On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0869.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011 -
Before Judges Messano, Espinosa and Kennedy.
We consider these appeals back-to-back since they all arise from defendants' convictions for the February 7, 2006, murder of Jose Francisco Olivares in a Lakewood barbershop. The State contended that defendant Tyleek Baker shot Olivares, and defendants James Russell and Jamal Scott*fn1 conspired with Baker and acted as his accomplices. Defendants were tried jointly and convicted by a jury on all counts. Defendant Baker subsequently pled guilty to the fifth count of the indictment that charged him separately with possession of a firearm by certain persons previously convicted, N.J.S.A. 2C:39-7(b)(1).
We state the specific points raised by each defendant recognizing significant overlap in their arguments.
As to defendant Jamal Scott (A-3455-08T4)
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY'S VERDICT
A. THE STATE FAILED TO PRESENT SUFFICIENT TESTIMONY ESTABLISHING THE DEFENDANT'S CRIMINAL CULPABILITY AS AN ACCOMPLICE WITH RESPECT TO PURPOSEFUL/KNOWING MURDER
B. THE STATE FAILED TO PRESENT SUFFICIENT TESTIMONY ESTABLISHING THE DEFENDANT'S CRIMINAL CULPABILITY INVOLVING CONSPIRACTY TO COMMIT PURPOSEFUL/KNOWING MURDER EMBODIED IN COUNT II POINT II
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSELS' MOTION A FOR [SIC] MISTRIAL ARISING OUT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY CO-DEFENDANT DANIEL THOMAS DURING CROSS-EXAMINATION BY CO-COUNSEL REFERENCING THE EXISTENCE OF RETALIATION WHICH HAD OCCURRED, CONTRARY TO THE TRIAL COURT'S EXPRESS RULING PRECLUDING ANY SUCH
REFERENCE FROM BEING BROUGHT TO THE ATTENTION OF THE JURY POINT III
SINCE THE PROSECUTION EXERCISED A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS BY EXCUSING ONE OF THE ONLY TWO AFRICAN-AMERICAN JURORS FROM THE JURY, THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL POINT IV
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IMPROPER OPINION TESTIMONY ELICITED FROM CHRISTIAN VIVAR GRANADOS DESCRIBING THE DEFENDANT AS NEITHER APPEARING SURPRISED NOR UPSET AT THE TIME OF THE SHOOTING (PARTIALLY RAISED BELOW)
THE TRIAL COURT PROPERLY GRANTED THE DEFENDANT'S MOTION PRECLUDING THE STATE FROM ELICITING TESTIMONY REGARDING THEIR STREET NAMES, AND THE APPELLATE DIVISION ERRED BY REVERSING THE TRIAL COURT'S RULING ON INTERLOCUTORY APPEAL POINT VI
THE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT HIS TRIAL WAS VIOLATED WHEN THE TRIAL COURT PROVIDED WRITTEN TRANSCRIPTS OF FOUR WITNESSES TO THE JURY PURSUANT TO ITS REQUEST DURING DELIBERATIONS (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
As to defendant Tyleek Baker (A-4794-08T4)
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FAILURE TO ANALYZE THE RELIABILITY OF THE OUT-OF-COURT IDENTIFICATIONS OF THE DEFENDANT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO BE PROTECTED AGAINST UNFAIR AND INADMISSIBLE INDENTIFICATIONS POINT II
REPEATED D[I]SCOVERY VIOLATIONS BY THE STATE DENIED THE DEFENDANT A FAIR TRIAL POINT III
EXCLUSION OF MINORITY JURORS VIOLATED THE DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO ISSUE AN IMMEDIATE AMELIORATING INSTRUCTION CONCERNING THE PROSECUTOR'S OPENING STATEMENT THAT THE WITNESSES "MIGHT BE RELUCTANT" TO TESTIFY AGAINST THE DEFENDANT (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW)
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY PERMITTING THE PROSECUTOR TO PLAY A RECORDING OF AN EMERGENCY "911" CALL DURING THE TRIAL POINT VI
THE TRIAL COURT MISAPPLIED THE "OPENING THE DOOR" DOCTRINE IN DENYING TRIAL COUNSEL'S MOTION FOR A MISTRIAL BECAUSE OF THE "RETALIATION" TESTIMONY BY DANIEL THOMAS POINT VII
THE TRIAL COURT'S INSTRUCTIONS ON FLIGHT PREJUDICED THE DEFENDANT'S RIGHT TO A FAIL [SIC] TRIAL BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE LEGAL CONCEPT OF FLIGHT POINT VIII
THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING THE JURY TO READ TRANSCRIPTS OF THE TRIAL TESTIMONY OF FOUR WITNESSES DURING ITS DELIBERATIONS IN THE JURY ROOM (NOT RAISED BELOW)
THE AGGREGATE BASE CUSTODIAL TERM OF LIFE IMPRISONMENT PLUS 10 YEARS WAS MANIFESTLY EXCESSIVE POINT X
THE TRIAL COURT'S ORDER PRECLUDING ADMISSION OF THE DEFENDANTS' STREET NAMES SHOULD NOT HAVE BEEN REVERSED BY THE APPELLATE DIVISION ON INTERLOCUTORY APPEAL In a supplemental pro se brief, Baker raises the following point:
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF THE TRIAL COURT'S PRIOR INVOLVEMENT WITH THE DEFENDANT AS AN ASSISTANT PROSECUTOR OR THE MATTER SHOULD BE REMANDED FOR A HEARING ON THIS ISSUE (NOT RAISED BELOW)
As to defendant James Russell (A-4841-08T4)
THE PHOTOGRAPHIC IDENTIFICATIONS OF DEFENDANT WERE IMPERMISSIBLY SUGGESTIVE POINT TWO
