January 14, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRE BLUFORD, A/K/A TYRE COLEY, A/K/A MARCUS MCDANIELS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2012
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 police found defendant under the bed in Miles's son's room and arrested him. Miles was also arrested.
Upon execution of a search warrant of Miles's apartment, officers recovered a black pull-over jacket, a Smith & Wesson handgun, the safe keys from behind the couch, and the safe. Once a telephonic addendum to the search warrant was approved, the safe was opened to reveal a 9mm Luger firearm.
Miles told the police initially she knew nothing about Lily's shooting. She testified she did not want to incriminate defendant, who was like a brother to her, and she was afraid of being labeled a "snitch" given what had happened to Lily. She also initially took responsibility for Gordon's gun, the Smith & Wesson, because he offered to help care for her children if she went to jail, and she would probably be held responsible for the gun anyway as it was found in her home.
Miles testified that on October 25, 2007, she sent defendant a letter from jail stating that she had lost custody of her children, was facing eviction, and was going to tell the police what she knew. She authenticated the photographs of the safe in which the gun was found and the photographs taken at her apartment.
After defendant's arrest, Det. Williams collected defendant's clothing - a pair of blue jeans, a plain white tee shirt, a white tee shirt with graphic printing, some brown Timberland boots, and various personal items. Dr. Elzbieta Bakowska, an expert in elemental testing, testified she tested swabs of Bluford's hands and his clothing for the presence of gunshot residue. The swab from Bluford's left palm and the right front pocket of Bluford's jeans tested positive for all three elements unique to gunshot residue, antimony, lead and barium. She also found two of the three elements, which were highly suggestive of gunshot residue, on Bluford's right palm and left back pocket.
Medical Examiner Dr. Edward Chmara testified Lily sustained multiple perforating gunshot wounds to the torso that damaged several major internal organs. Dr. Chmara also testified that Lily had two well-healed scars on her right forearm that were months or years old. He concluded that the gunshot wounds Lily sustained contributed to her death. Judith Link, an expert in gunshot residue analysis, testified she examined the shirt worn by Lily during the shooting. Link performed a visual, microscopic, and chemical examination of the tee shirt, which revealed "bullet wipe" and gunshot residue around the holes in the back of the shirt, indicating that Lily was shot in the back.
Detective Eric Crain testified that he was unable to lift any fingerprints from the 9mm Luger recovered from the safe in Miles's closet. Detective Nicholas Kappre, a crime scene officer, took two videos and multiple photographs of the scene. Detective Kappre indicated the location on the trail of the five shell casings, a bullet, Lily's baseball cap, and the Wild Irish Rose wine bottle. Detective Sergeant James Ryan, an expert in firearm tool mark identification, testified the casings and a bullet found on the trail between Ellis Manor and Bentley Woods were fired by the Luger recovered from Miles's safe.
The jury heard a redacted version of defendant's Mirandized*fn3
videotaped statement from the evening of October 20, 2007.
The tape was introduced through the testimony of Detective Louis
Butler, who knew defendant since he was a child. Defendant stated he
had no idea why he had been arrested; he "didn't do nothing;" he left
Bentley Woods around 10:00 or 11:00 p.m.; went to Palmer's night club
in Philadelphia with females whose names he could not remember; left
at around 3:30 a.m.; got a ride home from a friend whose name he did
not remember; and returned to Miles's apartment before 5:00 a.m. He
denied having a problem with anyone that night.
Defendant stated he was unaware of an "incident" the previous night, or Lily's shooting, although he admitted that he saw police activity outside Miles's apartment and asked Miles to "Go see what's outside, see what's going on." Defendant admitted he knew Lily, explaining her kids were his "God kids." He claimed to have seen Lily early on October 19 when Lily had tried to sell him a ring and a watch for his girlfriend. He stated, "Lil, she's a one of a kind person like, if she don't, like. [I]f she, she can't get nothing from somebody, she makes sure. She make them f___ked up like. Ya know what I mean. That." On the other hand, he said, "I'm not saying that she was there, there for me, but when I needed some money, she'd go get it for me like."
When confronted with Lily's dying declaration, defendant apparently acknowledged knowing she was shot and had accused him. "From the information I got. She charged that I did it. But I didn't never had a gun." He stated when Miles returned after leaving the apartment at defendant's behest, she reported to him "[t]hey said that I shot Lil." He asserted she had "gotten into it" with someone named Tommy, and she must have been trying to say that Tommy had shot her.
