On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-04-0382.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant was convicted after a jury trial of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of first-degree intentional murder, N.J.S.A. 2C:11-3a(1), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b*fn1 in connection with the fatal shooting of Towanda "Lily" Gaines in the early morning hours of October 20, 2007. Before succumbing to her injuries a few hours after the shooting, Lily*fn2 told two family members and three responding officers that defendant shot her. Defendant argues the court committed plain error by failing sua sponte to deliver the model charge on identification, and failing, earlier in the trial, to voir dire individual jurors to ascertain whether the jury had prematurely begun deliberations. He also seeks reversal because the court utilized a Powerpoint presentation as part of its final jury charge, and he challenges his aggregate twenty-four year sentence under the No Early Release Act (NERA). We affirm.
At trial, the State relied primarily on Lily's dying declarations that defendant had shot her; and corroborating evidence, including: the discovery of gun powder residue on defendant's hands, the seizure of a 9mm Luger pistol in the apartment where he was arrested, and his reported admission to a close friend that he shot Lily. The State presented a redacted version of his custodial interrogation, in which defendant firmly denied guilt, but gave a version of his whereabouts the morning of the homicide that the State characterized as patently false. Defendant did not testify, nor call witnesses.
Several of Lily's relatives lived at the Bentley Woods Apartments in Glassboro, which was connected to the Ellis Manor housing project by a path. Lily was well-known to the residents of Bentley Woods, as well as to the Glassboro police. She frequently provided information on criminal activity in the area. Defendant was also a frequent presence at Bentley Woods and was well-known to the residents and Lily. Both housing developments were the site of numerous crimes involving drugs, weapons, and domestic violence.
On the evening of October 19, 2007, Lily had been drinking. She attended a birthday celebration at Ellis Manor with her cousin Sherry Gaines (Sherry), who lived at Bentley Woods. Lily then visited Angela Lewis at her apartment in Bentley Woods. She continued to drink outside. Sherry met Lily outside Bentley Woods after 2:00 a.m., and the two talked.
Lily told Lewis she was going to go outside at Ellis Manor. Although Lewis said she would accompany her, Lily left alone. Lewis heard gunshots while she was putting on her shoes. When she got outside, she saw Lily on the ground, shot. Family members who resided nearby and other residents of Bentley Woods quickly surrounded Lily. Police and emergency medical personnel, including an ambulance-helicopter, arrived soon thereafter. Lily was taken by helicopter to Cooper University Hospital where she died of her injuries shortly after 6:00 a.m.
Although five witnesses testified they heard Lily, in one way or another, identify defendant as her shooter, other witnesses who were nearby, or treated her, heard no such declaration. Latoya Whealton, who lived at Bentley Woods and was a friend of Lily's children, saw Lily at around 1:30 to 1:40 a.m. after Whealton unsuccessfully tried to buy a cigarette at Ellis Manor. While back in her apartment, Whealton heard about six gun shots. She then saw Lily walking past her door, dragging her leg and saying "[h]elp, [h]elp." Lily collapsed outside her door. Whealton responded to the scene right away and her friend Nadja called the police. Although Whealton heard Lily saying "[h]elp me, [h]elp me," she did not hear her say anything else. After police arrived, they commanded her and others to step back about fifty feet. Whealton testified she heard police repeatedly ask Lily who shot her, but she did not hear a response, although she left the scene briefly to get Lily's boyfriend.
Darnell Lisa Gaines (Lisa), Lily's cousin, and Tara Gaines (Tara), Lily's sister, testified they heard Lily's dying declaration. Lisa, a Bentley Woods resident, had returned home from her job at Wendy's around 2:50 a.m., and was just settling in when she heard four gunshots outside. She initially thought it was just another random shooting with which she had become accustomed, but then heard screams outside, and soon discovered Lily had been shot and was lying on the ground. Lisa alerted Tara, who lived downstairs. Lisa soon ran outside to Lily's side and asked her who had done this to her. Lisa testified that Lily responded "Tyre," which she took to mean Tyre Bluford as she only knew one Tyre in the area.
Tara testified that she heard gunshots after using the restroom. Gunshots were not unusual at Bentley Woods, so she was on her way back to bed when Lisa pounded on her door and told her Lily had been shot. Tara ran outside in her underclothes, and found Lily lying on the ground, covered in blood, trying to hold herself up. Tara testified Lily said, "[S]ay goodbye to my boys." After Tara asked Lily who shot her, Lily said "Tyre[,] Tyre" "Tyre Bluford." Once the ambulance was called, she ran inside to get dressed and returned to Lily. Tara testified Lily identified defendant as the shooter twice to her, and twice to an officer. Tara stated that she had known Tyre Bluford all her life, and had seen him the morning preceding the night of the shooting, wearing a black hoodie, a white tee shirt, and jeans.
Three officers testified that Lily identified defendant as her shooter: Patrolman Christopher Herner, Patrolman David Wynne, and Detective George Williams. Dispatched at about 3:25 a.m., Patrolman Herner was the first officer to respond to the call for help. He recognized Lily who had been a "snitch" for him in the past and had "ratted" on more than fifteen people. Although Lily was in obvious pain, he leaned over her and said, "Lily, you need to help me out here, who did this to you?" Initially, he got no response, so he got closer to her face and yelled the same question. This time Lily responded, "Tyre." When Officer Herner asked if she meant Tyre Bluford, Lily responded, "Yes." After paramedics arrived, Herner secured the scene where Lily had collapsed.
Patrolman Wynne testified he responded to Bentley Woods Apartments at about 3:45 a.m. He also testified Lily had cooperated with police. He and Lily attended school together. When Patrolman Wynne walked up to Lily, she was covered in blood and trying to sit up. He asked her what happened and she answered, "Tyre shot me." He asked, "Tyre who?" and Lily replied, "Tyre Bluford." He asked where this happened, and Lily replied it happened "on the tr[ai]l." The patrolman followed the trail of blood toward the path between Ellis Manor and Bentley Woods, and found a wine bottle, five shell casings, and a hat with "Lily" written inside the brim. On cross-examination, the patrolman confirmed he stated in his report that Lily first said without prompting, "I can't believe he f__king shot me" and then the patrolman asked who, and she answered, "Tyre."
Detective Williams was on his way home when he heard the report of the shooting and responded to the scene. Lily was already in an ambulance when he identified himself as a police officer (as he was in plain clothes), and asked Lily who shot her. She answered, "Tyre." He asked, "Tyre who?" and she responded, "Tyre Bluford." At that point, he was asked to exit the ambulance so the crew could continue treating Lily. Det. Williams then conducted several on-scene interviews.
Two emergency medical personnel - Gloucester County EMT Warren Stewart, and Virtua Health helicopter paramedic Michael Williams - testified about Lily's treatment before evacuation, noting she was ultimately sedated and immobilized. Neither heard a dying declaration identifying defendant as the shooter, although both heard her speak. Stewart testified he arrived at Bentley Woods at 3:23 a.m., and found Lily combative and complaining that she was short of breath. She said, "I feel like I'm going to die. I feel like I'm going to die." Stewart and his partner applied occlusive dressings on Lily's chest and back. Stewart explained the dressings allowed air to escape, and were typically used on patients with lung injuries. She was placed on a backboard due to concerns that a bullet may have hit her spine, and secured a cervical collar that immobilized the neck but still allowed jaw movement. He also put on an oxygen mask. They then transported her by ambulance to a nearby helicopter landing site.
Helicopter paramedic Williams testified that after he arrived, he entered the ambulance where Lily was waiting. She was restless and sweaty, flailing her arms and saying, "I can't breathe. I'm going to die." Lily was extremely distressed, agitated and restless, but she seemed to be very "with it." Based on her condition, Williams sedated and intubated her, and administered a paralytic to prevent further movement. He administered the sedative and paralytic at around 3:55 a.m. The helicopter took off at 4:02 a.m. and landed at Cooper University Hospital nine minutes later.
Several witnesses testified that defendant was present in the area during the evening or early morning hours. Selena Gaines testified she saw defendant standing on a step earlier in the evening. After 2:00 a.m., Sherry Gaines saw defendant as he approached Lily. Sherry stepped away and did not hear the conversation, although there appeared to be no animosity between Lily and defendant. Whealton testified that around 1:30 a.m., while on her way to try to buy a cigarette, she saw defendant standing on his girlfriend Tia's porch, wearing a white tee shirt and black hoodie.
Through the testimony of Anesha Miles, who stated she and defendant were like brother and sister, the State presented evidence that defendant possessed a 9mm Luger handgun the night of the shooting, asked Miles to hide it for him, and ultimately admitted to Miles that he had shot Lily, but only in the leg. Miles was charged with obstructing justice and possessing a different firearm. She gave two statements to police on the day of the shooting, and a third statement a day later after she was incarcerated.
On the night of the shooting, Miles was drinking with her brother Antoine in her apartment, number 46, at Bentley Woods. Defendant was in and out of the apartment that evening. He was wearing a black hoodie, a white shirt with black print, blue jeans and Timberland boots. When defendant entered the apartment for the final time that evening, he asked her to "put the gun up for him." Miles removed a safe from the closet and Bluford put a gun and a clip in the safe. The safe was then locked and returned to the closet and the key was placed behind the couch.
Miles testified defendant also asked her to go outside and find out what was happening with the police and paramedics in the area. She saw paramedics helping Lily, and returned inside. Defendant initially denied shooting Lily when Miles asked. The two continued to drink but defendant was pacing and looking out the kitchen window for much of the time. Eventually defendant admitted he shot Lily in the leg because she was responsible for his last arrest.
Later, Harold Gordon, Miles's sexual partner, arrived and smoked with defendant. After she fell asleep, police came to the door. Miles told the police she needed a minute to clean herself up and closed the door. She then told Gordon and Antoine the police were at the door; she did not see defendant. Gordon then told Miles he had brought a gun with him, which he hid under the mattress. The ...