STATE OF NEW JERSEY v. TIMYAN CABBELL STATE OF NEW JERSEY - v. JOHN CALHOUN -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-6015-05T46015-05T4

A-3069-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMYAN CABBELL,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN CALHOUN,

Defendant-Appellant.

____________________________

 

Submitted September 23, 2009 - Decided

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1332 and 04-11-1333 for Timyan Cabbell; Indictment Nos. 04-11-1332, 04-07-880 and 04-07-881 for John Calhoun.

Yvonne Smith Segars, Public Defender, attorney for appellant Timyan Cabbell (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant John Calhoun (William Welaj, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Bruce Holmes, Assistant Prosecutor, of counsel and on the brief in A-6015-05T4; Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief in A-3069-06T4).

Appellant Timyan Cabbell filed a pro se supplemental brief.

PER CURIAM

These back-to-back appeals by defendants Timyan Cabbell (Cabbell) and John Calhoun (Calhoun) arise from the homicide of Paul Lecaros on April 2, 2004. On that date, Louis Lecaros (Mr. Lecaros) was working at his LaBamba Restaurant and Bar in Plainfield. His son Paul was acting as DJ for the evening. After closing time at 2:00 a.m., Mr. Lecaros gave three waitresses (Sandra Narvarro (Ms. Narvarro), Thelmy, and Alba) a ride home in his pickup truck. Mr. Lecaros was driving the truck while Ms. Narvarro was sitting beside him. Paul was in the front seat nearest to the passenger door. Themly and Alba were sitting in the back seat of the cab.

After dropping off Thelmy, Mr. Lecaros started driving towards Dunellen to drop off Ms. Narvarro when he was reminded that he needed to drive Alba home first. He then drove onto Plainfield Avenue in order to turn around. A small dark car in front of him made the same turn. The car signaled to make a turn onto Second Street with Mr. Lecaros following. Suddenly, the car stopped, and Mr. Lecaros' truck slid into the back of the car and pushed it up on the sidewalk. Immediately thereafter, the men from the car started shooting at Mr. Lecaros' truck. Shots were fired through his windshield and rear window. The car then backed up, slammed into the front of the truck and raced down Plainfield Avenue. Both Mr. Lecaros and Ms. Narvarro had ducked down during the shooting. Ms. Narvarro saw that Paul was not moving and as she touched him, she got blood on her hands. Mr. Lecaros quickly got out of the truck and ran to the passenger side to check on his son. Paul did not respond.

9-1-1 was called and Plainfield Patrolman James Stillman (Officer Stillman) was the first to arrive at about 3:20 a.m. He saw Mr. Lecaros leaning over the center passenger area holding his son, who had suffered a gunshot wound to his chest and was in and out of consciousness. There were bullet holes in the front windshield of the truck, and the passenger side window and back window were shattered. Officer Stillman also saw a black bumper about five to ten feet from the pickup truck. When the paramedics arrived, it was determined that Paul was dead from a gunshot wound to the chest. After his body was taken away, Mr. Lecaros and the other occupants of the car were driven to police headquarters to be interviewed.

Police identification officers examined the area that had been cordoned off. It was determined that at least eleven separate shots were fired. Two bullets entered the front grill of the truck, three penetrated the front windshield, five entered a nearby residence, and one was found on the second floor of a nearby funeral home. Subsequent police analysis revealed that at least two separate weapons were involved.

Attention was focused on the black bumper found at the scene. Examination revealed a vehicle identification number (VIN) on the bumper that was placed on a Honda Accord. The following day the police found out that the vehicle matching the VIN number on the recovered bumper was sold by Hofs Auto Sales, located on Route 22 in North Plainfield. The owner of the dealership told officers that the Honda Accord had been sold to Shantell Thomas a month earlier, on March 4, 2004.

Detective William Mannix of the Union County Prosecutor's Office visited several addresses in an attempt to locate Ms. Thomas. He finally found her mother and she gave him Ms. Thomas' current home address in North Plainfield, and added that she worked at Cablevision in Newark. Unable to find her at the apartment, Detective Mannix went to Cablevision and spoke to Ms. Thomas at about 1:30 p.m. He told her that her car had been involved in an accident, was missing a bumper, had some rear-end damage and was believed to have a shattered back window. Ms. Thomas insisted that she had parked her car in the apartment parking lot about midnight and had driven it to work that morning. She denied there being any damage to the car. She said that she parked the car that morning about four blocks away on Halsey Street.

Detective Mannix was unable to find Ms. Thomas' car on Halsey Street and called Ms. Thomas who said she was positive that was where she parked her car. Subsequently she called Detective Mannix and told him that the police took her car. Later that day Detective Mannix was contacted by the Newark Police Department, who told him that Ms. Thomas made a police report at 5:10 p.m. claiming that her car had been stolen between 9:45 a.m. and 3:00 p.m. that day.

Meanwhile, when Officer David Canica of the North Plainfield Police Department started his shift on the morning of April 4, he saw a notice from the Plainfield Police Department that a black Honda with a missing bumper and a blown-out rear window was involved in a fatal shooting. While on duty at about 4:30 a.m., he had responded to a call from Daniel Tullo (Tullo), the superintendent of the 405 Grove Street Apartments in North Plainfield, about a car burglary in progress. Tullo said he was awakened by loud voices shortly after 4:00 a.m. Looking out the window toward the parking area of the building, he saw three men standing near a car that was missing its back window. Tullo said he could not hear what the men were talking about and could not identify them because their backs were to him. Thinking that they may have broken into the car, Tullo called the police.

Officer Canica went to the parking lot of the apartment complex. No one was there, but he saw a black car missing its rear window parked with the rear of the vehicle facing the building. He then went back to Tullo's apartment. While talking to Tullo, the door to apartment 2A opened, and a heavy-set African-American man came out. He was followed by another African-American man who started to leave the apartment, but quickly stepped inside and shut the door after seeing the officer. As Officer Canica walked back to his police car, he saw the man who left apartment 2A get into a Crown Victoria parked on the street. He called police headquarters to trace the Crown Victoria, and the motor vehicle check disclosed a Corey Balmer owned the vehicle. Officer Canica reported this information to his superiors and returned to the apartment parking lot where he observed that the black car was gone. Later that day, he went to the Plainfield Police Station, and after viewing a photo array, he identified Corey Balmer as the man he saw leaving apartment 2A.

At about 9:00 a.m. the same morning, Tullo was awakened by the sound of a flatbed tow truck in the apartment parking lot taking away a black Honda. He noticed that the vehicle had rear-end damage and might have been missing its bumper. He also recognized it as the same car he had seen parked in the space for apartment 2A, the apartment rented in the name of Shantell Thomas.

Ms. Thomas' black Honda Accord was later found in the back parking lot of an apartment complex in Newark. Officer Kevin Buckley of the Union County Sheriff's Office Crime Unit and other unit officers examined the vehicle. It was missing its rear bumper, and the back window was shattered. Officer Buckley said it appeared that the inside of the Honda had been wiped down. Inside the glove box was a tuition receipt in the name of defendant Cabbell.

Other police officers and detectives interviewed persons living in the area of the shooting. Carmen Salgado told one of the detectives that she lived in an apartment at the intersection of Plainfield Avenue and Second Street and that at about 3:00 a.m. or 4:00 a.m. on April 3, 2004, she heard sounds as if something hit the side of her building. When she looked out the window, she saw a person in the middle of the street crying and screaming about someone being shot. Subsequently, officers examined the outside of Ms. Selgado's building and discovered that five bullets had struck the outside of her apartment.

Tyshara Shockley told police that she lived a short distance from the scene of the shooting and that she and a friend, Tiffany Berry, had returned from a club to her apartment at about 2:30 a.m. When they heard gunshots, they looked outside. Ms. Shockley saw a gray truck and a black car at the intersection of Plainfield Avenue and Second Street. She said two people from the car, each with one hand up, were shooting. She said one was on the driver's side about half way out of the car, and the other was standing near the trunk on the passenger side. She saw fire flashes from the gun held by the individual standing at the rear of the car. She was unable to tell the police what the individuals looked like, what clothes they were wearing or if the man on the driver's side of the car was shooting. Ms. Berry said she also saw "the fire coming out of the gun," but was not able to see anything other than that the person shooting was near the dark car. She called 9-1-1 to report the incident.

Diane Gentles also lived near the intersection of Plainfield Avenue and Second Street. She was awakened by the sound of gunshots in the early morning of April 3 and found debris in her home caused by the impact of a bullet. The police came into her home the next morning and recovered a bullet in the wall.

Joseph Washington, a tenant at 405 Grove Street in North Plainfield, saw the damaged Honda in Ms. Thomas' parking space at approximately 4:00 a.m. He also observed several individuals around the dark car. One was wiping the sides of the car. Washington heard a second car arrive while the men were still around the damaged car in the parking area.

A search warrant was issued for Ms. Thomas' apartment on April 14, 2004. When the police informed her about the search warrant, she telephoned defendant Cabbell. He arrived at the apartment and signed a "permission to search" form as a resident of the apartment. Letters and other documents found in the apartment confirmed that defendant Cabbell and Thomas occupied the apartment.

When Corey Balmer was interviewed, he said he was a long-time friend of Cabbell. He admitted going to the apartment at about 4:00 a.m. on April 3, 2004 which confirmed the identification made by Officer Canica of the man leaving apartment 2A. Balmer added that Cabbell drove a black Honda and that only Cabbell and his girlfriend drove it.

Charles Seals told police that he had lived in Plainfield and had known defendants Cabbell and Calhoun for many years. He said that shortly after the April 3 homicide, he heard Cabbell and Calhoun arguing. Cabbell repeatedly told Calhoun to keep his mouth shut and not say anything to the police. Calhoun responded that he did not talk to the police.

Seals also said he was interviewed at his home a few days after the homicide. Subsequently, Cabbell came to Seals' house and asked him what the police said to him. Seals told Cabbell that they had questioned him about the murder. Cabbell told Seals not to say anything to the police, and Seals agreed because he did not know anything about the shooting.

On April 5, 2004, Plainfield Sergeant Lawrence Brown took a statement from Karine Martin after she told police that she had witnessed the homicide. She said she saw Cabbell in his girlfriend's black four-door Honda along with Calhoun and two other men, whom she identified as Dante Harris and Michael Cofield. Martin knew all four men and said she saw them before the shooting at a fast food restaurant when she had a brief conversation with Cabbell.

After leaving the restaurant with a friend, Martin walked down Plainfield Avenue. She saw Cabbell driving the Honda "all over the road" and a pick-up truck rear-end the car. She said that Cabbell, Calhoun, and Harris got out of the car while "the Spanish guy" who had been driving the truck got out and tried to talk to them. She said Cabbell pulled out a gun and said, "[M]otherfucker, you hit my girlfriend's car." He then walked to the back of the car, bent down to look at the damage, and, after standing up, fired at least three shots. Martin said Calhoun then started firing, but Martin said it did not appear that he hit anything because his arm "was kind of like going around when he fired." She saw Cabbell aim and fire at the truck and also saw a passenger inside the truck fall over. She stated "I saw Timyan [Cabbell] fire and the kid slumped over. The kid was slumped over before John-John [Calhoun] got out of the car."

Martin added that after the shooting, Cofield got out of the car and ran away. Harris yelled, "man, you killed somebody," before he got back in the car with Cabbell and Calhoun and drove away. Martin said she was certain of the identity of the shooters because they "looked right in my face."

On May 18, 2004, Detective Harvey Barnwell interviewed Tysen Privott. He said he had seen Cabbell on the night of April 2, 2004, driving his girlfriend's black Honda Accord in a park with Calhoun and two other men. As Cabbell got out of the car, Privott saw the handle of a large black gun sticking out of Cabbell's waistband. Privott said he then saw Cabbell the afternoon following the homicide when he admitted to the shooting.

Defendants Cabbell and Calhoun were indicted for knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) and/or 2C:11-3a(2)(Count One); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b (Count Two); and possession of a weapon for an unlawful purpose (Count Three), in violation of N.J.S.A. 2C:39-4a. Defendant Cabbell was also charged in a separate indictment with violation of the statute prohibiting certain persons from having weapons, N.J.S.A. 2C:39-7b. Calhoun was separately charged in two other indictments. The first, unrelated to the homicide, charged him with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count One); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Two); and aggravated assault, contrary to N.J.S.A. 2C:12-1b(4)(Count Three). He was also indicted in connection with the homicide with possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7a.

Tried to a jury, defendant Cabbell was convicted of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a(1), as a lesser included offense to count one of the indictment charging knowing or purposeful murder. Defendant Calhoun was convicted of reckless manslaughter, contrary to N.J.S.A. 2C:11-4b(3), as a lesser included offense to the count one charge of knowing or purposeful murder. Both defendants were found guilty of counts two and three, charging unlawful possession of a weapon and possession of a weapon for an unlawful purpose.

Prior to sentencing, Cabbell entered a guilty plea to the indictment charging possession of a weapon by certain persons. Calhoun also pled guilty to possession of a weapon by a convicted felon and to count one of the unrelated indictment charging unlawful possession of a weapon.

