On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1157.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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.
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 ...