Opinion
DOCKET NO. A-2279-09T2
08-05-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AZIZ GILLIARD, Defendant-Appellant.
Paul J. Casteleiro argued the cause for appellant (Mr. Casteleiro, attorney and on the supplemental brief; Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Jack R. Martin, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Martin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0239.
Paul J. Casteleiro argued the cause for appellant (Mr. Casteleiro, attorney and on the supplemental brief; Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jack R. Martin, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Martin, on the brief). PER CURIAM
Defendant, Aziz Gilliard, appeals from his conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, second- degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, fourth-degree aggravated assault by pointing a weapon at another, N.J.S.A. 2C:12-1b(4), and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. He also appeals from his sentence of thirty years in custody subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for aggravated manslaughter and his consecutive sentence of ten years in custody with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7b, for possession of a weapon by a convicted felon. Both sentences were to be served consecutively to the sentence that defendant was then serving in Maryland.
On appeal, defendant raises the following issues through assigned counsel:
POINT I
THE COURT ERRED IN GIVING A FLIGHT CHARGE WHICH THEREBY INTERJECTED HIGHLY PREJUDICIAL FACTS INTO THE CASE THAT WERE NOT INDICATIVE OF CONSCIOUSNESS OF GUILT RELATING TO THE INSTANT OFFENSES.
POINT II
THE COURT'S FAILURE TO ADJOURN THE CASE IN ORDER TO PERMIT DEFENSE COUNSEL AN OPPORTUNITY TO PRODUCE A KEY WITNESS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT III
THE COURT ERRED IN ADMITTING THE OUT-OF-COURT IDENTIFICATION OF THE DEFENDANT BY MS. DEBERRY BECAUSE IT LACKED SUFFICIENT RELIABILITY UNDER THE CIRCUMSTANCES IN WHICH IT WAS MADE.
POINT IV
THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF R. 1:8-8(b) AND PROPERLY INSTRUCT THE JURY ON NOTE-TAKING. (Not Raised Below.)
POINT V
IMPERMISSIBLE REFERENCE WAS MADE THAT A NON-TESTIFYING DETECTIVE ASSIGNED TO THE INTELLIGENCE UNIT OF THE ATLANTIC CITY POLICE DEPARTMENT IMMEDIATELY IDENTIFIED THE DEFENDANT BY NAME WHEN HIS DESCRIPTION WAS GIVEN, INFERRING THAT DEFENDANT WAS KNOWN AS A CRIMINAL TO LAW ENFORCEMENT. (Not Raised Below.)
POINT VI
THE SENTENCES IMPOSED WERE MANIFESTLY EXCESSIVE IN THAT THE COURT IMPOSED THE MAXIMUM LEGAL TERMS FOR EACH OFFENSE, AND MADE THEM CONSECUTIVE TO EACH OTHER AND TO AN OUT-OF-STATE SENTENCE.
Defendant presents the following additional arguments through retained counsel:
POINT ONEWe affirm.
THE FACTUAL PREDICATE FOR THE FLIGHT CHARGE WAS LACKING AND/OR BASED ON INADMISSIBLE HEARSAY EVIDENCE AND IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO CHARGE FLIGHT.
POINT TWO
THE DEFENDANT'S ABSENCE DURING THE CHARGE CONFERENCE AND TRIAL COUNSEL'S WAIVER, WITHOUT THE DEFENDANT'S CONSENT, OF THE DEFENDANT'S PRESENCE AT THE TRIAL PROCEEDINGS ON THE MORNING OF SEPTEMBER 28, 2009 VIOLATED THE DEFENDANT'S RIGHT TO BE PRESENT AT HIS OWN TRIAL. (Not raised below.)
POINT THREE
THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO MAKE FURTHER INQUIRY AND/OR TO DISQUALIFY JUROR NO. 2 AFTER HE ADMITTED "IT'S POSSIBLE" HE NODDED OFF, AND THAT HE "CAUGHT" HIMSELF NODDING OFF DURING THE TRIAL.
(Not raised below.)
I.
Evidence at trial disclosed that shortly before midnight on June 18, 2006, after a Father's Day barbeque, Kawan Hill was shot in the head at close range and killed in a courtyard of the Stanley Holmes Village housing complex in Atlantic City (Village). Uniformed officers Brian Hurley and Charles Heintz were on foot patrol that evening when they heard "several shots" and ran in the direction of the shots. Heintz testified that he heard roughly eight shots in total: a single shot followed by a volley of three or four additional shots, then a second such volley. The officers encountered a man running towards them and away from the shots whom they recognized as known by the street name of "Monk." His given name was Shamir Harper. The officers searched Harper for a weapon, but finding none, they released Harper and continued toward the location where the shots had been fired. Hurley and Heintz estimated that they arrived at the scene within a minute and a half after hearing the shots.
Police Officers Daniel Corcoran and Brian Shapiro were also on foot patrol that evening when they, too, heard the gunshots. Officer Corcoran described the sound as one shot, followed by a volley of additional shots. As the officers ran toward the Village, they saw a man, later identified as Bilal Reynolds, riding a bicycle away from the Village and toward them. Although the officers directed Reynolds to stop, he attempted to ride away. The officers pursued him on foot and radioed to alert other nearby officers of their pursuit. Officer William Tracy and his K-9 unit quickly caught sight of Reynolds, who fell off his bike and began to run, discarding a silver object into a bush as he ran. He was apprehended by Officer Tracy and the canine.
