Opinion
DOCKET NO. A-4400-12T2
02-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAHMELL W. CROCKAM, Defendant-Appellant.
Lon C. Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-03-0471. Lon C. Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
Tried to a jury, defendant Jahmell W. Crockam was convicted of first-degree murder, N.J.S.A. 2C:11-3(a), with aggravators including murder of a public servant, N.J.S.A. 2C:11-3(b)(4)(h), and murder to escape detection, N.J.S.A. 2C:11-3(b)(4)(f); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant was sentenced to life imprisonment without parole. On appeal, he challenges the admission of statements he made to two witness, photographic evidence, and unrelated active warrants for his arrest. Finding no merit to any of these arguments, we affirm.
I.
Christopher Matlosz joined the Lakewood Police Department in 2006, and for the first four years, was assigned to work midnight shifts. On Friday, January 14, 2011, Officer Matlosz reported to work his first evening shift. It would be his last.
At approximately 4:00 p.m., Officer Matlosz was on patrol in a residential neighborhood when he encountered defendant who was walking on August Drive. Matlosz stopped defendant and they engaged in a brief conversation. A local resident, L.S. (Lester), who was standing nearby, saw defendant begin to walk away from the police car, when Matlosz told defendant, "you gotta come with me." Defendant responded, "oh man." Matlosz, still in his patrol car, briefly turned away from defendant and appeared to speak on a cell phone or radio. Defendant walked back toward the police car, removed a .38 caliber handgun from his pocket, and shot Matlosz once in the neck. Defendant then leaned toward the driver's side window and fired two more shots, striking Matlosz in the head from point blank range.
As some of the witness requested protection, we employ pseudonyms.
Lester, his wife, D.S. (Dana), and another resident who observed the shooting, A.P. (Art), all called 9-1-1. Police and emergency medical personnel responded. Matlosz was taken to a hospital where he was pronounced dead. He was twenty-seven years old.
Defendant fled on foot and called a friend, Q.P. (Quinn), for a ride. Defendant had been staying at the home of Quinn's mother, T.C.-P. (Tara). Quinn, Quinn's girlfriend, and another friend, D.B. (Darcy), picked up defendant near the Lakewood firehouse. Defendant was out of breath when he got into Darcy's car and asked her to take him to Camden.
During the trip, defendant said he shot a cop in the head and had killed him. Darcy dropped defendant at the apartment of A.H. (Ann) in Camden. While at Ann's apartment, defendant told her boyfriend that he had killed a cop and the police were searching for him. C.R. (Clem), a friend of defendant's, came to Ann's apartment later that night. Defendant told Clem that he shot the officer because it looked like he was reaching for his gun. Defendant had already disposed of the clothes he was wearing earlier but still had the murder weapon. Defendant gave the gun to Clem who then left with two others, drove to a pier, and threw the gun into the Delaware River.
After the shooting, police interviewed eyewitnesses Lester and Art. Both were shown arrays with six photographs. Art immediately excluded four photos, and was unsure about the remaining two, one of which was of defendant.
Lester identified the photo of defendant, stating he was ninety-five percent sure that he was the shooter. Once defendant was identified, police obtained a warrant for his arrest and his name and photograph were widely distributed by news media as a suspect in the murder of Officer Matlosz.
J.A. (Jean), who is related to Lester and Dana by marriage, learned of the shooting that afternoon. Later that evening, Jean received a mass text message from her aunt containing a photo of defendant, who was identified as a suspect in the shooting. Between 9:30 and 10:00 that evening, Jean forwarded the photo of defendant to several people, including her cousin J.W. (Justin), out of concern for their safety.
Justin, who was Lester's son-in-law, forwarded the photo to Lester, followed by a text message stating, "Suspect: Jahmell W Crockam, [D.O.B.], Ht 5'9, 220 lbs. wanted for killing cop also has 150,000 warrant already for weapon possession in past . . . please pass t." One minute later, Lester received a third message stating, "That's from [Kevin's] swat buddy." Jean's husband is named Kevin, but she testified that she was not aware that her husband had a "swat buddy" and did not know that Lester had witnessed the shooting when she forwarded the message to his son-in-law.
The "150,000" is unexplained and the message is incomplete, ending as quoted with a single "t."
Lester testified that he did not read the texts of the second and third messages, explaining that he had just learned how to text and he remembers only opening the picture. Lester brought the photo on his phone to the police station the next morning. The texted picture of defendant was different from the photo in the array, and Lester told police he was better able to identify defendant in the texted photo because it more accurately showed defendant's likeness, whereas defendant appeared to be squinting in the array photo.
Defendant was arrested on the morning of January 16, 2011 at Ann's apartment. While he was incarcerated, defendant told three inmates, R.C. (Rick), R.R. (Ron), and D.J. (Dick), that he had killed Officer Matlosz. In each account, defendant provided specific details about the shooting, including where he was before and after, and that one of the shots was "up close and personal."