On June 2, 2006, the sentencing judge granted the State's motion for imposition of discretionary extended terms. He sentenced Cabbell to forty years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for aggravated manslaughter on count one as amended, and merged counts two and three, charging the weapons offenses, into count one.

Calhoun was sentenced to twenty years, subject to the No Early Release Act, on count one as amended to reckless manslaughter. After the merger of count two into count three, the judge sentenced him to a consecutive eight year term. He received an additional consecutive ten years incarceration, with five years parole ineligibility, on the unrelated indictment charging unlawful possession of a weapon, and eighteen months with a nine month parole ineligibility term for the indictment charging possession of a weapon by a convicted felon to run consecutive to his sentence for reckless manslaughter.

On appeal, Cabbell argues:

POINT ONE

THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE STATEMENTS OF TWO CRUCIAL WITNESSES WHO REFUSED TO TESTIFY.

POINT TWO

THE SENTENCE WAS DETERMINED IMPROPERLY PURSUANT TO STATE V. PIERCE, NECESSITATING A REMAND FOR RESENTENCING. (Not Raised Below)

He further asserts in a pro se supplemental brief:

POINT ONE

THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE STATEMENTS OF TWO CRUCIAL WITNESSES WHO REFUSED TO TESTIFY.

POINT TWO

THE PRESENTATION OF A WITNESS BEFORE THE JURY IN PRISON GARB AND SHACKLES DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

POINT THREE

THE DEFENDANT WAS SUBJECTED TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY THE FAILURE OF A TRIAL COUNSEL TO OBJECT TO THE PRESENTATION OF WITNESSES IN SHACKLES AND PRISON GARB IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT.

Defendant Calhoun separately argues:

POINT I

THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING COUNT III CHARGING POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE. (Not Raised Below)

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY FROM SERGEANT LARRY BROWN REGARDING A STATEMENT GIVEN TO HIM BY KARINE MARTIN INCRIMINATING THE DEFENDANT PURSUANT TO N.J.R.E. 803(c)(5) SINCE MARTIN REFUSED TO TESTIFY AT TRIAL, THUS VIOLATING THE DEFENDANT'S RIGHT OF CONFRONTATION.

POINT III

THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. PIERCE.

POINT IV

THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS.

POINT V

THE SENTENCE IMPOSED WITH RESPECT TO COUNT III WAS MANIFESTLY EXCESSIVE.

POINT VI

THE SENTENCE IMPOSED WITH RESPECT TO INDICTMENT NO. 04-07-880-I AND INDICTMENT NO. 04-07-881-I WAS MANIFESTLY EXCESSIVE.

We first address the contention by both defendants that their respective rights to confrontation guaranteed by the Sixth Amendment were violated by the trial judge's admission into evidence of Martin's pretrial statement to the police after she refused to testify at the trial. Cabbell alone challenges the admission of Privott's statement to the police after he refused to testify at the trial.

In Martin's statement she said she witnessed the entire incident, identified defendant Cabbell as the driver of the car and one of the shooters, and identified defendant Calhoun as the other shooter. However, when called to the witness stand, Martin refused to testify even when told by the trial judge that she faced incarceration for contempt. She then acknowledged that she had given a statement to the police and that what she said in it was true, but she still declined to testify. The trial judge noted for the record that Martin was "extremely traumatized" and was "shaking, crying, obviously in fear of something and so much in fear that she is willing to arguably face repetitive eighteen-month sentences for refusing to testify." Later the judge opined that Martin was terrified because "she had been threatened by at least one of the defendants."

The trial judge held a Rule 104 hearing pursuant to State v. Gross, 121 N.J. 1 (1990), to determine the reliability of Martin's earlier statement to police, as well as her statement that she was "high" at the time she gave the statement. During the hearing, Martin became more responsive to questions posed by the Prosecutor, admitting she was near the scene of the shooting and that she heard gunshots. However, she said she could not remember if she saw either of the defendants or how many shots were fired. She again admitted to having given a statement to the police and that the statement was the truth but claimed that she could not remember anything from the statement. The court then invited counsel for both defendants to cross-examine. Only Calhoun's defense counsel conducted a cross-examination, which simply clarified that Martin had given the statement to police, that what was in it was true, and that she could not remember what she had said.

When the Prosecutor tried to use Martin's statement to refresh her memory, she acknowledged that the statement was in fact the one she had given but still claimed not to remember anything from the statement. She said that she was high both on the night of the shooting and when she gave the statement to police. The only cross-examination on this issue was conducted by Cabbell's counsel, who verified that Martin claimed to be under the influence both at the time of the shooting and when she gave the statement.

The trial judge evaluated the reliability of Martin's prior statement in accordance with the fifteen factors set forth in State v. Gross.

The trial judge held that under the preponderance of the evidence standard set forth in Gross as to the relevant factors, Martin's prior statement to the police was reliable. He then permitted the State to use her statement to the police as substantive evidence under the recorded recollection exception to the hearsay rule. N.J.R.E. 803(c)(5) states:

A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when a witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but not introduced as an exhibit over objection.

Defendants argue that regardless of the issue of the admissibility of Martin's statement under the hearsay exception, the court erred in admitting the statement because defendants were denied their constitutional right of confrontation.

The Sixth Amendment to the United States Constitution and Article I, Paragraph X of our State Constitution both provide a criminal defendant with "the right to . . . be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, 10. The Sixth Amendment and the New Jersey Constitution "prohibit the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony." State ex rel. J.A., 195 N.J. 324, 342 (2008). See also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

There is no question that Martin's statement to law enforcement officers investigating a crime was testimonial in nature since the purpose of her interview by the police was "to establish or prove past events, relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). See also State v. Coder, 198 N.J. 451, 460-61 (2009). The Sixth Amendment's Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Davis, supra, 547 U.S. at 821, 126 S. Ct. at 2273, 165 L. Ed. 2d at 236. See also State v. Branch, 182 N.J. 338, 350 (2005).

The trial record shows that each defendant had the opportunity to cross-examine Martin during the Rule 104 hearing. The fact that they limited their cross-examination does not equate to the denial of the constitutional right of confrontation.

In State v. Nyhammer, 197 N.J. 383, 388 (2009), the Supreme Court considered the admission of a child's videotaped statements implicating the defendant in sexually abusing her. In upholding the admission of the videotape under the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), the Court rejected the defendant's claim that his right of confrontation had been abridged, noting that defense counsel had the opportunity to cross-examine the child on the core allegations in the statement but decided not to do so. Nyhammer, supra 197 N.J. at 413.

In the present case, defendants twice had the opportunity to cross-examine Martin regarding the core portions of her police statement that incriminated them. As defendants failed to pursue their questioning of Martin when they had the opportunity to do so, they cannot now claim that they were denied the right of confrontation. Therefore, Martin's out-of-court statement made to the police was properly read to the jury.

As to Privott's prior statement to the police, the trial judge admitted it in under N.J.R.E. 803(a)(1)(A) which states,

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(1) [I]s inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability.

Under New Jersey law,

[i]t is well established that a propounding party witness' out-of-court written or recorded statement sought to be admitted under N.J.R.E. 803(a)(1)(A) (formerly Evid.

R. 63(1)(a)(i)) must be evaluated by the trial judge at N.J.R.E. 104 or 'Gross' hearing outside the jury's presence considering a number of factors 'to determine whether the statement was made or signed under circumstances establishing sufficient reliability that the fact finder may fairly consider it as substantive evidence.'

[State v. Baluch, 341 N.J. Super. 141, 179 (App. Div.), certif. denied, 170 N.J. 89 (2001) (quoting State v. Spruell, 121 N.J. 32, 46 (1990)).]

Privott refused to take the witness stand to testify when called by the prosecution. The trial court then held a Gross hearing outside the presence of the jury. During the hearing, Privott denied having information about the shooting or ever giving any statement to the police about the shooting. Defense counsel sought to cross-examine Privott during the hearing.

At the conclusion of the Gross hearing, the trial judge determined that Privott's statement to the police was reliable. He noted that Privott was not a target of police investigation or the crimes involved, that Privott did not incriminate himself or seek to exculpate himself with his statements, that Privott had no reason to fabricate the statement, and that it was clearly apparent what use the police would make of the statement.

Accordingly, the trial judge determined that Privott's statement to the police was reliable. When the jury was brought back into the courtroom, Privott again took the stand and was questioned by the Prosecutor. Once again he denied having made the statement to the police or having any knowledge of the defendants' involvement in the shooting.

Cabbell's defense counsel then cross-examined Privott, questioning him only as to his outstanding drug charges on the day that he gave his statement to the police and that he had three prior drug convictions. During cross-examination by Calhoun's counsel, Privott said that he took his oath to tell the truth seriously and that he did not remember giving any statement to the police.

The State then called Detective Barnwell regarding the circumstances under which he took Privott's statement. After some cross-examination by both defense attorneys, the trial judge admitted Privott's prior statement and gave the jury the required instructions as to how they were to consider the statement.

Defendant Cabbell's contention that he was denied his right of confrontation by admission of Privott's statement to police is without foundation in light of Nyhammer. As with Martin, Cabbell's defense attorney had the opportunity, both in the Rule 104 hearing and before the jury, to cross-examine Privott regarding the contents of his prior statement and elected not to do so, instead attacking his credibility based on pending charges at the time Privott made his statement to the police and his history of prior drug convictions. Therefore, we find that the trial judge properly admitted Privott's prior statement into evidence.

Pursuant to defendant Cabbell's request, we granted an expansion of the record to reflect his contention that the State's witnesses Martin and Privott, appeared in open court in prison clothing, handcuffs, and shackles and that no security hearing was held. It is stipulated that defendant's trial counsel made no objection.

Defendant relies upon State v. Artwell, 177 N.J. 526, 530 (2003), in which the Supreme Court considered the issue of whether a witness tendered by the defendant in a criminal case could be required to appear in restraints or prison garb. The Court ruled prospectively that a trial court may not require the defendant's witnesses to appear in prison garb. Id. at 539. Subsequently, in State v. Russell, 384 N.J. Super. 586, 599 (2006), overruled in part by 198 N.J. 482 (2009), the Appellate Division held that state witnesses may not testify in prison garb.

However, in the recent case of State v. Kuchera, 198 N.J. 482 (2009) the Supreme Court held that the broad proscription on prison garb pronounced in Russell was "overbroad." Id. at 500. The Court further stated that,

On the question of whether prosecution witnesses should be allowed to testify in prison garb, however, we conclude that the reasons that animate our decision in Artwell that is, that the wearing of prison garb may tend to undermine the credibility of the witness may have no true relevance to prosecution witnesses and, hence, whether a prosecution witness testifies in prison garb likely does not affect whether the trial as a whole is fair.

[Id. at 486.]

The Court then exercised its supervisory power to require that in the future, witnesses in criminal cases for either the prosecution or the defense should not testify in prison garb. Ibid.

As we have noted, neither defense counsel registered an objection to the appearance of the witnesses in prison garb or shackles. Accordingly, our scope of review is defined by the plain error rule, R. 2:10-2. We find no error, much less plain error, in the circumstances of this case. Indeed, if there was any prejudice flowing from the prison garb worn by the witnesses, it would be borne by the State.

Defendant Calhoun also maintains that the trial judge committed reversible error by failing to instruct the jury as to what constitutes an "unlawful purpose" on the charge contained in Count Three of the indictment of possession of a firearm for an unlawful purpose. After a review of the record, we have determined that the conviction should have merged into the manslaughter conviction because there is no evidence in the record to support the contention that defendant Calhoun intended to use the firearm against the property, i.e., the truck, owned by Mr. Lecaros. Accordingly, any error in the court's charge on the matter is harmless. See State v. Johnson, 287 N.J. Super. 247, 264 (App. Div.), certif. denied, 144 N.J. 587 (1996).

Furthermore, defendants assert, and the State agrees, that under State v. Pierce, 188 N.J. 155, 161-63 (2006) there must be a remand for re-sentencing so that the trial court can consider the applicable extended term range. Since defendants' appeal was pending when Pierce was decided on August 2, 2006, defendants' case is subject to pipeline retroactivity. In light of our determination that a remand is necessary, we will not address defendants' other arguments affecting their sentences so that the sentencing judge may re-evaluate the sentences in their entirety.

 
Finally, we do no address Cabbell's argument that he received ineffective assistance of trial counsel. As has been repeatedly stated, this argument is best addressed upon a petition for post-conviction relief See, e.g., State v. Preciose, 129 N.J. 451, 460 (1992).

Affirmed as to both defendants.

Remanded for re-sentence as to both defendants.

The factors are:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.

[State v. Gross, supra, 121 N.J. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]

We also note the applicability of N.J.R.E. 803(a)(1). When a witness claims a loss of memory as to events given in a previous statement, "the trial judge may consider [it] a feigned loss of memory and admit the statements under N.J.R.E. 803(a)(1)." State v. Soto, 340 N.J. Super. 47, 66 (App. Div. 2001).

(continued)

(continued)

27

A-6015-05T4

November 2, 2009