The discarded object was discovered to be a fully-loaded silver .38 caliber revolver. Officer Corcoran testified that he saw Reynolds on his bike only a few seconds after hearing the shots and that at no time during pursuit did he lose sight of him. Corcoran noted Reynolds had both hands on the bicycle handlebars and therefore would not have had the ability to reload the revolver had he been involved in the shooting.
Once at the scene, the officers discovered a large gathering of people standing around a body, which lay in a pool of blood. One person at the scene said that he saw two men flee immediately after the shooting. Police recovered multiple shell casings and unfired bullets, including three .45 shell casings and two live .45 rounds, a .40 caliber shell casing, and a bullet fragment from a .38 caliber bullet.
Sergeant Janet LaRocca, of the Major Crimes Unit of Atlantic County Prosecutor's Office, was in charge of the investigation. After LaRocca arrived at the scene around 1:00 a.m., she handed out business cards and attempted to find witnesses. She was approached by Ronald Harris, who told her that while he wanted to speak with her, he would not do so there. The following morning, Harris gave LaRocca a taped statement in which he identified Laquay Snyder, whose street name was "Jeep," as the shooter. Harris also identified Snyder in a photograph. However, upon investigation, Snyder's assertion that he was home all evening with his mother at his mother's apartment in Absecon, a city adjacent to Atlantic City, was confirmed by Snyder's mother and by his downstairs neighbor who said she spoke on the phone with Snyder between ten and eleven on the evening of the shooting. Both later testified at trial, asserting the same facts. Harris subsequently "backed away from his I.D.," and he testified at trial that Snyder was too short to have been the shooter.
During the investigation, Detective Michael Mattioli of the prosecutor's Major Crimes Unit learned that Delisha DeBerry was a witness to the shooting. Detective Mattioli interviewed the seventeen-year-old DeBerry, who was reluctant to talk about the events, expressing concern about being considered a snitch. However, she eventually gave a recorded statement in which she admitted that she was present at the events, that she knew the parties involved in the incident, and that she was with Hill that night. She said that, following an argument among several men playing dice, "Aziz" pulled out a gun and fired it into the air. Aziz then shot Hill in the head, with DeBerry standing less than three feet away. DeBerry told Detective Mattioli that she had known Aziz for roughly six months. She described him as having a missing front tooth and a tattoo with the initials D.O.M. on his right hand. DeBerry also told the detective that she knew Aziz's brother Fuquan and knew where Aziz lived. Finally, DeBerry told Mattioli that she also knew that Aziz had previously been in prison and that he had been released roughly eighteen months before this incident. She identified defendant's gun as an automatic, not a revolver.
After the interview, Detective Mattioli called the Intelligence Unit of the Atlantic City Police Department. He spoke with Detective Lonell Jones who, upon hearing DeBerry's description, told Mattioli that it fit defendant. Mattioli then prepared a photo array that included defendant and five other individuals and arranged to have Sergeant Clark Manley, who had no other involvement in or knowledge of the case, show the photos to DeBerry. Later that same day, Manley met DeBerry at the prosecutor's office and showed her the six photographs, one at a time. After viewing all six of the photographs, DeBerry asked to see them a second time. The photos were re-numbered, randomly re-shuffled and individually shown to her again. After seeing the photos a second time, DeBerry identified two men: defendant and a person named Marcus Hunt, who was in jail at the time of the shooting. When Mattioli asked DeBerry why she now indicated that there were two shooters, he noticed that she appeared nervous and shook, and she told him that she was afraid and did not want to be a witness. DeBerry then pointed to defendant's photo and stated that he was the sole shooter. Prior to trial, the court conducted a Wade hearing and determined that DeBerry's identification of defendant was admissible.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
At trial, DeBerry recanted. She testified that she knew Hill (whom she knew by his street name, "Bosheed") and that she was present at Stanley Holmes Village when Hill was shot. But when asked whether she saw who shot Hill, she testified that she did not remember or "I thought I did, but, no, I don't." She also did not remember identifying defendant when giving her statement, but recalled only that she was concerned with getting law enforcement "out of my face" and that she was "scared and shaky" at the time. She testified that she "blanked out" right after the shooting and, after passing out, was taken to the hospital. She testified that she lied about defendant being the shooter; that defendant only shot up in the air but did not shoot Hill, and that she must have had names and faces mixed up. She acknowledged that she voluntarily participated in the photo identification process, and she recognized her signature on the back of defendant's photograph, but she did not remember actually identifying him as the shooter.
After the judge determined that DeBerry's prior inconsistent statement was reliable, it was played for the jury.
