On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2643.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012 Before Judges Payne, Simonelli and Hayden.
Following a jury trial, defendant Edward Peoples was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); first-degree attempted murder, N.J.S.A. 2C:11-3 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six).*fn1
At sentencing the trial judge merged count six with count two and sentenced defendant on count two to a sixty-five-year term of imprisonment, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent twenty-year term of imprisonment with seventeen years of parole ineligibility on count three; a concurrent five-year term of imprisonment on count five; and the appropriate assessments and penalties.
On appeal, defendant raises the following contentions in his appellate brief:
POINT I THE TRIAL COURT MISAPPLIED ITS
DISCRETION IN ADMITTING THE "PRIOR INCONSISTENT STATEMENTS" OF ANYEA WILLIAMS AND MARQUIS GRIMSLEY INTO EVIDENCE BECAUSE, UNDER THE CRITERIA OF N.J.R.E. 803(A)(1) AND STATE V. GROSS, THE STATE FAILED TO SHOW THAT THE STATEMENTS WERE MADE UNDER CIRCUMSTANCES ESTABLISHING THEIR RELIABILITY.
POINT II THE TRIAL COURT MISAPPLIED ITS
DISCRETION IN ADMITTING THE VIDEOTAPE OF MARQUIS GRIMSLEY'S SEPTEMBER 20, 2007 STATEMENT INTO EVIDENCE.
POINT III THE TRIAL COURT MISAPPLIED ITS
DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS IN PRECLUDING THE DEFENDANT FROM CALLING [WITNESS
C] AS A DEFENSE WITNESS BECAUSE HIS TESTIMONY WAS RELEVANT TO ESTABLISHING REASONABLE DOUBT AS TO GUILT.
POINT IV THE TRIAL COURT MISAPPLIED ITS
DISCRETION AND COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE OF THIRD-PARTY GUILT.
POINT V THE DEFENDANT'S RIGHT TO A FAIR
TRIAL WAS PREJUDICED BY THE TRIAL COURT'S JURY CHARGE (NOT RAISED BELOW).
OMISSION OF THE REQUESTED MODEL JURY CHARGE ON THE DEFENDANT'S ELECTION NOT TO TESTIFY WAS PLAIN ERROR (NOT RAISED BELOW).
THE JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE WAS HIGHLY PREJUDICIAL (NOT RAISED BELOW).
POINT VI THE 65[-]YEAR BASE CUSTODIAL TERM
IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT TWO WAS MANIFESTLY EXCESSIVE.
Defendant raises the following contentions in his pro se supplemental letter brief:
THE APPELLANT'S OPPOSITION TO ERRORS MADE DURING THE MODE OF PROCEEDINGS, IMPROPER INFLUENCE UPON A SPECIFIC JUROR, AND PROSECUTORIAL MISCONDUCT BY IMPARTING EXTRANEOUS INFORMATION TO A SPECIFIC JUROR.
[OMISSION] OF FACTS, IMPOSITION TO THE RIGHT OF CONFRONTATION, INEFFECTIVE ASSISTANCE OF COUNSEL, ATTORNEY[-]CLIENT CONFLICT OF INTEREST BY ATTORNEY'S CONSORTMENT WITH RACKETEERING & CRIMINAL ENTERPRISE UNDER THE [RICO ACT] AND A [33-COUNT INDICTMENT].
We decline to address Point II of defendant's pro se supplemental brief because it involves allegations and evidence that lie outside the trial record, and the trial itself does not provide an adequately developed record upon which to evaluate the issue. State v. Castagna, 187 N.J. 293, 313 (2006). As for Point I of defendant's pro se supplemental brief, because of an error regarding potential juror taint, we remand for further proceedings. We affirm on all other issues.
The charges against defendant stem from the shooting death of Rahman Jenkins (Jenkins) in the parking lot of the Baxter Terrace apartment complex in Newark (the apartment complex).
Duane Tims (Tims) testified at trial that he and Jenkins were long-time friends who once sold drugs together. On January 20, 2006 at approximately 8:00 p.m., he and Jenkins drove in Tims's van to the apartment complex, and went to the apartment of Marvin Shahid McLeod (McLeod). They were there a few minutes when a man, who was "jittery" and very nervous, came into the apartment and said something to the three men that caused them to leave immediately.
Tims, Jenkins, and McLeod crossed the parking lot and headed for Tims's van. Tims was in the lead, while Jenkins and McLeod walked a few feet behind him. Neither Tims nor Jenkins was armed. Tims reached and entered the van first, started it, and then heard a gunshot from behind the van, followed by several more gunshots. He opened the passenger door to facilitate Jenkins's entry, but Jenkins did not appear. He then opened the driver's door, looked toward the rear of the van, and saw Jenkins laying face down in the parking lot, with two men standing over him. One of the men was tall and slim, and the other was shorter and chubby. The shorter, chubbier man was pointing and shooting his gun at Jenkins. The man then turned, pointed and fired the gun at Tims, but missed. Tims quickly drove from the parking lot. He recognized the shorter, chubbier man who shot at him as "Phat Boy," whom he had known for about ten years. At trial, he identified defendant as "Phat Boy."
Tims decided to return to the parking lot. On the way back, he stopped and reported the shooting to two New Jersey Institute of Technology police officers, who immediately went to the apartment complex. Tims did not otherwise speak to the police about the shooting until March 15, 2006, when he was contacted as part of the official murder investigation.
McLeod testified at trial that as he was following Jenkins through the parking lot, two men ran up to them, he heard shots, saw Jenkins fall, and then turned and ran back to his apartment. Contrary to Tims's description of the shooters, McLeod said they were both slender in build, though one was taller than the other. He also ...