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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...