On June 22, 2006, Detective Paul Aristizabal interviewed Levar Burke, who also identified defendant from a photograph as the man who shot Hill. Burke gave a taped statement in which he said that a great many people were in the area because of the Father's Day barbeque and that an argument erupted over twenty dollars in a dice game. Burke stated that Hill attempted to intervene and calm the situation, but "Ziad" pulled a gun and "shot him right on side of his head." Burke stated that he heard three shots, the first shot by defendant and then two more shots, after which defendant fled the scene with two other people. Burke estimated he was about six feet away from Hill when he was shot. Burke also gave a description of the shooter, including that he was missing a tooth.
Burke, like DeBerry, recanted his statement at trial, telling the judge outside the presence of the jury that the detective coerced him by "offering monies and that type of stuff" and that "I really knew nothing about this, you understand? Like I was saying, I was forced by the authorities in Atlantic City to say this." Burke acknowledged that he was only testifying because he was required to by subpoena. In testimony, Burke denied having identified defendant as the shooter, denied his own presence at the Village that night, and denied telling the detective he had been present. His inconsistent statement was likewise played to the jury.
In addition to the foregoing, LaRocca took a taped statement from Bonetta Dorsey, who told LaRocca that the trouble that evening apparently began over a contested dice game. Hill unsuccessfully intervened to try to calm heated tempers and was approached by defendant, who shot him in the head using a silver automatic handgun. Dorsey estimated defendant was three to four feet from Hill at the moment of shooting. Dorsey identified defendant's photograph as that of the shooter, and she noted that she had known him for twelve years.
Dorsey also recanted at trial, testifying that she was high at the time she gave her statement, that someone else must have used her cell phone to initially contact the prosecutor's office, and that LaRocca pressured her into identifying defendant as the shooter by "showing me the same photo over and over" and "asking me . . . the same questions over and over and over again until I said it." She testified that there were "five or six" people with guns in the area when Hill was shot. LaRocca denied pressuring Dorsey in any way.
Dorsey admitted not wanting to testify and that she was present in court only because she had been subpoenaed. Following a hearing, the judge admitted both Dorsey's identification and her statement. Additionally, the judge noted his concern with witness intimidation, stating that "[t]he record should reflect that there are numerous witness spectators in the court, especially on the defendant's side and that I want the record to reflect that in my view if I had to determine, I would say that this person has been coerced or intimidated in some way just from her mannerisms and the way she answered my questions."
An additional witness, Sharif Whitlock, told investigators that he believed defendant shot Hill, whom he knew as "Bosheed." Whitlock did not recant at trial. However, he noted both in his statement and in his testimony that he did not actually see defendant shoot Hill, but that he turned immediately after hearing a shot and saw defendant standing next to Hill with his arm extended and what he believed to be an automatic handgun in his hand. He testified that he saw Hill grab his head after being shot. Whitlock also testified that various other people then started shooting, but only after defendant shot Hill. He admitted that he had fired at defendant following the shooting of Hill, and that defendant and another man, Hassan Irizarry, fired their guns as they fled the scene. Whitlock testified that he was drunk and high at the time of the events. Like other witnesses, he also acknowledged that he did not want to testify and was present only because he had been subpoenaed.
On June 24, 2006, Shamir Harper gave a statement in which he said he did not know who shot Hill, a statement that he repeated at trial. Harper testified that he was playing dice that evening, but not with either Hill or defendant, and that he did not see anyone with a gun that night. He did see Hassan Irizarry, but only briefly and earlier in the evening, "way before the dice game even started." He also testified that he did not see defendant in the area the entire day.
On August 4, 2006, Yashmairah Sanders gave a taped statement in which she said that she saw Shamir Harper shoot Hill. According to Sanders, Harper, defendant, and two other men rode into the Village on bicycles. She stated that Harper got off of his bike, approached Hill, shot Hill in the head, then got back on the bike, and all four men rode away.
Sanders called the prosecutor on the eve of trial and recanted her statement. At trial she testified that she was not present at the shooting. She testified that her then-boyfriend asked her to give the statement, and that she did so because she believed defendant would not have shot Hill.
Nearly two years after the shooting, on February 21, 2008, Maurice Pettway gave a statement to LaRocca and Aristizabal. In the statement, Pettway said that Hassan Irizarry shot Hill with a chrome .38 revolver with a white handle. He asserted that he was "no farther than 18 foot away" from the shooting. He further stated that two to three minutes before Irizarry shot Hill, defendant shot at least three times into the air. Pettway also said that nobody ran or fled after defendant's multiple shots. Pettway refused to appear to testify despite acknowledging that he had been subpoenaed to do so.
The prosecution called Detective Genevra of the Baltimore, Maryland Police Department, who testified that on September 12, 2007, he came "into contact with a man who identified himself as Vern Norton." The detective was asked whether "Norton" was fingerprinted, and Genevra stated that he was. The results of this fingerprinting led Genevra to call LaRocca some time later, and LaRocca told Genevra that Norton was really defendant, Aziz Gilliard.
Defendant did not testify at trial.
Trial testimony disclosed that, as the result of DeBerry's statement along with other information, an arrest warrant was issued for defendant by the end of August 2006. In early September, search warrants were executed on defendant's mother's and girlfriend's residences as the result of information that defendant sometimes stayed at both locations. Defendant was not found at either residence, but the officers executing the warrants advised "the people who were present when these search warrants were executed" that there was an arrest warrant outstanding for defendant. Police then printed and circulated wanted posters that contained defendant's name and photograph and indicated that he was wanted in connection with a homicide. A local newspaper, The Atlantic City Press, published an article stating that the prosecutor's office was searching for defendant in connection with a homicide. The article was accompanied by a photograph of defendant.
More than a year later, on September 12, 2007, defendant, using the alias Vern Norton, was arrested in Baltimore, Maryland on a weapons charge. As stated previously, fingerprint analysis led to the disclosure of his true identity and the outstanding warrant for his arrest in New Jersey. Defendant was transported from Maryland to this State and stood trial pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. The trial was bifurcated, with the trial on the charge of possession of a weapon by a convicted felon held after the jury had returned its verdict on the remaining charges.
In rendering its verdict, the jury acquitted defendant of a charge of murder, N.J.S.A. 2C:11-3a(1) and (2), but convicted him of the lesser-included offense of aggravated manslaughter. It also acquitted defendant of the charge of possession of a weapon without a permit, N.J.S.A. 2C:39-5b. A charge of endangering an injured victim, N.J.S.A. 2C:12-1.2, was dismissed at trial upon the motion of the prosecutor.
II.
In the first argument in both his initial and his supplemental brief, defendant argues that the evidence at trial was insufficient to support a flight charge. We disagree.
The Court has repeatedly advised that "[d]eparture from the scene after a crime has been committed, of itself, does not warrant an inference of guilt. Obviously there may be facts, entirely legitimate, connected with a departure which would not support such an inference at all." State v. Sullivan, 43 N.J. 209, 238 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966); see also, e.g., State v. Ingram, 196 N.J. 23, 46 (2008). Rather, "to take on the legal significance of flight, there 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." Sullivan, supra, 43 N.J. at 238-39 (citing 2 Wigmore, Evidence § 276, p. 111 (3d ed. 1940); Wharton's Criminal Evidence § 205, p. 414 (12th ed. 1955)).
Furthermore, the Court has stated that "[a] jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993) (citing State v. Wilson, 57 N.J. 39, 49 (1970)). "An adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Id. at 421 (citing Wilson, supra, 57 N.J. at 49).
A charge incorporating this language was given in this case by the trial judge. The judge then advised the jury that:
If after a consideration of all the evidence, and you've heard evidence about this, such as I recall, and again your memory is what controls, that the defendant was interviewed shortly after this incident in Atlantic County; then search warrants were issued for his mother's house, and his girlfriend's house, and then defendant was then in contact with an officer in Baltimore, Maryland and gave an [sic] another name, all of those things can be taken into account, okay.
Defendant argues that this language was improper. If defendant did flee the State, his flight and his use of an alias could be attributed to reasons other than consciousness that he was guilty of the murder of Hill. In this regard, defendant argues that, on the date of the shooting, he had a pending indictment arising from an April drug arrest, and that his flight could be attributed to a desire to avoid a harsh sentence on the drug charges. Additionally, defendant argues that the introduction of evidence regarding his use of an alias in Maryland could be explained merely as an attempt to avoid apprehension on a gun charge.
We reject these arguments. Our review of the record demonstrates that on July 20, 2006, defendant accepted a plea offer of probation with respect to the drug charge. We find it inconceivable that he would have fled the jurisdiction to avoid such a sentence. Further, we see no basis for concluding that defendant's use of an alias when arrested in Baltimore could somehow be construed as a means of avoiding apprehension for weapons possession. He had been, in fact, apprehended at the time that he gave the alias. While judges are advised to consider alternative explanations for the behavior of defendants who leave the jurisdiction, Mann, supra, 132 N.J. at 423-24, here it is difficult to see what defendant could have been doing in Baltimore except hiding from the Atlantic City warrant for his arrest for the murder of Hill.
In his supplemental brief, defendant argues that no evidence was presented to the jury that, when defendant was interviewed in Atlantic City, the interview concerned Hill's death. However, our review of the record of that interview discloses that Hill's murder was, in fact, its subject. Thus, it was not improper for the judge to permit the jury to infer that fact. Defendant additionally argues that there was no admissible evidence presented to the jury that defendant lived either with his mother or his girlfriend, and the evidence presented to the jury to establish those facts constituted inadmissible hearsay. We disagree. The fact that defendant lived with his mother was admitted by defendant when he was interviewed by LaRocca while in custody in connection with the drug charges. That he could sometimes be found at his girlfriend's residence was reasonably inferable from evidence of their relationship, which was sufficiently close that defendant had a tattoo of the girlfriend's name on his hand.
Defendant argues additionally that there was no evidence that either his mother or his girlfriend was present at the time that the search warrants were executed and it was disclosed that an arrest warrant had been issued for defendant. Again, we find it reasonable for the jury to have inferred that such vital information would have been conveyed to the women if, in fact, they were not present when the searches occurred. As a consequence, we reject defendant's argument that evidence to support a flight charge was absent from this case.
III.
On February 21, 2008, almost two years after the killing, Maurice Pettway, stating that he was motivated by his conscience, gave a statement to LaRocca at the Atlantic County Prosecutor's Office identifying Hasan Irizarry as the person who shot Hill. However, contrary to the evidence at autopsy, Pettway stated that Irizarry's bullet entered the right side of Hill's head, and contrary to police testimony, he stated that the murder occurred between 9:00 and 9:30 p.m., not midnight. Pettway additionally said, contrary to police evidence, that the single shot killing Hill was preceded by a volley of three shots by defendant, who shot into the air. A subpoena was issued by the defense to compel Pettway's testimony at trial.
On September 18, 2009, three days before the trial was scheduled to commence, defense counsel sought an adjournment to provide defendant with an opportunity to retain private counsel in place of the public defender and to give that attorney approximately six weeks to prepare. Counsel also said that he was having difficulty locating two witnesses, Yashimirah Sanders, and Pettway, who were expected to testify that someone other than defendant shot Hill. According to counsel, "We are following a trail of old addresses, etc."
During argument on the motion, the judge noted that the case was being tried under the IAD and he was constrained by the 120-day time limit contained in that law, which required trial to commence by October 3, 2009. See N.J.S.A. 2A:159A-4(c). The judge further noted that, in the past, defendant would not agree to extend the deadline. "He's told me numerous times he wanted it to move forward." The judge stated that he had previously warned defendant not to attempt to adjourn at the last possible moment because, due to scheduling problems, the judge would then be unable to hear the case for several months.
In opposing defense counsel's application, the prosecutor contended that he feared undue prejudice to the State's case if the matter were adjourned because witnesses were facing threats and intimidation. The prosecutor was also concerned that with an adjournment he might not be able to locate those witnesses again. The judge agreed, noting a "never-ending Atlantic City mentality of intimidation of witnesses, threats to witnesses," and claiming "things are done to get people not to come in to testify. And this nonsense gotta stop."
The judge's concerns appear to have been borne out at trial. On its first day, after the jury was dismissed for the day, the judge warned defendant's family in attendance that he had noted that at least some of them seemed to have been sending "signals" or "messages" to the jury, such as someone shaking his head negatively in response to the prosecution's opening remarks. Later in the trial, after observing testimony, the judge stated his belief that witnesses "testified in a way that would show that they were under either intimidation or coercion in some way to answer the questions" and "they took every possible opportunity . . . to either recant their prior testimony, or change in some way their prior testimony in a way to take liability or culpability away from the defendant. They appeared afraid to testify."
Ultimately, the judge denied the September 18 motion, stating that "[t]his is a discretionary call. Defendant insisted that the case get moved. This Court accommodated his request." The judge saw no reason to adjourn after the prosecutor and defense attorneys had worked for several weeks, and "[w]itnesses have been subpoenaed. Witnesses have been intimidated. Witnesses have been threatened."
On Tuesday, September 29, 2009, after the State had rested, defense counsel informed the trial judge that his investigator had been calling Pettway three time a day commencing at the beginning of the preceding week, and had finally been in touch with him on the preceding day. Pettway acknowledged receipt of a subpoena, but informed the investigator that he had to be in court in Philadelphia and in Ocean County on Tuesday, and that he needed to clear up a warrant issued for non-payment of child support. Although counsel had instructed Pettway to appear on the morning of September 30, the trial judge stated that Pettway should be re-instructed to appear on the present day by 11:00 a.m., and that if he failed to appear then, a bench warrant would be issued. The judge stated that he would personally contact the judges before whom Pettway was to appear to explain his non-appearance. The judge also agreed that Pettway would not be arrested for non-payment if he appeared as a witness as instructed. Pettway did not appear, despite a message left by counsel's investigator on Pettway's cell phone telling him to be present and a second message giving counsel's cell phone number to Pettway. As a consequence, the judge reluctantly agreed to adjourn the trial at noon to provide an opportunity for counsel to produce Pettway. However, he stated that if Pettway did not appear at 8:45 on the following morning, no further adjournments would be granted, and counsel would be required to proceed with their closing arguments.
On the following day, Pettway did not appear. When contacted by defense counsel by phone, Pettway was informed that "the judge said you were due in court 15 minutes ago, and he wants to know if you're coming." When Pettway responded "no," counsel was instructed by the judge to hang up. Closing arguments followed.
Defendant contends on appeal that, as a result of Pettway's importance to the defense, either a further adjournment should have been granted to permit him to be located and produced or a bench warrant should have been issued. Because neither occurred, he had been denied a meaningful opportunity to present a complete defense in violation of his constitutional rights.
We review a decision to deny a motion for an adjournment under the abuse of discretion standard. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1971). The Court has noted that "[b]oth the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee to the accused the right 'to have compulsory process for obtaining witnesses in his favor.'" State v. Garcia, 195 N.J. 192, 201-202 (2008). As the Garcia Court noted, "[t]hat guarantee provides a criminal defendant with nothing less than 'a meaningful opportunity to present a complete defense.'" Ibid. (quoting State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).
However, the Court has also recognized that the right to compulsory process is not absolute and "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Ibid. (quoting Garron, supra, 177 N.J. at 189 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)).
Thus, this constitutional right must be exercised in accordance with[] the reasonable case management prerogatives possessed by our trial courts, which are charged with the fair and efficient operation of our criminal justice system. Our courts must strike a fair and careful balance between honoring the constitutional right to compulsory process, which is integral to ensuring a fair trial, and the interest in the effective administration of a criminal trial. See [State v.] Bellamy, 329 N.J. Super. [371,] 378 [(App. Div. 2000)] ([W]hen balancing a short delay in the start of trial against [a] defendant's legitimate ability to present a viable defense . . . the integrity of the criminal process must prevail over the administrative disruption.").
[Garcia, supra, 195 N.J. at 203.]
In Garcia, the judge refused to adjourn a trial or assist defense counsel in enforcing an order to transport an incarcerated witness for the defense housed in the Hudson County Jail when he was not produced by that County. As a consequence, the trial was concluded without the witness's testimony Id. at 198-99. The Court held that the judge had abused his discretion by not briefly adjourning the trial until the order of transport could be enforced. Id. at 205. However, because the Court had not received a proffer of the witness's proposed testimony, it remanded the matter for a determination whether the judge's error was harmless. Id. at 205-07.
In the present matter, in contrast to the facts of Garcia, defense counsel was unaware of the location of the missing witness, Pettway. As of September 18, he could not be found, and old addresses were still being investigated. Indeed, contact with Pettway was not made until September 28, and there is no evidence in the record that, even then, counsel knew where he was located. Contact was solely by cell phone. As a consequence, if counsel had sought a warrant for Pettway's arrest on September 30 when Pettway refused to appear, there is nothing in the record to suggest that the warrant could have been timely served on him, thereby permitting him to be taken into custody. Pettway was, at the time, dodging a warrant for his arrest for non-payment of child support. Nothing suggests that he would not have likewise sought to dodge a warrant issued by the trial judge in connection with this matter.
Moreover, the judge did permit a half-day adjournment to facilitate the production of Pettway, but that effort was unsuccessful. Unlike Garcia, the disruption and delay of the orderly process of a criminal trial, id. at 203-04, appeared inevitable if a further adjournment of trial were granted to permit Pettway to appear voluntarily or pursuant to legal process.
As a final matter, we conclude that Pettway's testimony, if given in accordance with his statement — a fact that cannot be assumed given other evidence of witness tampering in this case — would not have significantly aided defendant. Although he was expected to identify Irizarry as the shooter, not defendant, his version of events was so at odds with facts established by unimpeachable evidence that it could not have been credited by the jury. Accordingly, we decline to order a new trial on this basis.
IV.
Defendant also challenges his out-of-court photo identification by DeBerry as unreliable and claims that admission of evidence of that identification constituted reversible error. We do not accept defendant's arguments.
The Supreme Court has determined that for out-of-court photo identifications to be admitted, the court should conduct a two-step analysis in which it "must first decide whether the procedure in question was in fact impermissibly suggestive." If so, "it must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).
At the Wade hearing in this case, Mattioli testified that in compliance with the Attorney General's Guidelines on photo lineups, he had Sergeant Manley be the photo lineup administrator "because he was unfamiliar with the case." Mattioli and Detective Cintron then told DeBerry that they were "trying to identify the person that did this" and that there was "a series of photographs that Sergeant Manley's going to show you to see if you can make such an identification." If she identified one of the people, she should let Manley know. Mattioli numbered each photo on the back before giving the six to Manley, after which Manley showed them individually to DeBerry. When she asked to see them again, Manley first gave them back to Mattioli, who reordered and renumbered them, and then returned them to Manley with instructions to repeat the process. A short time later, Manley informed Mattioli that she had identified two people.
Mattioli then entered the room where the identification process was taking place and asked DeBerry why she had not told him that there was a second shooter, after which "she became very nervous physically, grasping her hands, rubbing her - - rubbing her hands, looking at the ground. She was shaking . . ." DeBerry then said she was scared, and when Mattioli asked why, she said that she did not want to be a witness. Mattioli then held up both of the signed photos and, indicating the photo of Hunt, told her that he could not have been present. After that, DeBerry identified defendant as the only shooter. The conversations with DeBerry were not recorded.
At the Wade hearing, defense counsel admitted that he had mistakenly believed that the photos were presented as a "six pack" instead of being shown one at a time to DeBerry. He stated that "I might not have filed the motion had I known it was sequential double-blind." Counsel further admitted that the photo identification was conducted under the Attorney General's Guidelines.
On appeal, defendant initially contends that the identification was the result of impermissibly suggestive procedures. Specifically, defendant asserts that the officers did not comply with the 2001 Attorney General Guidelines for preparing photo lineups because the officers "did not sufficiently memorialize the interview."
However, it appears that the officers did comply. Section E of those guidelines advises officers conducting such interviews to record the identification results, including the witness's own words, and to ensure the results are signed and dated by the witness. However, while "electronic recordation is advisable, [it is] not mandated" so long as a written record of the procedure was maintained. State v. Delgado, 188 N.J. 48, 63 (2006). That record should "includ[e] the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Ibid.
Our review of the record on appeal satisfies us that the officers complied with Delgado in their "narrative" documenting the interview. While the narrative did not capture the words spoken between Manley and DeBerry, it does discuss the identification procedure, where it was conducted, the general nature of the dialogue, and the results of that dialogue.
Defendant next contends that Mattioli's discussion with DeBerry concerning her identification of two shooters, and her later identification of defendant as the culprit, was not properly memorialized, and thus her level of certainty in finally identifying defendant as the shooter cannot be assessed. However, the narrative provided by Mattioli describes in considerable detail DeBerry's emotional reaction when confronted with the fact that her dual identifications could not be correct.
Even if we found the procedures utilized after the dual identifications to have been impermissibly suggestive, we nonetheless concur with the judge's conclusion that the identification was reliable. In Madison, the Court recognized that "the reliability determination is to be made from the totality of the circumstances in the particular case." Madison,
supra, 109 N.J. at 239 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)). The Court then stated that such a determination
involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation."
[Id. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]
Here, in finding the identification reliable, the trial court analyzed the facts of the matter specifically as Manson requires, determining that DeBerry was focused on events as the result of defendant's prior shot into the air, from her vantage point she had an opportunity to view what was taking place, she had accurately described defendant's physical appearance prior to the identification, and she made the identification within a short time of the events at issue. We find no error in his analysis.
V.
Defendant next contends that the trial court committed plain error by permitting the jury to take notes during trial and in failing to instruct the jury on note-taking at its commencement and conclusion. We conclude that defendant has failed to meet his high burden of establishing reversible error on this issue. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.
At the commencement of the trial, the judge stated that he was going to permit note-taking in the case because the trial was going to be long, there were going to be numerous witnesses, and the process would help jurors to keep them straight. He also told the jurors that the notes would be collected at the end of each day and would be placed in storage.
Prior to closing arguments, the judge again referred to the juror's notes, stating that the lawyer's arguments were not evidence, and if the juror's notes reflected evidence different from what the attorneys described, then it was the jurors' recollections that should control. Finally, during jury instructions, the judge again informed the jury that, as judges of the facts, it was their recollection of the evidence that should guide their verdict.
Thus, contrary to defendant's argument, the judge properly gave his reasons for permitting juror note-taking to occur in this particular matter, and there was no objection to his decision. Further, it is evident that the judge took the necessary steps to safeguard the jurors' note-taking materials. Thus compliance with Rule 1:8-8(b) occurred.
The judge did not instruct the jury regarding its note-taking in accordance with the model instructions at the commencement and conclusion of trial. However, in the absence of any evidence that such failure somehow prejudiced the defendant, we decline to find that the omission constituted reversible error. As in State v. Jumpp, 261 N.J. Super. 514, 527 (App. Div.), certif. denied, 134 N.J. 474 (1993), "[t]here is simply no evidence of confusion, distraction or prejudice caused by juror note-taking in this case which would warrant a reversal of defendant's convictions."
VI.
During the course of trial, Detective Mattioli testified that after he was told by DeBerry that Hill's shooter was someone named "Aziz" and she provided a description of his appearance, he called a detective at the Atlantic City Police Department's Intelligence Unit and described the perpetrator to him. Mattioli testified:
I told Lonell exactly what Delisha told us about who was there, who she says the shooter was. I said she called him by name, Aziz, and she didn't know his last name. And I relayed to Lonell the fact that she said that he has a younger brother named Fuquan, that he lives in Schoolhouse, that he's missing a tooth, that he has a tattoo on this right hand DOM. And Lonell immediately said, oh, it sounds like you're talking about Aziz Gilliard 'cause I know he's got a brother, a younger brother, who they call Fuquan. He said I'm not sure where he lives. He said I know they were — he said I believe they were staying at Schoolhouse at some point.On the basis of this information, defendant's picture was included in the photo display later shown to DeBerry.
Defendant contends that introduction of this testimony constituted plain error, because by "immediately" identifying defendant by name in the context of a murder investigation, the impression was bolstered "that defendant was known to be armed and dangerous." Additionally, the fact that Mattioli was able to quickly produce defendant's photograph bolstered this impression. According to defendant, the fact that the judge gave the jury the model charge on police photographs did not eradicate the prejudice created by the earlier testimony.
We do not draw the inference that defendant claims to exist from the testimony presented. In this regard, we note that Detective Mattioli also testified that the reason he called the Intelligence Unit was because "the detectives that are assigned to that unit are very familiar with the area and a lot of the kids in the neighborhood." Thus it appears unlikely to us that the jury would regard the circumstances under which defendant was identified as suggesting that he had committed other crimes, or that the evidence was utilized to suggest a criminal propensity forbidden by N.J.R.E. 404(b). While Mattioli's explanation of how he was able to identify "Aziz" was more detailed than what was approved in State v. Bankston, 63 N.J. 263, 268 (1973), there was no objection to the testimony and, in our view, no plain error occurred as a result of its introduction.
VII.
As the last point in his principal brief, defendant contends that the trial court's sentence of consecutive, maximum terms for manslaughter and for possession of a weapon by a convicted felon was manifestly excessive. We disagree and affirm.
