March 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHEEM WHITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1402.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2012 -
Before Judges Sabatino and Fasciale.
Defendant Rasheem White appeals from his conviction for passion/provocation manslaughter, a lesser included offense of first-degree murder, N.J.S.A. 2C:11-3a(1) (Count One); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Two); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Count Three); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Count Four). The judge imposed an aggregate prison term of twenty-six years with twenty years and three months of parole ineligibility. We affirm but remand for the judge to consider whether the identity of a confidential police informant, referenced in a police memorandum that the State did not produce until after the trial, should be disclosed under the holding of State v. Milligan, 71 N.J. 373 (1976).
In the early morning hours of May 18, 2007, Sherby Tyson was shot to death on a street in Paterson. That night, Tyson, Shaquese Rawl, and Antonio Johnson had been driving around and drinking. They parked on Hamilton Avenue between Rosa Parks Boulevard and East 18th Street, and Tyson and Rawl got out to talk to women, while Johnson slept in the backseat. Shortly after Rawl returned to the car, a man approached Tyson and an altercation began. The man then shot Tyson four times in the back, one at close range. Tyson died before medical assistance could arrive.
On June 12, 2007, police conducted a DVD-interview with Antwan Seegers, who had been sitting in a parked van on Hamilton Avenue at the time of the shooting. Seegers stated that Tyson had a gun, and that the man came around the corner and talked to Tyson. Seegers further stated that Tyson pushed the man up against a building, and that the man then took the gun away from Tyson and shot him with it. Seegers identified the shooter as "Blood," said he had a cut on his neck, and picked defendant's photo out of a photo array.
On November 5 and 6, 2009, the judge conducted a Gross hearing*fn1 to determine the admissibility of Seegers' prior statement in light of indications that his testimony at trial would be inconsistent. At the hearing, Seegers recanted his original statement to police and insisted that he was in New York City at the time of the shooting. He testified that when he had spoken to police, he was under the influence of marijuana and alcohol. He further stated that he had told police a combination of lies and rumors. The judge determined that Seegers' prior statement was reliable and admitted it into evidence.
At trial, Seegers' testimony was largely consistent with his statement to police, except that he claimed that he could not identify the shooter. Seegers testified that when the shooting occurred, he and a friend were sitting in Seegers' rental Town & Country van parked on Hamilton Avenue. He stated that he spoke to Tyson, who was standing outside the van, "drunk" and "playing with a gun." Seegers testified that a man approached and began to "tussle" with Tyson. Seegers stated that he began to drive away and, as he was leaving, heard at least two gunshots. However, he testified that he did not see the shooting, speak to or recognize the man who approached Tyson, or see any distinguishing marks on the man's body. Over the defendant's objection, the judge then permitted the State to play for the jury the full DVD of Seegers' police interview.
Rawl also testified at trial. He stated that he had not seen Tyson with a gun or discussed a gun with Tyson. He testified that he was seated in the car when the altercation began, that Tyson had a bottle in one hand and nothing in the other, and that he did not see the other man's hands. Rawl saw Tyson pushing back against the man because the man was trying to grab him. He stated that he alighted from the car to intervene, but immediately got back in because the man started shooting. Rawl further stated that he saw muzzle flashes where the altercation occurred, and that Tyson ran past the car. He stated that a bullet hit the car, and that he and Johnson then drove off. Rawl testified that he could not identify the man, but saw that he had "a black hood on tied all the way tight on the face."
The State also presented the testimony of Ebony Jones, who witnessed the altercation and shooting from her third-floor apartment on Hamilton Avenue. She testified that she was "listening to music, sitting in [her] window sill, just looking out the window." She stated that she observed Tyson smiling and talking on his cell phone. She testified that he spoke to someone in the van, and then spoke to a man on foot near the van. Jones stated that the interaction with the man "wasn't a friendly conversation," and that "you could see that it wasn't a good conversation from . . . the gestures that they were making." She did not remember seeing Tyson with a weapon.
