On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0306.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2010
Before Judges Fuentes, Gilroy and Nugent.
On March 21, 2006, a Passaic County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three).*fn1 On September 19 and 20, 2007, the court conducted an N.J.R.E. 104(c) Miranda*fn2 hearing on defendant's motion seeking to suppress the statements he gave to the police following his arrest on November 28, 2005. Immediately following the Miranda hearing, the court also conducted a Gross*fn3 hearing to determine the admissibility of prior inconsistent statements of witnesses Victor Jenkins and Darryl Samuels pursuant to N.J.R.E. 803(a)(1).
A jury found defendant guilty on all three counts. On January 4, 2008, the trial court sentenced defendant on count one to a forty-five-year term of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year term of parole supervision upon release; and on count two to a five-year term of imprisonment to run concurrent with the sentence imposed on count one. The court merged the conviction on count three with the conviction on count one and imposed all appropriate fines and penalties.
On appeal, defendant argues:
DURING HIS CROSS-EXAMINATION OF THE DEFENDANT AND IN HIS SUMMATION, THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE INVESTIGATING POLICE OFFICERS WOULD LOSE THEIR JOBS AND BE SUBJECT TO PROSECUTION IF THE DEFENDANT WAS FOUND NOT GUILTY (RAISED IN PART AND NOT RAISED IN PART BELOW).
THE TRIAL COURT DEPARTED FROM ITS PROPER ROLE AND PRECLUDED THE DEFENDANT FROM ESTABLISHING REASONABLE DOUBT AS TO HIS GUILT WHEN IT PERMITTED VICTOR JENKINS AND DARRYL SAMUELS TO "TESTIFY" TO THE JURY DESPITE THEIR FAILURE TO BE SWORN AS WITNESSES OR PROPERLY AFFIRM TO TESTIFY TRUTHFULLY.
ADMISSION OF THE PRIOR INCONSISTENT STATEMENTS OF VICTOR JENKINS AND DARRYL SAMUELS AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT DENIED DEFENDANT A FAIR TRIAL.
A. SINCE VICTOR JENKINS AND DARRYL SAMUELS WERE NOT SWORN IN AS WITNESSES AND DID NOT PROPERLY AFFIRM TO TESTIFY TRUTHFULLY AT TRIAL, THE TRIAL COURT ERRED IN ADMITTING THEIR PRIOR INCONSISTENT STATEMENTS UNDER N.J.R.E. 803(A)(1).
B. THE TRIAL COURT ERRED IN FINDING THE STATEMENTS WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS PRIOR INCONSISTENT STATEMENTS.
TESTIMONY THAT A "TEAM" OF INVESTIGATING POLICE OFFICERS "AGREED" THAT THE DEFENDANT SHOULD BE ARRESTED ON THE CHARGE OF MURDER DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO REPEATEDLY USE AND MAKE REFERENCE TO THE PRIOR INCONSISTENT STATEMENTS OF VICTOR JENKINS AND DARRYL SAMUELS.
THE TRIAL COURT ERRED IN ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE.
THE 45[-]YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
Because we conclude that the trial court committed reversible error when it admitted and relied upon a witness's un-sworn trial testimony as a basis for determining the admissibility of a prior out-of-court inconsistent statement, we reverse.
Late in the evening on November 12, 2005, Quadriyya Eatman operated an automobile in the City of Paterson. Steven Sizer*fn4
and Yvonne Wilson were passengers in the vehicle. Between 2:00 and 3:00 a.m., Eatman drove Steven Sizer to the intersection of 10th Avenue and 26th Street in Paterson. After leaving Steven Sizer at the intersection, Eatman drove to Wilson's house where they sat in the car and talked.
Sometime after 4:00 a.m., Eatman telephoned Steven Sizer. After speaking for a short while, they lost communication. Because Steven Sizer did not answer Eatman's return call, Eatman drove to the location where she had dropped him off.
En route to look for Steven Sizer, Eatman and Wilson received a cell phone call from Jenkins advising that Steven Sizer had been involved in a fight and had been shot. Eatman sent Christopher Sizer a text message relaying that information. Christopher Sizer immediately proceeded to the vicinity of the shooting to find his brother.
As Eatman approached the scene, she observed Steven Sizer lying on the curb. However, she did not see anyone else in the immediate area. On arrival, Christopher Sizer did not initially see his brother; rather, he only saw Jenkins standing nearby. After seeing his brother's body, Christopher Sizer assumed that he was dead. Christopher Sizer then pushed Jenkins up against a fence and demanded to know what had happened. Jenkins said something to Christopher Sizer before freeing himself and leaving the scene.
Patrolman Christopher Palomino of the Paterson Police Department was the first police officer to arrive on the scene. Palomino called an ambulance before checking Steven Sizer for vital signs and finding none. Palomino asked Eatman, Wilson, and Jenkins if they knew what had happened, and they all replied in the negative. However, Eatman told Palomino that when she had dropped Steven Sizer off earlier, a group of black males wearing articles of red clothing were standing near the intersection. Although ...