In sentencing defendant in this matter, the trial judge reviewed defendant's criminal record, which commenced when he was eleven years of age and included an adult record of convictions for assault, distribution of heroin, and weapons possession, as well as a pending charge for assaulting a law enforcement officer. As a consequence, the judge found aggravating factors 3 (the risk of reoffense), 6 (the extent of defendant's prior criminal record) and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). In imposing a thirty-year sentence subject to NERA on the conviction for manslaughter, the judge noted the three aggravating factors and the absence of mitigating factors, as well as the circumstances of the crime, which consisted of "the shooting of a[n] innocent individual in the head at point-blank range," an act that the judge found "show[ed] an absolute conscious disregard for the value of human life." The judge justified the imposition of a consecutive sentence for possession of a weapon by a convicted felon by noting that the crime was complete upon the mere possession by defendant of a weapon, and did not require that he use that weapon in the manner that he did.
Our review of the sentence satisfies us that the aggravating factors cited by the judge were properly supported by substantial evidence in the record, State v. O'Donnell, 117 N.J. 210, 216 (1989), and that there were no applicable mitigating factors. We are also satisfied that the judge properly applied the factors set forth by the Court in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when determining to impose a consecutive sentence on defendant's conviction for possession of a weapon by a convicted felon, and that his other sentencing determinations conformed to the law. As a consequence, the sentence is affirmed. State v. Cassady, 198 N.J. 165, 180-84 (2009).
VIII.
Turning to defendant's supplemental brief, we next address defendant's argument that his absence from the portion of the charge conference that was held in the judge's chambers and his brief absence from trial proceedings on the morning of September 28, 2009 violated his right to be present at his own trial and constituted plain error.
For defendant to prevail on this claim, he must establish that his absence was prejudicial to his defense. State v. Dellisanti, 203 N.J. 444, 458-59 (2010). We conclude that defendant has failed to meet his burden, and we thus find no reversible error.
Defendant argues that in the proceeding at which he was not present, the judge directed defense counsel to draft a proposed jury instruction stating that the jurors should not speculate on the reason why defendant had contact with the Baltimore police or use that evidence against defendant. Defendant argued:
The court's instruction to defense counsel to submit a limiting instruction regarding the defendant's encounter with the Maryland police was unknown to the defendant and obviously became important when defense counsel later inexplicably refused to submit the limiting instruction resulting in the court failing to charge the jury that it was not to speculate [on] the reasons why the contact occurred or use the fact of the contact against the defendant.
However, our review of the record satisfies us that the judge's instruction to defense counsel was repeated during the afternoon of September 28 when defendant was present. At that time, the judge stated that defense counsel
is going to give me something overnight that he wishes dealing with the fact . . . that you heard testimony from a detective or officer in Baltimore that the defendant came in contact with police in Baltimore, you should not conjecture in any way what the reason was for him coming in contact with that officer, and should not hold it against the defendant in any way that he came in contact with the police in Baltimore. However, as to the issue of flight, you may [consider] the fact, if you believe the testimony that the defendant gave a name that turned out to be false to the officer[. It] can be considered for the limited purpose of flight.A discussion then ensued in defendant's presence regarding the flight instruction, at which time defense counsel determined not to seek the charge that the judge proposed that he draft overnight. As a consequence, there was no prejudice to defendant who was apprised of the content of the proposed instruction, and was free to confer with his attorney throughout the afternoon proceeding and to protest his attorney's decision.
IX.
Finally, we reject defendant's argument that the trial judge committed plain error by not disqualifying a juror who on one occasion showed signs of having "nodded off." We review the judge's determination not to excuse the juror under an abuse of discretion standard. State v. R.A., 169 N.J. 551, 559 (2001).
On the second day of the trial, the prosecutor informed the judge at sidebar that he noticed one of the jurors might be falling asleep. The judge then excused the jury and called the suspected juror back before the bench. He then asked the juror whether he thought he had missed any of the testimony, and the juror said that he believed that he had caught himself before he fell asleep and had not missed anything. The judge then asked the juror whether he expected to have further difficulties staying attentive, and the juror said that he would not. The juror stated that he had diabetes and attributed his drowsiness to not regularly taking medication for the condition. The judge then advised the juror to ensure he was taking his medication and to alert him if the juror believed he was having trouble staying awake. The judge then instructed both attorneys that "if you see anything else, you let me know. And if I have to cut him lose, I'll cut him lose [sic]." Neither the prosecutor nor defense counsel noted any further attention issues with that juror or any other.
We have previously noted that "due process does not require a new trial every time a juror has been placed in a compromising position." R.A., supra, 169 N.J. at 559 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982)). In State v. Reevey, we advised that where a trial court suspects a juror may have been sleeping, "the proper procedure requires questioning by the trial judge to determine if the juror had in fact been sleeping, or if her ability to render a fair decision had been impaired." 159 N.J. Super. 130, 134 (App. Div.), certif. denied, 79 N.J. 471 (1978).
In this case, the judge questioned the juror about his condition, the juror appeared truthful in explaining his circumstances, and neither the prosecution nor defense had any further occasion to question the attentiveness of the juror. We thus perceive no grounds for reversal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION