State v. AllenState v. Allen
Defendant was convicted of murder,
POINT I THE PROSECUTOR TRANSGRESSED ALL LIMITS OF PROPRIETY THROUGHOUT THE ENTIRE TRIAL, DENYING THE DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT II THE TRIAL COURT FAILED TO GRANT A JUDGMENT OF ACQUITTAL OR A MOTION FOR A NEW TRIAL; NO REASONABLE JURY COULD FIND THAT THE STATE HAD PROVEN ITS CASE BEYOND A REASONABLE DOUBT.
We also wrote to counsel and asked them to be prepared at oral argument to address the sentence on the murder conviction in light of State v. Manzie, 335 N.J.Super. 267, 762 A.2d 276 (App.Div. 2000).
Our careful review of the record leads us to conclude that the trial issues raised by defendant are clearly without merit and warrant only the following discussion.
I.
On October 15, 1997 around 6:00 a.m., Ruby Waller was approached by Lannie Silver near West Third Street and Lee Place in Plainfield. Silver was looking for a location to buy drugs and was escorted by Waller to the Mack House on Prescott Place where she regularly purchased crack-cocaine.
Upon arriving at the “Mack House,” Waller proceeded to a window at the front of the house and sat on a bench located in front of the window. The window shade was drawn. However, Waller placed an order for “four nickels” of crack-cocaine and slid $20 through the “cracked” portion of the window to a man she identified as “Ben.”2 After receiving the drugs that she purchased, Waller stood and moved away from the window, allowing Silver to sit on the bench.
Silver then asked Ben, “[w]hat you got,” at which point Ben “pulled the shade back and looked out the window” at Silver. After seeing Silver, Ben and defendant exited the house, and Ben yelled at Silver, “get the F out of here, [we] don‘t sell drugs [here], white mother-f......”3 Silver tried to retreat from the porch with his hands in the air, repeating that he “just want[ed] to buy some drugs.” However, defendant and Ben followed Silver, yelling at him and using profane language. According to Waller, at one point defendant stated, “[h]old up, I got something for this mother-f.....” He then entered the Mack House and returned “a second” later
Upon seeing the defendant with a gun, Waller testified that she “ran” to her residence a short distance away. As she “approached the top stairs” to the house, Waller “heard a gunshot.” Once inside the house she heard “several more” shots and “hear[d] the victim screaming.”
After entering her apartment, Waller testified that she looked out a window from which she could view the intersection of West Third Street and Prescott Place. She saw Silver “trying to run” but fall to the ground after “the last shot hit him.” Waller further testified that Silver tried to get up but could not and finally “crawled to the middle [of Prescott Place]” before collapsing. Waller indicated that the time between the first and last shots was “like a half a second.”
After witnessing the victim laying in the middle of the street, Waller saw Ben and defendant “running into the Mack office,” located close to the house where she had purchased drugs earlier that morning. Waller immediately phoned 911 and reported the incident to the police.
Rhonda Whitfield, who was serving a sentence in the Middlesex Correctional Facility during the trial, testified that she was “[g]oing to buy a bag,” that morning and saw the victim “on the porch” of the Mack House, “[l]ike talking to the screen.” Only one person is permitted on the porch of the Mack House at a time, so Whitfield stayed on the street. As the victim was talking, defendant and “Marvin” came out of the house. Whitfield was “dope sick” and paying “no mind,” but “knew something wasn‘t right.” She started to leave the area to buy drugs elsewhere when the defendant and Marvin began “yelling” at the victim, who was “trying to walk” away. As the victim walked away, defendant was “running behind the guy,” holding an object to his side. Whitfield subsequently heard what she thought were “fire-crackers.”
Whitfield further testified to having been in an automobile accident subsequent to the date of the shooting and that she had experienced some memory loss due to “head trauma” suffered in the accident.4
Bobby Harris, a high school student, testified on defendant‘s behalf that, while he was walking his dog on the morning in question, he heard shots and saw that “dude about to fall.” He turned around, ran home, but saw a white car “ride pas[t].”5 The car drove past Harris about fifteen to twenty minutes later, but he did not look inside when an occupant yelled to him.
