NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-3169.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Axelrad, Nugent and Haas.
Tried to a jury for shooting and killing Alejandro Castro and Alejandro Soto, defendant Raheem Harrity was found guilty of two counts of aggravated manslaughter, one count of conspiracy, and two weapons offenses. The court sentenced him to an aggregate prison term of life plus thirty years. In this appeal, defendant argues that his conviction should be reversed because the prosecutor withheld some discovery until shortly before trial and threatened a witness with perjury; witnesses gave improper testimony four times during the fourteen-day trial; and the court erred in its charge to the jury. Defendant contends these errors, individually and cumulatively, deprived him of a fair trial. He also contends the verdict was against the weight of the evidence and his sentence was excessive. Having considered defendant's arguments in light of the record and controlling law, we affirm his convictions and sentence.
The State developed the following proofs at trial. On May 27, 2004, at approximately 8:00 p.m., on Sixth Street between Erie and York Streets in Camden, thirty-two year-old Alejandro Soto and eighteen-year-old Alejandro Castro were shot and killed. Soto was driving his fiancée's 1987 Jeep Cherokee wagon and Castro was riding in the front passenger seat when Soto pulled over to the curb to talk to his nieces, thirteen-year-old Angelimar Vargas and her twelve-year-old sister, Marangelie. As the girls talked to their uncle through the front and rear passenger windows, a black, 1995 Monte Carlo with tinted windows approached from the opposite direction and stopped alongside of the Jeep so that the drivers' windows were next to each other. The driver of the Monte Carlo pointed a silver pistol and fired repeatedly into the jeep. Four bullets struck Soto, one above his left eye, one in his nose, one in his left shoulder, and the last in his right forearm. Bullets struck Castro in his forehead and right, lower thigh. Both men died from the bullet wounds.
Although Soto's nieces saw a driver and passenger in the Monte Carlo, neither could describe the passenger. Angelimar described the driver as Spanish, with lighter skin tone than her own, braided hair with his "baby hair . . . laid down, " and a goatee. The driver also had a tattoo on the "right-hand side . . . of [his] arm." Angelimar testified on cross-examination that she did not remember the exact color of the shooter's car and she did not know what the shooter looked like.
Marangelie thought the car looked like a black Lexus with tinted rear windows. She could not describe either the driver or the passenger.
When the shootings occurred, Camden City Police Officers Louis Acetti and David Barrientos were parked in a marked police "paddy wagon" at the corner of Sixth and Erie. Hearing shots, Officer Barrientos looked toward Sixth and York Streets and saw a black vehicle with someone's hand protruding from one of the car's windows. The car accelerated, came toward the police wagon at a high rate of speed, and turned on Erie directly in front of the officers, who gave chase. Barrientos "called a pursuit out." When Officer Barrientos saw his lieutenant, Frank Cook, in another police vehicle that was pursuing the fleeing car, Barrientos radioed that he was returning to the scene and that Lieutenant Cook should continue the pursuit. Officer Barrientos could not determine how many people were in the fleeing vehicle, and could not describe anyone.
As Lieutenant Cook pursued the fleeing car, he broadcast that the driver had a "quarter-length afro, a quarter of the hair a little high cut, " with dark or medium skin, but he was uncertain about the skin color because the car's windows were tinted. Lieutenant Cook also said the driver wore "a light or cream-colored shirt." At trial, however, he testified that he could see only the passenger and that the description he provided was a description of the passenger, not the driver. The description Lieutenant Cook gave while pursuing the fleeing car was consistent with that given by another officer, Bianca Rivera, who described the driver as a male with a medium complexion wearing a white shirt and a baseball cap.
Another Camden City Police Officer, Curtis Davis, spotted the car after receiving radio transmissions about the pursuit. Davis joined the pursuit and followed the car for a short distance, lost sight of it for approximately fifteen seconds, then saw that it had been abandoned in the middle of Magnolia Street near an alleyway. After looking into the car, Davis looked down the alleyway and saw a man wearing a red and white jersey running away. The man removed the jersey and threw it into someone's yard. He eluded the police. The police learned that the car, a Monte Carlo, was registered to Danyel Morton.
No physical evidence recovered from the car or the crime scene directly linked defendant to the crime. The discarded jersey contained no blood. DNA tests of swabs from the "underarms area and the inside of the neck area" of the jersey did not establish the DNA as defendant's, but defendant could not be excluded as a partial source of a stain on the jersey. A ballistics expert testified that the bullets that killed Soto and Castro were likely fired from one firearm, which could have been a nine millimeter Luger caliber high-point semi-automatic pistol.
Investigators learned that earlier in the day, at 2:55 p.m., Collingswood Police Officer Michael Pope had stopped a man driving the Monte Carlo that was later used in the shootings. According to Officer Pope, the driver was a light-skinned black male, approximately five feet, five inches tall, wearing earrings in both ears and a football jersey with the name D. Thomas and the number fifty-eight. The driver also had a small goatee. Unlicensed, the driver identified himself as Malik Cox. Officer Pope contacted Morton, satisfied himself that Malik Cox was permitted to drive Morton's car, then issued two traffic summonses. At trial, Officer Pope identified defendant as the person to whom he issued the summonses.
Morton testified at trial that defendant was the father of her child. The 1995 Black Monte Carlo used during the shootings was registered to her. Defendant had purchased the car and paid for insurance, but registered it in Morton's name because he had no driver's license. On the day Officer Pope stopped defendant in Collingswood, Morton told the officer that defendant was Malik Cox because that was Morton's standard story if defendant were stopped while driving the car. Morton also confirmed that defendant had a red sports jersey in May 2004.
After defendant was stopped by Officer Pope in Collingswood, he went to the Bridgestone Firestone in Mount Ephraim where a worker refunded some of the money defendant had paid for repairs to the car. According to the Firestone worker, defendant was wearing jeans and a "sports throw back jersey."
The police initially suspected that defendant's brother, Lamar Harrity, might have been involved in the shootings. Two days after Soto and Castro were shot, Camden County Prosecutor's Senior Investigator Kevin Kellejan questioned Lamar Harrity's friend, Stephon Cushion, who said Lamar was with him when Soto and Castro were shot.
Cushion testified at trial that Lamar Harrity was a close friend, like a cousin. On the night of the shootings, Cushion let Lamar Harrity use the Intrepid that Cushion regularly drove. Cushion did not need the car because he intended to watch one of his daughters perform in a school play. During the play, one of Cushion's other daughters started to cry, so he called Lamar Harrity who returned to the school in the Intrepid. According to Cushion, Lamar Harrity returned to the school around seven or eight o'clock and they hung out until the play ended, around nine o'clock. Cushion then gave Lamar Harrity twenty dollars to catch a cab home.
Two months after the shootings, on August 21, 2004, defendant's unindicted co-conspirator and accomplice, Anthony Harris, confessed to being the passenger in the car when defendant shot Soto and Castro. Harris, who had a lengthy criminal history, was arrested on August 21 for selling drugs. He told the police he had information about the Soto and Castro homicides. According to his trial testimony, several days before the shootings he met Soto, who claimed to have several AK-47s for sale. Harris telephoned defendant, who later appeared and drove off with Soto. When defendant returned, he was bleeding from the face. Soto had robbed him.
On the night of the homicides, Harris spotted Soto in a black car and was able to speak with him. Although Harris did not testify clearly about where defendant was when Harris spoke to Soto, after the conversation Harris told defendant that Soto was in the car. Defendant had an instant reaction and the two drove to the Washington Apartments where defendant got a nine millimeter Luger pistol. Harris and defendant drove to the "Dope Streets" in North Camden to look for Soto. When they turned onto Sixth Street, Harris noticed the Jeep that Soto was driving. Even though a police paddy wagon was parked ten cars in back of the Jeep, they pulled along the Jeep and defendant started shooting.
Shortly after the shooting, Harris grabbed the gun and jumped from the car. He watched as the paddy wagon drove by, and then left the area. Two days later, he met defendant at a motel. Defendant and a woman named Ashley were going to say that on the night of the homicide, they fought and defendant got out of the car. That was supposed to be their alibi. Defendant also told Harris that if something were to go wrong, defendant would report the car stolen.
Harris denied that defendant's brother, Lamar, had any involvement with the shooting. Although Harris told police that he was wearing a green Eagles jersey and defendant was wearing a red D. Smith jersey when defendant shot Soto and Castro, at trial he claimed defendant left his jersey in the back seat of the car.
In exchange for Harris cooperating with authorities and agreeing to testify truthfully against defendant, the State agreed to permit him to plead guilty to two counts of aggravated manslaughter, for which he received a fifteen-year aggregate sentence with an eight-five percent period of parole ineligibility under the No Early Release Act, (NERA) N.J.S.A. 2C:43-7.2. Harris also received a custodial term for drug charges, but that term was imposed concurrently to his sentence on the manslaughter charges.
