August 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KHALIL J. BRYANT A/K/A DYMILL J. BRYANT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2011
Before Judges Lisa, Reisner and Alvarez.
Following a jury trial, defendant Khalil J. Bryant, also known as Dymill J. Bryant, was convicted of 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 the endangering of a second injured victim, Amyr Hill (count eight). Accordingly, on January 12, 2009, defendant was sentenced on the unlawful possession of a weapon to a five-year term of imprisonment subject to two years of parole ineligibility. Two concurrent five-year terms of imprisonment were imposed consecutive to that offense on the endangering of an injured victim counts. This aggregate of ten years imprisonment, subject to two years of parole ineligibility, was consecutive to a sentence defendant was then serving. We affirm.
The facts presented by the State can be summarized as follows. At approximately 1:24 a.m. on June 27, 2004, Camden Police Officer Madrid Matthews was dispatched to a housing complex to investigate a reported shooting.*fn1 On arrival, she saw 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" and bleeding. Matthews called for an emergency medical services (EMS) unit to take the victim, later identified as seventeen-year-old Edward Williams, to Cooper University Hospital (Cooper).
As Police Officer William Boone approached the crime scene, he noticed "a car taking off from th[e] area at a high rate of speed." Boone changed direction and followed it, activating his lights and sirens. The vehicle did not stop until it was cut off by a different EMS unit. As Boone approached, the driver "jumped out" and screamed that his friend had been shot. The second victim, later identified as Amyr Hill, was also rushed to Cooper.
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 obtained, among other things, two additional projectiles removed 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.
Senior Investigator John F. Greer arrived at the scene at approximately 3:00 a.m., and learned that the shooting occurred outside a high school graduation party hosted by Venus Mosley in honor of her daughter Ebony. Greer thereafter interviewed four witnesses: Bryant DeShields, also known as L.B., Donald Araica, Corey Ragin, and Shirell Rowland.
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. Shortly thereafter, DeShields and Hill rejoined Williams, as they were told he was involved in an argument. DeShields saw Williams "screaming . . . cuss words" at defendant's co-defendant, Jahnell Weaver,*fn2 whom he knew, while another male with a white cast on his arm, wearing a low hat, subsequently identified as defendant, stood by. Weaver was just "talking back" when suddenly, shots were fired. At the initial interview, 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. Araica remembered previously seeing Weaver and another male with a cast on his arm walk by and identified them in court. After Williams phoned Araica to ask for help, he, Ragin, and "the rest of the fellows" drove there, albeit in separate cars. When they arrived, it was 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. Since Hill was still alive, Araica told Ragin to "throw him in the car and take him out of here," while he remained with Williams. As described by the trauma surgeon who treated him at Cooper, Hill's gunshot wounds were life-threatening, including injury to his liver and femoral artery.
Greer also interviewed 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 with her friend Cherae Frazier to get some air. Williams rode past, stopping to talk to a few people outside. At the next intersection, he spoke to Hill "and a couple of other guys."
When Williams returned, Watkins saw him arguing with Weaver; she also noticed a young man she did not know with a white cast on his arm standing next to Weaver. These two came face-to-face with Williams, Hill, and some other teenagers Watkins had never seen before. Watkins glanced up and saw "the gun . . . with the fire com[ing] out," and ran back inside. Watkins had "no doubt" it was Weaver who fired five or six shots. The first shots dropped Williams right where the men were standing, while Hill was struck down while in flight. The man with the cast did "nothing," but ran off with Weaver after the shooting.
Watkins's companion Frazier described Williams as a "[g]ood friend" with whom she had grown up. She and Williams briefly spoke when he arrived, and she generally corroborated Watkins's account of the ensuing argument. 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 Weaver laughed at him. Frazier did not think "the boy with the cast," defendant, was involved in the argument.
After making the comment, Williams asked Hill, who was standing nearby, if he could borrow his phone. Hill agreed. Thereafter, 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, telling him that "it wasn't worth it." When Williams walked back, Weaver "just pulled out a gun" and started shooting, firing five times.
Frazier and Watkins had a direct view of the confrontation, as they were standing only five feet away. After the shots were fired, Frazier rushed to Williams's side and tried to help him up; she saw Weaver and the individual with the cast running away together. Frazier and another person kept talking to Williams, trying "to keep him here," and he spoke to them "until he took his last breath."
Goffney heard the gunshots from outside her apartment. Knowing her niece was nearby at the Mosleys' party, she immediately went 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. . . . [Weaver] didn't have to kill him. [Weaver] didn't have to kill him."
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 [Weaver] and I told him I didn't know." Greer testified that he did not observe DeShields to be drunk or intoxicated in any way during the first interview.
During the trial, DeShields only confirmed that he saw a hand holding a black gun. He attributed his initial confusion about the identity of the shooter to the fact "the arm that I saw with the gun  next to [Weaver] . . . looked . . . too short . . . to be [Weaver]'s." DeShields denied that his change of heart resulted from improper influence or from hearing conflicting information on the streets.
Hill also testified that he did not know whether defendant or Weaver fired the shots, although initially he reported to police he was certain that defendant, not the other individual, was the shooter. Hill added that his initial statement was likely influenced by rumors he heard on the street, but he 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, defendant gave a statement in which he implicated Weaver. Three days afterwards, Weaver was arrested.
Nearly five months later, on November 16, 2004, Winslow Township Detective Eric Hollinger went to defendant's residence while investigating his involvement in an unrelated shooting.
During the interview, after waiving his Miranda*fn3 rights, defendant admitted to Hollinger that he had a gun, a .32 caliber Colt semi-automatic pistol, hidden beneath a garbage bag outside his home.
New Jersey State Police Investigator Randolph Toth, called by the State as an expert in the field of firearms identification and ballistics comparison, testified that the discharged shells found at the 2004 crime scene came from the gun discovered in defendant's possession. The hollow point bullets retrieved from Williams's body were also discharged from this weapon.
When Greer subsequently interviewed defendant, he initially claimed he had bought the gun on the streets after the murder. He eventually admitted being the man with the cast who attended the party with Weaver, and said that, as he and Weaver fled, Weaver asked him to hide the weapon. After he retrieved the firearm from its initial hiding place, he carried the gun "as his own."
Domonique Pratt, another guest at the Mosleys' party, also testified. He said that while defendant 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 standing twenty feet away in the crowded apartment, but was certain the object was a gun. He added that, while outside, he saw Weaver walk in front of defendant, whose back was to Williams, and witnessed "a little exchange." Immediately thereafter, he observed "a cast go up and [then] an arm under it and [then] gunshots." Pratt claimed he could not identify the shooter and, on cross-examination, admitted lying to investigators in 2006 when he denied knowing Weaver's identity, explaining he did so because he did not want to get involved.
Defendant was initially indicted for these crimes despite being seventeen years old at the time of the incident. He requested a remand to the juvenile court, which was granted. Thereafter, however, the State sought a waiver to prosecute in adult court, which was also granted. See N.J.S.A. 5:22-2.
Defendant was subsequently recharged in a superseding indictment with 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); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). Defendant was acquitted of these charges and, as we have said, was convicted only of unlawful possession of a weapon and the two endangering counts. Weaver was convicted of all charges, including murder.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE REQUISITE MENTAL STATES AND ALL ESSENTIAL ELEMENTS OF COUNTS SEVEN AND EIGHT, ENDANGERING AN INJURED VICTIM (Not Raised Below)
THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION ON COUNT SEVEN, ENDANGERING AN INJURED VICTIM, MR. WILLIAMS, BECAUSE HE WAS DEAD, OR INEVITABLY GOING TO DIE, WHEN MR. BRYANT LEFT THE SCENE OF THE SHOOTINGS POINT THREE
THE TRIAL COURT GAVE AN ERRONEOUS "CONSCIOUSNESS OF GUILT" INSTRUCTION AFTER HAVING PREVENTED MR. BRYANT FROM ELICITING EVIDENCE AT TRIAL AS TO WHY HE POSSESSED THE WEAPON POINT FOUR
THE INTRODUCTION INTO EVIDENCE OF THE PREJUDICIAL FACTS AND CIRCUMSTANCES SURROUNDING MR. BRYANT'S ARREST FOR A WEAPONS OFFENSE RENDERED HIS TRIAL UNFAIR POINT FIVE
THE INTRODUCTION INTO EVIDENCE OF A RETIRED MEDICAL EXAMINER'S AUTOPSY REPORT BY A DIFFERENT MEDICAL EXAMINER VIOLATED MR. BRYANT'S RIGHT TO DUE PROCESS OF LAW AND CONFRONTATION. (U.S. Const. Amends. VI and XIV; N.J. Const. (1947), Art. I, Pars. 1, 9 and 10.) (Not Raised Below)
THE FAMILY COURT JUDGE'S FINDING OF PROBABLE CAUSE WAS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE BECAUSE THE STATE'S PROFFER CONSISTED OF THE INCREDIBLE, UNCORROBORATED, UNSIGNED, UNSWORN ALLEGATION OF A FOURTEEN YEAR OLD, WHICH WAS TAKEN APPROXIMATELY TWENTY MONTHS AFTER THE INCIDENT AND WAS CONTRARY TO ALL OTHER CREDIBLE, CORROBORATED EYEWITNESS ACCOUNTS GIVEN IMMEDIATELY FOLLOWING THE INCIDENT POINT SEVEN
THE TRIAL COURT ERRONEOUSLY SENTENCED MR. BRYANT TO CONSECUTIVE SENTENCES BECAUSE HE BELIEVED HE WAS OBLIGATED TO DO SO UNDER N.J.R.E. 2C:12-1.2d. (Not Raised Below) POINT EIGHT
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE
Defendant contends that the trial court erred by failing to instruct the jury as to the requisite mental state and statutory elements of the offense of endangering an injured victim. Among other points, defendant claims the instruction was prejudicial because the court did not explain to the jury that, in order to convict, it must first find that defendant, either as a principal or on a theory of accomplice liability, caused the victims' bodily injury.
