On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris, and Koblitz.
Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in both appeals; Ms. Friedman, of counsel and on the briefs).
These back-to-back appeals stem from the joint trial of defendants Darryl Davis and Quantis L. Goode, where they were convicted of, among other things, the January 7, 2007 murders of Saad Rahman and Samad Grimes. We consolidate the appeals for purposes of this opinion and affirm both matters.
The following facts are derived from the trial record as the State's version of events, which evidently convinced the jury of defendants' guilt. Defendants -- known by some in their community by the street names "Dre" (Davis) and "Ice Cream" or "Moo" (Goode) -- were drug dealers plying their trade in the Baxter Terrace housing complex in Newark. Victims Rahman and Grimes were similarly at work, competing for customers on the grounds and in the hallways of Baxter Terrace. For several days prior to January 7, 2007, the four individuals were reportedly involved in a "beef" over territory, with sporadic episodes of exchanged gunfire.
Muhammad Holiday and his wife Amina were residents of Baxter Terrace on the day of the homicides. Mr. Holiday is Rahman's brother and Grimes's uncle. The Holidays were familiar with defendants, but knew them only by their street names.
Around noon, Mr. Holiday met with Rahman and Grimes in his apartment to discuss their planned use of the vestibule outside of Mr. Holiday's apartment for the sale of illegal drugs. Because it was a Sunday, and Mr. Holiday's mother was expected to visit, he instructed Rahman and Grimes that "[there will] be no BS today, . . . [you] need to go somewhere," explaining that "no BS today" meant: "[n]o shooting, no drug selling, no nothing."
Just as the two victims left the apartment, while Mr. Holiday was within "two steps" of the door, he heard gunshots coming from the hallway. As Mr. Holiday ordered his wife to call 9-1-1, he peered through the door's peephole and observed Goode "running down the stairs shooting" with Davis in close proximity, and the hallway filling with the "smoke and flash" of gunfire.
Mr. Holiday dashed to a bedroom window to look outside "[be]cause [he] want[ed] to know if [his] brother got out [of] the hallway." He saw Grimes run out of the building holding a handgun while under fire from Davis. Mr. Holiday observed Grimes fire once, then drop the handgun, and eventually collapse on Orange Street. Mrs. Holiday also observed these events. Goode, who followed Davis out of the building, could be heard telling Davis to stop shooting. Mr. Holiday then saw defendants "rush through the sidewalk" as they ran away from the scene.
The Holidays then left their apartment and found Rahman lying in the vestibule. Once outside the building, Mr. Holiday observed defendants sprint into a van and drive away.*fn1 Mrs. Holiday did not witness Goode outside, but she did see Davis jump into a "tan or beige-ish van," which drove away on Orange Street. They checked on Grimes, who was still breathing. Mr. Holiday returned inside to console Rahman as he died.
Newark police and emergency personnel immediately arrived at the scene. The police recovered a Glock nine-millimeter semi-automatic pistol with defaced serial numbers on the ground near Grimes, a Mossberg twelve-gauge sawed-off shotgun with a pistol grip under Rahman's body, and numerous shell casings.
Based upon statements given by the Holidays and information gathered from another resident, Ronald Alston, the police determined the perpetrators' names and their last-known addresses. Arrest warrants for defendants were procured and the police issued a nation-wide notice that defendants were wanted in connection with the double homicide. In the ensuing days, police officers searched for defendants at several locations, but were unable to locate them. Ultimately, on separate days in the following week, Goode and Davis voluntarily surrendered to the authorities.
In October 2007, an Essex County Grand Jury returned Indictment No. 07-10-3549, charging defendants with: (1) first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2) (count one); (2) two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two and three); (3) two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts four and six); and (4) two counts of second-degree possession of a weapon with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (counts five and seven).
Defendants were tried together on various dates in June and July 2009. On July 16, 2009, the jury convicted Goode of all counts and convicted Davis of all counts except conspiracy.
At trial, the Holidays identified defendants as the perpetrators. Another witness, medical examiner Dr. Zhongxue Hua reported that Rahman died from three gunshot wounds to his torso and legs and Grimes perished from four gunshot wounds to his torso. Doctor Hua further noted that Rahman had a bag of sixty-nine "tiny plastic vials with [a] white powdery material" in his right front pocket.
