On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
Following a five-day trial on a three-count indictment, a jury convicted defendant Richard Smith of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one), unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). The court merged count three into count one and sentenced defendant to thirty years in prison with thirty years of parole ineligibility on count one, and to a concurrent eighteen-month prison term on count two. The court also imposed mandatory fines and penalties. On appeal, defendant raises the following points for our consideration:
POINT I: A MISTRIAL SHOULD HAVE BEEN GRANTED WHEN THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WAS IRREMEDIABLY VIOLATED DURING DETECTIVE DAVID RUBIN'S TESTIMONY.
POINT II: DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CONFRONTATION WHEN THE COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE CHRISTOPHER BARRETT ON HIS SENTENCING EXPOSURE ON THE SERIOUS CHARGES PENDING AGAINST HIM.
POINTIII: CARLTON BECKFORD'S PHOTO IDENTIFICATION OF RICHARD SMITH ON JANUARY 16, 2007, WHEN BECKFORD KNEW THE DEFENDANT ONLY AS "SHRIMPY," GAVE RISE TO THE INFERENCE THAT THE DEFENDANT HAD A CRIMINAL OR UNSAVORY BACKGROUND, SEVERELY PREJUDICING THE DEFENDANT AND DENYING HIM A FAIR TRIAL.
POINT IV: THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER (NOT RAISED BELOW).
POINT V: UNDER THE DOCTRINE OF CUMULATIVE ERROR, A NEW TRIAL SHOULD BE ORDERED PURSUANT TO STATE V. ORECCHIO, 16 N.J. 125, 129 (1954).
Having considered defendant's contentions in light of the record and the applicable law, we affirm his convictions.
The State presented the following evidence at trial. Carlton Beckford was working "security" with three other bouncers at a reggae party at St. John's Hall in East Orange on the night Charles Mathis was killed. According to Beckford, people started to arrive around 11:00 p.m. on Sunday, December 17, 2006. At least 150 people eventually attended the party. Mathis arrived with four friends between 2:30 and 3:30 Monday morning. While making his rounds during the party, Beckford saw Mathis and his friends flashing gang signs and bouncing into each other while a song called "One Blood" was playing, so he told them to "calm it down a little bit." Because the crowd's energy level was high, Beckford also walked to the disc jockey's booth and told the DJ to "calm down the music some."
Shortly after speaking to the DJ, Beckford walked to the bar area where the bartender directed Beckford's attention to a confrontation near the bathroom. Beckford looked toward the bathroom, which was approximately ten feet away at the top of several stairs, and saw a shoving match. Although the lighting was dim, Beckford could see Mathis, who he had seen at other parties, facing defendant, who he knew as "Shrimpy." Mathis and defendant appeared to be "squaring off" while Mathis's friends "seem[ed] like they were trying to separate everybody." Beckford ultimately observed "something shiny being retracted . . . back from the victim's chest."
Beckford testified that Shrimpy was the person who retracted the object from Mathis's chest, and afterwards, Mathis's "hands were up in say like a defensive [way] -- they was trying to push each other off . . . . There was guys pulling and tugging . . . almost like a small melee going on up there in that tight space."
Beckford thought that the victim and his friends likely had a "beef" with defendant and others, so he started to go upstairs. Mathis and his friends came down the stairs, passed Beckford, and walked into the hallway that led to the exit. Defendant and his friends returned to the dance floor. Beckford walked toward the exit and found Mathis lying on the hallway floor, unable to talk, breathing shallowly and clutching his chest, where small droplets of blood were visible. Another bouncer called for an ambulance. Paramedics arrived, attempted to revive Mathis, and then carried him out on a stretcher. Mathis subsequently died. According to the assistant county medical examiner who performed the autopsy, Mathis was stabbed twice: once in the right side of his neck and once in his right upper chest. The stab wound to his chest, which penetrated a major vein, was fatal.
Because he did not want to get involved, Beckford did not identify defendant when he gave a statement to Essex County homicide detective David Rubin on the morning of the homicide. He reconsidered, however, and a month later, on January 16, 2008, gave Rubin a second statement naming "Shrimpy" as the person who had struck Mathis in the chest. The same day, at Rubin's request, homicide Detective Michael Recktenwald showed Beckford six photographs. Beckford identified defendant. Beckford, Recktenwald, and Rubin all testified at trial about Beckford identifying the photograph of defendant.
Rubin also testified about a statement defendant made:*fn1
[Prosecutor]: Now, Detective, during the course of your investigation, did you have an opportunity to speak with [defendant]? [Rubin]: Yes.
[Prosecutor]: And when you spoke to [defendant], did you introduce yourself? [Rubin]: Yes, I did. [Prosecutor]: How did you introduce yourself? [Rubin]: I introduced myself by saying, "I'm Detective Dave Rubin from [the] Prosecutor's Office Homicide Squad." [Prosecutor]: And what, if anything, . . . did [defendant] say to you in response to your introduction? [Rubin]: He said, "I know what you're here to talk to me about. I was at the St. John's club when I saw that kid get stabbed in a rumble up by the bathroom." I said, "[w]ould you like to give me a statement to that?" He said, "No." [Prosecutor]: Okay. So that was the extent of the conversation that you had with [defendant]; [c]orrect? [Rubin]: And -- oh, I'm sorry, he --Rubin did not finish his answer. Defense counsel promptly requested a sidebar and asked for a mistrial. The court denied the motion for a mistrial and instructed the jury:
Ladies and Gentlemen of the Jury, I'm ordering you to disregard the last part of Detective Rubin's testimony about a statement not being ...