On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-08-3055 and 07-09-3331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Defendant Jeffrey Ayers appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3a; robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He also appeals from the sentence imposed: an aggregate thirty-five years in prison with a thirty-year parole bar.*fn1
On this appeal, defendant claims that: the indictment should have been dismissed because the State failed to present the Grand Jury with exculpatory evidence; the statements to the police of a witness, Jocelyn Brooks, constituted inadmissible hearsay; over defense counsel's objections, the trial court should have sua sponte charged the jury on aggravated manslaughter and manslaughter as lesser included offenses of murder; the trial court gave insufficient instructions on Brooks' prior consistent statement and gave inadequate instructions on felony murder; and the sentence is excessive. Finding no merit in any of these contentions, we affirm.
In summary, this is what happened. On the evening of February 28, 2007, Quenting Scott Lacewell (Lacewell or the victim), was shot near Fifteenth Avenue and Bruce Street in Newark. Shortly after the shooting occurred, the victim was found a few blocks away by an off-duty East Orange police officer named William Rowe, who happened to be driving by and stopped to give assistance. Before the victim died, he twice told Rowe that "Al-Barr's son" shot him. However, the police located two eyewitnesses, Jocelyn Brooks and Rosalyn Williams, who both identified defendant as the shooter. The State also presented evidence that, shortly after the shooting, defendant was in possession of the victim's cell phone and allowed a friend to make calls from that phone.
This was the most pertinent trial testimony. Between 9:30 p.m. and 10:00 p.m. on the evening of the shooting, Brooks saw Lacewell driving his car and asked him for a ride home. Brooks had known Lacewell since 1999, when she met him in a substance abuse recovery program. However, on that evening, they both decided to purchase cocaine. Another woman, whom Brooks did not recognize, was seated in the rear passenger seat. That woman, Rosalyn Williams, had known Lacewell for at least thirty years.
Lacewell drove Brooks to her apartment on Bruce Street. He parked his car on Bruce Street, between Fourteenth Avenue and Fifteenth Avenue, on the opposite side of the street from Brooks's apartment. According to Brooks, there were "a couple of [young] guys" between the ages of eighteen and twenty-two standing around Lacewell's parked vehicle. She recognized one of them as "Tank" (Antonio Lane). The other young men included Al-Barr Edrington, his brother Al-Meer Edrington, and Tyrese Webb. The Edrington brothers' father was known as Al-Barr, and the son who had the same name was sometimes known as "little Al-Barr." The younger Al-Barr Edrington, an African-American male, was tall and around twenty-one or twenty-two years of age, according to Williams. He lived on Brooks's street in Newark. Williams testified that Lacewell knew the elder Al-Barr and his sons well because Lacewell grew up with the family in the same neighborhood.
After Lacewell briefly spoke with Tank, Brooks and Lacewell walked some distance away and purchased cocaine from someone other than Tank, while Williams remained in the car. Brooks testified that as she and Lacewell walked back to Lacewell's car, "a tall, thin, dark-skinned" man armed with a gun, with a black hoodie tied tight to his face, approached Lacewell, demanding that Lacewell give him "whatever he had." In her trial testimony, Brooks stated that she "thought" that the man who approached Lacewell was defendant, whom she called "Jeff," but she was not "100 percent sure" because she was "in shock" and "under the influence" at the time. When asked whether the person she had previously identified to the police as "Jeff" was present in court, Brooks responded "[n]o."
According to Williams, the armed man was tall and dark-skinned with a blue hoodie over his head. On direct examination, she testified that she only saw the left side of the man's face and his eyes while she was in the car waiting for Brooks and Lacewell to return. She also saw him running through the yard behind Brooks's apartment after the shooting. On cross-examination, she also testified that she "got a good look at" the gunman as he urinated against a wall while she waited in the car.
