On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-09-0670.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Parrillo, Grall and Hoffman.
Indicted for murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:2-6, and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2), defendant Fabian Austin was tried by a jury and convicted of the lesser-included offense of reckless manslaughter and simple assault. The latter was merged with the former, for which defendant was sentenced to a ten-year term of imprisonment, eighty-five percent without parole in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals. We affirm the conviction but remand for resentencing.
This criminal episode arises from a homicide in which the victim, Ammar Simmons, was shot after attempting to pose as a member of the Bloods gang. Defendant, a member of the gang, was accused of ordering the shooting.
According to the State's proofs, on the evening of July 14, 2007, at around 11:00 p.m., Franklin Township police, responding to a noise complaint, broke up a house party. Some of those in attendance, including Simmons, Prescott Hill, Jessica Reyes and Christopher Reyes, then headed over to the DeKalb Avenue little league baseball complex because they heard a fight was to take place. Simmons' best friend, Troy Chance, joined them minutes later. According to Chance and Joseph Llorens, a member of the Bloods, there were about thirty people at the complex.
In order to help understand what happened next, the State presented Daniel McNamara of the Franklin Township police department as an expert in gangs, who testified that the Bloods gang had a code providing that if one of its members was in a fight with a non-member, all other members were supposed to jump in and defend the member. McNamara further defined some gang terminology: a "550 order" means a direction that all non-members leave an area, and a "G-check" means a test to determine whether someone is really a gang member. If someone fails a G-check, that person will be beaten sufficiently to cause a visible and permanent injury.
The fight at the baseball complex that drew the thirty-person crowd was between two members of the Bloods, Andrew Colon and Michael Covil. A "550 order" was then declared. The non-gang members, including Simmons and Hill, retreated to the dugout area of the field while the gang members, including defendant, Chance and Xavier Bailey, went to the snack bar area.
After the gang members gathered, Chance jumped on a picnic table and began arguing against the planned fight. About this time, Simmons went from the dugout to the snack area, where one of the gang members asked him if he was a member. Simmons replied that he was. A "G-check" was then administered to Simmons by defendant and Covil, according to Chance. Having apparently failed the test, Simmons was permitted to call his brother, Malik, to vouch for him; however, Malik simply advised him on speaker phone to "go home."
Immediately thereafter, an argument broke out involving Simmons, which Chance tried unsuccessfully to stop. According to both Llorens and Chance, Simmons was attacked by the gang members, including defendant. Chance saw Simmons being hit with a trash can lid. Llorens heard a shot and saw Simmons fall onto a picnic table. Hill also heard a scuffle and then a gunshot, which caused the crowd to scatter and disperse. Chance saw a "flash," and then Simmons lying on the ground. Earlier that evening, Chance had seen Bailey with a "little gun," and also admitted that he himself had a .40 caliber gun with him that night, but denied using it.
Yet another witness, Cleveland Screws, who lived directly across the street from the complex, heard a commotion, saw fighting and heard a shot at around 12:30 a.m. on July 15. However, he could not identify any of the participants.
After fleeing, Chance called Hill and asked him to drive back to the scene. Upon arrival, they put Simmons in the back of the car and drove him to Robert Wood Johnson Hospital in New Brunswick. Simmons died a few hours later. Chance, appearing agitated and yelling he "was not rat," spoke to police at the hospital and later that day at headquarters.*fn1
An autopsy performed by Dr. Thomas Blumenfeld revealed bruises on Simmons' chest and right hand, and a one inch cut on the top of his head. Blumenfeld also observed a bullet wound on the lower right side of Simmons' back. The bullet had traveled through the kidney, pancreas and several arteries, resulting in a large amount of bleeding in the abdominal cavity, which Blumenfeld concluded was the cause of death.
Police investigation of the scene of the shooting around 4:00 a.m. on July 15 uncovered a spent .25 caliber shell casing. Detective Williams Solomons of the Somerset County Prosecutor's Office (SCPO) also observed that one of the picnic tables in the snack area was broken, while another had shoe prints on it.
Also in the area was an overturned garbage can, strewn debris, and quite a few drops of blood on the rocks.
Franklin Township Officer Kenneth Daly reported to Robert Wood Johnson Hospital and was given the bullet that had been removed from Simmons. The bullet and the shell casing recovered by Solomons were compared by the Prosecutor's Office's ballistics unit and found to both be .25 caliber.
On September 4, 2007, Jeffrey VanderGoot, an investigator with the SCPO, received a letter from J.M., who had been arrested in June 2007 for assaulting a police officer and had shared the same "pod" with defendant in the Somerset County jail, describing a jailhouse conversation he had with defendant. According to J.M., defendant told him that he was in jail for "beating up a dead man," specifically that he and a friend had beaten up Simmons because Simmons had wrongfully claimed to be a member of the Bloods. Defendant described Simmons as "food," or someone marked for death. As a result, defendant told "his man Eggezy," later identified as Bailey,*fn2 to get his gun, which, defendant told J.M., was small caliber, and shoot Simmons. Bailey complied, and shot Simmons in the buttocks.*fn3
J.M. acknowledged that he wrote the Prosecutor's Office in July 2007 offering to inform on three other inmates, and also admitted writing the office eight letters, some using aliases. In addition, he had previously testified as a confidential informant in at least three trials in New York. As part of a plea agreement in October 2007, stemming from his June 2007 arrest, J.M. was sentenced to time served on charges of third-degree aggravated assault. However, he denied that his guilty plea in October 2007 was part of any deal for a reduced sentence in exchange for his testimony in this matter.
On appeal from his reckless manslaughter conviction, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY THAT IT MUST FIND THAT THE DEFENDANT'S ALLEGED STATEMENTS WERE ADEQUATELY CORROBORATED, NECESSITATING REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PAR. 10.
II. THE DEFENDANT WAS GREATLY PREJUDICED BY UNSUPPORTED HEARSAY TESTIMONY SUGGESTING THAT THE ALLEGED SHOOTER IMPLICATED THE DEFENDANT, EXACERBATED BY THE STATE'S CITATION OF THAT TESTIMONY IN SUMMATION, AND THE PURPORTEDLY CURATIVE INSTRUCTION WAS INSUFFICIENT TO CURE THE PREJUDICE. ACCORDINGLY, REVERSAL IS NECESSARY. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.
III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO QUESTION THE JURY CONCERNING A PREJUDICIAL NEWSPAPER ARTICLE APPEARING DURING THE COURSE OF DELIBERATIONS, NECESSITATING REVERSAL. N.J. CONST., AMENDS. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.
IV. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY DELIVERING INCOMPLETE AND ONE-SIDED RE-INSTRUCTIONS AS TO ACCOMPLICE LIABILITY, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.
V. THE TRIAL WAS MARKED BY A REMARKABLE NUMBER OF DISCOVERY FAILURES BY THE STATE, TO DEFENDANT'S PREJDICE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., , ART. 1, PAR. 10.
VI. THE TRIAL COURT'S REPEATED AND ONE-SIDED INTERRUPTIONS OF THE TRIAL, INCLUDING QUESTIONING WITNESSES AND HIGHLIGHTING THEIR TESTIMONY, VIOLATED THE DEFENDANT'S RIGHTS TO A JURY TRIAL AND DUE PROCESS, NECESSITATING REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PAR. 9.
VII. THE CONVICTION WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, PAR. 10.
VIII. THE CUMULATION OF ERRORS WAS SO SUBSTANTIAL AS TO NCESSITATE REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, PAR. 10.
IX. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We address in detail those issues deemed worthy of discussion.
I Defendant first argues that the trial court's failure to instruct the jury that his jailhouse confession - the main evidence against him - had to be corroborated constituted reversible error. Because defendant requested such a charge, to which he was entitled, we must determine whether the failure to give a corroboration instruction, when read in the context of the jury charge as a whole and the proofs at trial, possessed a clear capacity to bring about an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). So measured, we conclude the omission did not amount to harmful error.
To avoid the danger of convicting a defendant solely on the basis of his or her own words, the State must introduce independent proof of facts and circumstances which strengthen or bolster a confession and tend to generate a belief in its trustworthiness. State v. Reddish, 181 N.J. 553, 617 (2004). However, there are no hard and fast rules regarding corroboration and the requirement is both a legal and factual determination. Id. at 618. The court must first determine whether, as a matter of law, the State has introduced any legal evidence that tends to support the statement's trustworthiness and, if so, any missing details, speculation or discrepancies in the evidence simply raise fact questions as to weight and sufficiency which may be resolved by the jury. Ibid.
A defendant, of course, is entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration. Id. at 621; State v. DiFrisco, 118 N.J. 253, 273 (1990), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). However, the Court has noted on several occasions that the failure of the trial judge sua sponte to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and "'[t]he entire thrust of the defense' was that the statements at issue were untrue." Reddish, supra, 181 N.J. at 621 (alteration in original) (quoting State v. Roach, 146 N.J. 208, 228, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)); State v. Lucas, 30 N.J. 37, 63 (1959). Thus, while the argument of counsel is not a substitute for a correct charge, it could nevertheless mitigate the prejudicial effect of an erroneous charge. Reddish, supra, 181 N.J. at 621-22.
The circumstances in this case are similar to Reddish. Here, defense counsel urged the jury to reject J.M.'s statements as untrue, in both her opening and summation, and the trial court addressed the jury's need to assess J.M.'s credibility.
In her opening, defense counsel described J.M. as a "professional liar, who would figuratively say or do anything to buy his way out of State Prison." She claimed that J.M. had an extensive criminal record and used many aliases, and that he "bought his way out by harming other people with lies." She added:
[J.M.] started writing to the Prosecutor's office. And he basically said hi, I'm out here. I'm a professional witness, I've testified three times before in trials in New York and I work for a police officer in New York. Apparently he's a confidential informant. And I hold up my end, I'm good at this. And I will do anything you want to . . . prove my innocence. Which really means, if you read between the lines, I will do anything you want to get myself out of this jam.
In summation, defense counsel stated that J.M. had "misinformation," and that he was "pumped info that he couldn't keep straight." She added:
I fervently hope that you see through him when you recognize that he's a grasping criminal that he is. Before you begin to carefully examine him and what he offered you here, would you please think of this? Does it make sense at all that someone that you accuse of G-checking, so that you keep gang stuff secret . . . would go and willy nilly disclose what would have had to have been considered a gang secret, and violate gang ethics to someone who looks and sounds like [J.M.]? Clearly has abused his body and himself?
Did Fabian Austin ever tell this cockamamie story to ...