On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Christopher Fountain appeals from his conviction by a jury on charges arising from the shooting of an acquaintance. He also appeals from his twenty-five-year sentence of imprisonment. We affirm the jury's verdict but remand for a change of the sentence.
The shooting occurred in Atlantic City on October 9, 2006. Defendant's trial was held in June 2010. The victim testified at the trial that, on the night of the shooting, he and others were drinking and socializing outside a house on South Carolina Avenue. He got into an argument with another person. Defendant intervened in the argument, grabbed the victim, and told him "to cut it out." Defendant then went into the house, and the victim decided to go home. As the victim walked past the next house, he saw defendant with a gun. Defendant fired one shot, hitting the victim in the groin area. Bleeding and down on the sidewalk, the victim said to defendant: "I thought you were my friend." Defendant told him to "shut up" and walked back into the house.
The police arrived on the scene at approximately 9:40 p.m. Officers and medical emergency responders attended to the victim on the sidewalk. He was not able to provide information. Detectives Brennan and Kane spoke to several people in the area. A woman named Brenda Cook, who lived six houses away, gave Detective Brennan a general description of the shooter and his clothing, and she pointed to a house that she "guessed" the shooter had entered. The police obtained permission to search the house, but they did not find any adult males there. They did soon find the rifle that was used for the shooting in the backyard of a neighbor's house.
The victim was rushed to a nearby hospital, where immediate surgery saved his life. Two days later, Detective Kane interviewed the victim in the hospital. The victim was able to speak but was reluctant to give any information and did not identify the shooter.
On the following day, October 12, 2006, a man who had been arrested on an unrelated charge told the police he had information about the shooting. The police interviewed him and subsequently tape-recorded a sworn statement. He said he was walking in the area when he saw a person he knew as "Mauley" hand a rifle to defendant and then he saw defendant shoot the victim.
Three weeks after the shooting, the police interviewed defendant. He said he was in the area on that night drinking with others on the porch of his cousin's house on South Carolina Avenue, but he was not present at the time of the shooting. He said he had gone to a chicken restaurant some fifty yards down the street and he heard the shot from there. At first he said he was alone in the restaurant, but later he said he was with "Mauley," whom he could not identify except by that name.
Police lost track of the victim after he was discharged from the hospital on October 25, 2006. A month or two later, the victim moved out of New Jersey. In mid-May 2007, the victim contacted Detective Kane and told him that defendant was the person who had shot him. At the trial, the victim testified he had not identified the shooter earlier because he felt "vulnerable" while in New Jersey. He said that about a month after his discharge from the hospital, defendant saw him and said to him that he knew where his children and cousin lived. He took that statement as a threat. Only after he moved out of state did he feel safe enough to provide information about defendant as his assailant.
At defendant's trial, the cooperating witness who had been arrested on unrelated charges and initially identified defendant retracted his prior statement and claimed that he had no recollection of the incident. The prosecution presented his sworn, recorded statement as evidence before the jury.*fn1
Defendant testified in his own defense. He denied he had shot the victim and asserted he was at the chicken restaurant. The defense also called another witness, Darrell Parker, who testified he had witnessed the shooting and that defendant was not the shooter. Parker provided a description of the shooter that did not fit defendant's physical appearance and was similar to the description provided by Brenda Cook almost four years earlier. Parker admitted that he was drunk at the time of the shooting and that he had been confined at the county jail a few cells apart from defendant at the time that he provided an exculpatory affidavit to the defense in November 2007, thirteen months after the shooting. The affidavit was not in his handwriting.
Cook did not testify at the trial. Several weeks after the shooting, Detective Kane had contacted Cook and attempted to schedule a meeting to show her a photo array of suspects. Cook said she did not want to get involved and would not look at any photographs. She hung up the phone on Detective Kane. Near the time of trial in 2010, the defense had served a subpoena upon Cook. She did not appear, however, and the defense investigator could not find her. Defense counsel did not request a continuance of the trial, apparently because his investigator had ...