Jones testified that when she heard the first gunshot, she was not looking toward the street. When she did look, she saw Tyson lying facedown. She testified that the man stood over Tyson, shot him in the back, and said, "[N]ext time mind your business, you bitch ass, nigger." She stated that the man then ran down the street trying to stuff the gun into the pocket of his hooded sweatshirt. Jones also testified that she had seen the man for months "[a]round the area and a few times with [her] uncle," and that she knew him by his nickname. In court, she pointed out and identified defendant as the man.
After the shooting, Jones spoke to police but did not immediately identify defendant as the shooter because she was "scared" of "[t]hings that could happen." She testified, "Where I live is tough. People get hurt every day. And I was just scared that maybe . . . I could get hurt." She stated that she decided to testify because it was "the right thing to do."
Finally, the State also presented testimony from Tyrod Mills, Tyson's brother.*fn2 Mills testified that in 2007 he had read a newspaper article stating that defendant was charged with killing Tyson. Mills explained that while incarcerated in 2006, he and defendant had become friends, but that defendant did not know that Mills and Tyson were brothers. Mills then testified that in 2009 he and defendant were incarcerated together in Passaic County Jail, at which time they met and spoke to each other in the infirmary. Mills stated that defendant told Mills that he had shot Tyson three times in the back during a robbery attempt.
Mills testified that he did not tell the police about his interaction with defendant in 2009 because he wanted to "get revenge" by "tak[ing] things in [his] own hands." He stated that he discussed the interaction for the first time when the prosecutor contacted him in jail three months before trial.
On November 18, 2009, the jury returned a verdict convicting defendant on Count One's lesser included offense of passion/provocation manslaughter and on Counts Two and Three. On November 19, 2009, the jury returned a verdict convicting defendant on Count Four.
Shortly after the verdict, one month prior to sentencing, the assistant prosecutor was reviewing a file regarding a different homicide and discovered a one-page police report stating that a man named James Felton had murdered Tyson and was then himself murdered in retaliation. The report was written by Efren Almodovar, a Passaic County detective, and related information that he had obtained from a confidential informant (CI). In relevant part, the CI report stated:
CI provided [Almodovar] with intelligence in reference to two (2) homicides that occurred in the City of Paterson of a Sherby Tyson and a James Felton . . . .
CI informed [Almodovar] that rumor on the streets is that Mr. Felton murder[ed] Mr. Sherby and in retaliation an individual that goes by the street name 'Sweeky' was involved in this incident. CI stated that he/she would provide [Almodovar] with future intelligence as CI receives it . . . .
The State turned the CI report over to defense counsel, and defendant moved for a new trial based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
On January 29, 2010, the judge conducted a post-trial Brady hearing. At the hearing, Almodovar testified that he had interviewed the CI earlier that month, and that the CI remembered the shooting but did not recall relating the specific information contained in the report. Almodovar further stated that the CI had provided no additional information since the report, and that the CI had been incarcerated at the time of the shooting, specifically from April 27, 2007 to January 18, 2008. Almodovar also testified that he and another police officer had independently come up with the same name for the CI, but Almodovar was "[n]ot a hundred percent" sure that the name was correct.
The judge found that Almodovar had in fact spoken to the CI who had related the information. Defense counsel then moved for disclosure of the CI's identity to facilitate further investigation. The judge did not order the disclosure, issued an oral opinion, and denied defendant's motion for a new trial.
The judge sentenced defendant on the same day. He granted the State's motion for an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3, and merged Count Two into Count One. He then imposed an eighteen-year sentence with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on Count One, to run consecutive to defendant's current federal sentence. The judge imposed a concurrent five-year prison term on Count Three, and an eight-year prison term with a five-year parole ineligibility period on Count Four, to run consecutive to Count One. The judge also imposed appropriate fines, penalties, and restitution. This appeal followed.
On appeal, defendant raises the following points:
BY FAILING TO CHARGE THE JURY ON SELF-DEFENSE, THE TRIAL COURT DEPRIVED MR. WHITE OF DUE PROCESS AND A FAIR TRIAL POINT TWO
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR NEW TRIAL BASED ON A VIOLATION OF BRADY[, ibid.]
