Opinion
DOCKET NO. A-0684-13T3
07-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN LLOYD, a/k/a CHRIS BARRETT, a/k/a DEVIN KEITH, Defendant-Appellant.
Amira R. Scurato, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Scurato, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Currier. On appeal from Superior Court Of New Jersey, Law Division, Essex County, Indictment No. 09-10-2752. Amira R. Scurato, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Scurato, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his convictions for first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 (count one); second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). He also challenges his sentence. For the reasons that follow, we affirm his convictions and remand for re-sentencing.
The jury acquitted defendant on count two, which charged him with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).
I.
At approximately 7:00 p.m. on August 8, 2009, Kyle Evans a/k/a Terrell Smith (Smith) was shot in the back after being chased by the shooter from one end of a Newark shopping center (the mall) to the other through the parking lot, across the street and into a residential area. The mall's stores include: Extra Supermarket; Rainbow Corporation, a women's clothing store; MoneyGram check cashing; SuperWash laundromat; and a pizzeria. There is a residential community across the street from the mall.
The victim initially identified himself as "Kyle Evans" to police officers. He later stated his real name was "Terrell Smith."
Stan Masucci, a security guard for Rainbow, was inside the store when he heard "a couple of shots" and then saw "two people . . . running down towards the supermarket." After Masucci got outside, he heard an additional shot fired. He saw one man being chased by another man who had a weapon, running "fast" towards where he was standing. As the two men neared Masucci, he told them, "police, freeze," but they "ran right by [him]" without stopping. At that point, Fred "Jed" Rokins, a security guard at the supermarket, ran toward Masucci. Masucci and Rokins attempted to pursue the two men but lost sight of them. Masucci then heard another shot. Masucci found Smith lying on the ground with a bullet wound to his back in the backyard area of the neighboring residential complex.
Rokins testified the shooter was about 5'5", weighed between 130 and 140 pounds and was wearing a sky blue top and checkered shorts. After losing sight of the shooter for about three or four minutes, he saw him enter a side gate into the mall. Rokins knew it was the shooter because he was still wearing the same blue shirt.
Police arrived soon after the shooting. Smith was taken to the hospital in an ambulance. Newark Police Officer Jose Roman was one of the responding officers at the scene and interviewed Smith at the hospital. Smith provided Roman with a description of the shooter. He stated the shooter was 5'6", 170 pounds, and wearing a blue shirt and black and white shorts.
Detective Tony Brown arrived at the scene around 7:20 p.m. The witnesses he interviewed were unable to identify the shooter.
Brown obtained footage from two surveillance cameras at the mall. The MoneyGram camera showed that at 6:59 p.m. Smith was chased by the suspect who was "running with his arm fully extended, [and a] firearm in his hand." The supermarket's surveillance camera showed that directly after the shooting at 7:12 p.m., the same person who had chased Smith took his shirt off and "tossed" it.
Brown canvassed the area and recovered a light blue polo shirt that the suspect was seen taking off in the video. The State presented expert testimony that defendant's DNA was found on the shirt.
Police recovered seven shell casings around the sidewalk and parking lot area near MoneyGram. The State's ballistics expert testified that all the casings were .40-caliber and had been fired from the same weapon.
After identifying defendant as the suspected shooter, Brown prepared a photo array to show witnesses. The array was comprised of the photographs of six African-American men, including defendant; all had similar features, complexions, and facial hair. Brown returned to the mall with his supervisor, Sergeant Jerome Ramsey. Brown had asked Ramsey to administer the photo array as a "blind" officer because he did not know who the suspect was. After two witnesses were unable to identify the shooter from the photo array, Brown and Ramsey recanvassed the area in search of other witnesses.
They went to the SuperWash and spoke with Joseph Sterling, the maintenance man and night watchman. Sterling informed them that he was present at the shooting, observed what had happened, knew the shooter and would be able to identify him. Sterling said he knew the shooter from the area, but only knew him as "Mousey."
Brown took Sterling's formal statement with a digital recorder. Sterling stated he had known defendant for three to four months before the shooting. He saw defendant chasing the victim while firing a gun, and moments later he observed defendant exiting the mall at the opposite end. Sterling further said defendant was wearing a sky blue striped shirt that he took off while walking by the SuperWash. Sterling also identified defendant as the shooter from the photo array and provided the following statement on the photograph identification form:
I, Sterling Joseph [sic] . . . had an opportunity to read and sign photo display instructions and then view a group of six photographs. These photographs were
displayed one at a time and were never shown next to one another. Each photo shows the face of a male and nothing else. I examined the photos carefully and identified Photograph No. 2 as being that of the male who, . . . I just saw him chasing a kid on a bike, shooting at him through the mall, then about ten minutes later . . . he walked back going -- out of the mall . . . .Sterling signed the form and acknowledged the statement was truthful and provided voluntarily.
