On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-07-0159 and 08-07-0160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Parrillo, Grall and Skillman.
Defendant was indicted for attempted murder, in violation of N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2); possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10.1; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a(1); and resisting arrest, in violation of N.J.S.A. 2C:29-2a(3). Defendant was also charged in a second indictment with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
The trial court dismissed the charge of possession of CDS during trial, and a jury found defendant guilty of the other charges contained in the first indictment. In a separate trial immediately following the first trial, the same jury also found defendant guilty of certain persons not to have weapons.
The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender and sentenced him to a fifty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, for attempted murder. The court merged defendant's conviction for aggravated assault into his conviction for attempted murder. The court sentenced defendant to a concurrent ten-year term for possession of a weapon for an unlawful purpose and a concurrent five-year term for resisting arrest. The court also sentenced defendant to a consecutive ten-year term of imprisonment, with five years of parole ineligibility, for certain persons not to have weapons. Thus, defendant's aggregate sentence is sixty years imprisonment, with forty-seven-and-a-half years of parole ineligibility.
Defendant's convictions were based on a shooting incident involving the State Police that occurred around 10 p.m. on July 24, 2007 in Camden. State Police Detective-Sergeants Mark Cunard and William Stolinski and Detective Joseph Loschiavo responded to a report of fighting involving thirty to forty people and gun shots fired near an intersection in the middle of Camden. When they heard the report, the troopers were riding in an unmarked, white Ford Excursion SUV and were each wearing black pants, blue collared golf shirts with a small State Police triangle stating "New Jersey State Police" on the front and larger letters stating "State Police" on the back, bullet-proof vests, and small silver police shields.
Upon arriving at the intersection, the officers observed a large crowd. After getting out of their car, Cunard observed a man in a red shirt standing by himself in the intersection pull a gun from his front waistband and fire three shots into the air above the crowd. Stolinski heard the shots and looked toward the intersection, where he saw the man lowering his right arm. Cunard and Stolinski subsequently identified the person who had fired the shots as defendant. After the shots, the crowd dispersed in every direction. The person identified as defendant returned the gun to his waistband and began walking toward a parked gray car. Cunard told the other troopers, "[t]he guy in the red shirt just fired a gun at the crowd," and drove in his direction.
After reaching defendant, Cunard parked the police car and the three troopers exited with their guns drawn. Cunard yelled twice to defendant, "State Police, let me see your hands!" Stolinski and Loschiavo shouted similar commands. When defendant reached the gray car, he attempted to unlock and open the door with this right hand, keeping his left hand on his waistband. Cunard again instructed him to stop and show his hands. Defendant turned slightly to the left, looked at Cunard, and then ran away. The troopers chased after defendant, shouting, "State Police, get down!"
According to the troopers, during the pursuit, defendant pulled a handgun from his waistband, turned toward the troopers, and fired one shot. In response to the gun shot and sight of the muzzle flash, Stolinski fell to the ground, initially believing he had been shot. Cunard fired three rapid shots at defendant with his 9 millimeter handgun. Defendant was struck in the shoulder and immediately fell face-down on the ground near a chain-link fence. The troopers secured defendant with handcuffs and allegedly located a handgun, a .25 caliber Beretta, approximately four to five feet from where he fell.
The State Police Crime Scene Unit recovered six spent shell casings, three 9 millimeter casings that came from bullets discharged from Cunard's gun when he shot at defendant and three .25 caliber casings that came from bullets discharged from the handgun allegedly found near defendant after he was shot. The .25 caliber casings were all found in the area where the person identified as defendant fired three shots into the air above the crowd. No .25 caliber casing was found in the area where the troopers claimed defendant had shot at them.