According to Brooks and Williams, after confronting Lacewell outside the car, defendant dragged him into an alleyway. Lacewell "sounded scared" and asked "[w]hy are you doing this?" Meanwhile, the man whom Brooks identified as Tank tried to force his way into Lacewell's car on the front passenger side, asking Brooks "[w]here the shit at?" Williams testified that he asked "where the gun is," but she had never seen a gun in the car. He then went to the back of the car, and Williams got out. He searched her for a gun, but found nothing.
Shortly after Tank searched the car, Lacewell broke away from defendant and ran out of the alley towards Fifteenth Avenue. Williams saw defendant chase Lacewell and trip him. According to Williams, when Lacewell fell, defendant stood over him, pointing a gun at him and attempting to shoot, but the gun did not fire. Lacewell then got up and started running again, with defendant chasing him. Williams and Brooks heard "at least" three gun shots. Williams heard Lacewell "holler" and knew he had been hit.
Brooks and Williams ran to the back entrance of Brooks's apartment. As they headed for the steps to the apartment, Williams, who was approximately thirty-five feet from defendant, saw him running past Brooks's apartment, down Fifteenth Avenue. The two women entered Brooks's apartment, and about fifteen minutes later, Williams went home. Neither Brooks nor Williams called the police.
As discussed later in this opinion, Brooks, who knew and liked defendant and lived in his neighborhood, was equivocal in her trial testimony. On the other hand, Williams, who lived elsewhere and had never seen defendant before the night of the shooting, testified without hesitation that defendant was the shooter. Williams, who knew Al-Barr and his son "little Al-Barr," also testified unequivocally that Al-Barr's son was not the person who shot Lacewell.
At approximately 11:00 p.m., William Rowe was driving eastbound on Springfield Avenue towards downtown Newark. He saw Lacewell lying in the road, thought he had been hit by a car, and approached him. Lacewell told Rowe that "he had been shot two or three times in the side and the back." Another man, named Larry, came upon the scene, and Rowe instructed him to call 9-1-1 and request a medical intensive care unit. While Larry called 9-1-1, Rowe asked Lacewell who had shot him, to which Lacewell responded "Al-Barr's son." Rowe gave his contact information to the Newark police upon their arrival at the scene.
Lacewell subsequently died from "a gunshot wound to the back," which perforated an artery in his upper right arm. An expert forensic pathologist testified that no gunshot powder was found on Lacewell's clothing, indicating a "distant gunshot wound," "beyond three feet."
At approximately 11:15 p.m., detectives Richard Warren, of the Newark Police Department, and Steve Roberts, of the Essex County Prosecutor's Office, responded to the scene. Lacewell's body had already been removed. Roberts saw a blood trail beginning at Bruce Street and Fifteenth Avenue. Also on Bruce Street, Roberts found spent bullet shell casings "spaced apart" and "a live round" of ammunition. A ballistics analysis of the spent shell casings concluded that all five bullets were fired from the same .40 caliber handgun, and the live round of unfired ammunition was most likely for the same weapon.
Jaquetta Britton also testified for the State. Sometime after 10:30 p.m. on the night of the shooting, defendant arrived at the apartment of Britton's aunt on Bedford Street. Britton asked to use a cell phone that defendant was holding in his hand, and defendant let her use it. While Britton had the phone, it received incoming calls that the caller ID feature identified as "wifey." Although defendant told Britton not to answer the phone, she answered it once, but hung up. The State introduced evidence that the caller was Lacewell's wife, and the phone belonged to Lacewell.
The defense at trial was mistaken identity--that one of AlBarr's sons was the shooter, not defendant. One of defendant's friends, Darnell Bronson, testified that defendant was with him at the time of the shooting.
Defendant also presented character witness testimony from two of his former high school football coaches and teachers. One former coach described defendant as a peaceful, law-abiding, non-violent, good young man who was trying to get a football scholarship to college. The other coach, who also taught defendant physical education and health, likewise described him as peaceful, law-abiding, and non-violent.
On this appeal, defendant presents the following points for ...