Brown obtained an warrant for defendant. The arrest report stated defendant was 5'8" and 160 pounds.
II.
Prior to trial, defendant requested a Wade hearing, seeking to exclude Sterling's out-of-court identification of him on the ground "the identification procedure" for the photo array was "impermissibly suggestive" due to "differences in facial hairstyles" and skin tones of the men included in the array. The trial judge denied the motion, finding defendant had failed to make the requisite showing that the police conducted a questionable identification procedure and there was "nothing impermissibly suggestive about the array." The judge observed that all six photos "depict[ed] black males with facial hair," "[a]ll appear[ed] to be of the same age range," all "more or less" had similar clothing, hair patterns and builds except for number five who "appear[ed] to be somewhat heavier," and "there [was] only a slight difference in skin tones."
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The State was unable to locate Smith to testify at trial. Masucci testified and made an in-court identification of defendant as the shooter. Masucci acknowledged on cross-examination that he had told police on the night of the shooting that he "only saw the person with the gun from the rear . . . and could not make an identification."
Sterling testified but gave an account that differed from his recorded statement. He stated he had been working at the SuperWash and went to get his niece at the pizzeria in the mall after he heard gunshots. He said, "[t]he shooting already had happened" by the time he arrived at the pizzeria. When asked to describe the shooting, Sterling claimed he had no recollection of the event or the statement he gave to Brown.
The State sought to admit the audio recording of Sterling's statement as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1)(A), and requested a Rule 104 hearing to determine the reliability of the prior statement. The State argued Sterling was "feigning a lack of memory." The audio recording was played for Sterling at the Rule 104 hearing in an attempt to refresh his recollection. Sterling maintained he was unable to recall the shooting incident or the conversation with police officers. He claimed his lack of memory was due to a stroke and blood clot he suffered about five or six months prior to trial. However, Sterling confirmed that the voice on the recording was his. Brown testified at the hearing and recounted his interaction and conversation with Sterling.
The judge determined Sterling's prior statement was admissible. He found that the statement was voluntary and reliable based on listening to the recorded statement twice, and hearing and observing the testimony of Brown and Sterling. The judge found Sterling was "clearly feigning the lack of recollection."
During the trial, the judge held a Sands /Brunson hearing to determine the admissibility of defendant's prior convictions should he testify. The State sought to admit evidence of three prior convictions: first-degree armed robbery in 1996, first-degree armed robbery in 2000 and theft by deception in 2008. Defense counsel argued the two convictions for armed robbery were not admissible because they were remote, and if admitted, the convictions must be sanitized.
State v. Sands, 76 N.J. 127 (1978).
State v. Brunson, 132 N.J. 377 (1993).
The judge determined that all three convictions were admissible. It found that the convictions were not remote since defendant had been released from prison on the two robbery convictions in 2006, and in consideration of the seriousness of the offenses. The judge also found that sanitization was not required because they were not the same or similar to the current offenses. Defendant subsequently chose not to testify.
At the close of the State's case, defendant moved for a judgment of acquittal. The judge denied the motion, finding "more than ample credible evidence" to support a conviction on all counts. The judge later denied defendant's renewed Reyes motion for the same reasons.
State v. Reyes, 50 N.J. 454 (1967).
Prior to sentencing, defendant filed a motion for a new trial based on newly discovered evidence, specifically, a statement provided by the victim. Smith recanted the testimony he gave before the grand jury in which he stated he never looked back to see the shooter. In his new statement, Smith said he actually knew who the shooter was and it was not defendant: "I, Terrell Smith, know Kevin Lloyd for eight years. I know how he looks and I know who shot me and Kevin Lloyd, also known as Mousey, did not do it." The trial court held an evidentiary hearing at which Smith testified he was "absolutely sure" defendant was not the man who shot him. He further testified that the real shooter was a man named "Wygee." He said Wygee was dead and was unable to provide any additional facts about him.
Smith claimed he was able to identify the shooter because, after being shot in the back, he turned around and fired two shots at the shooter. Smith explained he did not identify the shooter to the police and lied to the grand jury because he did not want to be charged for the shooting and he was scared of Wygee, who was still alive at that time.
Smith stated no one had threatened, forced or influenced him to testify, or told him what to say at the hearing. However, on cross-examination, Smith admitted he was incarcerated in the same correctional facility as defendant for approximately sixteen to eighteen months. Smith claimed he was not aware defendant was in the same facility, did not see or communicate with defendant at any time, and did not know defendant was facing trial for shooting him. The judge found Smith's recantation testimony was "not credible and certainly not reliable as to what occurred." He denied the motion for a new trial.
