to a nearby window and saw defendant running down the street.
Because Spruill was not armed, Thomas instructed him to get the patrol car while she began pursuing defendant on foot eastbound on Chancellor Avenue until defendant reached Aldine Street. According to Thomas, she never lost sight of defendant throughout her pursuit. She eventually caught up to defendant at Aldine Street, pointed her handgun at him, and ordered him to stop. It was at this point that she noticed that defendant had been shot. Thomas described defendant's demeanor as fully compliant.
At this time, Officer Irvin arrived at the scene with his handgun also pointed at defendant. Thomas directed Irvin to go to the location of the shooting because she had the situation secured. Thomas testified that defendant followed her instructions to sit on the curb until paramedics and other police officers arrived. According to Thomas, defendant kept "babbling about something about he didn't know that the officers were police officers." In contrast to the testimony presented by the State, Thomas testified that she did not see defendant carry or discard any handgun during the time she pursued him, up to and including the time when she apprehended him.
Against this evidential backdrop, defendant now appeals, raising the following arguments:
ALTHOUGH THE PARTIES STIPULATED THAT A PARTICULAR WHITE CHRYSLER HAD BEEN STOLEN, THE STATE FAILED TO PROVE THAT THE WHITE CHRYSLER DRIVEN BY TINDELL WAS THAT VEHICLE, AND THAT TINDELL KNEW THAT THE VEHICLE HAD BEEN STOLEN.
A. The State Failed to Prove that Tindell was Driving Kalantarov's Stolen Chrysler.
B. The Trial Court Erred in Denying the Motion to Dismiss Count Seven Because the State Failed to Prove that Tindell Knew or Believed that the Vehicle he was Driving had Probably Been Stolen.
THE JUDGE'S INSTRUCTION ON THE TERRORISTIC THREATS COUNT WAS DEFECTIVE AS IT FAILED TO IDENTIFY THE VICTIM, CREATING A DANGER OF A PATCHWORK VERDICT.
THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE CHARGE THE JURY ON JOYRIDING AS A LESSER-INCLUDED OFFENSE OF RECEIVING STOLEN PROPERTY. (Not Raised Below)
THE TRIAL COURT ERRED IN FAILING TO CONDUCT A SUFFICIENT INQUIRY AS TO WHETHER THE JURORS READ A PREJUDICIAL NEWSPAPER ARTICLE THAT WAS FOUND IN THE JURY ROOM AND FAILED TO TAKE SUFFICIENT STEPS TO ENSURE THAT JURORS WERE NOT INFLUENCED BY CONCERNS FOR THEIR PERSONAL SAFETY. (Partially Raised Below)
DEFENDANT WAS DENIED DUE PROCESS WHEN OFFICER IRVIN TESTIFIED THAT HE "KNEW" DEFENDANT WAS RESPONSIBLE FOR THE SHOOTING, BECAUSE IT SUGGESTED THAT IRVIN HAD KNOWLEDGE OF EXTRA-RECORD INFORMATION ABOUT TINDELL THAT WAS UNFAVORABLE. (Not Raised Below)
TINDELL'S SENTENCE MUST BE VACATED BECAUSE THE JUDGE BELIEVED THE JURORS WERE COWARDS FOR NOT CONVICTING TINDELL OF MURDER, AND THE JUDGE IMPROPERLY IMPOSED FIVE CONSECUTIVE MAXIMUM SENTENCES TO PUNISH TINDELL AS IF HE HAD BEEN CONVICTED OF MURDER.
We agree with defendant as to Points I and II. On the charge of third degree receiving stolen property involving the white Chrysler 300, the State did not meet its burden of proving, beyond a reasonable doubt, that the vehicle described in the stipulation was the same vehicle that defendant or Reeds drove and jointly possessed at the time of the shooting. We are therefore bound to vacate the conviction for third degree receiving stolen property and remand for the entry of a judgment of acquittal on that charge. As a consequence, the argument in Point III is rendered moot.
The trial court's instructions to the jury on the charge of third degree terroristic threats failed to identify, with particularity, the victim[s] of defendant's alleged threats. We therefore reverse the conviction of third degree terroristic threats and remand for a new trial on that charge.
We disagree with defendant, however, as to Point IV. The record shows that the trial judge took adequate prophylactic measures to avoid any improper influences from reaching the jurors. The judge also carefully and thoroughly investigated each reported incident of alleged impropriety and took corrective action where warranted. We also reject defendant's argument as expressed in Point V. Although Officer Irvin's statements are facially troubling, in the context of this case these statements do not rise to the level of a manifest injustice under the plain error standard of review. R. 2:10-2.
Finally, we agree with defendant's argument as expressed in Point VI. The sentence imposed by the court is legally unsustainable. The record does not support the imposition of five consecutive sentences leading to an aggregate term of thirty years, with eighteen and one-half years without parole. The statements made by the trial judge during the sentencing hearing created an irreparable impression of bias and antipathy toward defendant. We are thus compelled to remand this matter for re-sentencing before a different judge.
We will now discuss each of these issues in greater detail.
Receiving Stolen Property
In count seven of Indictment 2006-4-1275, the State charged defendant and Reeds with third degree receiving stolen property. The indictment read as follows:
OMAR TINDELL AKA TUTT HASSAN REEDS on the 18th day of July, 2005 in the City of Newark in the County of Essex aforesaid and within the jurisdiction of this Court, did commit theft by knowingly receiving movable property, a 2005 Chrysler automobile, known to be stolen from Svetlana Kalantrov contrary to the provisions of N.J.S.A. 2C:20-7, a crime of the ...