On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0054.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Sapp-Peterson.
On July 17, 2004, Darius Davis was shot four times in the back on a street in Newark. A jury found defendant Rasool McCrimmon guilty of first degree knowing and purposeful murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Two); and second degree possession of a weapon for an unlawful purpose (Count Three), N.J.S.A. 2C:39-4a. After merging Count Three with Count One, the judge imposed a fifty-year term of imprisonment subject to a No Early Release Act*fn1 85% parole ineligibility term. On Count Two, the judge imposed a five-year term concurrent term of imprisonment. The judge also imposed the appropriate fees, penalties and assessments.
The facts are relatively straightforward. On the morning of July 17, 2004, Darius Davis, known as Kojak, had his hair cut by Bowman "Bomber" Caldwell at Bombers Unisex Salon on South 8th Street in Newark. Willard Lester was in the shop at the same time, as were several other people, including Idrissa Wilson and two young girls about eight or nine years old. After Bomber Caldwell cut Kojak's hair, Kojak went into the bathroom. A man described as a light-skinned black man, identified by Caldwell and Lester as defendant, entered the shop looking for Kojak. Informed that he was in the bathroom, defendant went to find Kojak. Caldwell and Idrissa Wilson heard defendant tell Kojak they had something to talk about and the two men left the shop, although Wilson was unable to identify defendant as the man that left the shop with Kojak.
Within minutes, Lester, who was sitting near the door and front window, exclaimed that Kojak had been or was in the course of being shot. Lester described Kojak walking up the street trying to return to Bomber's shop. As he reached the top step, Kojak collapsed.
Bomber Caldwell did not witness the shooting or Kojak's progress up the street. When he heard Lester exclaim that Kojak had been shot, he hurried to put the young girls in a back room away from harm. Then, he tried to call for an ambulance. He encountered the victim as he reached the top step and porch of his shop.
Kojak was pronounced dead at the hospital. The medical examiner, Dr. Wayne Wilson, testified that the victim died of four perforating gunshot wounds: one in and out of his right shoulder; two in and out of his right chest; and one in the lower left side of his back. All entered through the back and exited through the front of the body. The gunshots to the right chest broke the right first, third and fifth ribs, and passed through the right lung. These wounds caused the right lung to collapse and a large amount of blood to accumulate in the right chest cavity. The gunshot to the left lower back perforated the left kidney and renal artery, and the muscle below the seventh rib. It, too, caused a large amount of bleeding into the abdominal cavity. The medical examiner opined that the victim may have been slightly bent over when the bullet in the left lower back entered his body. He was not shot at close range. The muzzle of the gun was no less than eighteen inches to two feet from the victim when the shots were fired. The medical examiner could not determine the farthest distance between the muzzle of the gun and the victim when the shots were fired.
Detectives at the crime scene were able to determine that six shots were fired. Two shots were fired into the victim's truck from the passenger side of defendant's vehicle. None of those shots struck the victim. The other four shots struck the victim in the back as he left the area of his truck and tried to flee in the direction of Bomber Caldwell's shop. Ballistic examination of the bullets confirmed that all of the shots were fired from a single gun.
The crime scene observations of the detectives confirmed Lester's July 14 and August 6 statements and his grand jury testimony, except that Lester stated at one time that defendant fired at Kojak from the driver's side of the truck. In his statements and in his grand jury testimony, Lester also stated that Kojak and defendant left the shop together and that he saw defendant fire at least six shots. He also testified that he observed defendant walk calmly across the street, enter a black sport car, and slowly drive away from the scene. He also provided detectives with a partial license plate number. Neither the car nor the gun were ever located.
At trial, Lester was less forthcoming. He testified that Kojak was in Bomber's shop and that he saw defendant enter the shop. He testified that he did not hear defendant state that Kojak and he needed to talk. He related that both left the shop but not together. Lester testified that he did not see the two men meet until they were further down the street and close to the victim's truck. He did identify defendant, however, as the shooter. As a result of the inconsistencies in Lester's testimony, after a Gross*fn2 hearing, the trial judge permitted several portions of Lester's July and August statements to be introduced in evidence.
On appeal, defendant raises the following arguments:
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS.
I. The Prosecutor's Closing Argument that Willard Lester Feared Mr. McCrimmon and that His Incredible Testimony was Caused by this Fear Denied Appellant a Fair Trial.
II. The Prosecutor's Unfounded Comments Accusing the Defendant's Expert of Bias Denied Appellant a Fair Trial.
III. The Prosecutor's Personally Vouching for Willard Lester's Credibility and the Prosecutor Testifying Concerning How the Killing Occurred Denied Appellant a Fair Trial.
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE STATE'S LOSS OF THE DECEDENT'S CLOTHING.
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE COURT'S FAILURE TO EXCLUDE BOWMAN CALDWELL'S IN-COURT AND OUT-OF-COURT IDENTIFICATIONS.
THE INDICTMENT MUST BE DISMISSED AND THE CONVICTION VACATED BECAUSE THE STATE'S PRESENTATION TO THE GRAND JURY DENIED THE DEFENDANT HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES AND UNDER THE NEW JERSEY CONSTITUTION.
THE COURT'S FAILURE TO PROPERLY QUESTION MR. ELPHICK DURING VOIR DIRE VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY.
THE JURY INSTRUCTION WAS INADEQUATE AND DEFECTIVE AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
I. The Court's Final Instructions Addressing the Prosecutor's Remarks in Closing about Lester being in Fear Were Inadequate and Exacerbated the Harm done by the Prosecutor's Misconduct.
II. The Court's Final Instructions were Defective in Failing to Address the Prosecutor's Misconduct in Accusing the Defendant's Expert of Bias [Not Raised Below].
III. The Court's Final Instruction was Defective in Failing to Properly Instruct the Jury in How to Assess Bowman Caldwell's Out-of-Court, and In-Court Identifications. [Not Raised Below].
In his summation, the prosecutor addressed the many inconsistencies in Lester's testimony and fashioned an argument to convince the jury that Lester was a credible witness in spite of his varying accounts of the shooting. The central issue in this appeal is whether the prosecutor injected the issue of Lester's fear of defendant into the trial during his summation. Defendant argues that the prosecutor's statements about Lester's testimony conveyed to the jury that Lester feared defendant and denied him a fair trial.
This argument requires some context. At the commencement of trial, the judge and defense counsel learned that Lester had been shot in March 2005. His assailant was never identified, much less arrested and prosecuted. At the commencement of the trial, the prosecutor provided defense counsel with information about the investigation of the March ...