STATE OF NEW JERSEY v. ALBERT L. BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6319-05T46319-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT L. BARNES,

Defendant-Appellant.

_____________________________

 

Submitted May 5, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0241.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On April 15, 2004, a Mercer County Grand Jury charged defendant with various criminal offenses arising out of two incidents that occurred on October 3, 2003, in the City of Trenton. The first three counts of the indictment charged defendant with committing criminal offenses during an incident between himself and another individual named Antwan Leary: second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count One); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); and third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (Count Three). The remaining counts of the indictment charged defendant with committing criminal offenses against Trenton Patrolmen Luddie Austin and Adrian Mendez: two counts of first-degree criminal attempt to commit murder of Austin and Mendez, N.J.S.A. 2C:11-3 and 2C:5-1 (Counts Four and Six, respectively); two counts of second-degree criminal attempt to commit aggravated assault upon Austin and Mendez, N.J.S.A. 2C:12-1b(1) and 2C:5-1 (Counts Five and Seven, respectively); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Nine); third-degree resisting arrest, N.J.S.A. 2C:29-2a(1)(a) (Count Ten); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7b (Count Eleven).

On January 10, 2006, the trial court conducted an N.J.R.E. 104(a) hearing to determine the admissibility of prior inconsistent statements of witnesses Walter Funderburg and Leary, pursuant to N.J.R.E. 803(a)(1). Following the hearing, the court determined the witnesses' prior statements admissible, and also denied defendant's motion for severance, that is, for a separate trial on the offenses arising out of each of the two incidents.

Tried to a jury, defendant was found guilty of third-degree aggravated assault as a lesser-included offense on Count One, and on Counts Two, Three, Nine, Ten and Eleven; defendant was found not guilty on the remaining counts.

On March 24, 2006, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9) and mitigating sentencing factor N.J.S.A. 2C:44-1b(11) (defendant's health and drug use), the court sentenced defendant on Count Two to a ten-year term of imprisonment with a five-year period of parole ineligibility; on Count Eleven to a ten-year term of imprisonment with a five-year period of parole ineligibility, to run consecutive to the sentence imposed on Count Two; and on Count Ten to a five-year term of imprisonment with a two-and one-half year period of parole ineligibility, to run concurrent with the sentences imposed on Counts Two and Eleven. The convictions on Count One, Three and Nine were merged with the conviction on Count Two. The aggregate sentence is twenty years with a ten-year period of parole ineligibility. The court also imposed all appropriate fines and penalties.

I.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON SELF-DEFENSE ON THE CHARGES OF AGGRAVATED ASSAULT AND RESISTING ARREST, AND IT SHOULD ALSO HAVE GIVEN A PROTECTIVE PURPOSE INSTRUCTION ON THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Partially Raised Below).

POINT II.

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS ON AGGRAVATED ASSAULT. (Not Raised Below).

POINT III.

THE JURY INSTRUCTION ON REASONABLE DOUBT VIOLATED DEFENDANT'S BASIC RIGHTS TO THE PRESUMPTION OF INNOCENCE AND PROOF BEYOND A REASONABLE DOUBT. (Not Raised Below).

POINT IV.

THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTOR TO ELICIT PRIOR INCONSISTENT STATEMENTS THAT DID NOT CONFORM WITH THE ADMISSIBILITY REQUIREMENTS OF THE EVIDENCE RULES AND CASE LAW, AND IT ALSO ALLOWED THE PROSECUTOR TO IMPROPERLY BOLSTER THE STATE'S EFFORTS TO IMPEACH STATE WITNESSES' RECANTATION TESTIMONY IN VIOLATION [OF] DEFENDANT'S CONSTITUTIONAL RIGHTS.

POINT V.

THE TRIAL COURT ERRED IN APPLYING THE TEST FOR DETERMINING THE RELIABILITY OF WITNESSES' OUT-OF-COURT STATEMENTS AND IN FAILING TO INSTRUCT THE JURY ON THE SUBJECT. (Partially Raised Below).

