On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1670.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Fuentes, Ashrafi and Nugent.
The opinion of the court was delivered by ASHRAFI, J.A.D.
Tried for murder and weapons offenses, a jury found defendant Phillip Johnson guilty only of third-degree possession of a handgun without a permit. He was sentenced to an extended term of seven years' imprisonment. He appeals, alleging trial errors and an excessive sentence. Because of two trial errors that prejudiced defendant's right to a fair trial, we reverse the conviction and remand for a new trial.
The charges arose from the July 2006 shooting death of Michael Newkirk on a street in Newark. In May 2007, an Essex County grand jury returned an indictment charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three).
At the trial in May and June 2008, the prosecution presented the following evidence. At approximately 2:50 a.m. on July 9, 2006, a witness was driving on South 9th Street towards 13th Avenue in Newark when she heard a gunshot. She looked up and down 13th Avenue to determine where the shot came from, and she saw three men running in her direction. One of the men "had a little lead" on the other two men. One of the men behind caught up to and kicked the lead man's leg, causing him to fall down. Someone said "I got you now," while the man on the ground was yelling "no, no, don't." The witness "saw some sparks" and heard two gunshots. Although she knew a shooting had just occurred, she did not see a gun.
The witness drove away and called 911. She then drove back to the area of 7th Street and 13th Avenue and saw the two men involved in the shooting walking down the street in front of her. She recognized the shooter as the man who had a "long length of dreads." The other man had close cut hair. The witness went to the police station that night to give a statement. She described the suspects as black males, both about 5'7" or 5'8" in height, wearing white T-shirts. Approximately two months later, the witness was shown a photo array, and she selected defendant's picture, identifying him as the shooter. She also identified defendant at trial as the man who fired the shots.
Detective Keith Sheppard of the Newark Police Department was assigned to investigate Newkirk's murder. In the course of his investigation, Sheppard brought in a seventeen-year-old juvenile for questioning. On September 7, 2006, two months after the shooting, the juvenile signed a written statement indicating he had witnessed the shooting of Newkirk, whom he referred to as "the Crip dude." In the statement, he identified defendant as the shooter. He also selected defendant's photo from an array prepared by the detective. He knew defendant on the street by the name "Snap." The juvenile said, however, that at the time of the incident, "Snap" was wearing "a gold thermal, long sleeve, blue jeans, construction Timberland boots." At the time of the shooting, the juvenile was wearing a white T-shirt.
At trial in May 2008, the juvenile, now an adult, testified that he was a witness to the shooting but did not see who killed Newkirk. He further testified that Detective Sheppard demanded the juvenile "give him Snap," and he only gave the statement implicating defendant so that Sheppard would "stop hitting [him] so [he] could go home."
Defendant elected not to testify and did not present any witnesses.
The jury acquitted defendant of murder and possession of a weapon for an unlawful purpose, but convicted him of possession of a handgun without a permit. Because of defendant's extensive prior record, the court granted the prosecution's motion for a discretionary extended term sentence under N.J.S.A. 2C:44-3a and sentenced him within the second-degree range to seven years' imprisonment, in addition to statutory money penalties. This appeal followed.
On appeal, defendant contends:
THE TRIAL COURT'S INSTRUCTIONS AND THE PROSECUTOR'S COMMENTS DURING SUMMATION THAT THE STATE WAS PRECLUDED FROM ASKING DET. SHEPPARD ABOUT HOW HE LINKED SNAP TO THE SHOOTING ERRONEOUSLY CIRCUMVENTED THE LIMITATIONS OUTLINED IN STATE V. BANKSTON, 63 N.J. 263 (1973) AND STATE V. BRANCH, 182 N.J. 338 (2005), AND DEPRIVED MR. JOHNSON OF HIS RIGHTS TO CONFRONTATION AND DUE PROCESS. POINT II
MR. JOHNSON WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED A PRIOR INCONSISTENT STATEMENT OF ITS OWN WITNESS WITHOUT SATISFYING ...