Prior to sentencing, the State filed a motion seeking a mandatory sentence of life imprisonment without the possibility of parole for the conviction on count one, pursuant to Rule 3:21-4(f) and N.J.S.A. 2C:43-7.1. The judge granted the State's motion. After merging defendant's conviction on count four into count one, the judge sentenced defendant to life imprisonment without the possibility of parole.
Defendant presents the following issues for our consideration in this appeal:
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AS THE TESTIMONY REVEALED THAT THE VICTIM SAW HIS SHOOTER AND THE SHOOTER WAS NOT THE DEFENDANT.
POINT II
THE TRIAL JUDGE ERRONEOUSLY PERMITTED JURORS TO HEAR JOSEPH STERLING'S STATEMENT TO A POLICE DETECTIVE BECAUSE HE BELIEVED STERLING WAS FEIGNING A LACK OF RECOLLECTION, AND THEREFORE THE DEFENSE WAS EFFECTIVELY UNABLE TO CROSS-EXAMINE STERLING. IN ADDITION, THE TRIAL JUDGE'S INSTRUCTIONS FAILED TO PROPERLY GUIDE JURORS' CONSIDERATION OF THAT EVIDENCE AND ALLOWED THE PROSECUTOR TO MISLEAD THE JURORS, IN SUMMATION, AS TO THE STATEMENT'S RELIABILITY.
POINT III
DEFENDANT WAS FORECLOSED FROM TESTIFYING DUE TO THE TRIAL JUDGE'S DECISION TO ADMIT THE
REMOTE CONVICTIONS AND HIS FAILURE TO SANITIZE THE SAME.
POINT IV
THE PROSECUTOR COMMITTED MISCONDUCT BY SUGGESTING TO THE JURY THAT THE WITNESSES WERE SUBJECTED TO THREATS OR INTIMIDATION.
POINT V
NO CROSS-RACIAL IDENTIFICATION CHARGE WAS GIVEN DESPITE A KEY WITNESS BEING OF A DIFFERENT RACE THAN THE DEFENDANT. (NOT RAISED BELOW).
POINT VI
FAILURE TO UTILIZE AN INDEPENDENT OFFICER TO CONDUCT THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS A MATERIAL VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES. (NOT RAISED BELOW).
POINT VII
THE DETECTIVE'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF STATE V. DELGADO DURING THE IDENTIFICATION PROCEDURE REQUIRES REVERSAL. (NOT RAISED BELOW).
POINT VIII
THE JURY WAS WRONGLY ALLOWED TO TAKE THE AUDIO RECORDING OF JOSEPH STERLING'S STATEMENT INTO THE JURY ROOM, WHERE IT COULD BE PLAYED REPEATEDLY DURING DELIBERATIONS
OUTSIDE THE PRESENCE OF COUNSEL AND OF THE DEFENDANT. (NOT RAISED BELOW).
POINT IX
THE TRIAL JUDGE FAILED TO GIVE THE REQUIRED CHARGE UNDER STATE V. CZACHOR IN RESPONSE TO A JURY QUESTION ABOUT HOW TO PROCEED IN LIGHT OF A FAILURE TO REACH CONSENSUS.
POINT X
BECAUSE IDENTIFICATION OF THE SHOOTER WAS THE CRUCIAL QUESTION AT TRIAL, THE TRIAL JUDGE'S FAILURE TO PROPERLY INSTRUCT THE JURY ON THE WITNESSES'S IDENTIFICATIONS AMOUNTED TO PLAIN ERROR. (NOT RAISED BELOW).
POINT XI
THE TRIAL JUDGE ERRED IN GIVING A FLIGHT INSTRUCTION TO THE JURY BECAUSE THERE WAS NO EVIDENCE ADDUCED AT TRIAL THAT DEFENDANT FLED TO AVOID ARREST OR PROSECUTION.
POINT XII
THE CUMULATIVE IMPACT OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL.
188 N.J. 48 (2006).
82 N.J. 392 (1980).
In a pro se supplemental brief, defendant raises the following issues:
POINT I
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHEREFORE THE CONVICTION SHOULD BE REVERSED IN ITS ENTIRETY AND THE INDICTMENT MUST BE DISMISSED IN THE INTEREST OF JUSTICE; 5TH AND 14TH AMEND. UNITED STATES CONSTITUTION; NEW JERSEY CONSTITUTION; DUE PROCESS.
POINT II
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A FAIR TRIAL WHEN THE STATE FAILED TO DISCLOSE THE CRIMINAL HISTORY OF THE WITNESS, KYLE EVANS, WHOSE REAL NAME ALL ALONG IS TERRELL SMITH WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL MUST BE GRANTED.
POINT III
THE COURT ERRED IN IMPOSING AND [SIC] EXCESSIVE SENTENCE, PURSUANT TO THE "THREE STRIKES" STATUTE, UNDER N.J.S.A. 2C:43-7.1, BY STATING THAT THE COURT HAS NO DISCRETION BUT TO IMPOSE LIFE WITHOUT PAROLE, AND THAT THE SENTENCE IS SO DISPARATE AND DISPROPORTIONAL THAT IT IS UNCONSTITUTIONAL, WHEREFORE IN THE ALTERNATIVE TO THE OTHER RELIEF SOUGHT, THE MATTER MUST BE REMANDED TO THE LAW DIVISION.
After carefully reviewing these arguments in light of the record and applicable legal principles, we conclude the arguments raised in Points I, II, III and XII and the arguments raised by defendant in Points I and II of his pro se supplemental brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree that a life sentence without parole was discretionary and not mandatory here. Therefore, we reverse the sentence and remand for re-sentencing.
III.
We first address the sentencing issue.
Defendant argues the judge erred in his determination that the imposition of a sentence of life without parole was mandatory pursuant to the Persistent Offenders Accountability Act (Three Strikes Law), N.J.S.A. 2C:43-7.1. In its supplemental reply brief, the State agreed that defendant was ineligible for a mandatory life sentence because he was convicted of attempted murder rather than murder.
The Three Strikes Law provides in pertinent part:
A person convicted of a crime under . . . : N.J.S.[A.] 2C:11-3 [(murder)]. . . , who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions, under any of the foregoing sections . . . , shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole.
[N.J.S.A. 2C:43-7.1(a) (emphasis added).]
The statute is silent as to whether an attempt to commit one of the enumerated offenses is a qualifying offense. In State v. Livingston, 172 N.J. 209, 217 (2002), the defendant was convicted of first-degree attempted murder and first-degree robbery. The Court described these as "two crimes enumerated in the 'Three Strikes' law," but did not specifically address whether an attempt to commit one of the enumerated offenses triggered the mandatory life sentence. In light of the fact that the defendant in Livingston was convicted of first-degree robbery, which is specifically enumerated in the statute, we view the Court's mention of the attempted murder conviction as an enumerated offense, without further discussion, to be a passing reference that does not constitute binding precedent. We therefore agree with defendant and the State that defendant's conviction for attempted murder does not qualify as an enumerated offense that will require a mandatory life sentence under the Three Strikes Law and remand for resentencing.
IV.
In Point IV, defendant argues that comments made during the prosecutor's summation deprived him of his right to a fair trial. We disagree.
Prosecutors are "entitled to sum up the State's case graphically and forcefully." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). However, a prosecutor's comments must be "reasonably related to the scope of the evidence presented." State v. R.B., 183 N.J. 308, 332 (2005) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). This means the prosecutor may comment on the evidence revealed at trial, "drawing any reasonable inferences supported by the proofs." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Prosecutors are also permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996); see State v. Timmendequas, 161 N.J. 515, 588 (1999). To warrant reversal of a conviction on appeal, it must be evident that the prosecutor's conduct was "clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
In determining whether the prosecutor exceeded these bounds, "an appellate court must consider: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83. The court must also consider "whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 403-04; see also State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). If, after consideration of these issues the court concludes the prosecutor's comments "were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty." Smith, supra, 212 N.J. at 404.
Defendant first asserts the prosecutor impermissibly insinuated defendant had threatened or otherwise intimidated Masucci and Sterling. In his own summation, defense counsel vigorously attacked Masucci's credibility, calling him "a liar with a capital 'L.'" The challenged comment by the prosecutor consisted of no more than the following: "[M]aybe Mr. Micucci [sic] initially told Detective Brown he couldn't identify the defendant . . . because he was also reluctant to get involved." There is no suggestion that Masucci's reluctance was due to any improper conduct by defendant. Thus, the allegation of impropriety lacks any merit, especially when viewed within the context of defense counsel's attack.
Defendant advances the same ground to challenge the following comments by the prosecutor regarding Sterling:
Now, Joseph Sterling came here, and defense counsel wants you to believe that he
really doesn't remember. I guess that's possible, that he doesn't remember.
. . . .
What happened here in court? I'd ask you to consider Joseph Sterling's appearance and demeanor last week. What -- why did he testify the way he did in court? Was he threatened? Was he paid? Was he scared of being labeled as a snitch? We don't know, and really we can't speculate about that. But we do know that he came in here.
There was no evidence Sterling was intimidated or threatened in any way. It was, therefore, improper for the prosecutor to suggest his change in testimony was due to a threat. However, these were limited comments, followed by the prosecutor's acknowledgement that the jury should not speculate about why Sterling testified the way he did. When viewed within the context of the entire trial, including the strength of the evidence of defendant's guilt, the prosecutor's improper allusion to a threat was not so egregious as to require a new trial.
Defendant also argues it was improper for the prosecutor to comment on the victim's absence at trial. However, this was a topic raised by defense counsel in his summation: "Well, we have a victim, Mr. Kyle Evans, who never testified in the case. We don't know what he says happened. We don't know who or if he can identify his attacker."
Nonetheless, defendant challenges the following, fairly neutral, comment by the prosecutor:
Unfortunately Mr. Evans isn't here. Why isn't he here? Again, speculating about such things will only lead to a verdict that's not based . . . on the truth. A true verdict is never going to be based on speculation. You don't speculate about why . . . Kyle Evans isn't here. Focus on the evidence we have.
We find nothing improper in the prosecutor's acknowledgment of the victim's absence and caution to the jurors not to speculate as to the reason for his absence.
V.
The arguments raised in Points V, VI, VII, VIII and X are raised for the first time on appeal and are therefore subject to review for plain error. R. 2:10-2.
A.
In Point V, defendant argues the trial judge committed reversible error in failing to charge the jury on cross-racial identification (CRI) sua sponte. We disagree.
"A cross-racial identification occurs when an eyewitness is asked to identify a person of another race." State v. Cromedy, 158 N.J. 112, 120 (1999). "A court should give a cross-racial jury instruction only when 'identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability.'" State v. Joseph, 426 N.J. Super. 204, 227 (App. Div.) (quoting Cromedy, supra, 158 N.J. at 116), certif. denied, 212 N.J. 462 (2012).
Identification was a critical issue in this case. However, Masucci's CRI of defendant as the shooter was corroborated by other evidence, which, in turn, gave the identification "independent reliability." Cromedy, supra, 158 N.J. at 132. That evidence included: Sterling's identification of defendant; the recovery of the shirt worn by the shooter, which bore defendant's DNA; and the fact that both Sterling and Smith said they knew the shooter as "Mousey." See State v. Harris, 357 N.J. Super. 532, 538 (App. Div. 2003) (affirming court's denial of application for CRI instruction where identification of the African-American defendant by a Caucasian witness was corroborated by another witness who was also African-American and the defendant was found wearing the victim's jacket shortly after crime).
As we have noted, Sterling identified defendant as "Mousey"; Smith testified that Mousey was someone else.
We therefore conclude a CRI charge was not required and, as a result, the failure to provide such an instruction was not an error that was "clearly capable of producing an unjust result." R. 2:10-2.
B.
In Points VI and VII, defendant challenges the photo identification procedure the police used with Sterling because: it failed to comply with the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Apr. 18, 2001); and the officers failed to properly memorialize the procedure in writing as required by Delgado, supra, 188 N.J. at 63.
As a preliminary matter, we note the Court's decision regarding eyewitness identification in State v. Henderson, 208 N.J. 208 (2011), is not applicable here because it was decided after the conclusion of defendant's trial. The Henderson Court explicitly provided that its ruling would apply "to future cases only." Id. at 302.
Defendant's argument relies heavily on the fact that the officers failed to use a double-blind procedure in which an independent officer presents the array to the witness, as would be required by Henderson, id. at 248-50, 289, and his contention that Ramsey's knowledge regarding the investigation disqualified him as an "independent officer." This argument lacks merit because: (1) the factual premise is belied by the evidence regarding Ramsey's actual knowledge, and (2) the procedure followed satisfied due process standards applicable at the time of defendant's trial as set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). See State v. Madison, 109 N.J. 223, 232-33 (1988).
Although Ramsey was one of the officers who responded to the shooting, no suspect was developed that night when he was at the scene; he denied being "intimate with the investigation"; and testified he did not know who the suspect of the investigation was at any time before Sterling identified defendant's photograph in the array.
The two-step test for evaluating whether the procedure complied with due process standards required the following:
[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
[Id. at 232 (citations omitted).]
Aside from Ramsey's purported lack of independence, defendant has not identified any aspect of the procedure that was impermissibly suggestive. In denying the motion for a Wade hearing, the trial judge observed that there was "nothing impermissibly suggestive about the array," that all six photos "depict[ed] black males with facial hair," "[a]ll appear[ed] to be of the same age range," all "more or less" had similar clothing, hair patterns and builds except for number five who "appear[ed] to be somewhat heavier," and "there [was] only a slight difference in skin tones." In light of the fact that the procedure here did not deprive defendant of due process, the officers' failure to comply with the Attorney General Guidelines did not constitute an error that rendered the admission of the identification one that was "clearly capable of producing an unjust result." R. 2:10-2.
We reach a similar result as to defendant's argument that the identification should have been excluded from evidence because the officers failed to properly memorialize the procedure in writing as required by Delgado, supra, 188 N.J. at 63.
The Court in Delgado held:
[A]s a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results. . . . When feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing.
When not feasible, a detailed summary of the identification should be prepared.
[Ibid. (emphasis added).]
In his recorded statement, Sterling discussed the identification procedure, where it was conducted, the general nature of the dialogue, the results of that communication and noted whom he identified as the shooter. We conclude the purpose of the reporting requirement, which is to ensure "the reliability of the identification," was satisfied here. Henderson, supra, 208 N.J. at 252. Accordingly, this argument also fails to advance an error that was "clearly capable of producing an unjust result." R. 2:10-2.
C.
In Point VIII, defendant argues it was plain error for the judge to grant the jury "limitless access to" the audio-recording of Sterling's identification of defendant.
During deliberation, the jury asked: "Can we bring the tape in the deliberation room, the audio, or . . . we've [sic] got to do it all out here?" After allowing the jury to review the recording in open court, the judge ruled the jury would be permitted to take the recording into the jury room.
There is no evidence on the record that defendant objected to the judge's decision. In fact, defense counsel stated "I just want to play the audio one time to make sure that they isolated the one statement." Additionally, in response to the judge soliciting objections, defense counsel replied: "No objections, and I listened to it along with the prosecutor to make sure that's what it would be."
Although he concedes the sidebar was indiscernible, defendant contends that "it seems clear that an objection was raised" during a sidebar colloquy.
In decisions rendered after defendant's trial, the Supreme Court has instructed that special rules apply when the court seeks to provide the jury access to audio- or video-recordings during deliberation. Trial courts may only provide the jury with recorded statements "in the event of a jury request." State v. Weston, 222 N.J. 277, 294 (2015). Additionally, "under no circumstances shall the jury have unfettered access to audio-or video-recorded statements in the jury room during deliberations." State v. A.R., 213 N.J. 542, 560-61 (2013). Instead, "[a] video-recorded statement must be replayed in open court under the direct supervision of the judge." Weston, supra, 222 N.J. at 292; see also State v. Burr, 195 N.J. 119, 135 (2008).
In Weston, the Court upheld the defendant's convictions in two separate trials, despite both trial courts' error in allowing the jury unfettered access to video-recordings of the child-witnesses' statements. Weston, supra, 222 N.J. at 279-80. The defendant's counsel failed to object at either trial when the judge sua sponte ordered that the jury would be provided access to the video-recordings in the deliberation room. Id. at 294. In finding the error did not rise to the level of plain error, the Court "assess[ed] the overall strength of the State's case," id. at 295 (citation omitted), and found "it [was] not only unlikely, but virtually inconceivable, that either verdict was driven by the jury's unsupervised access to the videotaped version of the properly admitted pretrial statements, rather than by the jury's evaluation of the evidence." Id. at 300. Thus, the Court found the juries' unsupervised access did not rise to the level of plain error. Ibid.
As was the case in Weston, defendant fails to provide any evidence that the jury relied on Sterling's audio-recorded identification in lieu of the substantial evidence against him. Sterling's written statement had also been admitted into evidence; Sterling's identification of defendant was corroborated by Masucci's independent identification of defendant as the shooter; video surveillance that captured the shooting was shown; and defendant's DNA was found on the shirt discarded at the scene by the shooter. Given the substantial evidence against defendant, we conclude that this error was not "clearly capable of producing an unjust result." R. 2:10-2.
D.
Defendant concedes "[t]he judge read the Model Jury Charge on Identification." Nonetheless, in Point X, he argues "[t]he jury instructions on identification were fundamentally flawed in two respects": (1) "the trial judge failed to tailor the jury charge" regarding the identifications by Masucci and Sterling; and (2) the judge "did not explain the significance and impact of the violations of the [Guidelines] on the reliability of Sterling's identification." In the absence of any request, these arguments lack merit. Moreover, as we have discussed, to the extent that there were any deficiencies in the procedures followed, they were merely procedural and do not reflect any lack of reliability in the identifications themselves. Therefore, the alleged error here did not rise to the level of plain error. R. 2:10-2.
VI.
In Point IX, defendant argues the judge failed to properly respond to a jury question by not employing the guidelines to follow when a jury is deadlocked as set forth in Czachor, supra, 82 N.J. at 404-07. See State v. DiFerdinando, 345 N.J. Super. 382, 392 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). This argument lacks merit.
The Court approved the American Bar Association's recommendations and directed trial courts to "instruct jurors in accordance with ABA Standards, [Section] 5.4" in its initial general charge and repeat the instructions at the judge's discretion when faced with a jury that has been unable to reach unanimous verdicts. Czachor, supra, 82 N.J. at 407. That "discretion should be guided by 'such factors as the length and complexity of trial and the quality and duration of the jury's deliberations.'" DiFerdinando, supra, 345 N.J. Super. at 393 (quoting Czachor, supra, 82 N.J. at 407). A judge may require further deliberations after a jury has announced its inability to agree, but exercise of that discretion is not appropriate "if the jury has reported a definite deadlock after a reasonable period of deliberations." State v. Adim, 410 N.J. Super. 410, 423-24 (App. Div. 2009) (quoting Czachor, supra, 82 N.J. at 407).
In this case, the judge properly provided the Czachor charge in its initial instructions. During jury deliberations the judge received the following inquiry: "Do you need 12 to say not guilty or, if some say not guilty you can decide not guilty? What happens if you can't agree?" (emphasis added). The judge seemingly construed the question as pertaining generally to the unanimity requirement; he stated: "So apparently they didn't understand the charge I gave them as to the requirement that each and every verdict be unanimous. So I'm going to read back to them the portion of the charge that refers to that requirement."
Defendant does not argue that the judge failed to provide the necessary charge in its initial jury instructions.
Defense counsel asked the judge if he was "going to address the what happens area?" The judge replied: "No, . . . [t]he only thing I'm going to do is read back the charge in reference to the requirement that all verdicts be unanimous, whether guilty or not guilty." Defense counsel raised no objection to this answer.
The jurors were brought back out to the courtroom, and were instructed by the judge as provided above. The judge then excused the jury for the day and instructed them to return the next morning to resume deliberations. At that time, the following colloquy ensued:
JURY FOREPERSON: There was a second part of that question, if we can't agree, and there's --
THE COURT: The response I gave you is what I'm required to give you, in response to
your question. Okay? Should anything else happen as a result of further negotiations we'll address that issue when and if it arises. Okay? For now . . . that's the response to your inquiry.
Do you have another question, ma'am?
The jury returned to the jury room, but ultimately decided to ask their question the next day.
JURY FOREPERSON: Well, if your answer was as we expected we have a followup [sic] question. Should we wait until tomorrow to ask the followup [sic] question or should we ask it now?
THE COURT: Okay[.] If you have a followup [sic] question we'll ask you to go back into the jury room, discuss it with the other jurors, write down the exact inquiry and then hand it to my court officer again.
The following day, the judge received two additional inquiries: the first asked the judge to explain or clarify an element of a charge; and the second asked the judge to "define purpose" and explain whether "purpose or intent appl[ies] to before the crime occurred or appl[ies] to the whole incident." The judge responded accordingly. The jury did not ask a subsequent question regarding the unanimity requirement and arrived at a unanimous verdict later that day.
Pursuant to our caselaw, an explicit indication of actual deadlock is necessary to trigger the Czachor requirements. The jury in Czachor first "announced a deadlock," then "informed the court that 'it is virtually impossible to reach a unanimous decision,'" and finally advised that they "sincerely tried to reach a unanimous verdict but it is not possible." 82 N.J. at 403. In State v. Figueroa, 190 N.J. 219, 226 (2007), the jury stated: "[W]e cannot unanimously agree on the verdict." Similarly, in Adim, supra, 410 N.J. Super. at 420, the first juror note read: "The record will reflect we cannot agree on any of the counts. What should we do from here?" The following day, the jury informed the court: "We are not in agreement on any of the counts. Each of the jurors are firm in their decision. We do not feel further discussions will be helpful." Id. at 420-21.
The jury questions here did not state unambiguously that the jury was unable to achieve unanimity. In DiFerdinando, supra, 345 N.J. Super. at 393, we found "[t]here was clearly no obligation to give the Czachor charge" where the trial court received the following question from a juror:
"[I]f the jury cannot agree [unanimously] in say one or two of the counts [out of the total eight], does this constitute a 'hung' jury? Or, is it possible to be partially 'hung' on a couple of the counts?"While reading the question, the trial judge noted that the "if" was followed by a question mark and they were both underlined. Id. at 392. We concluded the trial court did not err in failing to repeat the Czachor charge and stated: "[T]he note did not express actual deadlock or inability to agree on any of the charges. The note merely sought clarification on the ability of the jury to return a verdict on some, but not all of the charges if that circumstance became a reality." Id. at 396 (emphasis added).