Dick told detectives that in the months before the shooting, defendant said he was aware there were warrants for his arrest and he was thinking of killing a police officer. Ron recounted that defendant seemed "unemotional" when he was talking about the shooting, as if he had "watched a movie the night before and [was] talking about it . . . ."
On January 16, 2011, defendant gave a recorded statement to Detective Casey Long of the Ocean County Police Department, in which he admitted being in the area of the shooting and seeing the officer who was shot, but claimed he went to Camden that afternoon and only learned about the shooting by watching reports on television. Defendant did not testify and called no witnesses at trial.
The jury found defendant guilty of first-degree murder of Officer Matlosz, with aggravating factors, second-degree possession of a handgun for unlawful purposes, and second-degree unlawful possession of a weapon.
On appeal, defendant raises the following points:
POINT I
A GROSSLY SUGGESTIVE CELL-PHONE PICTURE OF DEFENDANT WHICH WAS SENT TO AN EQUIVOCATING
KEY EYEWITNESS FROM HIS SON-IN-LAW'S "S.W.A.T. BUDDY," SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE SINCE IT WAS UNRELIABLE HEARSAY AND DIRECTLY RESULTED IN AN IDENTIFICATION OF DEFENDANT AS THE SHOOTER.
POINT I (a)
SINCE THE CELL-PHONE PICTURE WAS GROSSLY SUGGESTIVE IT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT I (b)
THE CELL-PHONE PICTURE, APART FROM SUGGESTIVENESS, WAS PREJUDICIAL HEARSAY INSINUATING THE POLICE HAD ADDITIONAL INFORMATION THAT DEFENDANT WAS THE SHOOTER, WHICH WAS NOT PRESENTED AT TRIAL.
POINT II
THE ADMISSION OF DEFENDANT'S PURPORTED STATEMENT THAT HE WAS GOING TO KILL A COP BEFORE GOING TO JAIL, AS WELL AS ADMISSION OF UNRELATED ARREST WARRANTS WAS INADMISSIBLE PRIOR BAD-ACTS EVIDENCE AND, IN ANY CASE, WAS FAR MORE PREJUDICIAL THAN PROBATIVE, ESPECIALLY SINCE MOTIVE WAS NOT AN ISSUE.
II.
Defendant first argues that the admission of the cell phone photo that was sent to Lester was grossly suggestive and should not have been admitted. He also claims that the photo was prejudicial hearsay and insinuated that the police had additional information that defendant was the shooter.
The trial judge conducted an extensive pretrial Wade hearing and heard the testimony of Lester, Art, Jean, Captain John Seidler, and Detective Campbell Brown. Defendant's counsel did not object to the manner in which the photo arrays were presented to Lester and Art. Rather, counsel maintained that the cell phone photo had the effect of transforming the certainty of Lester's identification of defendant from the photo array from 95% to 100%.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). --------
The judge applied the factors established in State v. Henderson, 208 N.J. 208 (2011), and determined that defendant met his burden of showing some evidence of suggestiveness that could lead to mistaken identification. After noting that the officers followed the New Jersey Attorney General's guidelines for preparing and conducting identification procedures, the court found that the State satisfied the burden of offering system and estimator variables to show that Lester's identification was reliable.
Central to the judge's decision was the finding that, prior to receiving the texted photo, Lester's identification of defendant from the photo array was made to a certainty of ninety-five percent. Based on the totality of the circumstances, the judge found that defendant had not demonstrated a very substantial likelihood of irreparable misidentification.
Defendant maintains that the texted photo was "unquestionably . . . the result of state involvement . . . ." This claim is unsupported by any evidence in the record.
Lester and Art were shown photo arrays at 6:32 and 6:47 p.m. on Friday, January 14, 2011, within three hours of the shooting. Their identifications resulted in the police obtaining a warrant that evening for defendant's arrest and prompted an intense search for him by numerous law enforcement officers. Detective Long testified that the police developed defendant as a suspect in the shooting very early, within three or four hours of the incident. Clem testified that on Friday evening defendant's name was "on the news and all over the TV [and] that they were looking for him."
Lester did not receive the texted photo until 9:58 p.m. The electronic path the photo travelled before it appeared on Lester's phone was well-documented: Jean received the photo from her aunt in a mass text message; Detective Long testified that the text message was "going around pretty rapidly" that evening and he received the same message several times; Jean sent the photo to her cousin Justin and several others but was not aware that Justin would forward it to Lester, and did not know that, hours earlier, Lester had identified defendant as the shooter. Justin then sent the photo to Lester, followed by the "S.W.A.T. buddy" text message, but Lester testified that he did not read that message. Detective Long testified that no one from his office sent Lester the photo of defendant.
