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State of New Jersey v. Jahnell Weaver

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAHNELL WEAVER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1157.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2011

Before Judges Lisa, Reisner and Alvarez.

Tried by a jury, defendant, Jahnell Weaver, was convicted of murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); third-degree endangering an injured victim, Edward Williams, N.J.S.A. 2C:12-1.2 (count seven); and third-degree endangering an injured victim, Amyr Hill, N.J.S.A. 2C:12-1.2 (count eight). This appeal followed. We affirm.

On January 9, 2009, defendant was sentenced on the murder, count one, to forty-five years of imprisonment, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). On the attempted murder, count two, a sixteen-year NERA consecutive sentence was imposed. Consecutive terms of five years imprisonment were imposed on each of the endangering injured victims, counts seven and eight, concurrent to each other. The second-degree aggravated assault, count three, and third-degree aggravated assault with a deadly weapon, count four, were merged into count two. The second-degree possession of a weapon for unlawful purpose, count five, was merged with count one. The third-degree unlawful possession of a weapon, count six, resulted in a sentence of five years imprisonment concurrent to count one.

Defendant's aggregate sentence totaled sixty-six years, of which sixty-one years were subject to NERA. Appropriate fines and penalties were also imposed.

Defendant's co-defendant, Khalil J. Bryant, was found guilty only of unlawful possession of a weapon and both counts of endangering an injured victim. His aggregate sentence was ten years imprisonment, two to be served without parole.

THE TRIAL

We summarize the circumstances which resulted in the charges, as developed during the trial. At approximately 1:24 a.m. on June 27, 2004, Camden Police Officer Madrid Matthews*fn1 was dispatched to a housing complex in Camden to investigate a reported shooting. On arrival, she observed a large crowd of teenagers standing in the middle of the street, "hollering, crying, [and] screaming" around the body of a young African-American man who was "lying on his back," bleeding. Matthews called for an Emergency Medical Services (EMS) unit and the victim, later identified as seventeen-year-old Edward Williams, was taken to Cooper University Hospital.

Camden Police Officer William Boone also responded to the dispatch. En route, he observed "a car taking off from th[e] area at a high rate of speed." Believing the two events were related, Boone changed direction and followed it, activating his lights and sirens. The vehicle did not stop until the intersection of Federal and River Streets where the car, cut off by a different EMS unit, came to a halt. As Boone approached, the driver "jumped out" and screamed that his friend had been shot. That second victim, later identified as Amyr Hill, was also rushed to Cooper University Hospital.

Once it was learned Williams had died from his injuries, the Camden County Prosecutor's Office became involved. Investigator John Ellis, assigned the task of collecting physical evidence, recovered five .32 caliber shell casings, a projectile, and two blood swabs from the scene. Dr. Ian Hood performed Williams's autopsy, during which Ellis also obtained a sample of the victim's head hair, an "FTA card,"*fn2 and two additional projectiles from the victim's back. Dr. Hood, who was not employed by the Medical Examiner's Office at the time of trial, concluded Williams had suffered a gunshot wound to the neck and two fatal gunshot wounds to the chest.

Randolph Toth, a State Police Investigator, testified as the State's expert in the field of firearms identification and ballistics comparison. He opined that the discharged shells

Ellis recovered at the crime scene came from the .32 caliber Colt semi-automatic pistol later found in Bryant's possession. The hollow point bullets retrieved from Williams's body were also discharged from this weapon.

When Senior Investigator John F. Greer arrived at the scene at approximately 3:00 a.m., he learned that the shooting took place outside a party hosted by Venus Mosley in honor of her daughter Ebony's graduation from high school. Greer briefly questioned the Mosleys, who knew little about the incident, but were able to provide the names of several guests.

Greer next interviewed four witnesses at the Camden Police Administration Building: Bryant DeShields, also known as L.B., Donald Araica, Corey Ragin, and Shirell Rowland. All four were tired, but otherwise "coherent and willing to speak." For reasons not disclosed in the record, only the interview with DeShields was tape recorded.

DeShields and Williams had been friends since middle school, over ten years. Earlier on the night of the shooting, they had been "hanging out" with Hill and an unidentified young woman at Hill's house. Although they were not acquainted with the Mosleys and had not been invited, Williams, DeShields, Hill, and the young woman decided to go to the party. After approximately fifteen minutes, however, they left and went back to Hill's house because it was "boring."

Eventually returning to the party, DeShields and Hill went inside, while Williams remained outside. A few minutes later, the two joined Williams outside, as they were told he was involved in an argument. DeShields saw defendant, whom he knew, and another male, wearing a low hat, with a white cast on his arm, subsequently identified as co-defendant Bryant, arguing with Williams. Williams was "screaming . . . cuss words" at defendant, while defendant was just "talking back." Suddenly, shots were fired. DeShields told Greer that the man with the cast on his arm shot the victim.

