March 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KASEEM CAMEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2800.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012
Before Judges Reisner, Simonelli and Hayden.
Defendant Kaseem Camel appeals from his conviction for aggravated manslaughter, N.J.S.A. 2C:11-4a(1); aggravated assault, N.J.S.A. 2C:5-1 and 2C:12-1b(2); unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and certain persons not to have weapons, N.J.S.A. 2C:39-7b. He also appeals from the aggregate sentence of fifty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On the evening of November 29, 2006, someone shot three men (John Mumford, Dale Fisher and Sheldon Oaks) in the courtyard of the Grace Manor West townhouse complex in Newark.*fn1 Mumford died after being shot four times. Fisher and Oaks recovered and later identified defendant as the shooter. However, at his trial they repudiated those identifications.
The police found an assault rifle and thirteen matching shell casings on the ground not far from the scene of the shooting. They also found a small handgun, which Oaks admitted was his. There was no dispute that Mumford's death was a homicide. At issue were the identity of the shooter and the shooter's degree of culpability. After several days of deliberations, the jury acquitted defendant of murder but convicted him of aggravated manslaughter of Mumford and two counts of aggravated assault on Fisher and Oaks.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRONEOUSLY OPTED TO REPLACE A JUROR WITH A SUBSTITUTE TOWARDS THE END OF A 10 DAY DELIBERATION PROCESS INSTEAD OF GRANTING A MISTRIAL OR, ALTERNATIVELY, REQUIRING THE REPLACED JUROR TO CONTINUE TO SERVE; FURTHERMORE, IT ERRONEOUSLY FAILED TO GRANT A MISTRIAL ON THE MURDER COUNT WHEN ONE JUROR ADVISED THE COURT OUT OF THE PRESENCE OF THE OTHERS THAT SHE COULD NO LONGER DELIBERATE ON THAT COUNT AND HER SUBSEQUENT DELIBERATIONS APPEARED NOT TO BE AN EXERCISE OF HER FREE AND UNTRAMMELED WILL.
POINT II: DR. PEREZ'S ADOPTION AND RECOUNTING OF THE AUTOPSY FINDINGS OF THE MEDICAL EXAMINER BASED ON HER REVIEW OF THE EXAMINER'S AUTOPSY REPORT CONSTITUTED THE PRESENTATION OF INADMISSIBLE HEARSAY (NOT RAISED BELOW).
POINT III: THE TRIAL COURT ERRED BY NOT CHARGING MANSLAUGHTER AS A LESSER-INCLUDED HOMICIDE OFFENSE OF AGGRAVATED MANSLAUGHTER (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE. POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a supplemental pro se brief, defendant raises the following points:
POINT I: THE TRIAL COURT ERRED IN NOT CONDUCTING A PRE-TRIAL HEARING ON THE ISSUE OF IDENTIFICATION OF THE DEFENDANT, AS THE IDENTIFICATION OF THE DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW (PARTIALLY RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN PERMITTING SHELDON OAKS TO TESTIFY AS A STATE'S WITNESS WHILE APPEARING IN PRISON GARB, HANDCUFFS AND LEG SHACKLES (PARTIALLY RAISED BELOW).
POINT III: THE PROSECUTOR'S COMMENTS DURING SUMMATIONS WERE IMPROPER AND 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, AND 10 (NOT RAISED BELOW).
Having reviewed the record, we conclude that all of defendant's challenges to his conviction are without merit and we affirm the conviction. We remand, however, for reconsideration of the sentence because the judge did not give a statement of reasons for the imposition of consecutive sentences under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We also remand to correct the judgment of conviction (JOC) to make clear which sentences are consecutive and which are concurrent.
At the trial, the State presented testimony that the police arrived at the scene of the shooting and found Mumford face down on the ground, unresponsive. The EMT's were called and pronounced him dead. The police also found Oaks lying nearby wounded. Oaks was taken to the hospital, where he gave the police a recorded statement describing the shooting. He told the police that he, Fisher and Mumford were sitting in the courtyard talking when they saw a man approaching them from the right. The man suddenly began shooting at them. Oaks and Fisher ran away, but were struck by bullets. Mumford was killed. On December 1, 2006, Detective Michael Chirico, who was not otherwise involved in the investigation, visited Oaks in the hospital and showed him an array of photographs. According to Chirico, Oaks identified defendant's photo from the array and "said that was the person that shot me and my friends."
During his subsequent Grand Jury testimony, Oaks reluctantly confirmed that he knew the person who shot him and that defendant was the shooter. However, at defendant's trial, Oaks insisted that he really did not know who shot him and that he only identified defendant because the police promised him that, if he did so, he would receive a reduced sentence for illegally possessing the small handgun found at the shooting scene. Police witnesses denied making him any such promise.
In his trial testimony, Fisher admitted meeting with the police on November 30, 2006 and giving a statement describing the shooting. His version of the incident was essentially the same as Oaks' version, except Fisher saw two men approaching. He saw one of the men start to walk away while the other continued to advance. The latter suddenly began firing at Fisher and his companions. Fisher met with the police on December 6 to view a photo array. According to Detective Peter Chirico*fn2 ,
Fisher identified a photograph of defendant and wrote on the back that this was the person who "walked up on us and shot us with the rifle." Fisher confirmed that information in a contemporaneous statement to the police. However, at the trial Fisher insisted that he only signed the back of defendant's photo because the police told him "he was the one who shot me."
On cross-examination, Fisher admitted that a few months after he gave his statement to the police, he received a favorable plea bargain on drug charges that were pending at the time of the shooting. As part of that plea deal, he received probation rather than a prison term. He also admitted that he was allowed to remain on probation even though he incurred a second drug charge thereafter. In response to cross-examination, Fisher also insisted that he did not actually know the identity of the shooter. On re-direct, he denied that the police offered him favorable treatment in exchange for giving them any of his prior statements. On re-cross-examination, he answered "yes" when asked if he was "threatened with incarceration if [he] didn't agree to [his] identification of Mr. Camel."
At the crime scene, the police found a semi-automatic rifle with two live rounds in it, as well as more than a dozen shell casings lying on the ground. Expert testimony established that those casings were fired from the rifle. The police also found a loaded twenty-two caliber handgun, which Oaks later admitted was his, but they found no twenty-two caliber shell casings.
Finally, the State presented testimony from Dr. Lila Perez, the forensic pathologist in charge of the Northern Regional Medical Examiner's Office. Dr. Perez had conducted over 6000 autopsies and reviewed hundreds of autopsies conducted by her subordinates. She did not conduct the autopsy of Mumford's body; that was performed by Dr. Mambo, another pathologist in her office. Without objection, Dr. Perez testified that she "adopt[ed] Doctor Mambo's conclusions with regard to the cause of death and manner of death." She based her opinions on her review of Dr. Mambo's report and on photographs and X-rays taken during the autopsy. Her opinions about the type and angles of the bullet wounds were based on the photographs, which showed the size and shape of the wounds. She testified that the appearance of the bullet wound to Mumford's back showed that the bullet entered at "a steep angle." However, her opinion as to the internal damage done by the bullet that entered defendant's back appeared to be based on Dr. Mambo's report. She testified, without objection, that defendant's death was a homicide caused by gunshot wounds. Defense counsel did not cross-examine Dr. Perez.
On this appeal, defendant raises two arguments concerning the jury. He contends that the judge should not have excused Juror Number Three, and should have declared a mistrial on the murder count when Juror Number One initially indicated that she could no longer continue to deliberate "serenely." We find no merit in either argument. The issues arose in the following context.
On the fourth day of the trial, September 16, 2008, Juror Number Three was missing at the start of the trial day. Although a phone call to his mother revealed that he had "reported to jury duty," he could not be found after a search of the courthouse. In response to the judge's inquiry, both the prosecutor and the defense counsel responded that they had no objection to the judge removing Juror Number Three and proceeding with thirteen jurors. However, the judge declared an additional short recess, at the end of which Juror Number Three was finally located in the courthouse and the trial resumed with all fourteen jurors. The testimonial portion of the trial concluded and the jury began an extensive period of deliberations.
After eight days of deliberations, on the morning of September 30, 2008, Juror Number Three brought in a letter from his high school principal stating that he was a special needs student and, in light of the number of days he had missed from school due to his jury service, he was in danger of not being able to graduate. Telephone calls from the court to the juror's school and to his mother elicited information that this juror had significant special needs in the form of mental health issues. The judge also indicated that earlier in the week, this juror had advised the court that he needed to take certain standardized tests that week. Defense counsel opposed excusing the juror and asked the judge to declare a mistrial based on the length of time the jury had been deliberating. The prosecutor argued that, although the jury had been deliberating for several days, they clearly had not decided any issues because they were continuing to request readbacks of testimony.
Based on State v. Williams, 171 N.J. 151 (2002), and State v. Valenzuela, 136 N.J. 458 (1994), the judge determined that the juror had "a valid personal reason" to be excused, because continued service would jeopardize his high school graduation.
He found that there was "no conflict among any of the jurors," the juror's request was completely unrelated to the jury's deliberations, and there were alternates available. The judge found that releasing the juror would not disadvantage either side. He also specifically noted that he was not basing his decision on the juror's special needs, which the court could accommodate if necessary. After an alternate juror was selected, the judge instructed the jury to "start your deliberations all over again" from "the very beginning of the deliberation process, just as if you are entering the jury room for the first time after listening to my charges." He instructed them to disregard all of their prior deliberations and particularly to ignore any opinions that Juror Number Three may have expressed. The reconstituted jury then deliberated for the rest of the day.
On the next day, October 1, 2008, the jury asked for additional instructions on the law applicable to murder, attempted murder and aggravated manslaughter. The judge gave an extensive re-charge on those issues, without objection from counsel. In response to a second question, later in the day, the judge gave the jury additional instructions on the elements of murder. The jury deliberated for the rest of that day.
On October 2, 2008, the jury resumed its deliberations. At lunchtime, Juror Number One sent out a note that she could not "serenely deliberate" and would like to communicate with the judge. The judge asked the jury to clarify whether they were deadlocked on one or more issues or simply having disagreements during their discussions, which he indicated was normal. However, on being sent back into the jury room, the jury continued deliberating without sending out a clarification. Instead, after lunch they sent out a note indicating that they had reached agreement "on four counts" but were "still deliberating on one count."
At this point, defense counsel asked the judge to voir dire Juror Number One as to "why she feels she cannot serenely deliberate." In response, the judge asked Juror Number One (the foreperson) if she "can . . . continue to deliberate." She responded "[t]o be honest, no." She indicated that the subsequent note concerning the jury continuing to deliberate on the one remaining count was "what the majority wanted to do."
At that point, the judge gave an instruction to the entire jury that all twelve jurors must deliberate but that if they had reached a point where they could not reach agreement, they must advise the court that "the jury is not going to reach an agreement." Three minutes later, the jury sent out a note that "all 12 jurors feel that they can continue to deliberate."
At that point, defense counsel moved for a mistrial on all counts based on possible coercion of Juror Number One. The judge denied the mistrial motion. However, he recalled Juror Number One to the courtroom and asked her if, when she wrote her note about "serenely deliberating," the jury had already "decided the four counts" referenced in their previous note. She said "yes." The judge sent her back to the jury room, and shortly thereafter, the jury indicated that they had reached a verdict.
On this record, we find no error in the judge releasing Juror Number Three. Rule 1:8-2(d)(1) permits the substitution of an alternate juror during deliberations if a juror becomes ill or otherwise unable to continue serving. "The Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury." Valenzuela, supra, 136 N.J. at 467. However, in order to avoid interfering in the jury's deliberative process and impairing a defendant's right to a trial by jury, the reasons for excusing a juror must relate to the juror's "personal situation" and "not to his interaction with the other jurors or with the case itself." Id. at 468. A juror's personal situation may include financial hardship. Williams, supra, 171 N.J. at 156.
"If a court suspects that the problems with the juror are due to interactions with other jurors, the court should instruct the jury to resume deliberations. If the jury remains unable to return a verdict, the court should determine whether further deliberation would allow the jury to reach a verdict. If the jury indicates intractable deadlock, the court should declare a mistrial." Valenzuela, supra, 136 N.J. at 473.
On the other hand, if a juror's personal situation appears to justify dismissal, the court must still consider whether the jury has progressed so far in its deliberations that it is not realistic to expect that the jury will be able to start its deliberations anew with the substituted juror:
Thus, where the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence, the new juror is likely to be confronted with closed or closing minds. In such a situation, it is unlikely that the new juror will have a fair opportunity to express his or her views and to persuade others. Similarly, the new juror may not have a realistic opportunity to understand and share completely in the deliberations that brought the other jurors to particular determinations, and may be forced to accept findings of fact upon which he or she has not fully deliberated. [State v. Corsaro, 107 N.J. 339, 352 (1987).]
In that regard, it is important to consider not only the length of time the jury had been deliberating, but whether the jury appeared to already have made decisions on one or more counts, whether the trial court provided a thorough charge on the jury's obligation to begin its deliberations anew, and how long the jury took to render a verdict after the substitution. State v. Williams, 377 N.J. Super. 130, 149 (App. Div.), certif. denied, 185 N.J. 297 (2005). "No bright line rule in respect of the length of jury deliberations triggers a finding that deliberations have progressed too far to permit the substitution of an alternate." Williams, supra, 171 N.J. at 169. And, we owe deference to the trial judge's evaluation of a juror's situation. Id. at 170.
Applying these standards, we find no basis to second-guess the trial judge's exercise of discretion in excusing Juror Number Three. The juror's situation was clearly personal to him and was completely unrelated to the jury's deliberations. The possibility that he would be unable to graduate from high school due to excessive absences was a hardship that justified excusing this juror. Further, although the jury had deliberated for several days, the record strongly suggests that it had not made any decisions on the verdict. The trial judge thoroughly instructed the jury on its obligation to begin its deliberations from the beginning. Thereafter, the newly-constituted jury requested some additional instructions on the law and deliberated for at least an additional day before advising the judge that they had reached a partial verdict. Under these circumstances, the trial judge did not abuse his discretion in excusing the juror or in declining to declare a mistrial.
We likewise find no abuse of discretion in the judge's denial of a mistrial when Juror Number One initially indicated that she could not deliberate "serenely." She did not indicate that she felt coerced by her fellow jurors. After questioning her and simply being told that she could not continue to deliberate, the judge followed precisely the procedure set forth in Valenzuela. He instructed the jury as a whole to resume deliberations and advise him, as a group, if they could not reach a verdict because they were deadlocked. Valenzuela, supra, 136 N.J. at 473. Shortly thereafter, the jury sent out a note that they were not deadlocked.
After defense counsel requested a mistrial on all counts, the judge re-interviewed Juror Number One and ascertained that her note about serenely deliberating related only to the one count on which the jury had not yet reached a verdict. The judge in no way suggested that this juror should change her views on that count nor did any of his instructions pressure the jury as a whole to reach a verdict. We find no abuse of the judge's discretion in denying the mistrial motion and in allowing the jury to continue its deliberations.
We turn next to defendant's contention that Dr. Perez's testimony included inadmissible hearsay and violated his rights under the Confrontation Clause. Given the Supreme Court's previous decisions, we consider it likely that the Court would deem an autopsy report prepared by a state medical examiner's office to be testimonial hearsay. See Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705, 2716-17, 180 L. Ed. 2d 610, 622-23 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2532-38, 174 L. Ed. 2d 314, 321-28 (2009) (discussing testimonial hearsay, and the legal status of "coroner's reports").*fn3 However, we decline to definitively address the issue here, because defendant did not raise the issue at trial, thereby waiving the issue for purposes of appeal absent plain error. R. 2:10-2; see Melendez-Diaz, supra, 129 S. Ct. at 2534 n. 3, 174 L. Ed. 2d at 323 (noting that confrontation rights may be waived "by failure to object to the offending evidence"). We find no plain error. See State v. Macon, 57 N.J. 325, 336 (1971).
Defense counsel did not even cross-examine Dr. Perez, and with good reason. There was no genuine issue at this trial about the cause of Mumford's death. The police found his bullet-riddled body lying in the courtyard, soon after the shooting incident that was described by eyewitnesses Oaks and Fisher. No one, including the defense, argued that his death was not a homicide. The issue in the case was the identity of the killer. To the extent that the prosecution argued, based on a couple of sentences of Dr. Perez's testimony, that the autopsy proved an intentional murder, that argument failed; the jury acquitted defendant of murder. Therefore, if Dr. Perez testified to Dr. Mambo's observations about the trajectory of the bullet that entered Mumford's back, any error was harmless. Macon, supra, 57 N.J. at 336.
We add one final observation. In failing to raise a hearsay objection to Dr. Perez's testimony, defendant deprived the State of the opportunity to explain Dr. Mambo's absence from the trial and the opportunity to call him as a witness if he was available. The defense also deprived the prosecution of the opportunity to elicit more specific testimony from Dr. Perez to make clear whether her opinions were based on Dr. Mambo's report or whether she had reached, or could reach, her own independent expert opinions based on the autopsy photos and X-rays or other sources besides Mambo's report. See State v. Rehmann, 419 N.J. Super. 451, 457 (App. Div. 2011). In the context of this case, the interests of justice do not require that we further address defendant's arguments, raised for the first time on appeal, concerning the admissibility of Dr. Perez's testimony.
Defendant's Points III and IV are completely without merit and warrant no discussion beyond the following comments.
R. 2:11-3(e)(2). The judge was not required to sua sponte charge the jury on reckless manslaughter, because the evidence would not support a verdict on that charge. There was no "rational basis in the evidence" to find that defendant was not guilty of aggravated manslaughter but was guilty of reckless manslaughter. State v. Sloane, 111 N.J. 293, 299 (1988). We conclude that an assailant who sprays his victims with gunfire from a semi-automatic rifle "is necessarily aware that 'it is practically certain' this conduct will cause death or serious bodily injury, N.J.S.A. 2C:2-2b(2)." State v. Mendez, 252 N.J. Super. 155, 161 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992).
Defense counsel's theory of third-party guilt - that Fisher and Oaks killed Mumford to eliminate a competitor - was entirely speculative and therefore inadmissible. See State v. Koedatich, 112 N.J. 225, 299-300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). This far-fetched theory was based on conjecture and, since all the shell casings found at the scene came from the same gun, it would have required the jury to believe that Oaks and Fisher shot themselves.
Addressing defendant's pro se points, on the first day of the trial, his counsel waived a Wade hearing*fn4 , in defendant's presence. On the second day of the trial, also in defendant's presence, his attorney indicated he had no objection to Oaks testifying while attired in prison garb, and Oaks told the judge he did not prefer to testify in civilian attire. On the fourth day of the trial, the judge noted that Oaks had been seated on the witness stand when the jury entered the courtroom, and that he was wearing a beige shirt that the jurors might have identified as prison garb. In response to the judge's question, defense counsel confirmed that he was not requesting an instruction to the jury concerning why Oaks was already seated when they entered the courtroom.
We find no plain error in the trial court's failure sua sponte to require a Wade hearing. The central issue in the trial was not whether the identification procedures the police used were unduly suggestive but whether Oaks' and Fishers' recantations were credible. Nor, in the context of this trial, was it plain error to permit Oaks to testify in prison garb. In fact, in cross-examining Oaks and in his summation, defense counsel made strategic use of Oaks' status, as a convicted criminal allegedly offered leniency, to impeach the credibility of his prior statements identifying defendant as the shooter. Defendant's remaining pro se arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Finally we address the sentence. In sentencing defendant for aggravated manslaughter, the trial judge found a mandatory extended term was required based on defendant's prior criminal record, and that a permissive extended term was also warranted. However, he did not impose a life sentence. Instead, he sentenced defendant to thirty years in prison, noting that was both the top of the ordinary sentencing range and the bottom of the range for an extended term. The judge imposed two ten-year sentences for the aggravated assault convictions consecutive to the thirty-year sentence. Finally, he imposed a consecutive ten-year term for possession of a weapon by a convicted felon.
The judge did not provide a statement of reasons for all of the consecutive sentences. He also did not state that the two terms for aggravated assault were to be served concurrent with each other but consecutive to the thirty-year manslaughter term. The JOC is not clear on that point either, although that would be consistent with the judge's statement that the aggregate sentence was fifty years. Accordingly, we remand this matter for the limited purpose of reconsidering and explaining the consecutive sentences pursuant to Yarbough, and for clarification of the JOC.
Affirmed as to conviction; remanded as to sentence.