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED A MOTION FOR MISTRIAL BASED ON PROSECUTORIAL MISCONDUCT DURING SUMMATION WHEN THE STATE DREW PREJUDICIAL INFERENCES NOT BASED ON EVIDENCE BY TELLING THE JURY THAT THE WITNESSES' LIVES WERE ON THE LINE BY TESTIFYING AGAINST MR. WHITE, THUS DEPRIVING HIM OF DUE PROCESS AND A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO ELICIT IRRELEVANT, NON-PROBATIVE, AND PREJUDICIAL EVIDENCE THAT DEFENDANT WAS INCARCERATED.
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING ANTWON SEEGERS TO TESTIFY IN PRISON CLOTHES OVER DEFENSE OBJECTION.
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO INTRODUCE A PRIOR CONSISTENT STATEMENT OF ITS OWN WITNESS, IMPERMISSIBLY BOLSTERING THE WITNESS'S CREDIBILITY.
THE STATE DEPRIVED MR. WHITE OF HIS RIGHT TO A FAIR TRIAL BY INTRODUCING A PRIOR INCONSISTENT STATEMENT OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(a)(1).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We begin by addressing defendant's argument that we should order a new trial under Brady based on the CI report, or, in the alternative, remand the case for disclosure of the CI's identity. Defendant argues that the CI's information is crucial because the defense at trial was misidentification, and that further investigation could show that the CI report is trustworthy enough to order a new trial under Brady.
New trial motions are addressed to the sound discretion of the trial judge, and we do not interfere with the exercise of that discretion lightly. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000); State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997). We give substantial deference to the judge's factual findings and ask only whether the record contains sufficient credible evidence to support those findings. Russo, supra, 333 N.J. Super. at 140 (quoting State v. Locurto, 157 N.J. 463, 472 (1999)).
Under Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material . . ., irrespective of the good faith or bad faith of the prosecution." Thus, to establish a Brady violation, a defendant must show suppression, favorability, and materiality. State v. Martini, 160 N.J. 248, 268-69 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)). The evidence is material "if there is a 'reasonable probability' that a different result would have been obtained had the evidence been disclosed." State v. Nelson, 155 N.J. 487, 500 (1998) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).
Here, the judge stated:
I don't find that rumors on the street or rumors in the jail or tripled hearsay, which is what I'm finding here, provides evidence that creates the possibility of a reasonable doubt.
The Prosecutor indicates that during this case there [were] two eyewitness identifications; there's a specific description of this defendant, with a very large scar on the left side of his face; there was a jail-house confession to the decedent's . . . brother; and Mr. White and Mr. Felton look nothing alike.
Further, the judge did not order disclosure of the CI's identity. He concluded:
I can't find that the information about Mr. Felton based upon street rumor as it is has a guarantee of trustworthiness to order a new trial. It's simply in my opinion too much hearsay. This investigation, if one was to be permitted, could go on forever. I don't believe that it's been raised to the standard where I have to - or I should give the identity of the confidential informant.
Rumors on the street to a gentleman that was in jail when this murder happened [are] just not sufficient, [and] would not make me comfortable ordering a new trial.
Defendant's Brady contention required the judge to determine whether disclosure of the identity of the CI was warranted. Our law recognizes a "genuine privilege . . . for the identity of persons supplying the government with information concerning the commission of crimes." Milligan, supra, 71 N.J. at 381-82 (emphasis omitted). Of course, the privilege is not absolute. Id. at 383. N.J.R.E. 516 provides for disclosure of a CI's identity where it would be "essential to ensure a fair determination of the issues." As such, courts must apply a balancing test:
The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. [Id. at 384 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)).]
We note that "[w]ithout a strong showing of need, courts will generally deny a request for disclosure." State v. Florez, 134 N.J. 570, 578 (1994).