During cross-examination, Harris admitted telling a defense investigator on September 29, 2008, that everything he told the police in August 2004 was false. Then on April 13, 2010, in preparation for trial, Harris spoke to the prosecuting attorney and one of her investigators, Kellejan, and told them everything he told the defense investigator was a lie. Harris told the prosecutor and Investigator Kellejan that in exchange for testifying truthfully at the trial, he "wanted reconsideration of [his] sentence." According to a statement provided by the State to defense counsel, when the prosecutor told Harris she was not in a position to reconsider his sentence he said: "If I can't get this . . . upfront agreement done, I will mess this trial up."
Harris denied making that statement. He claimed to have told the prosecutor,
I feel as though for everything that's falling on me . . . and what I [have] been through, . . . I feel as though this is too much time and if you don't put forth your best effort to see if this can't get rectified, I don't feel as though I should come to trial. For what? Because I'm already doing the time.
Defense counsel later confronted Harris with part of the written plea agreement, which stated:
Anthony Harris agrees, as consideration for the State's agreement to permit Anthony Harris' sentencing to proceed as would normally be scheduled rather than have said sentencing held in abeyance until completion of any and all related criminal proceedings in which his cooperation and/or testimony are required, that the State may move before the [c]ourt to annul the plea agreement and the sentence within [thirty] days of the completion of any and all criminal matters in which his cooperation and/or testimony are required should the State determine that Anthony Harris has violated a term of this agreement.
The State also presented another convicted felon, Anthony Flores, as a witness. In 2004, Flores had known defendant for approximately two years, although he knew him by the name "Malik." Flores had a twin brother who was defendant's friend. One evening in May 2004, after defendant telephoned Flores's brother, Flores and his brother met defendant at the Washington Park Apartments. Talking fast and nervous, defendant said that he had seen the guys who had robbed and pistol-whipped him. After spotting them, defendant left, returned with a gun, and then "went up to the car [the victims were sitting in] and . . . just started shooting at them." Defendant told Flores that in addition to the two guys that robbed him, there was another man and girl in the car. Defendant needed some money so that he could lay low and stay in motels. Flores had the sense that the shootings had taken place within the past hour.
During cross-examination, Flores admitted that he first agreed to cooperate with the authorities in July 2009, after he was charged with being the kingpin of a narcotics distribution network as well as for other offenses for which he faced a life sentence. In exchange for testifying truthfully against defendant, Flores was sentenced to serve fourteen years with seven years of parole ineligibility.
Defendant called one witness at trial, Investigator Kellejan. Investigator Kellejan identified a picture of Lamar Harrity and pointed out the tattoos on his arms. The investigator testified that following the homicides, he interviewed Stephon Cushion. On April 13, 2010, shortly before the trial began, Investigator Kellejan interviewed Anthony Harris. When Harris said he would testify consistently with the statement he had given to police in exchange for reconsideration of his sentence, Investigator Kellejan "assured him that no promises, guarantees or agreements could be made." When Harris responded by threatening to "mess up" the trial, Investigator Kellejan "inform[ed] [him] that if he didn't testify truthfully according to the statement that he gave the prosecutor's office that he would be subject to perjury[.]" The investigator also informed Harris "that if he did not testify according to that statement[, ] . . . his original plea agreement would be rescinded[.]"
On cross-examination, Investigator Kellejan testified that following the homicide he interviewed Lamar Harrity, and based on information Harrity gave him, he went to see Stephon Cushion to "either confirm or refute what Lamar Harrity had relayed to [him]." The investigator confirmed it.
On September 26, 2007, a Camden County Grand Jury charged defendant with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1) and (2) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree unlawful possession of a weapon, N.J.S.A. 39:5(b) (count five).
The State notified defendant that Anthony Harris was the unnamed co-conspirator referenced in the indictment. Following the disposition of pre-trial motions, defendant was tried and the jury found him guilty of two counts of aggravated manslaughter (lesser included offenses to the charges in counts one and two), and all remaining charges in the indictment. The court denied defendant's motion for a new trial.
At sentencing, the court granted the State's motion for an extended prison term, merged counts three and four, and sentenced defendant to a thirty-year custodial term on count two subject to NERA; a consecutive term of life in prison on count one; and to a concurrent custodial term of five years with two and one-half years of parole eligibility on count five. The court also imposed appropriate penalties and fees. This appeal followed.
Defendant raises the following points for our consideration:
ADMISSION OF TESTIMONY THAT DEFENDANT WAS ROBBED DURING A GUN TRANSACTION WAS IMPROPER OTHER CRIME EVIDENCE THAT SHOULD HAVE BEEN ...