Cynthia Harrison testified for defendant that she saw the victim with a male named John Korman minutes prior to the shooting. Silver asked her “where to find cocaine,” and she gave them directions to “the corner of Prescott.”
II.
Defendant contends that his constitutional right to a fair trial was violated by the prosecutor when he allegedly excluded jurors based on their race and when:
(1) the prosecutor, even though notified in advance of the trial, failed to inform the defense that its witness
Defendant also argues that the prosecutor‘s misconduct led defense counsel to object on “an unusually high number” of occasions and “resulted in prejudice to Mr. Allen” before the jury.
As has been said many times, “the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done,” State v. Frost, 158 N.J. 76, 83, 727 A.2d 1 (1999); State v. Ramseur, 106 N.J. 123, 320, 524 A.2d 188 (1987), and “prosecutorial misconduct can be a ground for reversal where the prosecutor‘s misconduct was so egregious that it deprived the defendant of a fair trial.” Frost, supra, 158 N.J. at 83, 727 A.2d 1; Ramseur, supra, 106 N.J. at 322, 524 A.2d 188; State v. Siciliano, 21 N.J. 249, 262, 121 A.2d 490 (1956). In reviewing the prosecutor‘s actions and whether the misconduct was sufficient to warrant reversal,
[A]n appellate court “must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.” Specifically, 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 [be] stricken from the record and instructed the jury to disregard them. Frost, supra, 158 N.J. at 83, 727 A.2d 1 (citations omitted).
A defendant‘s right to a fair trial endures even in the face of overwhelming evidence of his or her guilt. Id. at 87, 727 A.2d 1.
The first jury selection process was terminated when the judge perceived a violation of State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986). Defendant contends that:
Although his misconduct during the first jury selection was corrected with the granting of a mistrial, this act is extremely relevant as it demonstrates evidence of the prosecutor‘s intent, and his willingness to break the rules in order obtain a conviction.
He further contends that the necessitated “mistrial” evidences the prosecutor‘s “malicious intent, his ability and willingness to use unjust means to obtain a conviction, and the overall weakness of the State‘s case.” If we so perceived the conduct at defendant‘s trial, reversal of the conviction would be required.
Defendant does not suggest a Gilmore violation by the prosecutor, necessitating a “mistrial,” constitutes the type of misconduct prohibiting a subsequent trial. See Oregon v. Kennedy, 456 U.S. 667, 674, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416, 423-24 (1982) (prosecutorial misconduct or overreaching bars retrial when intended to “goad” defendant into moving for mistrial). Defendant cites to no case, and we have found none, in which either a Gilmore violation, or similar violation of federal law, see Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 1716, 90 L.Ed.2d 69, 79 (1986), precluded a trial. See United States v. Bishop, 959 F.2d 820, 829 n. 10 (9th Cir.1992). The misconduct must infect the matter after jeopardy attaches, and jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 37-38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 32-33 (1978); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975).
Defendant also argues that the prosecutor‘s failure to turn over discovery material, including prior identifications by Waller and Whitfield, and the prosecutor‘s failure to instruct these witnesses not to give unduly prejudicial testimony that defendant sold them drugs and had a violent history, evidences his “continued intent... to obtain a conviction by any means necessary,” requiring reversal. The record reflects that statements made by Ms. Waller and Ms. Whitfield were turned over to the defense prior to trial. In addition, the trial judge was careful to instruct Waller and Whitfield not to testify that they had allegedly purchased narcotics from the defendant, notwithstanding the events surrounding the shooting, or that he may have had a violent history. We find nothing in the record to support a claim that the prosecutor knew such statements were going to be made or that he encouraged the witnesses to disregard the judge‘s instructions. Further, the judge struck the comments he deemed to violate his order immediately following their mention and instructed the jury to disregard them. See Frost, supra, 158 N.J. at 83, 727 A.2d 1. We add that the testimony regarding the victim being taken to the “Mack House” by Waller for purposes of buying drugs, and that he tried to buy drugs before the confrontation, was a necessary part of the State‘s case with respect to an explanation for the crime or its motive. We find no unduly prejudicial testimony beyond what was necessary in that regard.
