July 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MITCHELL A/K/A SCOOP, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 array presented by the police on December 1, 2005.
Vogt also read Naleshia's written statement to the jury, and confirmed that on December 6, 2005, she identified defendant from a photograph array as the person who shot Davis. In her written statement, Naleshia said she "saw 'Scoop' arguing with [Davis] and [a] gang surrounding them[.] Scoop had a gun pointed at [Davis] and they was face to face. So then 2 seconds later [she] heard a gun shot and [Davis] ran up 12th Ave. towards Madison Ave."
When Naleshia was asked "How many gun shots did you hear?" She answered: "Like 4 or 5 total while [Davis was] running." She also stated that she had known Scoop "[s]ince the summer," and she was "100%" certain that Scoop shot Davis because she had "seen it."
Defendant neither testified nor called any witnesses. During his summation, defendant's attorney told the jury "[i]ts simply a matter of credibility" and argued that the shooter was "still out there on the streets."
On appeal, defendant presents the following arguments:
HEARSAY EVIDENCE THAT THE DEFENDANT WAS A DRUG DEALER AND MADE A SALE ON THE VICTIM'S TURF SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403. (Not Raised Below).
THE TRIAL WAS PERMEATED WITH THE HIGHLY PREJUDICIAL INFERENCE THAT THE DEFENDANT WAS A GANG MEMBER, SPECIFICALLY A BLOOD. (Not Raised Below).
IT WAS HIGHLY PREJUDICIAL TO ADMIT TESTIMONY REGARDING LATIA ANDERSON, A NON-TESTIFYING WITNESS, THAT IMPLIED SHE IDENTIFIED THE DEFENDANT AS THE SHOOTER AND THAT SHE WAS AFRAID TO APPEAR AT TRIAL. (Not Raised Below).
WHEN THE JURY REQUESTED A READBACK OF FELICIA BARRETT'S TESTIMONY, IT WAS ERROR TO REPLAY ONLY HER DIRECT TESTIMONY. (Not Raised Below).
THE DEFENDANT WAS EXCLUDED FROM PARTICIPATING IN JURY SELECTION WHEN VOIR DIRE WAS CONDUCTED IN CHAMBERS. (Not Raised Below).
THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN SUMMATION: HE LABELED THE DEFENDANT A VIOLENT DRUG DEALER; INFERRED THAT THE RECANTING WITNESSES WERE AFRAID TO TESTIFY AT TRIAL; AND APPEALED TO THE JURY TO PROTECT THE TRUTH AS AMERICANS. (Not Raised Below).
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL. (Not Raised Below).
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 60 YEARS WITH A 85% PAROLE BAR UNDER NERA. THE SENTENCE MUST BE VACATED.
Based on our review of the record and the applicable law, we are satisfied that defendant received a fair trial and a reasonable sentence. We therefore affirm his convictions and his sentence.
In his first point, defendant contends he is entitled to a new trial because the judge should have applied N.J.R.E. 403 to exclude hearsay testimony that defendant was a drug dealer, who made "a drug sale on 12th Avenue when his 'location' was 10th Avenue." In response, the State contends the evidence was relevant to explain "why the murder took place." Because trial counsel did not object to the testimony, we must determine whether the alleged error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
N.J.R.E. 403 provides for the exclusion of relevant evidence when "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Here, defendant claims that the evidence was unduly prejudicial because it "interjected the stereotype profile of a drug dealer who is armed and violent." However, certain types of evidence, including evidence of motive, "require a very strong showing of prejudice to justify exclusion." State v. Covell, 157 N.J. 554, 570 (1999).
In the present matter, the facts show that one drug dealer killed another drug dealer, and the challenged testimony supported the State's theory that Davis was murdered because defendant wanted to sell drugs in his "territory." Under these circumstances, the probative value of the testimony was not outweighed by any prejudice to defendant, and we find no error.
In his next point, defendant contends for the first time on appeal that his convictions must be reversed because "the trial was permeated with the highly prejudicial inference that [he] was a gang member, specifically a Blood." However, defendant concedes the State "did not advance the theory that [the murder] was gang motivated," and there was no testimony that defendant was affiliated with the Bloods gang or any other street gang. Accordingly, we find no error, much less plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971).
In his third point, defendant argues that he was unduly prejudiced by testimony "regarding Lara Anderson, a non-testifying witness, that implied she identified [him] as the shooter and that she was afraid to appear at trial." In response, the State submits that the challenged testimony was presented to demonstrate there had been a thorough investigation and to explain why Anderson did not testify.
We have reviewed the testimony of Agent Timothy Jordan and Detective Marco Aliano regarding their contacts with Anderson and the efforts by the Passaic County Prosecutor's Office to serve Anderson with a subpoena, and we have concluded there is no factual support for defendant's claim. Accordingly, this argument has no merit.
In his fourth point, defendant argues that when the jury requested a replay of Felicia Barrett's videotaped testimony, "it was error to replay only her direct testimony." As the Supreme Court recently noted, the general rule is that "the entire testimony requested should be played back----including direct and cross examination----so that evidence may be considered in its proper context." State v. Miller, 205 N.J. 109, 122 (2011). However, the failure to replay cross-examination testimony that did not impeach direct testimony or contain "material of importance to defendant" is not reversible error. State v. Wilson, 335 N.J. Super. 359, 373 (App. Div. 1999), aff'd o.b., 165 N.J. 657 (2000). That is what happened here, and we are satisfied the error did not affect the outcome of the trial. R. 2:10-2.
In his next point, defendant claims he was prejudiced because he was not present in the judge's chambers when some of the prospective jurors were asked about their opinions regarding the Bloods. The following exchange confirms, however, that defense counsel suggested that the supplemental questioning occur in chambers:
[THE COURT]: Now, would you have any difficulty if the question or the statement began . . . there may be testimony regarding affiliation to the Bloods street gang. Period. Do you have any opinions regarding the Bloods street gang, period. What are they?
[DEFENSE COUNSEL]: No, that's fine.
THE COURT: What . . . if . . . they say yes, then we just-
[DEFENSE COUNSEL]: Go into chambers.
Moreover, the following colloquy occurred regarding the portion of the jury voir dire conducted in chambers:
[DEFENSE COUNSEL]: There may be times when I'll have to go into chambers with you and the Prosecutor and I've informed my client that if that occurs, that he's not allowed and I would tell him exactly what occurs in chambers when the discussion is completed. You understand that, Mr. Mitchell?
[DEFENDANT]: Yes, sir. [DEFENSE COUNSEL]: And we talked about this when I went to see you at the jail a few weeks ago, you understand that?
[DEFENDANT]: Yes, sir. [DEFENSE COUNSEL]: Thank you, Judge. [THE COURT]: Do you have any questions at this posture?
[DEFENDANT]: Sir, no, sir.
Thus, defendant's attorney specifically stated that he would discuss what occurred in chambers with defendant, and there is no indication in the record before us that he failed to do so. In addition, the defense did not exercise all of its peremptory challenges, and there has been no showing that defendant was unable to effectively participate in the jury selection process. Under these circumstances, we find no error.
In point six, defendant argues for the first time that he is entitled to a new trial because of improper comments by the prosecutor during his summation. In response, the State contends that the trial prosecutor "engaged in a forceful, yet fair summation." As we have previously stated:
[I]nstances of prosecutorial excesses in the course of summation seem to come to this court with numbing frequency. We have, however, steadfastly adhered to the view that in order to warrant reversal, the improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case. We have done so out of our recognition that public security should not suffer because of a prosecutor's blunder. [State v. Marquez, 277 N.J. Super. 162, 172-73 (App. Div. 1994) (internal citations and quotation marks omitted), certif. denied, 141 N.J. 99 (1995).]
In determining whether a prosecutor's misconduct warrants reversal, a reviewing court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Generally, if no objection was made to the prosecutor's remarks, they "will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "also deprives the court of an opportunity to take curative action." Id. at 84.
In this case, there was no objection to the prosecutor's statements, and none of his remarks, individually or cumulatively, were clearly capable of producing an unjust result. Accordingly, we reject defendant's claim that improper comments by the prosecutor violated his right to a fair trial.
Defendant's remaining claims (cumulative error and excessive sentence) are clearly without merit, Rule 2:11-3(e)(2), and require no further discussion.