On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-04-0397.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Graves and Waugh.
A jury convicted defendant Anthony Mitchell, whose nickname is "Scoop," of the purposeful or knowing murder of Toby Davis, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three).
Defendant was twenty-one years old when he was sentenced on July 11, 2008. The trial judge stated that the murder was "a particularly cruel act" because the victim was shot in the chest while he "stood there indicating he wanted no trouble, even raising his arms to indicate that." Moreover, "when the victim didn't go down and began to run down the street . . . [defendant] kept shooting at him." After merging count two with the murder conviction, the court sentenced defendant to a sixty-year prison term with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count three, defendant was sentenced to a concurrent five-year prison term with a thirty-month period of parole ineligibility. Appropriate statutory penalties and assessments were also imposed. We affirm.
On November 28, 2005, Davis was outside a liquor store at the corner of 12th Avenue and East 22nd Street in Paterson. At approximately 8:23 p.m., the police received a report of "shots fired" at that location. When the police arrived, they observed a group of twenty to thirty people in the area, and a person, subsequently identified as Davis, "on the ground in the roadway" near a parked vehicle.
Davis was rushed to St. Joseph's Hospital where he was pronounced dead at 9:10 p.m. At the hospital, the police recovered "65 baggies of crack cocaine" from his clothing. Davis was thirty-three years old when he died.
According to Dr. Junaid Shaikh, a forensic pathologist, Davis was shot in the chest, the left buttock, and the right hand. The gunshot wound to the chest was the "fatal wound." As a result of his post-mortem examination, Shaikh determined that the manner of death was homicide. In addition, he testified that a toxicological evaluation revealed the presence of cocaine, marijuana, and alcohol in Davis's body.
During the trial, Felicia Barrett, who was in treatment for cocaine and heroin addiction, testified she had known Davis for most of her life, and she was aware that Davis sold crack cocaine "[u]p and down 12th Ave." Prior to the shooting, Barrett saw Davis talking to someone she subsequently identified as Scoop. Barrett testified she heard Davis say to Scoop: "'That was my customer. How you going to make a sale to him or whoever, him or her, either one?' So that's what he said, 'How you going to take my sale?'"
About an hour later, Barrett saw Scoop and four or five other people walk up to Davis, who was standing in front of the liquor store. Charles Hall, another drug dealer, whose nickname is IB, was there, as was Sean Sykes. Barrett testified she heard IB say: "What's going on because I didn't come out here for nothing," and Davis replied, "Ain't nothing going on." According to Barrett, Sykes was wearing "[a] black coat and black jeans," and "he had a black and white bandana covering his nose and mouth." However, Barrett testified that IB and Sykes never approached Davis, and that "Scoop was standing directly in front of [Davis]" talking to him about "the transaction" immediately prior to the shooting.
At that point, a woman, whose nickname was "Mousey," grabbed Barrett's arm and as Barrett was leaving, she heard gunshots. Barrett testified she "never looked back." But as she was running, Davis "brushed up" against her and said: "I've been hit. Don't let me die." Davis continued to run "almost to the corner" before he collapsed. Barrett then called 9-1-1 and requested an ambulance and the police.
Siedah Hodges was nineteen years old when she testified. She said that she had known Davis for about twelve years, and she heard defendant and Davis arguing about "[s]elling drugs on a block . . . you're not from" prior to the shooting. Hodges testified that IB was trying to "stop the argument" and "calm the situation down." She also testified she was not "really paying attention" to the argument, and she did not know who fired the gun.
The State also called two additional witnesses: Tiana Williams and Naleshia Williams,*fn1 who were present outside the liquor store on 12th Avenue when the shooting occurred. Tiana was seventeen years old when she gave a signed, notarized statement to the police on December 1, 2005, and Naleshia was eighteen years when she signed her notarized statement on December 6, 2005.
When Tiana and Naleshia testified they could not recall significant portions of their prior statements or their prior photographic identifications, the State sought to introduce their prior statements. Gross hearings*fn2 were held outside the presence of the jury, and the trial judge found that the prior written statements were trustworthy, reliable, and admissible.
In her statement to the police, which was read to the jury by Detective Robert Vogt, Tiana said that prior to the shooting, she saw someone she later identified as defendant arguing with Davis:
He was arguing with [Davis], [Davis] told the boy he didn't want to argue with him.
Then I seen that boy holding a gun and it [was] pointed right at [Davis's] chest, cause the boy was right up on him. There was another boy, with dreads he was also holding a gun, but his was pointed to the ground. That boy was standing behind the boy who was right up on [Davis] with the other gun on [Davis's] chest. Then I hear 3 but it could be 4 shots, then everybody ran[Davis] ran up 12th Ave. towards Madison Ave. I seen [Davis] fall out on the street in front of 280 12th Ave. and I seen everybody running towards him.
In her statement to the police, Tiana said that she did not know the name of the person that was pointing the gun at Davis. But she identified defendant from a photograph ...