On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Defendant Rashaan Lewis appeals his conviction after a jury trial of killing one man and wounding another in a shooting outside of Murphy's Bar in Asbury Park. He was convicted of all four counts of Monmouth County Grand Jury Indictment No. 07-03-0629: murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3; (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(b) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). On August 28, 2008, the court denied the State's motion for an extended term and sentenced defendant to an aggregate forty-five year custodial term consisting of: a thirty-year term without parole eligibility on count one; a fifteen-year term on count two, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to the sentence imposed on count one; and a concurrent five-year term on count four. The trial court merged count three into count one. The mandatory penalties were also imposed, as well as $2000 in restitution payable to the Victims of Crimes Compensation Board (VCCB) at a rate of $1 per week. Defendant argues that several evidentiary rulings deprived him of a fair trial and that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, with the exception of his claim regarding the need for a restitution hearing pursuant to N.J.S.A. 2C:44-2(c), we affirm.
Defendant was convicted of murdering Herbert Hoover Bell, Jr. (also referred to as "Hoove" and "Hoover"), attempting to murder Ryan Cunningham and two related gun offenses. Defendant lived in Virginia at the time of the shooting but had previously lived in New Jersey and was here visiting family on August 19, 2006, the night the shooting occurred. He did not testify at trial. The State's witnesses testified about the contentious past between defendant and Hoover, including threats the two made to each other and allegations that defendant had robbed Hoover's house. Defendant knew Cunningham for several years as well, but they did not have any problems with each other.
One night, defendant, Hoover, Cunningham and several other individuals were at Murphy's. Defendant and Hoover fought outside of the bar. The fistfight lasted less than one minute and was described as Hoover hitting defendant while being positioned on top of him.
The State claimed that after defendant lost the fistfight with Hoover, he returned to Murphy's with a gun. Defendant's brother and cousin both testified that the cousin left the bar before the fistfight between defendant and Hoover and then returned to Murphy's in a white van after the fistfight to pick up defendant and his brother.
After defendant left the bar, another fight between two unrelated individuals occurred. Hoover was watching the fight. A dark car pulled up in front of Murphy's, and a man exited the car and began shooting. Hoover was shot and killed outside of the bar, and Cunningham, who was standing nearby, was shot in the hip and had to undergo emergency surgery.
Both bouncers working at Murphy's that night identified defendant as the shooter by viewing a videotape of the inside of the bar that night and then picking defendant's picture from a photographic array at the police station. Three additional eyewitnesses testified at trial that defendant was the shooter.
Two witnesses who were not at Murphy's the night of the shooting testified regarding phone calls they received that night. James Sinclair, who grew up with defendant, testified that he received a call from an individual who was at Murphy's that night informing him of Hoover's death and then received a call from defendant, in which defendant said, "yo, I f**ked up." One of defendant's cousins, Jermaine Stovall, testified that he first received calls from several individuals informing him of Hoover's death, and later defendant called Stovall and asked for money. Stovall ultimately called his friend Dana Braswell to accompany him that night. Braswell drove, and they traveled past Murphy's to White Castle where Stovall met with defendant.
Stovall said that defendant, who looked like he had been in a fight, told Stovall that "Hoover snuck him," meaning that Hoover caught him off-guard by starting the fight without warning. Stovall gave defendant approximately one hundred dollars before defendant left in a van.
Defendant raises the following issues on appeal:
THE CUMULATIVE IMPACT OF HEARSAY AND OTHERWISE INADMISSIBLE, HARMFUL TESTIMONY DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially raised below)
A. Braswell's Hearsay Testimony About Stovall's Explanation For Why Defendant Killed Bell.
B. Chaparro's Testimony That "There Was No Question That Rashaan Lewis Was the Shooter."
C. Sinclair's Testimony That He Was In Danger For Testifying Against Defendant. (Not raised below)
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE COURT ERRONEOUSLY PERMITTED THE JURY TO LEARN THAT DEFENDANT HAD TWICE PREVIOUSLY THREATENED TO KILL BELL.
THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE MURDER AND ATTEMPTED MURDER CONVICTIONS.
THE RESTITUTION ORDER SHOULD BE VACATED BECAUSE IT WAS IMPOSED WITHOUT AN INQUIRY INTO DEFENDANT'S ABILITY TO PAY.
In Point I of his brief, defendant argues that three incorrect evidentiary rulings deprived him of a fair trial. We review the trial court's evidentiary rulings under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. State v. Kemp, 195 N.J. 136, 149 (2008). We also note that "[a] defendant is entitled to a fair trial but not a perfect one." State v. Martini, 131 N.J. 176, 321 (1993). Incidental legal errors that do not prejudice a defendant or render the proceedings unfair do not require that the defendant receive a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). If "the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." Ibid. "The predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007).
Defendant argues that the trial court erred in allowing Dana Braswell to testify to a prior statement she gave police because this testimony constituted inadmissible hearsay and violated his constitutional right to confrontation. Braswell was called to testify by the State, her previous statement was marked for identification, and Braswell used the statement to refresh her recollection pursuant to N.J.R.E. 803(c)(5). She also read portions of the statement aloud to the jury.*fn1 She read from her statement that defendant killed Hoover.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "N.J.R.E. 802 starkly explains that '[h]earsay is not admissible except as provided by [the Evidence Rules] or by other law.'" State v. Buda, 195 N.J. 278, 292 (2008) (quoting N.J.R.E. 802).
"The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of our State Constitution both provide a criminal defendant with the right to . . . be confronted with the witnesses against him." State v. Nyhammer, 197 N.J. 383, 411-12 (2009) (internal quotation marks and citations omitted). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a fair opportunity to defend against the State's accusations." State v. Branch, 183 N.J. 338, 348 (2005).
Braswell testified that at approximately 2:30 a.m. on August 19, 2006, she received a call from her long-time friend and former boyfriend Stovall, who was upset and insisted that he pick her up. She said when Stovall arrived at her house, he appeared a little "shaken up." He moved into the passenger seat. Braswell got into the driver's seat, and Stovall directed her where to go. She stated that Stovall "began to tell me that Hoover and [defendant] had a problem in the past with Hoov's girlfriend. Something about [defendant] broke into his house or whatever. I mean, that was pretty much the conversation. He didn't tell me at that point anything else, just their past." After she was provided with her statement, she read the portion indicating that Stovall told her why defendant "ended up killing Hoover."
Defendant objects to the following testimony of Braswell on direct examination, given after she was presented with her prior statement:
Q. And what was the conversation [when you and Stovall were driving]?
A. It was kind of like, you know, I was like, what's wrong. He hesitated to tell me, and then he was kind of like, Hoover's dead. I said, wow, that's crazy, what happened. And then he began to tell me about a past between [defendant] and Hoover.
Q. Could you now tell us what was going on in the conversation at that time and the subject matter of the conversation?
A. He began to tell me that Hoover and [defendant] had a problem in the past with Hoov's girlfriend. Something about [defendant] broke into his house or whatever. I mean, that was pretty much the conversation. He ...