On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-10-0852.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
Based on the shooting death of Omar Kennedy, defendant Awan Smith was
convicted of first-degree murder, N.J.S.A. 2C:11-
3a(1); third-degree unlawful possession of a rifle without a firearms
purchaser identification card, N.J.S.A. 2C:39-5c; third-degree
possession of a sawed-off rifle, N.J.S.A. 2C:39-3b; and fourth-degree
possession of a defaced firearm, N.J.S.A. 2C:39-3d.*fn1
After merger, he was sentenced to forty-two years in prison
with a thirty-year parole disqualifier and subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and a concurrent sentence of five
years for unlawful possession of a weapon, N.J.S.A. 2C:39-5c. He was
acquitted of possessing a rifle for an unlawful purpose, N.J.S.A.
On this appeal, defendant raises the following issues:
The Trial Court's Failure To Allow Defense Counsel To Elicit Testimony Concerning Kennedy's Gang Membership Was Error Because It Undercut Severely Smith's Ability To Support His Sole Defense To The Charges Set Forth In The Indictment.
Smith's Convictions Must Be Vacated Because The Trial Court's Jury Charge Was Fatally Flawed (Not Raised Below).
Smith's Convictions Must Be Vacated Because Of The Cumulative Effect Of The Errors That Occurred During His Trial.
Finding no merit in any of those arguments, we affirm the conviction. We remand only to correct typographical errors in the judgment of conviction.
The case arose from a shooting that occurred in Elizabeth on December 9, 2007. Defendant admitted that he shot Omar Kennedy but claimed he acted in self-defense. Before the trial commenced, defense counsel raised the possibility that she would introduce evidence that Kennedy belonged to a street gang. The judge reserved on that issue, stating that he would need to address it after an N.J.R.E. 104 hearing. He also noted that, to show the information was relevant, the defense might need to present expert testimony explaining to the jury the characteristics of the gang to which the deceased allegedly belonged.
At the trial, Kennedy's long-time girlfriend, Latoya Robinson, testified that on Saturday night, December 8, 2007, she, Kennedy, and several friends and relatives were at his mother's house watching a boxing match on television. After they left his mother's house, they briefly stopped at Robinson's house. They then proceeded to Grady's bar (Grady's or the bar), at the corner of First and Court Streets, about three blocks from Robinson's house. Robinson and Kennedy's cousin, Hassan McCloud (known as "Baby Has"), drove there in her car because it was cold out, while Kennedy and his friend Justin Timmons walked. After parking her car near the bar, Robinson saw McCloud, Kennedy and Timmons enter the bar. Robinson stayed in the car.
Within a few minutes she saw Kennedy and Timmons leave Grady's and walk toward the corner of First and Court Streets. She assumed Timmons had been told to leave the bar because he was underage, and that Kennedy had left the bar to keep him company. Moments after seeing the two men leave the bar, Robinson heard three or four gunshots, but did not see who was shooting. Kennedy ran to Robinson's car, told her he was shot, and asked her to drive away. He never told her who shot him and she did not ask.
Some distance from Grady's she flagged down a police car. The police called an ambulance to take Kennedy to the hospital. They then questioned Robinson for several hours. Some time later, she learned that Kennedy had died at the hospital.
Elizabeth Police Officer Dan DeMarco testified that Robinson flagged him down at around 2:00 a.m. on December 9. She was hysterical and told him Kennedy had been shot. According to DeMarco's police report, Kennedy refused to speak with him and his fellow officers about what had happened to him.
Additional Elizabeth police officers, who were called to the scene of the shooting at First and Court Streets at around 2:15 a.m., found the area deserted. After searching, they discovered three nine millimeter shell casings on the sidewalk "right in front" of Grady's bar. Although several police and sheriff's officers looked for discarded weapons in the vicinity of the bar, they found none. Likewise, a thorough search of Robinson's car, conducted after it was towed to the police garage, revealed no weapons.
According to Justin Timmons, he and Kennedy were lifelong friends who grew up in the same neighborhood. He also knew Robinson, who was "like my family member." Timmons corroborated Robinson's account of watching television at Kennedy's mother's house, then stopping briefly at Robinson's house before going on to Grady's bar. According to Timmons, McCloud drove to the bar with Robinson and arrived slightly before Kennedy and Timmons, who walked there. Timmons saw McCloud enter the bar. Timmons and Kennedy remained outside the bar on the Court Street side. Robinson was sitting in her car, parked across the street. At some point, McCloud came out of the bar and joined Timmons and Kennedy on the sidewalk.
Timmons was acquainted with defendant. According to Timmons, when McCloud came out of the bar, he did not mention that defendant was inside the bar. After McCloud emerged from the bar Timmons heard shots fired, but he did not see who was doing the shooting. Timmons "never seen this defendant come out" of the bar. He did see a "dude" he did not know emerge from the bar before the shooting, but that individual walked "around" him and walked away.
After Timmons heard the shots, he and McCloud took off running down Court Street. When he noticed Kennedy was not running with them, Timmons thought he might have been shot. Asked if he heard "anyone say anything" just prior to hearing the shots fired, Timmons denied hearing any remarks made. Timmons testified that neither he nor his two companions had a gun that night and none of them had "a gun out" just prior to the shooting.
Before the State presented testimony from Dr. Shaikh, the medical examiner, defense counsel raised the issue whether she would be able to elicit testimony that a tattoo on the victim's body was evidence of his gang membership. The judge ruled that she could elicit testimony about the existence of the tattoo, to use as a factual foundation for any expert evidence she might later present about "the propensity towards violence of gangs." However, he ruled that, absent a ...