The trial court concluded that the prosecutor‘s failure to turn over the medical and hospital reports of Ms. Whitfield, showing the head trauma and injuries caused by her accident, may have amounted to a Brady violation.7 However, after the jury was charged, the prosecutor introduced an investigator to develop, outside the presence of the jury, that Whitfield never revealed there was an accident resulting in any memory loss on the witness‘s part, although she revealed that she had hit her head. In any event, the information about Ms. Whitfield‘s automobile accident and injuries were developed before the jury and the defense was provided the opportunity to question her in detail with respect thereto, in an effort to discredit her testimony. Furthermore, after learning of the undisclosed head injury, the trial judge offered the defendant a mistrial and he declined, wishing instead to continue with the proceeding. Finally, the prosecutor insists, without contest, that Ms. Whitfield‘s trial testimony was consistent with her pre-accident statement, and the witness indicated the same. We cannot therefore conclude that any discovery violation or failure to produce evidence relevant to the witness‘s credibility, deprived defendant of a fair trial or undermined our confidence in the outcome. See United States v. Bagley, 473 U.S. 667, 675-76, 105 S.Ct. 3375, 3379-80, 87 L. Ed.2d 481, 489-90 (1985).
III.
Defendant contends that the trial court erred when it denied his motion for a
viewing the State‘s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Brown, 80 N.J. 587, 591, 404 A.2d 1111 (1979) (citing State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385 (1967)).]
See also State v. Kittrell, 145 N.J. 112, 130, 678 A.2d 209 (1996) (applying similar standard to appellate review).
Applying that standard, we find no basis to upset the judgment. The State presented witnesses who saw defendant at the scene arguing with the victim, at least one of whom saw him with a weapon, and another who heard what sounded like gunshots shortly after leaving the scene. Taking this into account and “giving the state the benefit of all favorable testimony as well as all of the favorable inferences which could be drawn therefrom,” a reasonable jury could find that defendant shot Silver.
IV.
As noted at the outset, we asked the parties to address the sentence imposed in light of State v. Manzie, 335 N.J.Super. 267, 762 A.2d 276 (App.Div. 2000), which held “that NERA does not apply to murder” and that “therefore, the 85% parole ineligibility period must be eliminated” from the sentence for murder which was imposed. Id. at 278, 762 A.2d 276. Given the fact the issue is pending in the Supreme Court, the petition for certification having been granted in Manzie, ___ N.J. ___, ___ A.2d ___(2001), and our belief that sentencing courts should impose sentences uniformly, we decline the State‘s invitation to reconsider the issue and potentially create a conflict on the subject prior to resolution by the Supreme Court.8 However, we add the following comments.
The Manzie court comprehensively examined the legislative history surrounding the adoption of NERA,
The State argues, however, “that NERA must apply to murder; otherwise, a person convicted of a crime other than murder and sentenced to an extended term of life imprisonment under
Legislation cannot be read to produce unreasonable or irrational results. “Interpretations which lead to absurd or unreasonable results are to be avoided.” State v. Gill, 47 N.J. 441, 444, 221 A.2d 521 (1966); DeBonis v. Orange Quarry Co., 233 N.J.Super. 156, 164, 558 A.2d 474 (App.Div.1989). Hence, we must “effectuat[e] the legislative plan as it may be gathered from the enactment ‘when read in the full light of its history, purpose and context.’ Lloyd v. Vermeulen, 22 N.J. 200, 204, 125 A.2d 393 (1956)...” State v. Gill, supra, 47 N.J. at 444, 221 A.2d 521. We thus hold that the imposition of an extended term for a first or second degree “violent crime” (as defined in
Finally, we add an additional reason for adhering to Manzie. The parties agree that if NERA applies to murder, the parole ineligibility term would be 63 3/4 years,
The judgment of conviction is affirmed, but we remand to the Law Division to vacate the NERA term. However, we stay our mandate pending the Supreme Court‘s decision in Manzie.