On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-02-0150.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Messano, Espinosa and Kennedy.
Following a jury trial, defendant Bryden Williams was convicted of the first-degree murder of Joel Whitley, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(d) (count two); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). After merging count three into count one, the judge sentenced defendant to a term of 50 years, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of four years on count two.
Defendant raises the following points on appeal:
THE ABSENCE OF A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV: N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (NOT RAISED BELOW).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE In a pro se supplemental brief, defendant raises the following issues:
DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN [A] GRAND JUROR WHO HAD INTIMATE KNOWLEDGE OF THE ACCUSATIONS LODGED AGAINST HIM WAS ALLOWED TO DELIBERATE AND DETERMINE STATUS OF INDICTMENT CONTRARY TO THE VI, XIV AMEND. OF THE U.S. CONST. ART. I PAR. 10 OF THE N.J. CONST.
THE STATE'S OVER USAGE OF HEARSAY EVIDENCE DURING THE GRAND JURY PROCESS VIOLATED THE DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS CONTRARY TO THE VI, XIV AMEND. U.S. CONST. ART. I PAR. 10 N.J. CONST.
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE GRAND JURY PROCESS WHICH ULTIMATELY LED TO A DIRECTED INDICTMENT CONTRARY TO DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS CONTRARY TO THE VI, XIV AMEND. U.S. CONST. ART. I PAR. 10 N.J. CONST.
TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED INADMISSIBLE HEARSAY STATEMENTS INTO EVIDENCE WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION POINT V
TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING OVER OBJECTION OF DEFENSE COUNSEL, MS. GIBSON'S SECOND VIDEO TAPED STATEMENT TO BE PLAYED, AFTER MS. GIBSON LEFT THE STAND WHICH VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION POINT VI
TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTED [sic] THE HEARSAY TESTIMONY AND HIGHLY PREJUDICIAL SPECULATION THROUGH PATHOLOGIST DR. HUA WHO DID NOT PERFORM THE AUTOPSY ADMITTING SUCH EVIDENCE VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION
On September 3, 2006, at approximately 2:00 a.m., members of the Plainfield police department found Joel Whitley dead in an alley between two apartment buildings. Various witnesses testified that on the evening of September 2, Whitley, Omar Boyd, and Paris Whaley drove to the apartment of Dynesha Gibson, on East Sixth Street, "to hang out and drink." Whitley became intoxicated and began arguing with another guest, Tony Sullivan. Gibson told Boyd and Whitley to leave.
Boyd testified that after leaving Gibson's apartment, Whitley drove Boyd and Whaley to Whaley's home to drop her off. When they arrived, Whitley realized he had left his cell phone at Gibson's apartment and, against Boyd's advice, the men drove back to retrieve it. Upon their return, Boyd stepped out of the car and "yelled . . . and Erin [McCoy] came to the window". Whitley remained in the car.
Boyd asked McCoy, Gibson's roommate, to hand him Whitley's cell phone. When McCoy stepped away from the window, Gibson came to the window and said Whitley "wasn't getting the phone back". Whitley stepped out of the car and asked Gibson to hand him his phone. Gibson responded, "No," and "threw water on him." Whitley "flipped out a little bit" and "started kicking the door." Gibson told Boyd and Whitley to leave "because [her] brother Bolo," defendant, was coming.
Although defendant and Gibson were not in fact related, they shared a close sibling-like relationship. Boyd claimed that shortly thereafter, defendant arrived at the apartment in a pick-up truck and screeched to a halt. He asked Boyd, "What's the problem." Gibson told defendant that Boyd and Whitley had "disrespected" her, and defendant produced a handgun and aimed it at Boyd. Boyd told defendant that the situation was "not serious," and Whitley and he had only returned "to get the phone."
Gibson told defendant that Whitley had been disrespectful, and defendant approached and put the gun to Whitley's head. Defendant forced him to walk toward the side of the apartment building. Once there, Whitley said, "Get the gun out of my face," and knocked defendant's arm away. Defendant fired one shot at Whitley's chest. Whitley fell to the ground, and Boyd ran from the scene. Boyd testified that at no time that evening did Whitley or he have a gun.
Defendant testified in his own behalf. He received a call that there was a problem at the apartment, although he "couldn't tell exactly who was on the phone." He drove to Gibson's and saw Whitley "banging on the ...