On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-04-1027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges Axelrad, R. B. Coleman, and J. N. Harris.
Defendant Shawn R. Johnson appeals his judgment of conviction for murder, attempted murder, and four weapons charges stemming from two gang-related shootings. He advances numerous arguments on appeal, including improper jury instructions and various evidentiary errors, which he urges mandate reversal of his convictions and a new trial. Defendant also challenges his aggregate sixty-year sentence as excessive. We affirm in all respects.
Our summary of the facts is derived from the trial record that was presented to the jury, and formed the basis of its determination. At approximately 1:00 p.m. on October 15, 2006, Jahmere Crooms was shot in the back outside Sheffield's Market in Asbury Park. He was subsequently transported to Jersey Shore University Medical Center (JSUMC) for emergency treatment where he was interviewed by law enforcement officers.
Crooms told Asbury Park Detective Alastair Sweeney that he had been inside Sheffield's Market with Tylik Pugh just before being shot. When they exited, the two men passed a group of people arguing, heard gunshots, and started to run.*fn1 Crooms stated that as he fled from the scene he was shot in the back, but initially maintained that he did not know who had shot him.
More than a year later, on December 12, 2007, Crooms was arrested on unrelated drug charges and agreed, once again, to speak to the police about the October 15 shooting. Crooms stated that he and five other individuals went to Sheffield's Market and encountered three men outside: defendant, Tim Anderson, and a light-skinned male who was not known to Crooms. According to Crooms, the two groups walked past each other when defendant and Anderson turned around and started shooting. Crooms stated that both shooters were wearing black hoodies, black jackets, and jeans. Crooms unequivocally identified defendant as the person who shot him. Crooms denied that Pugh was present prior to or during the shooting but claimed that Pugh rode in the ambulance to the hospital with him.
Prior to the shooting, Nina Summerlin observed from her window a group of people congregated outside Sheffield's Market. Among the crowd she identified Pugh, whose family resided in the same neighborhood as Summerlin, but she was unfamiliar with Crooms. Minutes later, Summerlin heard gunshots and observed "two kids in black hoodies with jeans" running away from Sheffield's Market. The other individuals scattered in various directions.
Pamela Elam was stopped at a traffic light near Sheffield's Market, which she confirmed was a "hangout spot" for residents.
She testified that she heard gunshots and saw two young men she described as being dressed in black hoodies and blue jeans. Like Summerlin, she observed the two shooters running and the others scattering before them.
Three days after Crooms was wounded, on October 18, Pugh was fatally shot five times. Brian Wilson was walking on Summerfield Avenue towards Prospect Avenue looking to purchase cocaine when he came across defendant. He negotiated a twenty-dollar purchase with defendant but walked slightly ahead so that defendant could prepare "the twenty-cent piece." As Wilson turned the corner he saw Pugh, whom he knew, and stopped to greet him. As Pugh continued past Wilson, Wilson heard gunshots behind him and turned around to see defendant standing over Pugh firing gunshots into Pugh's head.
Pugh was transported to JSUMC in critical condition and was pronounced dead the following evening. An autopsy revealed five bullet wounds, four to the head and one to his right hand. A ballistics analysis of the four bullets that were recovered from Pugh's body, along with the two bullets recovered from the October 15 shooting of Crooms, concluded that all six bullets were fired from the same firearm, which was most likely a .38 caliber handgun.
On October 21, 2006, an arrest warrant was issued for defendant for the murder of Pugh. An investigation of defendant's whereabouts led authorities to Pittsburgh, Pennsylvania where he was located and arrested by members of a United States Marshall's task force. Defendant waived his Miranda*fn2 rights and provided a formal statement on October 24, admitting to shooting both Crooms and Pugh in self-defense.*fn3
With regard to the October 15 shooting, defendant told detectives that Pugh, who was with Crooms, shot at him and Anderson first. "Scared," defendant started to run, firing "a couple of times" towards Pugh and Crooms, only later learning that he had actually struck Crooms. Defendant also stated that he "heard" that Pugh "shot at [his] house" later that evening.
As for the October 18 shooting, defendant stated that he and his then-girlfriend were walking on Summerfield Avenue when he saw Pugh and another male approaching them. He asked Pugh, "did he shoot up my house," at which point Pugh took out a black nine-millimeter gun and started to fire. Defendant claimed that he then brandished his own pistol, which he described as a .38 caliber special revolver, shot back three times, and started to run. Defendant stated that he never meant to kill Pugh, he "just shot back at him when he shot at me first that day."
At trial, defendant did not testify but called five witnesses in his defense, including a mutual acquaintance of both defendant and Pugh, I-Born Henderson. Henderson testified that defendant and Pugh were members of rival street gangs, the Bloods and MOB respectively. He also confirmed that he had heard that defendant's residence was "shot up" soon after the October 15 shooting of Crooms.
Defendant's mother, Sharon Johnson, testified about a fight outside her home on October 14, which drew "[a]t least [forty] or [fifty] people," including defendant, Crooms, and Pugh. Once everyone began to disperse, Johnson observed a gun fall out of Crooms's pocket before he ran off.
Julyssa Miles testified that on the evening of October 15, following the shooting outside of the Sheffield Market, she was present at defendant's house when "[i]t got shot up." She also testified that on October 18, as she and defendant walked past Pugh on Summerfield Avenue, she overheard defendant and Pugh exchange words about "the house being shot up," and then heard gunshots behind her. She ran, but looked back to see both defendant and Pugh with weapons in their hands.
Finally, Anderson testified that on October 15, he accompanied defendant to Sheffield's Market where they encountered Crooms. Anderson and Crooms began arguing, at which point Crooms unzipped his coat and said "you know what it is," which Anderson took to mean that "[h]e had [a weapon] on him." Anderson and Crooms "decided . . . to take it down the street" at which point Anderson heard gunshots, and ran, eventually meeting up with defendant.
On April 30, 2007, a Monmouth County Grand Jury issued a seven-count*fn4 indictment charging defendant with first-degree attempted murder of Crooms, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and five); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts three and six); and murder of Pugh, N.J.S.A. 2C:11-3(a)(1) (count four). Between June 3, 2008, and June 17, 2008, defendant was tried before Judge Ira E. Kreizman and a jury. He was found guilty on all counts and sentenced to an aggregate term of sixty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.*fn5
On appeal, defendant raises the following points:
POINT I: THE ABSENCE OF AN INSTRUCTION THAT THE STATE MUST DISPROVE SELF-DEFENSE AS AN ELEMENT OF MURDER, AKIN TO THE PASSION/PROVOCATION INSTRUCTION, REQUIRES THE REVERSAL OF DEFENDANT'S MURDER CONVICTION AND A REMAND FOR A NEW TRIAL. (Partially raised below).
POINT II: THE ABSENCE OF AN INSTRUCTION THAT PASSION/PROVOCATION CAN BE THE RESULT OF A CONTINUING COURSE OF VIOLENT CONDUCT, AS IT PERTAINS TO THE ONGOING GANG RIVALRY, MANDATES THE REVERSAL OF ...