Detective Frank Faretra, a ballistics expert, testified that Rahman's sawed-off shotgun was not discharged during the incident, but that Grimes's handgun was fired three times. There were several additional spent shell casings recovered at the scene that were fired from other weapons. One of these shell casings was linked to a prior shooting. Faretra concluded that "five firearms were involved [in this case, but] four . . . were involved in the shooting."
Salaam Grimes testified that Grimes is his younger brother and Rahman his uncle. He knew both defendants, albeit by the names Ice Cream and Dre, and had observed them selling drugs many times in the hallways of Baxter Terrace when he visited his family. The victims were also known to have sold drugs at that location.*fn2
Salaam was aware that there was a "beef" between defendants and his relatives, but he did not know the details of the feud. However, Salaam indicated that Rahman told him that he had robbed defendants at the end of December 2006. He also mentioned that on New Year's Eve, as he was about to leave a party to pick up Rahman, he heard gunshots. He immediately received a telephone call from Rahman telling him not to come to his location because defendants had been shooting at him.
On January 7, 2007, Salaam was supposed to meet Rahman at Baxter Terrace. While he was on the telephone with Rahman around noon discussing their plans, he suddenly heard gunshots, and the call ended. After trying to call back to no avail, Salaam boarded a bus and headed to Baxter Terrace. By the time he arrived, the incident was long over.
Alston testified that on the night of January 7, 2007, the police kicked in the door to his apartment and began harassing him regarding the shootings that had occurred earlier that day. Alston claimed he was drunk at the time, and stated variously that he was both hostile and friendly with the officers.
Alston acknowledged that he gave a statement to the police that placed Goode at the scene in the early morning hours of January 7, 2007. However, he insisted that he was intoxicated at the time of his statement and the police bullied him and told him what to say. He denied that he saw defendants in his apartment building on a daily basis and further maintained that although Goode was known to him, Goode was not in his apartment at 8:00 a.m. on the morning in question.
Defendants neither testified nor presented any witnesses.
On September 23, 2009, defendants were sentenced. After merger, the court sentenced Davis to an aggregate term of sixty years' imprisonment with sixty years before parole eligibility as follows: (1) thirty years with a parole disqualifier of thirty years for the murder of Rahman; (2) a consecutive term of thirty years with a parole disqualifier of thirty years for the murder of Grimes; and (3) two concurrent five-year terms of imprisonment on counts four and six. Similarly, after merger, the court sentenced Goode to an aggregate term of 100 years' imprisonment with sixty years of parole ineligibility as follows: (1) fifty years with a parole disqualifier of thirty years for the murder of Rahman; (2) a consecutive term of fifty years with a parole disqualifier of thirty years for the murder of Grimes; and (3) two concurrent five-year terms of imprisonment on counts four and six.
On appeal, Davis presents the following arguments for our consideration:
POINT I: THE JURY DELIBERATION PROCESS WAS SO TAINTED THAT IT DEPRIVED MR. DAVIS OF A FAIR TRIAL BECAUSE (A) DELIBERATING JUROR NUMBER FIVE WAS EXCUSED FOR REASONS OTHER THAN HIS INABILITY TO CONTINUE (B) ONCE JUROR NUMBER 5 WAS DISCHARGED, A MISTRIAL WAS REQUIRED BECAUSE THE JURY HAD BEEN TAINTED BY THE EXCUSED JUROR AND THE JURY HAD DELIBERATED SO FAR TOWARDS COMPLETION THAT THE RECONSTITUTED JURY WOULD NOT HAVE BEEN CAPABLE OF CONSIDERING MR. DAVIS' GUILT OR INNOCENCE ANEW; AND (C) AN ABSCONDING JUROR WAS ALLOWED TO CONTINUE TO DELIBERATE AFTER BEING APPREHENDED BY A SHERIFF'S OFFICER AND ORDERED TO RETURN TO COURT. POINT II: THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY, SUA SPONTE, WITH SELF-DEFENSE. (Not Raised Below)
POINT III: THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY, SUA SPONTE, WITH PASSION PROVOCATION MANSLAUGHTER. (Not Raised Below).
POINT IV: THE TRIAL COURT ERRED BY GRANTING THE STATE'S N.J.R.E. 404(b) MOTION TO INTRODUCE TESTIMONY THAT THE DEFENDANTS SOLD DRUGS OUT OF 182 BAXTER TERRACE AND THERE WAS A DISPUTE BETWEEN THE DEFENDANTS AND VICTIMS OVER THIS TERRITORY TO SELL DRUGS. POINT V: THE TRIAL COURT ERRED BY ADMITTING THE PRIOR INCONSISTENT STATEMENT OF RONALD ALSTON.