[Id. at 391-92 (second alteration in original).].
Because the jury here similarly gave no indication it was "unable to agree," Czachor, supra, 82 N.J. at 407, it was within the judge's discretion not to provide a Czachor charge following the questions posed.
VII.
In Point XI, defendant argues the judge erred in instructing the jury on flight over his objection because there was an insufficient evidentiary basis for the charge. We review the trial judge's decision to give a flight charge for abuse of discretion, State v. Long, 119 N.J. 439, 499 (1990), and find none here.
The State contended the charge was applicable because the video showed defendant running from the scene and throwing his shirt away. The judge was initially skeptical about the application of the charge and requested briefing. On the following day, the trial judge stated he had reviewed his notes, specifically regarding the videotape, the testimony of some of the witnesses and had also reviewed caselaw. Based upon his review of State v. Wilson, 57 N.J. 39 (1970), he concluded the flight charge was appropriate. The charge given, which closely tracked the Model Jury Charge, was the following:
There's been some testimony or some evidence in this case from which you may infer that the defendant fled shortly after the alleged commission of the crime, that is, the shooting. Again, the defendant, through his not guilty plea and general denial, denies that he is the person shown in the video as the shooter or . . . that he is the person who fled the scene.
The question of whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight.
If you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge in flight for the purpose of evading accusation or arrest on that charge, then you may consider such flight in connection with all of the other evidence in this case as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.
In State v. Ingram, 196 N.J. 23 (2008), the Court described the "logically required tipping point" for the application of the flight charge to be "departure to avoid detection or apprehension." Id. at 47. Thus, there must be some evidence to support an inference that the defendant did not merely leave the scene but did so "under circumstances that imply consciousness of guilt." Long, supra, 119 N.J. at 499. "[T]here must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Mann, 132 N.J. 410, 418-19 (1993) (citation omitted).
In order for the circumstances to justify the inference and provide a legal basis for the flight charge, it is not necessary that the circumstances that accompany departure be unequivocal proof of a consciousness of guilt. Ingram, supra, 196 N.J. at 46 (citing Wilson, supra, 57 N.J. at 49 ("A jury may infer that a defendant fled from the scene of a crime by finding that he departed with an intent to avoid apprehension for that crime. It is not necessary that he flee from custody or that he be found hiding.")). Although evidence of flight is generally admissible, such evidence also carries "the potential for prejudice to the defendant and . . . marginal probative value." Mann, supra, 132 N.J. at 420. In considering whether to give an instruction on flight, it is prudent to be mindful of the following:
[T]he probative value of [flight] evidence depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
[Id. at 420 (citation omitted).]
The shooter was identified by both Smith and Sterling as a person known to them as "Mousey" and was videotaped wearing a distinctive sky blue shirt as he chased Smith with a gun. It is undisputed that defendant departed from the scene. Whether that departure constituted "flight" that is legally significant turns on questions of fact for the jury. In Ingram, the Court observed that the Model Jury Charge "incorporates the notion that evidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension," by explaining that mere departure from a crime scene does not support an inference of flight; and that the jury may not consider such flight unless the defendant fled because he "fear[ed] that an accusation or arrest would be made against" him for the crime charged and did so "for the purpose of evading the accusation or arrest on that charge." Ingram, supra, 196 N.J. at 46 (emphasis omitted). The Charge further emphasized, "Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment." Ibid. (emphasis omitted).
The Model Jury Charge discussed in Ingram was the version approved in April 2000. Although the Model Jury Charge was revised in 2010, the portions described remained materially unchanged. --------
These guidelines narrowly focus the question for the jury as to what significance, if any, should be given to the defendant's departure from the crime scene. The evidence here was not limited to a "mere departure." Before leaving, defendant removed and discarded the distinctive shirt described by the witnesses and which, upon DNA analysis, corroborated that he wore it. His action in attempting to eliminate an evidentiary link between him and the shooting reflects a conscious desire to avoid detection and apprehension. There was, then, a "circumstance[] present and unexplained which, in conjunction with the leaving, reasonably justif[ied] an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Mann, supra, 132 N.J. at 418-19. We therefore find no abuse of discretion in the trial judge's decision to instruct the jury on flight.
Defendant's convictions are affirmed. We remand for re-sentencing and do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION