NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-04-1209.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief).
John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Ashrafi, Espinosa and Guadagno.
Defendant appeals from convictions for offenses arising from an attack that culminated in the shooting deaths of two juveniles, Naeem Jackson and Joel Ferguson. We affirm.
Shortly before midnight on July 13, 2007, sixteen year old Joseph McKinney was at the corner of Sanford Avenue and Mount Vernon Place in Newark, waiting for a bus with his girlfriend, Aleesha Felton, and her cousin, LaShawnah Harris. A man, later identified as Michael Thompson,  walked up to McKinney and punched him in the face. When McKinney fought back, defendant and his codefendants, Fuquan Cromwell, James Grate, and Jaron Winkey, joined Thompson in the fight. McKinney broke free and ran away.
As Felton and Harris fled, Harris called Jackson her boyfriend, and told him McKinney "just got jumped at the bus stop." Jackson and his friend, Joel Ferguson, rode to the corner of Sanford Avenue and Mount Vernon Place on a bicycle. One of the men knocked Jackson and Ferguson off their bicycle, and the five surrounded the two, stomping, kicking, and punching them. Defendant removed a gun from his waistband and shot Jackson and Ferguson, who died as a result of their gunshot wounds.
On July 18, 2007, Detective Keith Sheppard of the Newark Police Department met with Felton and McKinney. McKinney provided an audio statement and a question-and-answer statement to the police. McKinney stated he was jumped by a "group of dudes" who started "cracking" him. When "one of the dudes . . . looked like he was walking towards [him and] holding a gun . . . [McKinney] ripped [his] shirt off and broke free and ran up the street." McKinney hid in a backyard, where he watched the "dudes that jumped [him]" walk past, start to chase his girlfriend, and then walk back toward him and the corner of Mount Vernon Place and Ellery Avenue. He heard a male voice scream as if "he was being jumped, " followed by footsteps running and four gunshots. He ran to his aunt's house and met up with Felton and Harris. McKinney said that the two shooting victims were his friends. McKinney identified photographs of Thompson, Winkey, and defendant. He described defendant as a 5'9", light-brown skinned male with dreadlocks who wore jeans and a blue and white polo shirt, and stated he was the "guy who chased [him] and had on a blue and white striped shirt."
Patrick Hall observed the shooting from a block away. He called 911 and was at the scene when the police arrived. Detectives Sheppard and James Wright responded to the scene and drove Hall and three teenagers related to his girlfriend to police headquarters. Sheppard interviewed Hall, and Wright interviewed the three teenagers. Hall provided police with a written statement. No photo identifications were attempted at the time.
Based on the identifications made by McKinney, police arrested Thompson and Winkey for aggravated assault on July 26, 2007. Sheppard interviewed Winkey, who provided an audiotaped statement exculpating himself and implicating defendant, Cromwell, and Grate in the assault. Winkey identified defendant as the shooter. On August 6, 2007, police arrested Cromwell and Grate.
On August 15, 2007, Sheppard met with Hall "to show him a photo array." Hall identified defendant from the photos as the shooter. On August 23, 2007, Hall returned to the police station for a third time and gave a third statement. Hall also identified Winkey as one of the assailants.
Defendant surrendered after arrest warrants were issued for him and Winkey for homicide. On April 18, 2008, a grand jury sitting in Essex County returned an indictment charging defendant with two counts of first-degree murder (counts one and two), in violation of N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a handgun (count three), in violation of N.J.S.A. 2C:39-5(b); second-degree possession of a firearm for unlawful purposes (count four), in violation of N.J.S.A. 2C:39-4(a); third-degree conspiracy to commit aggravated assault (count five), in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b); and second-degree aggravated assault (count six), in violation of N.J.S.A. 2C:12-1(b).
Winkey pled guilty to second-degree aggravated assault pursuant to a plea agreement in which he agreed to cooperate and give truthful testimony in the trial against the remaining defendants. Defendant, Cromwell, and Grate (collectively, the defendants) proceeded to trial.
At trial, Winkey recanted the statement he gave to police, stating he was not with defendants on the night of the shootings and did not witness the shootings. Following a Rule 104 hearing, the court admitted a redacted audio recording of the statement that Winkey made to police into evidence, and it was played for the jury. A redacted audio recording of Winkey's plea hearing, in which Winkey identified defendant as the shooter, was also played for the jury.
The parties stipulated that defendant did not have a permit to carry a handgun. Defendant did not testify and presented no witnesses at trial. At the close of the State's case, the trial judge entered a judgment of acquittal on count five, which charged conspiracy to commit aggravated assault. The jury convicted defendant of the two counts of murder, and firearm offenses (counts one through four), acquitted him of second-degree aggravated assault, but convicted him of the lesser included offense of simple assault (count six).
Defendant was sentenced to two consecutive terms of life imprisonment on the two first-degree murder charges (counts one and two). Count four was merged into counts one and two. Pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the trial judge determined defendant was ineligible for parole for a period of sixty-three years, nine months, and three days. And, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), defendant was deemed ineligible for parole for a period of thirty-seven years and six months. On the unlawful possession of a handgun conviction (count three), defendant was sentenced to a concurrent five-year term of imprisonment. For the simple assault conviction (count six), defendant was sentenced to a consecutive term of six months.
Defendant presents the following arguments in his appeal:
THE STATE HAVING CONCEDED THAT "THE MAJORITY OF" JARON WINKEY'S STATEMENT TO THE POLICE WAS "A FALSE STORY HE CREATED, " THE TRIAL COURT ERRED IN ADMITTING THAT STATEMENT PURSUANT TO N.J.R.E. 803(a)(1) BECAUSE IT WAS UN-RELIABLE, SELF-SERVING, AND NOT CORROBORATED BY OTHER EVIDENCE IN THE CASE.
B. LEGAL ARGUMENT
AFTER PATRICK HALL TESTIFIED THAT HE HAD VIEWED 20 OR 30 PHOTOGRAPHS, INCLUDING ONE OF DEFENDANT, BEFORE SELECTING DEFENDANT'S PHOTO FROM AN ARRAY, THE TRIAL COURT SHOULD HAVE RECONSIDERED DEFENSE COUNSEL'S REQUEST FOR A WADE HEARING. (NOT RAISED BELOW)
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WHEN THE COURT FAILED TO MAKE ANY INQUIRY AFTER RECEIVING THE FOREPERSON'S NOTE SUGGESTING THAT SHE WAS TOO AFRAID TO ...