There is no proof of any law enforcement involvement in Lester's receipt of the texted photo of defendant. Clearly, the photo and accompanying text messages were widely circulated by concerned family members. Also, there was no proof that any of these family members were aware that Lester had witnessed the shooting and identified defendant as the shooter.
Thus, the circulating of the texted photo does not even rise to the level of the type of suggestive behavior by a private citizen referenced in State v. Chen, 208 N.J. 307, 327 (2011). While the viewing of this photo served to elevate Lester's certainty of his identification of defendant from 95% to 100%, he could have just as easily seen the same or a similar photo of defendant on the news that evening or in a newspaper in the following days.
Defendant's counsel argued during the Wade hearing that the texted photo transformed the six-photo array shown to Lester into a "seven-picture array with two pictures of Mr. Crockam." Without providing any support, counsel suggested there was "state involvement" in providing Lester with the "seventh picture." In his oral and written decisions denying defendant's motion to suppress Lester's identification, the judge did not specifically address the admissibility of the photo.
During trial, there was no objection to Lester's testimony about his receipt of the texted photo or the subsequent introduction of the photo, which was displayed side-by-side with the photo contained in the array. When asked the difference between the two photos, Lester explained that defendant's eyes were "squinting" in the array photo while the texted photo was more like he recalled defendant's appearance when he saw him on the street.
The State displayed the texted photo without either of the two text messages subsequently sent to Lester. The first mention of the text messages came on cross-examination when defendant's counsel questioned Lester about them.
After Lester's testimony concluded, defendant moved to introduce a video made by police of Lester's cell phone showing the photo and text messages. Even though Lester maintained throughout his testimony that he did not read any of the texts, defendant's counsel sought to introduce the video to "establish visually in the jury's mind these two texts." Because defendant urged the introduction of the text messages, any error was invited. See Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996) ("The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.").
We are satisfied that defendant has not demonstrated that Lester's viewing of the cell phone photo was likely to result in an irreparable misidentification, or that the admission of the photo at trial was likely to mislead the jury and cause undue prejudice to defendant.
Defendant next argues that the judge erred in admitting evidence that he stated he would shoot a police officer, and in permitting mention that defendant had outstanding arrest warrants. Alternatively, defendant argues that even if this evidence were admissible as bad acts evidence, the probative value is outweighed by the prejudicial effect and should have been suppressed under N.J.R.E. 403.
At trial, Tara testified that defendant was aware that he had an outstanding warrant and told her that he was "not going back to jail for nothing stupid. If he go to jail, it was gonna be for killing a cop." Similarly, Dick testified that defendant told him he was considering killing a police officer.
N.J.R.E. 404(b) generally prohibits evidence of a defendant's other crimes, wrongs, or acts to show that he acted in conformity with a disposition. The rule is intended to preclude admission of the other crimes or bad acts when the evidence is offered solely to establish a party's propensity or predisposition. State v. Reddish, 181 N.J. 553, 608 (2004). However, such evidence may be admitted to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake when such matters are relevant to a material issue in dispute. N.J.R.E. 404(b).
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court promulgated a four-prong test for analyzing the admissibility of evidence under Rule 404(b): (1) the evidence of other crimes or wrongs must be relevant to a material issue; (2) it must be similar in kind and reasonably close in time to the offense charged; (3) the evidence of the other crimes or wrongs must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice.
Generally we defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion. State v. Erazo, 126 N.J. 112, 131 (1991).
Defendant's statements to Tara and Dick regarding his intent to kill a police officer are clearly evidence of his state of mind at the time he shot Officer Matlosz. The testimony regarding defendant's outstanding warrants explained why Officer Matlosz told defendant to come with him, and established defendant's motive for killing him. Because both witnesses testified that defendant made these statements directly to them and because the evidence is similar in kind to the charged offense and close in time, the second and third prongs are satisfied.
Finally, the probative value is not outweighed by its possible prejudicial effect. In a case with similar facts, we affirmed the admission of statements made by the defendant regarding his hatred of, and willingness to kill police officers. State v. Cherry, 289 N.J. Super. 503, 527-28 (App. Div. 1995).
Here, both witnesses testified unequivocally that defendant expressed a willingness if not an intention to kill a police officer. The trial judge noted, even if there was a possibility that a jury would draw an improper inference from testimony as to outstanding warrants, any potential risk can be addressed with a limiting instruction. Further, the judge noted that in criminal cases, the fact that a warrant was issued might be put before a jury in order to establish that the police acted properly.
"[T]he trial judge is vested with the final authority to determine if the prejudice of the evidence outweighs its probative value." Cherry, supra, 289 N.J. Super. at 528 (citing N.J.R.E. 403). We will reverse only if the trial judge's decision "was so wide of the mark that a manifest denial of justice resulted." Ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)).
We are satisfied that defendant's statements to Tara and Dick, and evidence of his prior unrelated warrants were properly admitted and that their probative value is not outweighed by their prejudicial effect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION