August 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAKEEM POPE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-02-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Parrillo, Grall and Skillman.
Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1) or (2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); witness tampering, in violation of N.J.S.A. 2C:28-5; and various other offenses. Defendant's motion to sever the witness tampering charge was denied.
A jury acquitted defendant of purposeful or knowing murder but found him guilty of the lesser-included offense of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a). The jury also found defendant guilty of possession of a handgun without a permit and possession of a weapon for an unlawful purpose. The jury acquitted defendant of the remaining charges, including witness tampering.
The trial court sentenced defendant to an eighteen-year term of imprisonment for aggravated manslaughter, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent four-year term for possession of a handgun without a permit. The court merged defendant's conviction for possession of a weapon for an unlawful purpose.
Defendant's convictions were based on a killing that occurred late in the afternoon on March 13, 2007. After Plainfield high school classes were dismissed that day, defendant went into a store with his friends Alteriq DeBerry, Ahmed Logan, Stanley Paul, and Antoine Gardner. Defendant and his friends were part of a gang, which was called "Arlington Avenue." After leaving the store, the Arlington Avenue gang saw members from the "116" gang, including Terrel Nevius (Scooby or Scoob), and Gerald Green, on the street. Arlington Avenue and 116 were rival gangs that had been quarreling for a number of years. As a result, when the two groups of gang members met that afternoon, the 116 gang began chasing the Arlington Avenue gang towards the Plainfield train station. A fire engine temporarily blocked the 116 gang's path, preventing them from following the Arlington Avenue gang.
After the fire engine passed, Green of the 116 gang saw defendant standing on the corner of Second Street with a gun. According to Green, defendant directed one shot at Nevius, who was leading the 116 gang. However, the shot struck a bystander, who subsequently died. Green was the only witness who claimed to have observed defendant fire the fatal shot.
After the shooting, the members of the Arlington Avenue gang ran away from the scene. DeBerry stopped on the street to talk to Haleem Jackson and Keroy Cousar. According to Jackson, DeBerry told him that "we was just bussing*fn1 at these  niggers." DeBerry then added, "I just laid one of the 116 niggers down." According to Jackson, DeBerry was holding a 9 millimeter handgun. Jackson recognized the gun in DeBerry's hands as defendant's because defendant had asked Jackson for bullets for the same gun a few days before the shooting.
A few weeks after the homicide, Jackson and DeBerry were together when Jackson asked DeBerry about the homicide. In response, DeBerry stated, "I was just bullshitting. I ain't do it. Jock [defendant] did it." Jackson informed the police of this conversation.
According to Jackson, about a year-and-a-half after the shooting, in October 2008, he was standing on a street with some friends when defendant drove past him, stopped, and drove back towards him. Jackson, sensing that "something [bad] was going to happen," began walking away, but defendant pulled up next to him and stated, "I should shoot you, you snitch ass nigger." As he said this, defendant had in his hands a gun and a "discovery" document indicating that Jackson had informed the police that defendant was the shooter.
In addition to Jackson's testimony, which will be discussed in more detail later in this opinion, and Green's identification of defendant as the shooter, the State also presented the testimony of T.F., a police informant to whom defendant made incriminating statements. According to T.F., he met defendant outside a tattoo parlor sometime around June 1, 2007, and "asked him did he catch a body, meaning a murder, and he said, yeah, I'm good, I'm not hot and then I was like all right." T.F. explained that defendant's statement, "I'm good," meant "he doesn't have any cop heat. Like, people in the street could know but he doesn't have any cop heat. He don't have anything to worry about."
T.F. reported this conversation to the Plainfield police, who outfitted him with a wireless transmitter that recorded two subsequent conversations he had with defendant. During a recorded conversation on June 5, 2007, defendant stated that he had been shooting at Nevius (Scooby) and hit the victim by mistake. Defendant told T.F.: "I want that nigger Scoob . . . that nigger hit my nigger in the leg on Arlington, yo."
On appeal, defendant presents the following arguments:
POINT I: THE FAILURE OF THE COURT TO SEVER THE WITNESS TAMPERING COUNTS FROM THE HOMICIDE COUNTS WAS ERROR.
POINT II: THE IDENTIFICATION TESTIMONY OF GERALD GREEN, BOTH IN COURT AND OUT OF COURT, SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (Not raised below).
POINT III: THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR WHICH MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT IV: CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL. (Not raised below).
POINT V: THE ADMISSION OF CERTAIN HEARSAY EVIDENCE WAS IMPROPER AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT VI: IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" CHARGE.
POINT VII: THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND SHOULD BE REDUCED. (Not raised below).
POINT VIII: THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
We reject these arguments and affirm defendant's conviction and sentence.
Defendant argues that the trial court erred in denying his motion to sever the witness tampering and related weapons charges based on the threats he allegedly made to Jackson in October 2008 from the murder and weapons charges based on the March 13, 2007 homicide. Initially, we note that defendant was acquitted of the witness tampering and other charges based on the alleged October 2008 incident involving Jackson. Therefore, the only question at this point is whether the denial of defendant's motion for severance deprived him of a fair trial with respect to the trial of the murder and related weapons charges.
A trial court has discretion to order separate trials if joinder would unfairly prejudice a defendant. State v. Oliver, 133 N.J. 141, 150 (1993). Central to the inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55[,] [now rule 404(b),] in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989). If the evidence would be admissible at both trials, the court may try the charges together because a defendant will not suffer any more prejudice in a joint trial than he would in separate trials. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
Defendant argues that the threats he allegedly made to Jackson in October 2008 would have been inadmissible in his trial for the March 13, 2007 homicide under N.J.R.E. 404(b), which provides:
Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
However, the State's purpose in presenting evidence of defendant's threats towards Jackson was not "to prove" defendant's "disposition" to commit a homicide but rather to show his consciousness of guilt of that charge and consequent desire to intimidate a potential witness against him. The jury could reasonably infer that defendant's characterization of Jackson as a "snitch," while holding a copy of discovery referring to statements defendant understood Jackson to have made to the police about the homicide, reflected his understanding that Jackson would testify against him at trial and his desire to persuade Jackson not to give such testimony. If there could be any doubt that the discovery defendant referred to in that conversation related to this case, it would be dispelled by the fact that defendant said to Jackson in that same conversation that T.F. had "wore a wire" and also had "told on him."
Our courts have repeatedly held that threats against a potential prosecution witness are not subject to exclusion under N.J.R.E. 404(b) or its predecessor because they manifest consciousness of guilt. See, e.g., State v. Yough, 208 N.J. 385, 402 n.9 (2011); State v. Hill, 47 N.J. 490, 500-01 (1966); State v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994); State v. Pierro, 253 N.J. Super. 280, 285-87 (App. Div.), certif. denied, 127 N.J. 564 (1992). Moreover, defendant's statements that Jackson was a "snitch" and that T.F. also had "told on him" could reasonably be construed by the jury as admissions by defendant of his guilt. Therefore, regardless of the court's disposition of defendant's motion for severance, evidence of the threats he made to Jackson and his accompanying statements about T.F. in October 2008 would have been admissible in his trial for the March 13, 2007 homicide, and thus, defendant suffered no prejudice as a result of the denial of that motion.
Defendant argues that evidence he possessed a .25 caliber handgun and that he expressed interest in selling marijuana for T.F. also constituted inadmissible other crimes evidence that requires a reversal of his conviction.
Jackson testified that defendant possessed not only a 9 millimeter but also a .25 caliber handgun around the time of the homicide and that defendant asked him for bullets for both guns, which he did not provide. Although defendant did not object to this evidence at trial, he now argues that it was "other crimes" evidence that should have been excluded under N.J.R.E. 404(b).
We question whether this evidence was evidence of another crime as distinguished from evidence of one of the crimes with which defendant was charged. Defendant was charged in the indictment with possession of a handgun without a permit, without any specification of the caliber of the gun. Moreover, the court, in instructing the jury regarding this offense, did not specify whether the handgun defendant was charged with unlawfully possessing was the 9 millimeter, the .25 caliber, or both. We also note that although the State's evidence would seem to indicate that the homicide was committed with the 9 millimeter handgun, this is not completely clear because the medical examiner did not find a bullet in the victim's body.
Furthermore, even if the charges against defendant were all considered to have involved solely the 9 millimeter handgun, the evidence of defendant's possession of the .25 caliber handgun still would not have been inadmissible other crimes evidence. Evidence that provides "'necessary background information'" relating to the charged offenses is not inadmissible under N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 181 (2011). Jackson's testimony that defendant possessed two handguns around the time of the homicide for which he was seeking ammunition was evidence that defendant was planning to use one or both of those guns. Similarly, defendant's reference to his ownership of a .25 caliber handgun in his second conversation with T.F. was inextricably intertwined with his admission in that conversation that he had used the 9 millimeter in the homicide. Therefore, this evidence was not subject to exclusion under N.J.R.E. 404(b). See Rose, supra, 206 N.J. at 176-82. Moreover, even if evidence of defendant's possession of the .25 caliber handgun were excludable under N.J.R.E. 404(b), we would conclude that defendant's possession of a second handgun around the time of the homicide had such limited potential prejudicial effect that it would not warrant a reversal of his conviction.
The evidence of defendant's interest in selling marijuana for T.F. was contained in T.F.'s testimony about his conversation with defendant around June 1, 2007, and his subsequent recorded conversations with defendant on June 7 and 13, 2007. Assuming that an expression of interest in engaging in criminal activity could fall within N.J.R.E. 404(b) (the State did not present any evidence that defendant actually sold marijuana), the State did not offer evidence of defendant's expression of interest in selling marijuana for T.F. "to prove the disposition of defendant" to sell drugs, but rather to show his motivation for entering into confidential communications with T.F. in which he made inculpatory statements relating to the March 13, 2007 homicide. Moreover, the trial court provided the jury with a proper limiting instruction regarding its consideration of this evidence:
I am going to give you some instructions on this. There are no drug charges in this case against this defendant and you are to in no way use any of this discussion about marijuana against the defendant. This is only being admitted for a very limited purpose and you are not to use it for any other purpose. It is only being admitted to give context to the conversation.
Therefore, this evidence was "admitted for other purposes [than to show defendant's propensity to sell drugs] . . . relevant to a material issue in dispute" that is, defendant's motivation for confiding in T.F., and thus was not subject to exclusion under N.J.R.E. 404(b). See Rose, supra, 206 N.J. at 176-82.
We next consider defendant's argument that the trial court committed reversible error in allowing the State to present evidence that one of the other members of his gang, Alteriq DeBerry, after first indicating to Jackson that he was the one who had fired the fatal shot, later told Jackson that he had been "kidding" and that defendant was actually the one who fired the shot. Defendant claims that this evidence was inadmissible hearsay and that its admission violated the Confrontation Clauses of the United States and New Jersey Constitutions.
Defense counsel advised the trial court and prosecutor at a pretrial conference held on September 22, 2009 that he planned to call Jackson as a defense witness to testify about DeBerry's statement to him on the day of the homicide indicating that DeBerry was the one who fired the fatal shot. However, before the defense presented its case, the prosecutor called Jackson as a witness for the State. The prosecutor elicited the following testimony from Jackson:
Q. Now, as you saw Al [DeBerry], did he run in your direction?
A. Yes, sir.
Q. Did he state -- did you hear him say anything as he ran in your direction?
Q. What was that?
A. He said I just laid one of them 116 niggers down, referring to a project person.
Q. Now, when he stated that, did you see anything in Mr. DeBerry's possession?
A. Yes, he was holding a 9 mm.
The prosecutor then sought to elicit testimony from Jackson concerning a second conversation he had with DeBerry a few weeks after the homicide. After defense counsel objected, the prosecutor represented that Jackson would testify that in the second conversation, DeBerry had told him, "He was just kidding. Jock [defendant] did it." In the ensuing colloquy with the court, defense counsel reaffirmed the representation he had made at the September 22, 2009 pretrial conference that if the State had not called Jackson as a witness, the defense would have called him to testify about his conversation with DeBerry on the day of the homicide in which DeBerry stated he had been the shooter. The trial court overruled the defense objection to Jackson's proposed testimony about his second conversation with DeBerry on the ground that such evidence is admissible under N.J.R.E. 806.
Jackson then testified that in that second conversation, DeBerry told him: "I was just bullshitting. I ain't do it. Jock [defendant] did it."
In its charge at the end of the case, the trial court gave the jury a limiting instruction regarding its consideration of this testimony:
You may recall that Haleem Jackson testified that Al-Tariq [DeBerry] told him, on March 13, 2007, in substance, that he just laid out one of those 116 -- that he just laid one of those 116 niggers down. You may also recall that you heard testimony from Haleem Jackson that several weeks after the homicide Mr. [DeBerry] told him, in substance, that he was only bull shitting and Jake [sic] did it.