After police falsely asserted*fn4 Lily's DNA was on his boots, defendant stated that about three weeks earlier Lily had cut herself on the playground and he had given her a band-aid because she was bleeding profusely. When detectives asked to explain why gunshot residue would be on his hands, he said he had shot guns "[t]he other night" at a shooting range in Camden. This appeared to contradict an earlier statement in the interrogation, "I don't play with guns," when asked if he carried or possessed a gun. When asked to explain why his DNA would be found on the gun found in Anesha's apartment, another false assertion, defendant said he may have touched Miles's gun once. Defendant consistently denied shooting Lily, suggesting at times Lily must have mistakenly identified him. He also suggested that the shooter could have been "anybody that she, she, she rat on."
Defendant exercised his right not to testify and the defense rested without presenting evidence. On January 30, 2009, Judge M. Christine Allen-Jackson had denied defendant's motion to suppress the five dying declarations of the victim naming him as the shooter. On June 1, 2009, a N.J.R.E. 104(c) hearing was held, at which the parties agreed to a redacted version of defendant's video-taped custodial interview to be played for the jury and entered into evidence.
In summation, defense counsel challenged whether Lily actually made her dying declaration. Referring to Whealton's statement that she heard an officer repeatedly ask Lily who shot her, but did not hear Lily's response, he argued the officer would not have continued to inquire if Lily had identified her shooter. Counsel also argued Lily would have been unable to speak after emergency medical personnel arrived, immobilized her, and administered sedating and paralytic medicine. He questioned whether the officers who claimed they heard the dying declaration arrived before the medical personnel. He suggested Lily's family members were biased, and Miles, a co-defendant, provided incriminating testimony to curry favor with the prosecution. Defense counsel did not question whether Lily could have identified defendant if she had seen him. Rather, he questioned whether she identified him at all.
The prosecutor responded that it was highly unlikely that five people - two family members and three officers - all fabricated hearing Lily's dying declaration. She also referred to the corroborating evidence, including the gun shot residue on defendant and his clothing; and the discovery of the Luger in Miles's apartment.
The jury found defendant guilty of the lesser-included offense of aggravated manslaughter, and all other charges in the indictment. On September 8, 2009, Judge Allen-Jackson sentenced defendant to twenty-four years for the aggravated manslaughter, and required he serve eighty-five percent before parole eligibility pursuant to NERA. The aggravated assault and possession of a weapon for an unlawful purpose were merged into the aggravated manslaughter conviction. The judge imposed a concurrent four-year term for the unlawful possession of a weapon conviction.
Defendant appeals and presents the following issues for our consideration:
I. THE TRIAL COURT'S FAILURE [TO] PROVIDE THE JURY WITH AN IDENTIFICATION CHARGE WITH RESPECT TO THE VICTIM'S IDENTIFICATION OF DEFENDANT AS THE PERSON WHO SHOT HER, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, [§§] 1, 9, 10. (Not Raised Below).
II. THE TRIAL COURT'S UTTER FAILURE TO MAKE EVEN A MINIMAL INQUIRY INTO THE SUBSTANCE OF THE JURY'S PREMATURE DELIBERATIONS VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY AN IMPARTIAL JURY, THEREBY MANDATING A NEW TRIAL. (Partially Raised Below).
III. THE USE OF A POWERPOINT PRESENTATION DURING PART OF THE JURY CHARGE UNDULY EMPHASIZED SOME PORTIONS OF THE CHARGE OVER OTHERS. (Partially Raised Below).
IV. THE IMPROPER ADMISSION OF DETECTIVE WILLIAMS' TESTIMONY REGARDING THE PROCESS BY WHICH A SEARCH WARRANT WAS OBTAINED FOR ANESHA MILES' APARTMENT WAS HIGHLY PREJUDICIAL AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.
V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We turn first to defendant's argument the court committed plain error by failing to deliver the model charge on identification, although defendant did not request the charge or object to the court's omission.
