Submitted April 29, 2014.
Approved for Publication June 10, 2014.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-06-01884.
Joseph E. Krakora, Public Defender, attorney for appellant ( Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent ( Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
Before Judges FISHER, ESPINOSA and KOBLITZ. The opinion of the court was delivered by KOBLITZ, J.A.D.
[436 N.J.Super. 71] OPINION
[436 N.J.Super. 72] KOBLITZ, J.A.D.
We reverse defendant's murder conviction because the trial judge permitted the State to bolster its case by calling defendant's investigator to testify to a prior consistent statement of the State's only eyewitness in violation of defendant's right to counsel.
A jury convicted defendant Michael Nunez of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count three); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count five). He was sentenced to an aggregate term of seventy-three years in prison with an eighty-five percent term of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In the early morning of December 13, 2009, Rashon Brown was found unconscious
and later died of gunshot wounds. Two days later, Benjamin Searles, who was in jail on drug charges, gave a statement to police naming defendant as the shooter. On November 12, 2010, a week before pleading guilty to third-degree distribution of a controlled dangerous substance in a school zone, Searles was interviewed by defense investigator Harry Reubel. A year later, Searles testified to his version of the shooting at defendant's trial.
Searles testified that he went with defendant, Brown, and another man to a club around midnight and stayed for two or three hours drinking heavily. When they left the club, defendant drove the car. At approximately 4 or 5 a.m., they stopped in front of an apartment complex. Brown wanted to use his cellphone to look up some telephone numbers, but the battery was dead. Defendant tried to take Brown's phone to see if defendant's battery could be used. Searles testified that defendant became upset when Brown slapped defendant's hand away from the cellphone. Defendant and Brown then exited the car and, after a [436 N.J.Super. 73] physical fight, defendant took a pistol from an area near the console of the car and shot Brown three times.
Later that morning, Searles was arrested for selling drugs. Two days later, after finding out that Brown had died, Searles asked to speak to the prosecutor. Searles ultimately pleaded guilty to third-degree drug distribution within a school zone and the prosecutor recommended a three-year sentence with an eighteen-month term of parole ineligibility. Searles had a substantial prior criminal record involving multiple ...