You were instructed that you could only use the second statement for determining credibility of the declarant, Mr. [DeBerry], and not for any other purpose. The manner in which you can use the alleged prior contradictory statement of Al-Tariq [DeBerry] is limited in this way because AlTariq [DeBerry] did not testify at trial.
Both of DeBerry's alleged statements to Jackson were hearsay. However, the parties agree that Jackson's testimony about DeBerry's first statement was admissible under the exception from the rule against hearsay provided by N.J.R.E. 803(c)(25) for statements against interest, and it is undisputed that defense counsel planned to elicit testimony about that statement under this hearsay exception.
As for DeBerry's second alleged statement to Jackson, N.J.R.E. 806 provides in pertinent part:
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked . . . by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or other conduct by a declarant, inconsistent with the declarant's hearsay statement received in evidence, is admissible although declarant had no opportunity to deny or explain it.
DeBerry's second statement to Jackson retracting his first inculpatory statement and stating that defendant was actually the one who fired the fatal shot was admissible under this rule, as a subsequent inconsistent statement by the hearsay declarant.
This conclusion is supported by State v. Sego, 266 N.J. Super. 406, 411 (App. Div.), certif. denied, 134 N.J. 566 (1993), in which we construed the predecessor to N.J.R.E. 806, which had substantially similar language, to allow the State to introduce a non-testifying accomplice's out-of-court statement inculpating defendant to impeach his subsequent out-of-court statement exculpating defendant. We also held that an "accomplice's out-of-court statement may be introduced for a purpose other than proving the truth of what it asserts without violating a defendant's right of confrontation." Id. at 412. In reaching this conclusion, we stated:
. . . If unrebutted, an alleged accomplice's statement that he was solely responsible for a crime can be extremely strong evidence for the defense. However, such a statement can be seriously discredited by evidence that the accomplice made a statement on another occasion that the defendant was involved in the crime.
Thus, if the jury had been denied the opportunity to hear [the accomplice's] statement inculpating defendant, its ability to evaluate the truthfulness of [the accomplice's] statement exculpating defendant would have been significantly impeded. Therefore, . . . it was necessary for the jury to hear both of [the accomplice's] statements "to advance 'the accuracy of the truth-determining process.'" [Id. at 413 (quoting Tennessee v. Street, 471 U.S. 409, 415, 105 S. Ct. 2078, 2082, 85 L. Ed. 2d 425, 432 (1985)).]
Accord Crawford v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004) (reaffirming that Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted").
The only difference between Sego and this case is that in Sego the accomplice's statement exculpating defendant and inculpating himself was made subsequent to his statement inculpating defendant, while in this case DeBerry's statement to Jackson exculpating defendant and inculpating himself was made before his statement inculpating defendant. However, the reasoning of Sego is equally applicable in both circumstances.
We recognize that the trial court could have sanitized the evidence of DeBerry's alleged second conversation with Jackson retracting his initial identification of himself as the shooter by directing Jackson not to testify about the part of the conversation in which DeBerry allegedly said, "Jock did it." However, defendant did not seek such sanitization of the testimony about DeBerry's second conversation with Jackson. Moreover, DeBerry's alleged first conversation in which he identified himself as the shooter was the centerpiece of defendant's case as presented in defense counsel's summation. Therefore, it was important to the prosecutor's attack upon the credibility of that first statement to present the entirety of DeBerry's retraction of his self-inculpatory statement, including his assertion that defendant actually was the shooter. Furthermore, in view of Jackson's other testimony that at the time of DeBerry's first conversation with him, DeBerry was carrying the same 9 millimeter gun for which defendant had asked Jackson for bullets a few days before the shooting, the jury would have been likely to infer, even if Jackson omitted reference to DeBerry's "Jock did it" statement, that if DeBerry had not fired the fatal shot, defendant had. We also note that the accomplice's out-of-court statement that we held could be admitted to impeach the accomplice's out-of-court statement exculpating the defendant in Sego "placed primary responsibility for the murder upon defendant[.]" 266 N.J. Super. at 411. Therefore, the trial court did not abuse its discretion in allowing Jackson to testify about his second conversation with DeBerry in which DeBerry retracted the self-incriminating statement he had made in the first conversation and said defendant was actually the shooter.
Defendant's remaining arguments are clearly without merit.
R. 2:11-3(e)(2). Affirmed.