STATE OF NEW JERSEY v. MIGUEL COLON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6517-01T46517-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL COLON,

Defendant-Appellant.

___________________________________

 

Submitted May 2, 2006 - Decided May 19, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2311.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for murder, in violation of N.J.S.A. 2C:11-3(a)(1),(2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; and possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. A jury acquitted defendant of murder but found him guilty of the lesser-included offense of reckless manslaughter, in violation of N.J.S.A. 2C:11-4(b)(1). The jury also acquitted defendant of possession of a firearm for an unlawful purpose but found him guilty of possession of a handgun without a permit.

The trial court sentenced defendant to a seven-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent four-year term, with three-and-a-half years of parole ineligibility, for possession of a handgun without a permit.

The shooting that resulted in defendant's convictions occurred on the afternoon of January 26, 1999 outside a Kentucky Fried Chicken restaurant in Newark. According to the State's witnesses, the shooting followed a fist fight between defendant and his confederates and the victim and his confederates, who apparently were rival drug dealers. After someone broke up the fight, defendant allegedly walked over to a car, leaned into the car, then pulled out a handgun and started shooting. One of the shots fatally wounded the victim.

The primary factual issue at trial was whether defendant was the shooter. The State presented the testimony of three eyewitnesses, two of whom knew defendant before the crime, who identified him as the shooter. Defendant relied upon the fact that two of these witnesses identified another person as the shooter based on photo arrays shown to them shortly after the crime and various inconsistencies in their testimony.

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN PRECLUDING DEFENDANT FROM INTRODUCING EVIDENCE THAT ANOTHER YOUNG MAN INVOLVED IN THE BRAWL HAD STATED, "WHERE ARE MY GUNS," WHILE BEING ESCORTED OUT OF THE KENTUCKY FRIED CHICKEN MOMENTS BEFORE THE SHOOTING.

II. THE TRIAL COURT'S CHARGE ON SELF-DEFENSE WAS INSUFFICIENT (Plain Error).

III. THE JURY FINDING OF RECKLESS MANSLAUGHTER IS INCOMPATIBLE WITH ITS OTHER FINDINGS, RESTS ON INSUFFICIENT EVIDENCE, AND SHOULD BE VACATED (Plain Error).

IV. THE OUT-OF-COURT IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE AND UNDULY PREJUDICED DEFENDANT AT TRIAL.

V. THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Partially Raised Below).

VI. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE TESTIMONY ABOUT ALLEGED WITNESSES THAT THE STATE FAILED TO DISCLOSE TO DEFENDANT DURING DISCOVERY.

VII. THE TRIAL COURT ERRED IN PERMITTING INTO EVIDENCE UNNECESSARY AND PREJUDICIAL AUTOPSY PHOTOGRAPHS OF THE VICTIM.

VIII. THE TRIAL COURT ERRED IN PERMITTING INVESTIGATOR RICHARD CUNNINGHAM TO TESTIFY AS A STATE'S WITNESS.

IX. THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

Defendant's arguments are without merit and do not warrant extended discussion. R. 2:11-3(e)(2). The only arguments we consider it appropriate to discuss briefly are the ones presented under Points I, II and IV of defendant's brief.

Defendant argues in his first point that the trial court erred in barring testimony by the manager of the Kentucky Fried Chicken restaurant that one of the persons he asked to leave the restaurant after the fight erupted said, "where are my guns?" The court excluded this proposed testimony on the ground that it was inadmissible hearsay. Defendant contends that the statement was admissible under N.J.R.E. 803(c)(2) as an excited utterance or under N.J.R.E. 803(c)(3) as a statement of a then existing state of mind or emotion. However, there was no indication that the restaurant manager could identify the person who made the "where are my guns?" statement. Indeed, defendant could have been the declarant, in which event the statement would have been highly inculpatory rather than indicating that one of the other participants in the fight may have possessed a gun. Therefore, the statement overheard by the restaurant manager did not have sufficient probative value to require its admission into evidence even if it could be found to fall within an exception to the rule against hearsay.

Defendant argues in his second point that the court erred in failing to submit the defense of self-defense to the jury as a separate question on the jury verdict sheet. He also argues that the court did not adequately instruct the jury regarding the consequences of this defense if the jury concluded that the State had not disproven this defense beyond a reasonable doubt. Initially, we question whether self-defense should have even submitted to the jury at all. Although the shooting was precipitated by a fist fight, the fight had been broken up before the shooting occurred, and we see no evidence from which the jury could have found that defendant shot the victim in self defense. In fact, defendant shot the victim in the back, as the victim was apparently attempting to run away. However, even if there was sufficient evidence to warrant submission of self defense to the jury, there is no requirement that this defense be presented in the form of a separate question on the verdict sheet. See State v. Branch, 301 N.J. Super. 307, 328 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1997). Moreover, the court's instructions regarding self defense comported in all respects with the model jury charge. Defendant did not object to those instructions or ask that they be supplemented by the additional instructions he now says should have been given. Therefore, there is no basis for concluding that those instructions constituted plain error.

Defendant argues in point IV of his brief that the trial court erred in denying his motion to exclude evidence that two eyewitnesses, Frans Phillippi and Nancy Rivera, identified him as the shooter from photo arrays shown to them approximately a week after the shooting. Defendant contends that those identifications were impermissibly suggestive because Phillippi and Rivera had previously identified another person as the shooter when they were shown a different photo array. In determining the admissibility of an eyewitness's identification of an alleged perpetrator, a court must first decide whether the identification procedure was "impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988). If the court makes this finding, "it must then decide whether the objectionable procedure resulted in a very substantial likelihood of irreparable misidentification." Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The trial court concluded in a comprehensive oral opinion that "the identification process was not so suggestive as to taint the out-of-court identification[s]" of defendant as the shooter by Phillippi and Rivera. We affirm the denial of defendant's motion to exclude evidence of those identifications substantially for the reasons set forth in the trial court's opinion. We note in particular that the person who Phillippi and Rivera initially identified as the shooter closely resembles defendant. In fact, defendant and that other person were sometimes referred to in the neighborhood as "the twin brothers." We also note that Phillippi knew defendant before the shooting, and that both Phillippi and Rivera had a good opportunity to observe defendant before and during the course of the shooting, which significantly reduced the possibility that their identifications were mistaken.

Affirmed.

 

(continued)

(continued)

7

A-6517-01T4

May 19, 2006