Testifying in his own defense, defendant denied that he possessed a handgun on the evening he was shot by the State Police. Defendant claimed that he came to the scene to assist in breaking up a fight in which children of one of his friends had become involved. While he was trying to break up the fight, shots were fired over his shoulder, and he ran to his car to take cover. Defendant's cell phone began vibrating, so he took it out of his back pocket with his left hand as he inserted his keys into the car door with his right hand. He heard tires screeching and lights coming toward him and instinctively began to run. When defendant realized that troopers were following and calling out to him, he stopped and put his hands up, with the cell phone still in his hand. According to defendant, he said to the troopers, "This is not a gun, it's my cell phone." He was then shot and fell to the ground.
Anita Parker, a friend of the defendant who accompanied him to the area of the shooting, corroborated defendant's testimony that he was not in possession of a handgun that evening. She testified that defendant became involved in a verbal altercation with a drug dealer named Wayne after they arrived on the scene. She said Wayne ran into the bushes and re-emerged with a handgun in his hands. She saw Wayne discharge one shot into the air from the handgun and then heard a second shot sometime later. Parker did not claim to have observed defendant being shot.
On appeal, defendant presents the following arguments:
POINT ONE: THE TRIAL COURT'S ERRONEOUS JURY CHARGES DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (Partially Raised Below).
1. Coercive Further Jury Deliberations Charge (Raised Below).
2. Flight Charge Erroneous, Misleading, and Unsupported by Evidence (Not Raised Below).
3. Attempted Murder Charge Erroneous, Misleading and Unsupported by Evidence (Not Raised Below).
4. Possession of Weapon for Unlawful Purpose Charge Erroneous and Misleading (Not Raised Below).
5. Resisting Arrest Charge Erroneous (Not Raised Below).
6. Certain Persons Charge Directed a Verdict (Not Raised Below).
7. Certain Persons Charge Expanded Indictment (Not Raised Below).
POINT TWO: THE COURT PREVENTED [DEFENDANT] FROM PRESENTING A DEFENSE, DENYING HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT THREE: THE COURT PREVENTED [DEFENDANT] FROM EFFECTIVELY CROSS-EXAMINING A STATE WITNESS BY ALLOWING THE STATE TO PRESENT EXPERT TESTIMONY WITHOUT PROPER NOTICE UNDER RULE 3:13-3.
POINT FOUR: THE STATE PREJUDICIALLY GARNERED SYMPATHY FOR THE VICTIMS TO SECURE A CONVICTION. POINT FIVE: THE COURT DEPRIVED [DEFENDANT] OF HIS RIGHT TO A TRIAL BY JURY BY ALLOWING THE STATE TO ELICIT FROM ITS WITNESS THAT [DEFENDANT] QUALIFIED AS A CERTAIN PERSON.
POINT SIX: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We conclude for the reasons set forth in section I of this opinion that the trial court's supplemental instruction after the jury announced that it was deadlocked violated the principles set forth in State v. Czachor, 82 N.J. 392 (1980), and coerced a verdict, which requires a reversal of defendant's convictions in his first trial. However, this coerced verdict in the first trial does not require a reversal of defendant's conviction in the second trial of certain persons not to have weapons. We also conclude that the trial court committed various other errors in the conduct of the first trial, which are discussed in sections II through VIII of this opinion. Some of those errors may have required a reversal of some or all of defendant's convictions as a result of the first trial even if the trial court had not coerced a verdict. However, we have no need to decide whether those errors, considered independently or cumulatively, were sufficiently prejudicial to require a new trial because the coerced verdict requires a new trial without regard for those other errors. We note those errors solely for the guidance of the trial court at the retrial of this case.
We first consider defendant's argument that after the jury announced it was deadlocked, the trial court gave a supplemental instruction that coerced the jury into arriving at a verdict.
After a day of deliberations, the jury informed the court that it could not agree on count one, which was the attempted murder charge, and asked if it could proceed to count two. The parties agreed that the jury had not deliberated long enough to be considered deadlocked and that a supplemental "further deliberations" charge was inappropriate at that time. Instead, the trial court instructed the jury that each count was separate and that a ...