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE STATE'S EXERCISE OF A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY IMPERMISSIBLE GROUNDS TO STRIKE AN AFRICAN-AMERICAN JUROR FROM THE JURY POINT THREE
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
THE ADMISSION OF IMPROPER OPINION TESTIMONY DENIED DEFENDANT A FAIR TRIAL POINT FIVE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S REPEATED DENIALS OF MISTRIAL MOTIONS BASED UPON THE STATE'S BELATED PROVISION OF DISCOVERY AND THE PROSECUTOR AND A STATE WITNESS' [SIC] VIOLATION OF THE COURT'S ORDER PROHIBITING ANY MENTION OF ACTS OF RETALIATION AGAINST HIM POINT SIX
THE MISCONDUCT OF TRIAL COUNSEL FOR DEFENDANT BAKER DENIED DEFENDANT RUSSELL A FAIR TRIAL POINT SEVEN
THE TRIAL COURT PROPERLY GRANTED THE DEFENDANTS' MOTION PRECLUDING THE USE OF THE DEFENDANTS' STREET NAMES AT TRIAL, AND THE APPELLATE DIVISION ERRED IN REVERSING THE TRIAL COURT'S OPINION POINT EIGHT
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S NEW TRIAL MOTION POINT NINE
THE TRIAL ERRORS, IN THEIR AGGREGATE, DENIED DEFENDANT A FAIR TRIAL POINT TEN
DEFENDANT'S SENTENCE WAS EXCESSIVE POINT ELEVEN
THE FAILURE TO PERFORM THE READ-BACK OF REQUESTED TESTIMONY IN OPEN COURT DENIED DEFENDANT A FAIR TRIAL We have considered these arguments in light of the record and applicable legal standards. We affirm the defendants' convictions and the sentences imposed, with the exception of the consecutive sentence imposed upon defendant Baker on the firearm charge under N.J.S.A. 2C:39-7(b)(1). We remand to the trial court for reconsideration of that portion of the sentence.
On June 1, 2006, the Ocean County grand jury returned Indictment No. 06-05-0869, in which all three defendants were charged with: (1) first-degree murder, N.J.S.A. 2C:11-3 (count one); and (2) first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3 and 2C:5-2 (count two). Baker was charged separately with: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a firearm by certain persons, 2C:39-7(b)(1) (count five).
Daniel Thomas was also charged in counts one and two. However, Thomas entered into a pre-trial plea agreement by which he pled guilty to third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b),*fn2 and agreed to testify truthfully against defendants at trial. The State agreed to recommend a probationary sentence.
The judge conducted a pre-trial Wade*fn3 hearing regarding outof-court photographic identifications of defendants Baker and Russell. He issued a written decision admitting the identifications at trial. On the same date, the judge issued a separate written opinion and order granting defendants' motions to preclude evidence of their "street names" at trial. We granted the State's motion for leave to appeal the interlocutory order and reversed.
The evidence at trial revealed that at approximately 4:00 p.m. on February 7, 2006, Jason Vega arrived at the Man, Woman and Child Barbershop in Lakewood. Vega's brother, Ramon, and Vega's friends, Christian Vivar Grandados and Olivares, known as "Hefe," were already there. Jose Silva was one of the barbers at the shop that day.
Vega wanted to buy some CDs that were in a backroom of the barbershop. He walked through another room where approximately nine people were gathered, stopping briefly to say hello. Baker, who was known as "Respect," was playing chess with another person when he began "mocking" Vega. Vega ignored Baker's "mocking" until he heard Baker say to someone on the phone, "Jason Vega and his boys are plotting on me." Not knowing to whom Baker was speaking, Vega was upset and thought he was going to "have to . . . watch [his] back." Vega challenged Baker to a fight "and he accepted." Vega "asked him to step outside . . . to settle it[,] basically, fistfight." James Bellamy, a defense witness who was in the shop with his wife Nakisha at the time, claimed, however, that Baker was not involved in any arguments or confrontations.
According to Vega, after Baker accepted the challenge, Baker asked someone if Hefe was in the shop. When told he was, Baker ran out the back door. Vega waited for Baker in front of the barbershop for approximately fifteen minutes and then left.
Shortly after this confrontation, Granados saw Russell, whom he knew as "Gotti," and Scott, who was known as "High-Five," enter the barber shop and walk to the back. They stayed in the store for a couple of minutes before leaving.
Silva was arranging his barber station when he saw Baker, who he knew as a regular customer, come in with two other men. When the men entered, Olivares was seated, but, as he stood up from his chair, Baker shot him six times. Silva described the gun as gray, with a black handle, and ...