Araica, friends with Williams and Hill his entire life, had seen Williams earlier that night when he passed Araica and Ragin on his bike and mentioned that he was going to a party. Later, after Williams phoned Araica, he, Ragin, and "the rest of the fellows," drove to the party, albeit in separate cars. They arrived only to find Hill and Williams bleeding in the street. Ragin approached Hill, while Araica went to check on Williams; he saw Williams was dead. Observing that Hill was still alive, Araica told Ragin to "throw him in the car and take him out of here," while he remained with Williams.

Hill's gunshot wounds, as described by the trauma surgeon who treated him at Cooper Hospital, were life-threatening, including injury to his liver and femoral artery. During his post-operative hospitalization, Hill developed respiratory failure, a blood infection, a blood clot, and required a feeding tube.

Prior to Williams riding by on his bike, Araica remembered seeing defendant and another male with a cast on his arm walk past him. He identified defendant and Bryant in court as the men he had seen earlier that evening.

Although the Mosleys consented to being interviewed, Ebony refused to be recorded. As a result of her answers, however, Greer returned to the apartment complex to interview another guest, Jasmaine Watkins, who gave a statement in the presence of her aunt, Lamike Goffney.

Watkins, who knew Williams and Hill from high school, left the party briefly to get some air along with her friend Cherae Frazier, when they noticed Williams on his bicycle, stopping to talk to a few people outside. He rode to the next intersection, where he spoke to Hill "and a couple of other guys."

Watkins then saw Williams talking to defendant. She could tell from their facial expressions that the conversation was not going well. Watkins also noticed a young man she did not know with a white cast on his arm standing next to defendant. These two came face-to-face with Williams, Hill, and some other teenagers Watkins had never seen before. While talking to her friend, Watkins glanced up and saw "the gun . . . with the fire com[ing] out," and ran back into the house. Watkins had "no doubt" it was defendant who fired five or six shots. The first shots dropped Williams right where the men were standing, while Hill was hit as he fled, further on down the street. The boy with the cast was doing "nothing," but ran off with defendant after the shooting.

Watkins's companion Frazier also grew up with Williams and described him as a "[g]ood friend[]." She and Williams briefly spoke when he arrived, and she generally corroborated Watkins's account of the argument that followed. She provided more details, however, including that Williams said: "You all think this is a game. It's not funny. It's not a game. You all think this is a game," while defendant laughed at him. She thought "the boy with the cast," Bryant, was not involved in the argument.

Williams then asked Hill, who was standing on a nearby curb, if he could borrow his phone. Frazier overheard Williams saying, "You need to get out here. . . . These n----rs think this is a game." Hill tried to restrain Williams from continuing the argument, saying "it wasn't worth it." When Williams walked back to defendant, defendant "just pulled out a gun" and started shooting, firing five times. Frazier said at that moment she and Watkins had a direct view as they were standing only five feet away. She ran over to Williams and tried to help him up; she saw defendant and the individual with the cast running away together. She also testified she and her cousin kept talking to Williams, trying "to keep him here," and that he spoke to her "until he took his last breath."

Goffney heard the gunshots from outside her apartment. Knowing her niece was nearby at the Mosley's party, she ran to check that Watkins was alright. On the way, she encountered Frazier, who was "hysterical" and "crying." Frazier kept repeating, "Oh, my God, oh, my God. . . . [Defendant] didn't have to kill him. [Defendant] didn't have to kill him." She was familiar with defendant as he had previously been involved in a dispute with Frazier's sister.

When Greer and Detective Wayne Matthews spoke with DeShields a second time, DeShields repudiated his original account, exonerating defendant as the shooter, saying he "wasn't sure" who held the gun because, "I don't know. I told him I was drinking, so I wasn't sure what was going on. [Greer] asked me was it [defendant] and I told him I didn't know." Greer testified that he did not find DeShields to be drunk or intoxicated in any way during the first interview.

DeShields only confirmed that he saw a hand -- belonging to either defendant or Bryant -- holding a black gun. He explained his initial confusion about the identity of the shooter arose from the fact "the arm that I saw with the gun [] next to [defendant] . . . looked . . . too short . . . to be [defendant]'s." He denied that his change of heart resulted from improper influence or from hearing conflicting information on the streets.

At trial, Hill testified he did not know whether it was defendant or Bryant who fired the shots. He had initially reported to police he was certain that Bryant, not defendant, was the shooter. Hill added that he was likely influenced by rumors he was hearing on the street that Bryant was the shooter, but ultimately decided he would not "want somebody to get convicted of a crime that they didn't do, so I'm not going to point a finger at somebody if I'm not sure."

On July 1, 2004, Bryant voluntarily spoke with Greer at police headquarters regarding the shooting and implicated defendant. Three days later, defendant was arrested. Nearly five months later, on November 16, 2004, Winslow Township Detective Eric Hollinger went to Bryant's home to investigate his involvement in an unrelated shooting, and a .32 caliber gun was seized outside of Bryant's residence. After waiving his Miranda*fn3 rights, Bryant told Hollinger he hid the weapon, found underneath a garbage bag outside his house. That weapon was the firearm that killed Williams and injured Hill.

Initially, Bryant claimed he bought the gun on the streets after Williams' murder. He eventually acknowledged being the man with the cast who attended the party with defendant and explained that, as he and defendant fled, defendant asked him to hide the weapon. He did so, and when he retrieved the firearm, he carried the gun "as his own." Bryant declined to provide a recorded or written statement, asserting that if he did not sign his name to any writing, he "never said it." When Greer reminded him a second investigator had been present during the interview and had taken notes of the conversation, Bryant merely insisted it would be the officers' word against his.

Domonique Pratt, another guest at the Mosleys' party, also testified. He said that while Bryant was dancing by himself in a small room, crowded with sixty or seventy partygoers, a gun fell out of his waistband and onto the floor on three separate occasions. Pratt did not remember the color of the weapon and was twenty feet away in the crowded apartment, but was certain the object was a gun. He also said he was outside during the confrontation prior to the shooting, and claimed that he saw an arm in a cast go up before hearing gunshots. Pratt could not identify the shooter and, on cross-examination, added that in 2006 he was not acquainted with either defendant or Bryant. Pratt admitted lying to investigators when he initially denied knowing anything about the shooting, and said he did so only because he did not want to be involved. He heard many rumors regarding the event, and agreed it would have been difficult to see something the size of a gun drop on the floor - obstructed by dozens of people - at a distance of twenty feet. Pratt had not mentioned the gun to anyone at the party because he was "curious" and "wanted to see what was going to happen" at the fight.

PRETRIAL PROCEEDINGS

Defendant, not eighteen when the incident occurred, was charged by way of juvenile complaint with the murder of Williams and the shooting of Hill. He was waived to adult court on September 14, 2004, and indicted in March 2005. On April 13, 2006, the State superseded that indictment with one charging both defendant and Bryant with the same offenses.

On September 29, 2006, Bryant's counsel filed a motion to remand the matter to the Family Part, as his client was also a minor at the time of the alleged offense. As a result, the State dismissed the indictment and filed a juvenile complaint against him. On October 20, the State filed a motion for waiver to adult court, which Bryant opposed, on the grounds that the State had exceeded the thirty-day time frame for such applications found in Rule 5:22-2(a). Bryant was eventually waived to adult court.

At a subsequent March 21, 2007 hearing in the Family Part, the parties referred to a prior finding of the court that Bryant's "motion to dismiss" was denied and that the only issue remaining was whether there was adequate probable cause, as the underlying charges constituted "automatic waiver" offenses. At that hearing, the judge said he had previously found "the State acted in good faith in its reliance on the [j]uvenile's misrepresentations. The good cause is established to extend the 30 Day Rule . . . based on those misrepresentations, and the 30 days starts from the day the [j]uvenile . . . complaint is filed." The nature of the misrepresentations, or how they were discovered, is not explained in the record. It is clear, however, that Bryant's juvenile status had the incidental effect of engendering a substantial delay in the trial of the matter.

For reasons not clear from the record, defendant's September 26, 2006 severance motion was not heard until June 22, 2007. He also sought to use evidence of Bryant's subsequent possession of the gun at trial, dismiss the indictment for lack of a speedy trial, obtain further discovery, and remand the charges to the Family Part. Defendant believed two of his requests were intertwined: in order for both defendants to receive a fair trial, (1) he needed to present information regarding the circumstances surrounding the discovery of the gun; and (2) Bryant needed a separate jury from which this information could be withheld.

Bryant's attorney joined the State in opposing these requests, believing evidence of the subsequent shooting -- essentially evidence beyond mere possession of the gun -- "d[id] not go to any material issue[] with respect to the Williams and Hill shooting."

On July 11, a second judge entered an order allowing defendant to use "[r]everse N.J.R.E. 404B evidence, specifically that defendant Bryant was in possession of the murder weapon[,]" but denying defendant's request to present the details surrounding the discovery of the weapon to the jury, i.e., the subsequent shooting in which Bryant was implicated. All defendant's other motions were denied.

With respect to the speedy trial issue, the court placed the following on the record:

The length of the delay here may not be under certain circumstances enough to cause a . . . determination that [there] was a denial of a speedy trial as it's some three years later.

The reason for the delay is uncertain. It's not really set forth in any of the briefs, but it seems to me that this case involved two separate waiver hearings, which took time. The matter had to be superseded, and the indictments had to be superseded because of continuing investigations and discovery of additional evidence.

I don't know whether there was anyone who requested postponements, or adjournments, or things of that nature

I don't see anything that was, in particular caused by the State that would justify the [c]court in ruling . . . in favor of the defendant.

On appeal, defendant raises the following points:

POINT I THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF THE CO-DEFENDANT'S STATEMENT IMPLICATING THE DEFENDANT IN THE COMMISSION OF THE CRIMES.

A. THE ADMISSION OF THE CO-DEFENDANT'S STATEMENT EXONERATING HIMSELF AND IMPLICATING THE DEFENDANT VIOLATED BRUTON V. UNITED STATES[*fn4]

B. THE DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S FAILURE TO GIVE AN INSTRUCTION LIMITING THE CO-DEFENDANT'S STATEMENT TO HIS CASE AND PROHIBITING JURORS FROM CONSIDERING THAT STATEMENT WHEN DELIBERATING ON THE DEFENDANT'S CASE (Not Raised Below)

C. THE ADMISSION OF THE CO-DEFENDANT'S HEARSAY STATEMENT THAT IMPLICATED THE DEFENDANT VIOLATES THE NEW JERSEY RULES OF EVIDENCE

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER EXCLUSION OF OTHER-CRIME EVIDENCE

POINT III THE DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS DECISION TO DENY THE DEFENDANT'S MOTION TO SEVER THE CO-DEFENDANT'S TRIAL

POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION NOT TO INSTRUCT THE JURY ON PASSION PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER (Partially Raised Below)

POINT V THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT (Not Raised Below)

POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO MOLD THE LAW TO THE FACTS OF THE CASE (Not Raised Below)

POINT VII THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE FOUR-YEAR DELAY

POINT VIII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF ERRORS (Partially Raised Below)

POINT IX THE DEFENDANT'S SENTENCE IS EXCESSIVE

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE

C. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES

D. THE IMPOSITION OF A SIXTY-SIX YEAR TERM WITH 51.85 YEARS OF PAROLE INELIGIBILITY ON A JUVENILE IS CRUEL AND UNUSUAL IN VIOLATION OF THE [EIGHTH] AMENDMENT TO THE UNITED STATES CONSTITUTION

I. Defendant's first contention is that his right of confrontation was violated by the limited admission of Bryant's statement regarding his possession of the murder weapon. He asserts it violated the principles embodied in Bruton, that the trial court's failure to give a limiting instruction was prejudicial, and that use of the redacted statement violated the hearsay rule. As a threshold matter, it bears repeating that the trial judge allowed the use of Bryant's statement regarding his possession of the gun at defendant's behest, albeit while denying defendant's additional request to present evidence regarding Bryant's involvement in an unrelated shooting.

Thus, when the State examined Greer about Bryant's admissions regarding the weapon, only the following testimony was developed:

Q. And did [Bryant] agree to speak with you about the gun?

A. He did.

Q. Did he acknowledge to you that he, in fact, did know about the gun to which you were referring?

A. He did, yes.

Q. And am I correct in that this is the gun that was identified as the gun that was used in the shooting on June 27th, 2004?

A. That would be correct, yes.

Q. Did . . . you ask him if he had possession of the gun?

A. I did.

Q. And how did he respond?

A. He said that he did, yes.

Q. And did you ask him when he acquired it?

A. Yes.

Q. And how did he respond?

A. After the . . . murder.

Q. And did he tell you how he acquired it after the murder?

A. He did.

Q. And what did he tell you?

A. Initially, he said that he purchased it on . . . the streets of the city.

Q. And that would be the City of Camden?

A. That's correct.

Q. And how did you respond to that when he told you that he purchased it in the city after the murder?

A. My response, and, again, I'm paraphrasing this, was something to the effect of I don't believe that there's all the coincidence in the world that would convince anyone that you purchased a gun on the streets of Camden randomly after the murder took place, a murder that you were present at, and that you end up buying the murder weapon that was used in that murder.

Q. And when you confronted him with that, . . . did he admit to you that he did, in fact, have possession of the murder weapon on the night of the murder?

A. Yes, he did.

Q. Did he indicate to you what he did with that gun after the murder?

A. Yes.

Q. What . . . did he tell you he did with it?

A. He hid it. He hid it . . . outside somewhere.

Clearly, the above did not violate Bruton, require a limiting instruction, or violate the hearsay rule.

That portion of Greer's testimony forming the basis for challenges on appeal was conducted by Bryant's counsel and consisted of the following:

Q: [Bryant] told you that he bought the weapon, correct?

A: Initially, yes.

Q: And then he backed off of that. A: Correct.

Q: Did he acknowledge that he had possession of the weapon after the murder of Mr. Williams before he backed off of the "he bought it off the street?"

In other words -- let me ask you the question a different way.

A: Please.

Q: He told you that he bought the weapon on the street. You challenged him on that. You indicated that that seemed too coincidental, correct?

A: Correct.

Q: Was it at that time that he then acknowledged that he had possession of the weapon after the murder?

A: It was at that time that he acknowledged that he had possession of the weapon after the murder and -- at -- yes, after the murder.

Q: After the murder. And he indicated to you that someone gave him the weapon and asked him to hide the weapon, is that correct?

A: That's correct.

Q: And he also indicated to you -- he also told you where he hid it, is that accurate?

A: Yes.

Q: And he indicated to you that sometime later he went and retrieved the weapon, is that accurate?

A: That is correct.

Q: And he indicated that from that time forward, he had possession of that weapon, that's accurate?

A: Yes.

Prior to commencing re-cross examination, several pages of transcript later, Bryant's attorney requested a side-bar to discuss whether he could "ask [Greer] the question whether or not [] Bryant told him that he was involved in the shooting as far as whether or not he had the weapon for that purpose." Both the prosecutor and defendant's attorney objected on the grounds the question sought to elicit "self-serving hearsay" and violated Bruton. The prosecutor then referred back to the earlier exchange, saying she "thought that [counsel's] question about someone giving it to him was dangerously close" to raising a Bruton issue and that she "didn't ask that question" because "it's not going to take [a] rocket scien[tist] to figure out who the person he's talking about is." The objection was sustained.

The sidebar ended and the examination continued:

Q: [W]hen you spoke with Mr. Bryant and he acknowledged possession of this weapon on the night of the murder, he acknowledged that he possessed it after the murder because it was given to him, correct? A: Correct.

[DEFENDANT'S COUNSEL]: Judge, I object to that.

[BRYANT'S COUNSEL]: I already asked that question on -- the first time around.

[THE COURT]: Actually, I think this is just a reiteration of what --

[BRYANT'S COUNSEL]: I was clarifying a point made by [the prosecutor].

[THE COURT]: The objection would be asked and answered, but that's okay. I'm going to allow it.

Q: His acknowledgment of possession was subsequent to the actual shooting, is that correct?

A: Yes.

"'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga

v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). Absent a manifest denial of justice, this court will not disturb a trial judge's reasoned exercise of his or her broad discretion in making relevance and admissibility determinations. Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom. Lydon v. Silverman, 196 N.J. 466 (2008). This standard applies to determinations under N.J.R.E. 404(b). See State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 266 (1987).

In this case, the judge's admission of Bryant's redacted statement at defendant's request was an eminently reasonable exercise of discretion. The statement potentially exculpated defendant and significantly inculpated Bryant.

Defendant's real complaint on appeal is that the questioning by Bryant's counsel took matters a step further and turned the tables on defendant, who had already been identified as the shooter by two eyewitnesses who knew him well. But we do not agree that to characterize this as a Bruton problem is fair. We believe the situation is instead controlled by the principles enunciated in Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987).

In Bruton, supra, the Supreme Court determined that introduction of "powerfully incriminating extra-judicial statements of a co-defendant" could not be cured by way of limiting instructions. 391 U.S. at 135-36, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485. The rationale behind the rule is that such incriminating statements can be "devastating" to a defendant, while their credibility is "inevitably suspect" because they come from an alleged accomplice whose veracity cannot be tested by cross-examination. Id. at 136, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485.

In Bruton, supra, the co-defendant's statement explicitly named the defendant as a participant in the underlying offense. 391 U.S. at 124, 88 S. Ct. at 1621, 20 L. Ed. 2d at 478. In contrast, Richardson, supra, explored whether reversal was required when "the co-defendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial." 481 U.S. at 202, 107 S. Ct. at 1704, 95 L. Ed. 2d at 182. The Court concluded it was not, observing that "with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget." Id. at 208, 107 S. Ct. at 1708, 95 L. Ed. 2d at 186. Nonetheless, the Richardson Court was concerned with the prosecutor's behavior, granting a remand in large part based upon his "urging the jury to use" the confession in reaching their decision. Id. at 211, 107 S. Ct. at 1709, 95 L. Ed. 2d at 188.

Also in contrast with this case, the redacted statement in Richardson was the only "direct evidence" that the defendant knew before entry into the victims' home that they "would be robbed and killed." Id. at 206, 107 S. Ct. at 1706, 95 L. Ed. 2d at 184-85 (emphasis added). It was direct evidence because the statement established that a conversation about the planned crime occurred in a car as the perpetrators, including the defendant, drove to the home, thereby directly refuting the defendant's testimony that she was unaware a crime was going to be committed at all, much less that anyone would be robbed or murdered. Ibid. Likewise, the person confessing to the crime gained no benefit from describing the conversation as having taken place in a car in which the defendant was present before the crime. Therefore the statement, even if redacted, was the only evidence presented to the jury about the defendant's complicity prior to the crime. Ibid.

Here, Bryant benefited from claiming that the gun was handed to him by another person after the murder, and that he was asked to hide it. There was nothing neutral about the information, unlike the statement in Richardson, because his own involvement gave him a motive to lie about his possession of the weapon.

Thus, although allowing Bryant's attorney's question regarding being "given" the weapon was error, it was harmless error. Both men were charged with all the crimes, directly and under a theory of accomplice liability. Defendant gained a benefit from Bryant's admission to possessing the weapon, separate and apart from its discovery outside his home. Obviously, defendant was attempting to deflect the jury's attention away from his own wrongdoing and place the blame wholly on Bryant, and this testimony was highly probative on the point.

Furthermore, the exchange occurred at the end of Greer's testimony and Greer was the final State's witness. At that juncture, the jury had heard from multiple eyewitnesses that defendant, not Bryant, was the shooter. They had also heard Goffney repeating Frazier's excited utterance, "[defendant] didn't have to kill him." In other words, the objected-to amorphous, inculpatory inference had already been explicitly presented to the jury by far more reliable evidence. There were only two questions regarding Bryant's statement posed over five trial days, and there were seven days that elapsed between Greer's reiteration of Bryant's statement and the beginning of the jury's deliberations. Accordingly, we conclude no Bruton violation occurred, but that, if error, admission of this abbreviated testimony was harmless.

Defendant also objects that the failure to give a limiting instruction was prejudicial error. No such instruction was requested. In fact, we note - as pointed out by the State - that when defense counsel objected to Bryant's attorney making reference to Bryant's statement in summation, the court offered to give a limiting instruction and the offer was rejected. As counsel put it, "I'm not asking you to do anything."

As to the claim that the evidence was inadmissible hearsay,

Bryant's statement was admissible as an exception to the hearsay rule because it was inculpatory. See N.J.R.E. 803(c)(25). Greer's brief testimony therefore did not violate either defendant's right to a fair trial or his Sixth Amendment rights.

II. Defendant's second point is that his right to due process was violated by the trial court's exclusion of other crime evidence with respect to Bryant. He contends he should have been permitted to present the circumstances surrounding discovery of the weapon in Bryant's possession; namely, that his co-defendant was involved in a subsequent shooting.

N.J.R.E. 404(b) bars the admission of evidence of other crimes or bad acts to "prove the disposition of a person in order to show that such person acted in conformity therewith." Such evidence may only be used to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

The trial court employed the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992), in making its determination, deciding that, although relevant to a genuinely disputed material fact of conduct similar in kind and close in time, the evidence would be overwhelmingly prejudicial while lacking any probative value. The only basis for admission of the subsequent shooting would be to establish Bryant's propensity to commit violent crimes. The benefit to defendant of suggesting Bryant was the shooter based on his possession of the weapon was gained by the limited admission of Greer's statement that he found the gun where Bryant admitted hiding it. Admission of the subsequent bad act would have been cumulative and would have had little probative value. It would have done little more than establish propensity. This claim of error has no merit.

III. Defendant's third contention is that the trial court's refusal to sever the charges from Bryant's prosecution denied him due process. We employ an abuse of discretion standard of review in determining whether the denial of the motion to sever was warranted. See State v. Sanchez, 143 N.J. 273, 283 (1996) (citing State v. Brown, 118 N.J. 595, 603 (1990)).

Joinder is appropriate where two or more persons are "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." R. 3:7-7. So long as the requirements of this rule are satisfied, joinder is permitted by Rule 3:15-1(a). A joint trial is preferable where "much of the same evidence is needed to prosecute each defendant," resulting in increased efficiency and respect for witnesses and victims. Sanchez, supra, 143 N.J. at 281-82 (quoting Brown, supra, 118 N.J. at 605); Zafiro v. United States, 506 U.S. 534, 537-38, 113 S. Ct. 933, 937, 122 L. Ed. 2d 317, 324 (1993). Relief from joinder is appropriate where any party is prejudiced by such arrangement.

R. 3:15-2(b).

Defendant's pre-trial motion for severance was inextricably connected to his application to admit evidence of Bryant's involvement with a subsequent shooting. He claims the denial of the application for severance was intertwined with the erroneous redacting of Bryant's statement. Severance would have been required if and only if that evidence were otherwise admissible. As we have discussed, however, the only purpose for which that evidence would be admitted is to establish Bryant's propensity to shoot others. It was therefore inadmissible, in either a joint or individual trial. Therefore, since the evidence was inadmissible in any event, defendant lost nothing by being tried with Bryant. The State alleged that both defendants participated "in the same act or transaction" and much of the evidence presented, physical and testimonial, was indisputably the same. Accordingly, the requirements of Rules 3:7-7 and 3:15-1(a) were satisfied and the ruling was not an abuse of discretion.

IV. In his fourth point, defendant asserts the court should have instructed the jury on passion/provocation manslaughter in addition to aggravated and reckless manslaughter. The basis for this claim is that Hill used a racial slur, in addition to the provocation allegedly resulting from Williams' phone call summoning others to come to his aid.