Jury charges are to be read and evaluated as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). A defendant is entitled only to an accurate charge, not to any particular phrasing; however, erroneous instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979); State v. Thompson, 59 N.J. 396, 411 (1971).
Initially, we observe that the relevant statutory provision has been fully analyzed only once in a published opinion. See State v. Moon, 396 N.J. Super. 109, 116 (App. Div. 2007) (holding the statute did not prohibit "abandonment of a corpse"), certif. denied, 193 N.J. 586 (2008).
In pertinent part, N.J.S.A. 2C:12-1.2(a) reads as follows:
A person is guilty of endangering an injured victim if he causes bodily injury to any person or solicits, aids, encourages, or attempts to aid another, who causes bodily injury to any person, and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself.
The State never maintained that defendant was the shooter. It attempted to prove, however, that defendant was the shooter's accomplice by virtue of the testimony of Pratt, Detective Hollinger, and Investigator Toth, who alleged: (1) defendant was seen with the gun prior to the shooting; (2) defendant handed an object to Weaver just before the shooting; and (3) defendant was later found in possession of the murder weapon. Thus, there was evidence in the record from which the jury could have concluded defendant was Weaver's accomplice throughout the incident, from the initial hand-off of the gun to defendant's possession months later. Defendant asserts, therefore, that because he was acquitted of being defendant's accomplice in the shooting, the verdict is facially inconsistent, and his conviction on the endangering charges is solely the product of flawed jury instructions.
New Jersey courts follow the federal Dunn*fn4 /Powell*fn5 rule, which provides that an inconsistent verdict may not be challenged where there is sufficient evidence in the record from which the jury "'could rationally have reached a verdict of guilt beyond a reasonable doubt.'" State v. Banko, 182 N.J. 44, 54 (2004) (quoting Powell, supra, 469 U.S. at 67, 105 S. Ct. at 478, 83 L. Ed. 2d at 470). "We permit inconsistent verdicts to be returned by a jury because it is beyond our power to prevent them." Ibid. (citing State v. Ragland, 105 N.J. 189, 204-05 (1986)).
Speculating as to the jury's motives or understanding will never yield an authoritative or satisfying result: as described in Powell, supra, in such cases "it is unclear whose ox has been gored." 469 U.S. at 65, 105 S. Ct. at 477, 83 L. Ed. 2d at 469. As our Supreme Court has more recently stated, where "no amount of rational exegesis may explain the actions of a jury[,]" it does not necessarily follow that a conviction must be vacated. See State v. Kelly, 201 N.J. 471, 487 (2010). Because we simply cannot ever know if the verdict was the product of "'mistake, compromise or lenity,'" the facial inconsistency alone is not a basis for reversal. Id. at 488 (quoting Powell, supra, 469 U.S. at 65, 165 S. Ct. at 476, 83 L. Ed. 2d at 468).
Despite this general principle, however, our Supreme Court has not interpreted Dunn/Powell to "sanitize other trial errors," State v. Grey, 147 N.J. 4, 17 (1996), and has clearly stated that an inconsistent verdict "may not insulate a conviction from reversal based on other defects in the criminal proceeding." Banko, supra, 182 N.J. at 55.
In such cases, as defendant claims here, errors in the jury charge are the primary culprit. See Grey, supra, 147 N.J. at 14 (observing that, in following the court's instructions, the jury was "led down the wrong path"); State v. Whittaker, 326 N.J. Super. 252, 260 (App. Div. 1999) (noting the jury may have been "confused or misled" as to the elements of possession of a weapon for an unlawful purpose where the trial judge "did not define the meaning of the term possession" in its charge); Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:1-8 (2011) (explaining that "cases  find[ing] a true inconsistency of verdict often find trial error; usually a fault in the jury charge").
But in this case, the court tracked the Model Jury Charge as to endangering an injured victim:
[I]f you take a look at the count . . . you'll see the elements, and . . . that's an and/or test, [it's] alleged that a defendant caused bodily injury to the victim and/or aided, encouraged or attempted to aid another person who caused bodily injury to the victim, and left the scene of the injury[.]
As to aiding, encouraging or attempting or agreeing to aid a third person in causing bodily injury to another, the State must prove beyond a reasonable doubt that a defendant aided, encouraged or attempted or agreed to endanger another, [or] aided, encouraged or attempted to aid another in doing so. It does not matter whether the defendant actually caused the injury.
Immediately following that instruction, the court administered the charges as to accomplice liability. It is possible, as defendant suggests, that he was found guilty of the endangering charges because the jury interpreted the court's instruction, as given in the first paragraph above, to mean that if defendant "aided, encouraged or attempted to aid another person who caused bodily injury," that was a sufficient basis for liability. (Emphasis added). In other words, that the jury concluded from the instruction that rendering assistance after the fact satisfied the relevant standard. Unlike Whitaker, supra, however, the prosecutor did not urge the jury to accept that mistaken construction of the law. Defendant's argument here is pure speculation.
In this case, attempting to determine why the jury rendered this inconsistent verdict is precisely the analysis barred by the Dunn/Powell rule. Moreover, there was sufficient evidence from which the jury could have found that defendant was an accomplice to the shooting, and equally possible that, for reasons of leniency or compromise, they elected to find defendant guilty only of the endangering. On this record, there was sufficient evidence from which the jury "could rationally have reached a verdict of guilt beyond a reasonable doubt." Banko, supra, 182 N.J. at 54 (internal quotation omitted). Therefore, the seemingly inconsistent verdict does not result in reversal.
Defendant also contends the omission of any requirement in the instruction that the jury find an additional harm resulting from the abandonment is particularly damaging as to Williams, because his death was almost instantaneous. This claim is not borne out by the record, as Frazier testified that she and her cousin kept speaking to Williams, trying "to keep him here." She also said he spoke to her "until he took his last breath." Accordingly, we find no error in the charge on this score.
In a related argument, defendant alleges that the evidence was insufficient as to the charge that he endangered Williams, because Williams was either already dead, or "inevitably going to die," at the time he left the scene. As we have said, the record does not corroborate the assertion that the victim was dead when defendant left. The inevitability of Williams's death is not a separate defense to the endangering of a victim in any event. See Moon, supra, 396 N.J. Super. at 117.
We briefly address defendant's challenge to the State's use of Dr. Hood's autopsy report. Dr. Hood resigned after the autopsy and preparation of the report so, as a result, Dr. Gerald Feigan, Dr. Hood's supervisor, testified. He did so after reviewing the report in detail, as well as examining corresponding photographs depicting the autopsy process and findings. No objection was raised to the testimony on any grounds, and Dr. Feigan was only briefly cross-examined. Defense counsel referred to Feigan in summation as a credible, truthful, and reliable witness.
Defendant's only assertion of prejudice is that, had Dr. Hood been available for cross-examination, defendant would have been able to elicit that Williams's death was instantaneous, thereby relieving him of one count of endangering a victim pursuant to Moon, supra. Again, since Frazier testified that she spoke to Williams after the shooting in an effort to keep him alive, the record does not support the claim that, if Hood had been available, defendant would have been acquitted of at least one endangering count. We therefore do not discuss this contention further.*fn6
Defendant also argues that the Family Part's finding of probable cause was improper, as only Pratt's unsworn statement placed the gun in defendant's hands prior to the shooting. To the contrary, the Family Court judge had ample evidence upon which to anchor his conclusion that probable cause existed as to all offenses. Chief among those circumstances available, in addition to Pratt's statement, is defendant's possession of the murder weapon months after the crime, as well as his admission that he had the gun the night of the shooting, albeit after the fact.
Moreover, we note that Rule 3:10-2(c) specifies that "defenses and objections based on defects . . . in the indictment . . . must be raised by motion before trial." Although a grand jury indictment is prima facie evidence of probable cause to prosecute, when its underlying facts are disputed, the issue must be resolved by the jury. See Helmy v. City of Jersey City, 178 N.J. 183, 191 (2003); Zalewski v. Gallagher, 150 N.J. Super. 360, 367-68 (App. Div. 1977) (citations omitted); see also Galafaro v. Kuenstler, 53 N.J. Super. 379, 385 (App. Div. 1958) (holding defendant over for grand jury action is no more than prima facie showing of probable cause). This claim is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
We reach the same conclusion with respect to defendant's remaining points, including challenges to the admission of certain evidence surrounding his subsequent possession of the weapon, the jury instruction, and the sentence imposed by the court. Ibid.