Here, the judge did not apply the balancing test required by Milligan. We note that defense counsel made the motion for disclosure only moments before the judge issued his decision on the motion for a new trial. Because we determine that application of Milligan is required, we do not reach whether the State's failure to disclose the CI report constituted a violation of Brady necessitating a new trial. Application of Milligan in this case represents a threshold question that must be addressed prior to any determination of the materiality of the CI report.
The "rumors on the street" aspect of the CI report does not relieve the trial court of performing a complete Milligan analysis. If the CI were disclosed, the defense potentially might have obtained leads as to the basis for those rumors and more concrete information that could tend to exculpate defendant. On the other hand, the State may well have a strong continued interest in shielding the identity of the CI. The trial court shall evaluate these and other relevant concerns in applying the Milligan test. We intimate no opinion as to the appropriate resolution of these issues on remand.
After considering the record and briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.
The judge did not err by not charging the jury with self-defense, which was not clearly indicated by the evidence adduced at trial. There was no indication that the altercation between defendant and Tyson justified the use of deadly force. Moreover, there was testimony that Tyson was running away, and that defendant shot Tyson in the back while Tyson was lying facedown. We also note that defendant's counsel did not request a self-defense charge, and that the defense at trial was misidentification, which is logically incompatible with self-defense.
Next, although the prosecutor should not have told the jury during summation that Jones and Mills "put their lives on the line," as there was no indication of such from the trial proofs, the remark does not warrant a new trial. "[P]rosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). Here, in light of the overall proofs, the remark does not arise to a level of "egregiousness," or appear to have "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (internal quotation marks omitted).
We also disagree with defendant's contention that the judge abused his discretion in allowing Seegers, who was incarcerated at the time he testified at trial, to appear as a witness wearing his prison clothes.*fn3 There is no wholesale proscription on witnesses other than a defendant, who are also inmates, testifying in prison clothes. State v. Kuchera, 198 N.J. 482, 500 (2009). Here, the judge observed that Seegers appeared to be wearing the pants and short-sleeved shirts worn by medical personnel. Even if it was error to allow Seegers to testify in his prison clothes, the error was harmless because it was not "clearly capable of producing an unjust result." Id. at 501 (holding that "whether a witness testifies wearing prison garb will be subject to review under the abuse of discretion standard and will be gauged as whether it constitutes harmless error").
Finally, we disagree that defendant received an excessive sentence of twenty-six years. He asserts that the judge placed too much weight on the nature of the offense, the risk of another offense, defendant's prior record, and the need to deter, and did not sufficiently address the Yarbough factors regarding consecutive sentencing.
Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We do not substitute our judgment for that of the sentencing judge or impose our own view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990).
In sentencing, the judge must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how [he or she] arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354 (1987)). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)); Roth, supra, 95 N.J. at 364-65.
Furthermore, the Supreme Court has provided guidelines for imposing consecutive or concurrent sentencing in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). These guidelines state:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. [Ibid.]
Here, there was no manifest injustice in the length of defendant's sentence and period of parole ineligibility and we defer to the judge in weighing the aggravating and mitigating factors. Bieniek, supra, 200 N.J. at 612; Roth, supra, 95 N.J. at 363-65. The judge found no mitigating factors. He found aggravating Factor One, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of offense and defendant's role); Factor Three, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense); and Factor Six, N.J.S.A. 2C:44-1(a)(6) (extent of prior criminal record and seriousness of convictions). Furthermore, defendant was eligible for an extended term because he has at least two prior indictable offenses. N.J.S.A. 2C:44-3(a). In fact, defendant has an extensive record that goes back to 1998 and consists of four indictable offenses, including two involving firearms and one for robbery. Also, although the judge did not allude to the Yarbough factors explicitly, the record reveals that the consecutive sentences were not unreasonable, given that the weapon's offense, Count Three, and the certain persons offense, Count Four, were distinct from the passion/provocation manslaughter conviction. Because defendant has not shown that his sentence is "clearly mistaken," Jarbath, supra, 114 N.J. at 401, or that it "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, we must affirm.
Affirmed, but remanded for the judge to conduct the analysis required by Milligan. We do not retain jurisdiction.