We find no merit to the claim that Hill's use of a racial slur could be considered provocation. Everyone present at the party was African-American. To suggest in any event that it was reasonable for defendant to have killed another who used a racial epithet when speaking with him has no merit in law or fact. Additionally, Williams' use of the slur was not directed at defendant personally, but rather referred to the entire group standing with him.

N.J.S.A. 2C:11-4(b)(2) defines passion/provocation manslaughter as a "homicide which would otherwise be murder under § 2C:11-3[,] committed in the heat of passion resulting from a reasonable provocation." See also State v. Grunow, 102 N.J. 133, 138-40 (1986). The test is an objective one. State v. Mauricio, 117 N.J. 402, 411 (1990); see also State v. Pratt, 226 N.J. Super. 307, 317 (App. Div. 1988).

Four elements are necessary to demonstrate passion/ provocation manslaughter: (1) adequate provocation; (2) lack of time to cool off between provocation and slaying; (3) the defendant must have actually been provoked; and (4) the defendant must not have actually cooled off before the slaying. See Mauricio, supra, 117 N.J. at 411. There simply is nothing in these circumstances which meets the standard pursuant to the four-part test. This shooting was nearly contemporaneous with the end of Williams' phone call, and at the moment the weapon was drawn defendant appeared to be laughing at the victim. Defendant's appearance and behavior was not that of a person facing either provocation or threat.

V.Defendant's fifth contention, that the prosecutor engaged in prejudicial misconduct, is subject to review pursuant to the plain error doctrine. R. 2:10-2. The error must be one "clearly capable of producing an unjust result." Ibid. In order for the claim to succeed, there must not be any reasonable doubt that it "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Prosecutorial misconduct constituting reversible plain error must be "so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see State v. Lofton, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987).

Defendant asserts that the State improperly sought to "create evidence," and "influence exculpatory defense witnesses," when Greer returned to DeShields's home in order to obtain an additional statement. He suggests that by referencing other unnamed witnesses who implicated him during the interview, Greer impermissibly planted the seeds of DeShields's eventual retraction of his initial statement that Bryant was the shooter.

This claim, raised for the first time on appeal, is also without merit. The officer had to explain the reasons DeShields was being interviewed a second time. Had DeShields been confident in his narrative, he would not have changed it regardless of any other statements by any other witnesses.

Additionally, Greer had no basis at that juncture for concluding any one witness was more reliable than any other, and was merely following leads. Since DeShields's account was the exception rather than the rule, it made sense to return to him to test his commitment to his initial statement.

Moreover, defense counsel ensured the jury was aware of the prior inconsistent statement and detailed for the jury the circumstances surrounding DeShields's change, thereby lessening the impact of his testimony. The jury had all of the information it needed to evaluate the defense theory that DeShields changed his attribution solely as a result of improper pressure from the State. There was no prejudicial consequence either to Greer's conduct of the second interview or the State's presentation of that information to the jury. Neither the second interview nor the manner in which the testimony was presented at trial constituted prosecutorial misconduct.

VI.Defendant's sixth contention is that the trial court prejudicially erred by failing to mold its charge to the jury to conform to the facts of the case. Certainly, erroneous instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). A defendant is entitled only to an accurate charge, however, not to any particular phrase or particular words, and jury charges are to be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971).

In its prior inconsistent statement instruction to the jury, the trial court specifically mentioned only prior inconsistent statements made by Pratt. The court did not identify Hill as another eyewitness who made prior inconsistent statements. Defendant alleges the court's failure to mention Hill was a significant error, prejudicing him because Hill's statement was not only a prior inconsistent statement, but also exculpatory. Defense counsel did not object to the instruction at trial, either during the charge conference or when actually rendered.

During the charge conference, the trial judge informed counsel that he would name Pratt because Pratt admitted on the stand that he actually lied to police. It is undisputed that the court's instruction otherwise tracked the Model Jury Charge and referred to "a number of witnesses" who had given prior inconsistent statements, although the judge did not individually name them.

The court used Pratt's testimony merely as an example for the jury's consideration of its obligation to "consider all the circumstances under which the statement or failure to disclose occurred." Pratt admitted that he did not want to cooperate or involve himself in the proceedings or in the investigation, and that he lied as a result. The judge did not suggest these considerations were inapplicable to any of the other witnesses.

Defendant sought to have the jury believe Hill, who initially implicated Bryant. Yet, it would have minimized the impact of this argument had the judge told the jury that Hill's initial statement was also untrue. By tracking the Model Jury Charge, and naming only the one witness who openly admitted to lying, the court left to the jury the decision as to which witnesses had made inconsistent statements, and which statements to believe. Accordingly, there is no merit to this point of error.

VII.In his seventh point, defendant contends that his right to a speedy trial was violated by the four-year delay in this prosecution. We review this claim for abuse of discretion. The trial judge's determination on this point will not be overturned unless "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (1977).

In assessing such claims, we balance and weigh four considerations: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) resulting prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).

The length of the delay encompasses the time between arrest and trial. State v. Szima, 70 N.J. 196, 199-200 (citing Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975)). Defendant was arrested July 4, 2004, and his trial did not commence until October 14, 2008. We note that a three-year delay in a capital prosecution was not "by itself" considered to result in the denial of the right to a speedy trial. See State v. Douglas, 322 N.J. Super. 156, 171 (App. Div. 1999) (citing State v. Long, 119 N.J. 439, 469 (1990)).

Though defendant was arrested first, the State was aware of Bryant's likely involvement with the incident, as he had been identified as the young man wearing a cast.

Bryant, however, was not arrested immediately after his initial statement on July 1, 2004. A thirty-month delay followed the initial twenty-one-month gap between defendant's arrest and the first of three joint indictments, presumably because of delays inherent in Bryant's prosecution, whether caused by him, or by the State, or both. Defendant does not claim the delay in transferring Bryant from the juvenile to the adult court was attributable to the State; the delay was caused by Bryant's misrepresentations and status, although the record does not delineate what these misrepresentations were, nor explain how they caused the delay. It is also true that defendant asserted his right to a speedy trial by filing a motion on September 22, 2006 which, for reasons not explained on the record, was not heard until June 22, 2007.

Defendant has thus established the first three prongs of the test, but cannot establish the fourth, any prejudice resulting from the delay. Although defendant asserts prejudice occurred because the delay in prosecution allowed Hill the opportunity to change his mind, that is sheer speculation. There is no indication that, had the delay been shorter, the change of heart would not have occurred. Furthermore, the jury heard Hill admit he initially identified Bryant as the shooter.

Additionally, numerous other witnesses from the date of the event testified that the shooter was defendant, not Bryant. Hill's change of heart is not a sufficient basis for us to find prejudice.

This is not a situation where, for example, exculpatory evidence was lost or destroyed, or where a favorable witness died or otherwise became unavailable. Indeed, the State could have suffered the greater prejudice as a result of the delay. It had numerous teenage witnesses, who were called to testify years after an incident which occurred at a party. This claim must also be rejected as lacking in merit.

VIII.Defendant also contends the accumulated errors warrant reversal, relying upon State v. Orrechio, 16 N.J. 125, 129 (1954). Since we find no error, this argument fails.

IX.We review sentencing decisions not to substitute our judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). When a trial court's findings of aggravating and mitigating factors are supported by the record, the sentencing overall complies with the Criminal Code, and the individual's sentence does not shock our conscience, a sentence will be upheld. Ibid.

Modification is appropriate only where a judge has abused his or her broad discretion and imposed a sentence that shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). Where a sentence is permitted by statute and is not unduly punitive, the trial court has properly exercised discretion and its decision should be upheld. Ibid.; State v. Morton, 292 N.J. Super. 92, 99 (App. Div. 1996).

In this case, defendant contends that given his young age at the time the incident occurred, to have sentenced him to sixty-six years, subject to fifty-one years of parole ineligibility, was the product of improper balancing of aggravating and mitigating factors. Defendant also challenges the imposition of consecutive sentences. In sentencing defendant, the trial court found he was at risk to reoffend, N.J.S.A. 2C:44-1(a)(3), had a prior criminal history, N.J.S.A. 2C:44-1(a)(6), and that the need to deter defendant and the public was great, N.J.S.A. 2C:44-1(a)(9). The court found no factors in mitigation.

Defendant's assertion that in the absence of a "psychological risk analysis or other empirical test" the court should not have imposed a lengthy term of incarceration upon him has no foundation in law, and we will not discuss it further.

R. 2:11-3(e)(2).

Defendant also asserts Williams provoked the killing by

virtue of his use of a racial slur, and "would be alive today" had he not continued to confront defendant. That claim is nothing more than unfounded speculation. It does not warrant any reassessment of defendant's sentence.

The court's weighing of the aggravating factors was justified. Defendant's prior criminal history, according to the judge, included "assaultive behavior, violent behavior[,] and weapons offenses." Defendant had previously been adjudicated delinquent for possession of a weapon, lewdness, simple assault, obstruction, and drug offenses. He had violated both probation and parole. The court's quantitative and qualitative analysis of the aggravating and mitigating factors was thus supported by credible evidence in the record. Bieniek, supra, 200 N.J. at 607-09.

The court's decision to impose consecutive sentences was based upon State v. Yarbough, 100 N.J. 627, 643-45 (1985). This incident involved two victims, who were cold-bloodedly gunned down at a high school graduation party. Neither was armed and neither posed a threat to defendant. The classic situation justifying a consecutive sentence is one involving multiple victims. Id. at 644. Additionally, the statute which defines the charge, N.J.S.A. 2C:12-1.2, requires that sentences for endangering injured victims be served consecutive to those imposed for the underlying harm. Therefore, no error was committed in the sentence imposed.

Affirmed.


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