We are guided by well-established principles. Accurate and understandable jury instructions are essential to ensure a fair criminal trial and the trial court has "an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). In examining jury charges, the reviewing court must look at the instructions as a whole. State v. Heslop, 135 N.J. 318, 324 (1994). We recognize that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). This requirement is more critical in criminal cases "when a person's liberty is at stake." Id. at 289.
As defendant failed to object to the jury charge, we review the claimed error under the plain error standard, and may reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2. See also State v. Torres, 183 N.J. 554, 564 (2005) ("[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction."). Omitting or issuing an incomplete charge is not automatically plain error, but may constitute reversible error if the omitted charge was necessary to avoid a verdict that is inconsistent with substantial justice. State v. Frisby, 174 N.J. 583, 598 (2002). Erroneous instructions on material issues in criminal prosecutions are presumed to be reversible error. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Bunch, 180 N.J. 534, 541-42 (2004); State v. Jordan, 147 N.J. 409, 422 (1997).
Defendant argues that the court should have given an identification instruction based on the model jury charge. The model jury charge on out-of-court identifications in effect at the time stated:
(Defendant), as part of [his/her] general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find (defendant) guilty, the State must prove beyond a reasonable doubt that this person is the person who committed the crime. (Defendant) has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that (this defendant) is the person who committed it. [Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2007).]
The model charge then goes on to explain that the jury must determine whether the identification is reliable and caution the jury that witness identification may be wrong, and the jury should consider the circumstances under which the identification was made. Ibid. The model charge concludes by listing issues that a judge may comment upon if appropriate for clarity, including the accuracy of any description given and the circumstances under which the identification was made. Ibid.
With regard to an identification charge, a trial court commits reversible error when it refuses a defendant's request for an identification charge where identification was a crucial and contested issue in the case, and instructions relate to "essential and fundamental issues." Green, supra, 86 N.J. at 289-92 (reversing conviction for rape and robbery where prosecution hinged on victim's late identification of the defendant who was a stranger to her).
When identification is a "key issue," the trial court must instruct the jury on identification, even if a defendant does not make that request. . . . Identification becomes a key issue when "[i]t [is] the major . . . thrust of the defense," Green, supra, 86 N.J. at 291, particularly in cases where the State relies on a single victim-eyewitness[.] [State v. Cotto, 182 N.J. 316, 325 (2005).]
However, in determining whether a court's failure to deliver the charge sua sponte, absent a request to charge, constitutes plain error, "the issue is whether the failure to instruct the jury as to identification created a possibility of injustice sufficient to raise a reasonable doubt as to the propriety of the jury's conviction." State v. Copling, 326 N.J. Super. 417, 431-32 (App. Div. 1999). "The determination of plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Cotto, supra, 182 N.J. at 326.
For example, we found the failure to deliver an identification charge sua sponte to be plain error in State v. Davis, 363 N.J. Super. 556, 560-62 (App. Div. 2003), State v. Pierce, 330 N.J. Super. 479, 489-90 (App. Div. 2000), and State v. Frey, 194 N.J. Super. 326, 329-30 (App. Div. 1984). In each of those cases, the reliability of the identification was a "key issue" and the corroborative evidence was weak. In Davis, defendant's sole defense was misidentification by an undercover officer who had no prior familiarity with defendant before he engaged in a drug transaction with defendant, defendant fled, and the officer identified a photo of defendant twenty-five minutes later. In Pierce, supra, and Frey, supra, the witness identified an unknown assailant, and there were legitimate questions as to how well the witnesses saw the assailant. Also, in Pierce, supra, there were inconsistencies in physical descriptions provided by the witnesses prior to the identifications.
By contrast, we found no plain error in State v. Salaam, 225 N.J. Super. 66, 72 (App. Div. 1988), where there was strong corroborating evidence, and the defense had the opportunity to question inconsistencies in the victim's version of events, and the evidence indicated the victim's identification of the defendant was reliable and accurate, the victim had adequate time to observe the perpetrator in a well-lit environment. Similarly, in Copling, supra, 326 N.J. Super. at 432-34, we found no plain error where the identification was not an essential contested issue, the defendant did not rely on misidentification, and the eyewitness's testimony was supported by other evidence of guilt. See also State v. Gaines, 377 N.J. Super. 612, 626 (App. Div. 2005) (stating "[t]he strength and quality of the State's corroborative evidence rendered the deficiencies in the instruction harmless"); Davis, supra, 363 N.J. Super. at 561 (stating "corroborative evidence against a defendant may be sufficiently strong that the failure to give an identification charge does not constitute plain error") (citing Salaam, supra, 225 N.J. Super. at 70).
An eyewitness's prior knowledge of the identified person looms especially large in determining whether the failure to give an identification charge is plain error. The Court in Cotto, supra, deemed the victim's prior knowledge of defendant to corroborate her identification of him during commission of the offense.
Finally, the strength and quality of the State's corroborative evidence rendered harmless any deficiency in the instruction and precludes a finding of plain error. See R. 2:10-2. . . . Tiffany recognized defendant based on a partial view of his face and the sound of his voice. Tiffany's ability to identify defendant stems from their previous romantic relationship which, we may assume, would enable her to recognize defendant. In sum, because the State introduced significant corroborating evidence, a detailed identification instruction was unnecessary. [182 N.J. at 327.]
See also Gaines, supra, 377 N.J. Super. at 626 (finding no plain error where "identifications were based on [victims'] ability to recognize a person they knew personally").
Applying these principles, we conclude the court's omission of the unrequested charge was not clearly capable of producing an unjust result. Misidentification was not a key issue. Defense counsel questioned whether Lily in fact made the dying declaration the two family members and three officers claimed they heard. The defense theory was to challenge the existence of the identification, as opposed to its accuracy or reliability. Consequently, a charge about the vagaries of eyewitness identification was not critical. See Copling, 326 N.J. Super. 433-34 (stating omitting identification charge not plain error in part because defendant did not rely on misidentification in his defense); cf. Gaines, supra, 377 N.J. Super. at 626 (where one identification witness recanted claiming she fabricated her identification, an identification charge was not essential because "[t]he question about her identification was one of motivation, bias and inconsistency, not reliability of the identification").
Also, there was substantial evidence Lily could reliably identify defendant based on her prior familiarity with him. Although defense counsel conceivably could have questioned Lily's ability to accurately identify defendant, because the path was not well-lit and she had been drinking, the proofs were strong that Lily was not likely to mistake defendant for someone else. She had known defendant for many years. Defendant said he was Lily's children's godfather. He admitted he and she had frequent contact, and she had interacted with him earlier in the day.
There was also other substantial evidence corroborating the identification, including: defendant was seen in the area of the shooting before the shooting; the gun that fired the fatal shots was found in the apartment where defendant was arrested; gunshot residue was found on defendant's hand and pocket; and Miles testified defendant admitted shooting Lily.
We note also, although the court did not deliver a specific identification charge, it advised the jury that the burden of proof beyond a reasonable doubt rested with the state for all elements of the crime, that the burden never shifted to the defendant, and that the defendant was not required to produce any evidence proving his innocence. Cf. Cotto, supra, 182 N.J. at 326 (finding the trial court's instruction that the State had the burden of "proving beyond a reasonable doubt that defendant was the individual that committed the crime" sufficient).
We briefly address defendant's remaining arguments challenging his conviction. Defendant claims reversible error in the way the court handled a jury question before the State rested. During crime scene Detective Kappre's testimony about crime scene photographs, the prosecutor stated she would publish the photographs to the jury after the detective concluded his testimony. However, she neglected to do so. After a brief recess, the jury sent a note stating, "Just prior to recessing on Tuesday, we were going to view the pictures of the crime scene."
The judge and defense counsel both expressed concern that the jury may have prematurely begun deliberation. Defense counsel also objected to the State publishing the photos to the jury, as the prosecutor had announced the State had rested, subject to the admission of evidence. The court allowed the State to publish the photographs. The judge also instructed the jury not to discuss the case before receiving her direction to do so. Defense counsel did not ask the court to voir dire jurors about the matter. However, defendant now argues it was plain error for the court not to individually investigate whether the jury had begun deliberations. We disagree.
The test for determining whether juror misconduct mandates a new trial is "whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Panko v. Flintkote, 7 N.J. 55, 61 (1951). Premature deliberations are a less serious threat to a fair trial than extra-judicial information from an outside source. United States v. Bertoli, 40 F.3d 1384, 1394 (3d Cir. 1994). Intra-jury contacts do not create a presumption of prejudice as certain extra-jury influences do. Ibid.
However, we are unpersuaded there were deliberations. The jury's question did not reflect consideration of the charges or a weighing of evidence. It was simply a recognition that something that the prosecutor said would happen in the presentation of the case did not occur. Whether voir dire of jurors is necessary to explore alleged jury misconduct lies in the sound discretion of the trial court. See State v. R.D., 169 N.J. 551, 560-61 (2001). We discern no abuse of discretion here.
We also find no merit in defendant's argument the court erred in using a PowerPoint presentation to assist the jury in understanding the court's instruction. The judge instructed the jury that the PowerPoint presentation was an instructive aid, and appropriately cautioned the jury that if the PowerPoint conflicted with her oral instructions, her oral instructions controlled. The jury later requested a copy of the PowerPoint. The court declined, and instead repeated her entire oral charge, correcting an error unrelated to the PowerPoint.
Defendant does not assert the PowerPoint presentation contained false statements of the law or incorrect instructions.
Nor has defendant included a copy of the PowerPoint in the record for our review. Rather, he argues the jury's request reflects that the jury improperly relied on the PowerPoint instead of the complete charge. We are unpersuaded. The jury's request likely reflected simply that the PowerPoint was helpful in understanding the charge. Its request was no different from a jury request, sometimes made, for a copy of the elements of the offenses charged. The court has the discretion to give a jury a copy of all, or part, of its jury charge. R. 1:8-8(a). Particularly on this record, defendant has not demonstrated error in the use of a PowerPoint presentation in conjunction with its oral delivery of the jury charge.
Finally, we are unpersuaded by defendant's argument the court erroneously allowed Detective Williams to testify about how he obtained the warrant to search Miles's apartment. See State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (rejecting "proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt"); State v. McDonough, 337 N.J. Super. 27, 34 (App. Div. 2001) (stating references to search and arrest warrants were not prejudicial where there was no implication the issuing judge had any evidence not introduced at trial). The argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also challenges his sentence as excessive, and argues the court erred in its application of the aggravating and mitigating factors. We disagree.
The trial judge found aggravating factors one, three, six and nine. N.J.S.A. 2C:44-1(a)(1), (3), (6), and (9). With regard to the nature and circumstance of the offense, N.J.S.A. 2C:44-1(a)(1), the judge concluded the crime was committed in an especially heinous, cruel, or depraved manner as the evidence showed that the defendant shot the victim multiple times in the back. In support of the finding defendant was likely to reoffend, the judge noted defendant's attitude, his failure to take responsibility for his actions, and his open hostility to, and refusal to cooperate with the probation officer conducting his presentence interview. Defendant's prior record included juvenile obstructing detection, terroristic threats, joyriding, and adult simple assault, attempt to cause bodily injury, CDS offenses, obstructing the administration of justice, resisting arrest, theft by unlawful taking, and harassment. The court found the need to deter, as defendant continued to offend despite past probationary and custodial sentences. The judge found no mitigating circumstances, and concluded the aggravating factors substantially outweighed the mitigating factors.
In reviewing a sentence imposed by a trial court, the appellate court must (a) determine if the sentencing guidelines were violated; (b) review the aggravating and mitigating factors found to determine whether the court's consideration of those factors was based upon competent credible evidence in the record; and (c) if the court imposed a sentence in accordance with the statutory mandates, whether the sentence was clearly unreasonable so as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). We should not substitute our judgment for that of the trial judge. State v. O'Donnell, 117 N.J. 210, 215 (1989). Reviewed under these standards, we are satisfied the trial court appropriately weighed the aggravating factors in determining the length of defendant's sentence.
Finally, the court did not impermissibly "double count" elements of aggravated manslaughter. See State v. Kromphold, 162 N.J. 345, 353 (2000) (stating a court may not "use evidence both for sentencing purposes and to establish an element of the offense"). Defendant exceeded the elements of the offense by shooting defendant multiple times, and in the back. Nor did the court impermissibly punish defendant for going to trial by concluding that his attitude placed him at a high risk of reoffending. See State v. Carey, 168 N.J. 413, 426-27 (2001) (holding that evidence of defendant's denial was probative of risk of reoffending). The court's sentence does not "shock the judicial conscience" and we discern no basis to disturb it. Roth, supra, 95 N.J. at 365.