POINT VI: THE TRIAL COURT ERRED BY PERMITTING RONALD ALSTON TO TESTIFY IN A CLEARLY INTOXICATED STATE IN VIOLATION OF N.J.R.E. 601 AND ERRED BY DENYING MR. DAVIS' MOTION FOR A MISTRIAL AND SEVERANCE.
POINT VII: THE TRIAL COURT ERRED BY DENYING MR. DAVIS' MOTION TO SUPPRESS THE EYEWITNESS' IDENTIFICATION, BECAUSE THE PRETRIAL IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, WHICH CAUSED A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
POINT VIII: THE TRIAL COURT ERRED BY ALLOWING THE STATE TO INTRODUCE A PHOTOGRAPH OF AN UNRELATED MASK WITH THE FACE CUT OUT BECAUSE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE AND MISLEADING THE JURY. POINT IX: THE PROSECUTOR COMMITTED MISCONDUCT BY ELICITING TESTIMONY FROM THE STATE'S BALLISTIC EXPERT THAT THE MURDER WEAPON WAS USED IN A PRIOR SHOOTING, KNOWING THIS EVIDENCE WAS INADMISSIBLE, AND THE TRIAL COURT ERRED BY NOT GIVING A LIMITING INSTRUCTION SUA SPONTE. (Not Raised Below). POINT X: THE TRIAL COURT ERRED BY EXCLUDING MR. DAVIS FROM THE VOIR DIRE OF JUROR NUMBER
5 BEFORE HIS DISCHARGE AFTER THE JURY HAD DELIBERATED ONE DAY.
POINT XI: MR. DAVIS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S (A) ERRONEOUS INTRODUCTION OF INADMISSIBLE EVIDENCE OF A PRIOR SHOOTING MR. DAVIS WAS ALLEGED TO HAVE BEEN INVOLVED;
(B) FAILURE TO OBJECT WHEN THE STATE ELICITED TESTIMONY OF A SEARCH WARRANT FOR MR. DAVIS' HOME. (Not Raised Below).
Goode presents the following arguments for our consideration:
POINT I: THE TRIAL COURT ERRED WHEN IT DISCHARGED A JUROR FOR NON-PERSONAL REASONS RELATED TO HIS FULL DAY OF DELIBERATIONS AND SUBSTITUTED AN ALTERNATE IN LIEU OF DECLARING A MISTRIAL. (Partially Raised Below).
POINT II: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF SELF-DEFENSE IN RELATION TO EACH OF THE OFFENSES IN THE INDICTMENT AND AS TO PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below).
POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS ADMISSION OF OTHER CRIMES EVIDENCE.
POINT IV: THE TRIAL COURT ERRED IN ADMITTING PRIOR INCONSISTENT STATEMENTS UTTERED BY ALSTON.
POINT V: THE STATE ERRED IN REFUSING TO GRANT A MISTRIAL BECAUSE OF TESTIMONY WHICH IRREPARABLY AROUSED THE JURY'S PASSIONS. POINT VI: THE PROCEDURE UTILIZED RELATING TO THE OUT-OF-COURT IDENTIFICATION OF APPELLANT BY MUHAMMAD HOLIDAY WAS UNDULY SUGGESTIVE.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
We first address defendants' arguments that reversible error was committed when the trial court (1) discharged a juror after one day of deliberations, (2) seated an alternate in the place of the excused juror, and (3) refused to grant a mistrial.
On July 9, 2009, the first day of jury deliberations, at approximately 4:15 p.m., the court received a note from juror Mr. Fisher*fn3 who asked: "[a]m I safe when I leave the building and at home?" Electing to speak directly with the juror outside the presence of other jurors, the trial judge held a conference in chambers, with all counsel (but not defendants) present.
Fisher denied that anything had happened since he was selected as a juror that caused him to express the concern that was reflected in his note. He simply indicated that it was a "serious case" and he did not "want anything to happen to [him]." However, Fisher also said he could not make a decision in the case "without the interference or the intrusion of emotions." He said that he told other jurors that "sometimes [he] was nervous" and he "expressed one time that [he] was scared, and that was all."
The trial court decided to immediately excuse Fisher and question the balance of the jurors as to what, if anything, Fisher had said to them. The prosecutor and Goode's counsel ...