On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0239.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Defendant, Aziz Gilliard, appeals from his conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, second- degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, fourth-degree aggravated assault by pointing a weapon at another, N.J.S.A. 2C:12-1b(4), and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. He also appeals from his sentence of thirty years in custody 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, for aggravated manslaughter and his consecutive sentence of ten years in custody with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7b, for possession of a weapon by a convicted felon. Both sentences were to be served consecutively to the sentence that defendant was then serving in Maryland.
On appeal, defendant raises the following issues through assigned counsel:
THE COURT ERRED IN GIVING A FLIGHT CHARGE WHICH THEREBY INTERJECTED HIGHLY PREJUDICIAL FACTS INTO THE CASE THAT WERE NOT INDICATIVE OF CONSCIOUSNESS OF GUILT RELATING TO THE INSTANT OFFENSES.
THE COURT'S FAILURE TO ADJOURN THE CASE IN ORDER TO PERMIT DEFENSE COUNSEL AN OPPORTUNITY TO PRODUCE A KEY WITNESS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
THE COURT ERRED IN ADMITTING THE OUT-OF-COURT IDENTIFICATION OF THE DEFENDANT BY MS. DEBERRY BECAUSE IT LACKED SUFFICIENT RELIABILITY UNDER THE CIRCUMSTANCES IN WHICH IT WAS MADE.
THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF R. 1:8-8(b) AND PROPERLY INSTRUCT THE JURY ON NOTE-TAKING. (Not Raised Below.)
IMPERMISSIBLE REFERENCE WAS MADE THAT A NON-TESTIFYING DETECTIVE ASSIGNED TO THE INTELLIGENCE UNIT OF THE ATLANTIC CITY POLICE DEPARTMENT IMMEDIATELY IDENTIFIED THE DEFENDANT BY NAME WHEN HIS DESCRIPTION WAS GIVEN, INFERRING THAT DEFENDANT WAS KNOWN AS A CRIMINAL TO LAW ENFORCEMENT. (Not Raised Below.)
THE SENTENCES IMPOSED WERE MANIFESTLY EXCESSIVE IN THAT THE COURT IMPOSED THE MAXIMUM LEGAL TERMS FOR EACH OFFENSE, AND MADE THEM CONSECUTIVE TO EACH OTHER AND TO AN OUT-OF-STATE SENTENCE.
Defendant presents the following additional arguments through retained counsel:
THE FACTUAL PREDICATE FOR THE FLIGHT CHARGE WAS LACKING AND/OR BASED ON INADMISSIBLE HEARSAY EVIDENCE AND IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO CHARGE FLIGHT.
THE DEFENDANT'S ABSENCE DURING THE CHARGE CONFERENCE AND TRIAL COUNSEL'S WAIVER, WITHOUT THE DEFENDANT'S CONSENT, OF THE DEFENDANT'S PRESENCE AT THE TRIAL PROCEEDINGS ON THE MORNING OF SEPTEMBER 28, 2009 VIOLATED THE DEFENDANT'S RIGHT TO BE PRESENT AT HIS OWN TRIAL. (Not raised below.)
THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO MAKE FURTHER INQUIRY AND/OR TO DISQUALIFY JUROR NO. 2 AFTER HE ADMITTED "IT'S POSSIBLE" HE NODDED OFF, AND THAT HE "CAUGHT" HIMSELF NODDING OFF DURING THE TRIAL. (Not raised below.)
Evidence at trial disclosed that shortly before midnight on June 18, 2006, after a Father's Day barbeque, Kawan Hill was shot in the head at close range and killed in a courtyard of the Stanley Holmes Village housing complex in Atlantic City (Village). Uniformed officers Brian Hurley and Charles Heintz were on foot patrol that evening when they heard "several shots" and ran in the direction of the shots. Heintz testified that he heard roughly eight shots in total: a single shot followed by a volley of three or four additional shots, then a second such volley. The officers encountered a man running towards them and away from the shots whom they recognized as known by the street name of "Monk." His given name was Shamir Harper. The officers searched Harper for a weapon, but finding none, they released Harper and continued toward the location where the shots had been fired. Hurley and Heintz estimated that they arrived at the scene within a minute and a half after hearing the shots.
Police Officers Daniel Corcoran and Brian Shapiro were also on foot patrol that evening when they, too, heard the gunshots. Officer Corcoran described the sound as one shot, followed by a volley of additional shots. As the officers ran toward the Village, they saw a man, later identified as Bilal Reynolds, riding a bicycle away from the Village and toward them. Although the officers directed Reynolds to stop, he attempted to ride away. The officers pursued him on foot and radioed to alert other nearby officers of their pursuit. Officer William Tracy and his K-9 unit quickly caught sight of Reynolds, who fell off his bike and began to run, discarding a silver object into a bush as he ran. He was apprehended by Officer Tracy and the canine.
The discarded object was discovered to be a fully-loaded silver .38 caliber revolver. Officer Corcoran testified that he saw Reynolds on his bike only a few seconds after hearing the shots and that at no time during pursuit did he lose sight of him. Corcoran noted Reynolds had both hands on the bicycle handlebars and therefore would not have had the ability to reload the revolver had he been involved in the shooting.
Once at the scene, the officers discovered a large gathering of people standing around a body, which lay in a pool of blood. One person at the scene said that he saw two men flee immediately after the shooting. Police recovered multiple shell casings and unfired bullets, including three .45 shell casings and two live .45 rounds, a .40 caliber shell casing, and a bullet fragment from a .38 caliber bullet.
Sergeant Janet LaRocca, of the Major Crimes Unit of Atlantic County Prosecutor's Office, was in charge of the investigation. After LaRocca arrived at the scene around 1:00 a.m., she handed out business cards and attempted to find witnesses. She was approached by Ronald Harris, who told her that while he wanted to speak with her, he would not do so there. The following morning, Harris gave LaRocca a taped statement in which he identified Laquay Snyder, whose street name was "Jeep," as the shooter. Harris also identified Snyder in a photograph. However, upon investigation, Snyder's assertion that he was home all evening with his mother at his mother's apartment in Absecon, a city adjacent to Atlantic City, was confirmed by Snyder's mother and by his downstairs neighbor who said she spoke on the phone with Snyder between ten and eleven on the evening of the shooting. Both later testified at trial, asserting the same facts. Harris subsequently "backed away from his I.D.," and he testified at trial that Snyder was too short to have been the shooter.
During the investigation, Detective Michael Mattioli of the prosecutor's Major Crimes Unit learned that Delisha DeBerry was a witness to the shooting. Detective Mattioli interviewed the seventeen-year-old DeBerry, who was reluctant to talk about the events, expressing concern about being considered a snitch. However, she eventually gave a recorded statement in which she admitted that she was present at the events, that she knew the parties involved in the incident, and that she was with Hill that night. She said that, following an argument among several men playing dice, "Aziz" pulled out a gun and fired it into the air. Aziz then shot Hill in the head, with DeBerry standing less than three feet away. DeBerry told Detective Mattioli that she had known Aziz for roughly six months. She described him as having a missing front tooth and a tattoo with the initials D.O.M. on his right hand. DeBerry also told the detective that she knew Aziz's brother Fuquan and knew where Aziz lived. Finally, DeBerry told Mattioli that she also knew that Aziz had previously been in prison and that he had been released roughly eighteen months before this incident. She identified defendant's gun as an automatic, not a revolver.
After the interview, Detective Mattioli called the Intelligence Unit of the Atlantic City Police Department. He spoke with Detective Lonell Jones who, upon hearing DeBerry's description, told Mattioli that it fit defendant. Mattioli then prepared a photo array that included defendant and five other individuals and arranged to have Sergeant Clark Manley, who had no other involvement in or knowledge of the case, show the photos to DeBerry. Later that same day, Manley met DeBerry at the prosecutor's office and showed her the six photographs, one at a time. After viewing all six of the photographs, DeBerry asked to see them a second time. The photos were re-numbered, randomly re-shuffled and individually shown to her again. After seeing the photos a second time, DeBerry identified two men: defendant and a person named Marcus Hunt, who was in jail at the time of the shooting. When Mattioli asked DeBerry why she now indicated that there were two shooters, he noticed that she appeared nervous and shook, and she told him that she was afraid and did not want to be a witness. DeBerry then pointed to defendant's photo and stated that he was the sole shooter.
Prior to trial, the court conducted a Wade*fn1 hearing and determined that DeBerry's identification of defendant was admissible.
At trial, DeBerry recanted. She testified that she knew Hill (whom she knew by his street name, "Bosheed") and that she was present at Stanley Holmes Village when Hill was shot. But when asked whether she saw who shot Hill, she testified that she did not remember or "I thought I did, but, no, I don't." She also did not remember identifying defendant when giving her statement, but recalled only that she was concerned with getting law enforcement "out of my face" and that she was "scared and shaky" at the time. She testified that she "blanked out" right after the shooting and, after passing out, was taken to the hospital. She testified that she lied about defendant being the shooter; that defendant only shot up in the air but did not shoot Hill, and that she must have had names and faces mixed up. She acknowledged that she voluntarily participated in the photo identification process, and she recognized her signature on the back of defendant's photograph, but she did not remember actually identifying him as the shooter.
After the judge determined that DeBerry's prior inconsistent statement was reliable, it ...