On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-10-1307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2012 -
Before Judges Sabatino, Fasciale, and Maven.
Following an eight-day trial in March 2010, defendant Keshawn Coleman was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), -3a(2) (count 1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count 3); and a "certain persons" weapons offense, N.J.S.A. 2C:39-7b (count 4). He was sentenced to an aggregate prison term of fifty-eight years.
Defendant now appeals, contending that (1) surveillance videotapes and corresponding descriptive testimony were improperly admitted at trial; (2) a juror who expressed concerns to the court during deliberations should have been removed; (3) the judge failed to provide a proper instruction to the jury on the "certain persons" offense; and (4) his sentence is excessive. For the reasons that follow, we affirm.
The State's proofs at trial established the following pertinent facts and circumstances.
On the night of May 18, 2007, James Felton,*fn1 Lydell Rountree, and Derrick Porter were driving a van around Paterson. The men picked up two women. While they were driving around, Felton received two calls on his "bleep"*fn2 cell phone. In the first bleep call, the unidentified male caller requested that Felton meet him at a fast-food chicken store located on Rosa Parks Boulevard. In the second bleep call, the caller made the same request. When the van pulled up to the chicken store, Felton attempted to contact the caller, but the caller did not pick up his phone.
Ciera Redfern, defendant's former girlfriend, had dropped defendant*fn3 off on the same street as the chicken store at an unspecified time earlier that night. She testified that she later returned to that area to drop off a cell phone battery. She further testified that when she dropped defendant off he was wearing "[a] black hood[ie] with bones on it, some blue jeans[,] and some tan boots."
According to Porter, at some point,*fn4 Felton got out of the van near the chicken store and told Porter to drive around the block. Shortly thereafter, at approximately 1:30 a.m. on May 19, Felton was shot and killed.
Felton's cousin, Sharonda Chapman, had arrived at her friend
Erica's*fn5 house around midnight or 12:30 a.m. that
night. She was sitting on the porch and braiding her friend's hair
when she observed defendant, who was wearing a "black hooded jacket
with skeleton bones," jean shorts, and Timberland boots. Chapman
testified that she saw defendant by the chicken store and that she
then heard gun shots coming from inside that location. She saw people
running and "Doo-Boo [defendant] coming out backing up shooting at the
chicken store doorway. As he was backing up[,] his hood fell off,
[and] that's how I got a chance to see his face actually."*fn6
Chapman stated that she then saw Felton fall and that after
Felton fell, defendant "looked around and just took off."
Nasheema Johnson, who had known defendant since high school, testified that a few weeks before the shooting, she saw defendant and Felton bump into each other at a club. According to Johnson, defendant was "angry a little bit," but he and Felton did not get into a fight.
On the night of the shooting, Johnson was also sitting on Erica's porch. Johnson, like Chapman, testified that she saw defendant on the night of the shooting and that he was wearing a skeleton hoodie. She testified that she saw Felton and defendant go into the chicken store, that she heard gun shots, and that she then observed Felton "stumbling" out of the chicken store. She related that, at that point, defendant was wearing a black mask. According to Johnson, Felton was "hurt badly," but defendant "just pushed him off and just shot more" and then "took off."
Another bystander, Jason Day, was inside the chicken store at the time of the shooting. He testified that when he was in the store, he heard shots go off, and he tried to run behind the counter. He stated that Felton ran into him, and they both fell to the floor.
The day after the shooting, the police showed Chapman a photo array. She identified defendant as the shooter. Johnson met with the police four days later. She also was shown a photo array and identified defendant as the person who shot Felton. Later that week, Day also met with police. According to the transcript of his interview with the detectives, Day stated that the shooter was wearing a black hoodie with bones on it and jeans, although at trial he contended that he had not seen the shooter.
Three days after the shooting, the police recovered from Redfern's home a pair of tan Timberland boots with suspected blood stains. The firearm used in the shooting was not recovered.
A police informant, Barrick Wesley, also testified on behalf of the State. At the time of the trial, Wesley was serving a twenty-year prison sentence. Wesley met defendant in jail. Wesley testified that defendant told him in jail that he had shot someone "five or six times in the stomach." Defendant also told Wesley that he was worried that a witness would be able to identify him because his hood had come off as he ran out of the store. Wesley then wrote a letter to a Camden County prosecutor in an effort to obtain a transfer to a different facility in exchange for the incriminating information he had received from defendant.*fn7
In addition to these factual proofs at trial, the State presented expert testimony from a ballistics expert, Sergeant James Ryan of the State Police, and a forensic pathologist, Dr. Alex Zhang. Sergeant Ryan opined that three of the four bullets collected from the scene were discharged from the same firearm; his results as to the fourth bullet were inconclusive. He described the bullets as being "most consistent" with a revolver. Dr. Zhang testified that Felton was shot four times: once in the right forehead, once on the left hip, once on the left buttock, and once in the right lower abdominal area. The pathologist concluded that Felton's gunshot wound to the head was a fatal injury.
Defendant did not testify at trial and he did not present any witnesses.
The jury found defendant guilty of counts 1, 2, and 3. Immediately thereafter, the trial was resumed before the same jury as to count 4, the "certain persons" weapons offense. The jury likewise found defendant guilty of count 4. Defendant then moved for a new trial, which the judge denied.
In imposing defendant's sentence, the judge specifically found that aggravating factors (3) (the risk that defendant will re-offend), (6) (the extent of defendant's criminal record), and (9) (the need for deterrence), see N.J.S.A. 2C:44-1a(3), (6), (9), applied, and that no mitigating factors applied, see N.J.S.A. 2C:44-1b. The judge merged count 2 into count 1 and sentenced defendant to fifty years as to count 1, with an 85% parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2, and an ensuing five-year probationary period. The judge also sentenced defendant to five years as to count 3, to run concurrent to count 1, and eight years (five years without probation) as to count 4, to run consecutive to count 1. The judge also imposed mandatory fines and fees.
On appeal, defendant raises the following points:
THE COURT ERRED IN ADMITTING TWO SURVEILLANCE VIDEOTAPES BECAUSE THE IMAGES WERE SO UNCLEAR AS TO HAVE NO EVIDENTIAL VALUE, AND THE INTERPRETATION OF WHAT WAS DEPICTED BY THE WITNESSES WAS RANK SPECULATION POINT II
THE COURT ERRED IN FAILING TO EXCUSE JUROR #8 WHO ASKED TO BE RELIEVED BECAUSE SHE WAS TROUBLED BY THE LACK OF PROOF AND HER BELIEF IT WAS HER DUTY TO CONVICT. (Not Raised Below)
THE COURT EDITED THE CHARGE ON CERTAIN PERSONS NOT TO HAVE A WEAPON IN SUCH A WAY THAT THE COURT, NOT THE JURY, FOUND THE ELEMENT OF A PREDICATE OFFENSE POINT IV
THE DEFENDANT'S SENTENCE OF 50 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, CONSECUTIVE TO THE SENTENCE FOR CERTAIN PERSONS NOT TO HAVE FIREARMS, WAS MANIFESTLY ...