A. THE TRIAL COURT ERRED IN APPLYING THE TEST FOR DETERMINING THE RELIABILITY OF WITNESSES' OUT-OF-COURT STATEMENTS.

B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE SUBJECT.

POINT VI.

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

A. INSUFFICIENCY OF THE EVIDENCE.

B. FAILURE TO SEVER.

C. PREJUDICIAL SHACKLES.

POINT VII.

THE SENTENCE WAS MANIFESTLY EXCESSIVE.

We affirm the convictions and sentences imposed on Counts Nine, Ten and Eleven; and we reverse the conviction of the lesser-included offense of third-degree aggravated assault on Count One, and the convictions on Counts Two and Three.

II - A.

The Incident with Antwan Leary.

At approximately 8:15 p.m. on the evening of October 3, 2003, Leary and Funderburg, also known as Walter White, entered the Adrianna Liquor Store on North Clinton Avenue, Trenton, to purchase alcohol. Thereafter, while outside the store, defendant shot Leary in both legs.

Trenton uniformed police officers and members of the Tactical Anti-Crime Unit (TAC) were dispatched to the store. Two members of the TAC unit, Supervisor Detective Sergeant Anthony Manzo and Detective Timothy Thomas, arrived, finding Leary "laying in front of the store, . . . shot in both legs[,]" with Funderburg kneeling next to him. Manzo approached Leary and asked who had shot him, to which Leary responded "I don't know." When questioned, Funderburg also responded that he did not know the shooter.

Although Funderburg initially informed Manzo that he did not know the identity of the assailant, Funderburg informed the detective that he would take care of the situation on his own. Manzo advised Funderburg against taking that course of action, and promised that he would be pursued if he took matters into his own hands. At that point, Funderburg stated that he would speak to Manzo in the detective's unmarked vehicle, not out in the open. Once inside the vehicle, Funderburg informed Manzo "that Lord had shot [Leary] in the legs." Specifically, Leary and Funderburg had entered the store, and when "Lord" attempted to shake Leary's hand, Leary refused. After Leary went back outside, "Lord" pulled a .38 caliber handgun out of his right pocket and shot Leary in both legs.

Funderburg provided Manzo with a description of an individual known to Funderburg by the street name "Lord," and stated that Lord drove off in a silver vehicle. Realizing that the description fit that of defendant, Manzo radioed the descriptions of defendant and his vehicle to other officers.

Manzo transported Funderburg to the Criminal Investigation Bureau (Bureau) where he turned him over to Detective Thomas. Thomas interviewed Funderburg and recorded a formal statement approximately one hour after the shooting. Thomas found Funderburg responsive and not under the influence of drugs or alcohol.

Funderburg provided the following statement to Thomas:

I was sitting in the car at the corner of Sherman Avenue and North Clinton Avenue. Saw Li'l Lord pull up. Got out of the car, and gone in the liquor store. Me and [Leary] gone in the liquor store. Li'l Lord said, what's up? And [Leary] said, what's up. Li'l Lord tries to shake [Leary's] hand. [Leary] said, I don't want to shake your hand. Li'l Lord said, so what's up then? Then [Leary] said what's up? So then, Li'l Lord said let's go outside so we could talk. They go outside. I couldn't hear what was said between them. Then Li'l Lord backed up a step, pulled a gun out of his right pants pocket and shot [Leary] twice in his legs. Li'l Lord ran across the street and jumped in his car and whipped off.

According to Funderburg, at the time of the shooting, he was standing "on the step of the liquor store," about two or three feet from Leary, and about six feet from defendant.

Additionally, Funderburg not only admitted to knowing "Li'l Lord" his whole life, but also identified defendant by his real name, Albert L. Barnes. When asked whether Leary and defendant had a prior dispute, Funderburg answered "Yeah, they have had a beef, but I don't know what it's about." When shown a picture of defendant, Funderburg identified him as the individual who shot Leary. After Thomas typed the statement, Funderburg reviewed it and signed it.

Manzo obtained a photograph of defendant and proceeded to the Helene Fuld Hospital to interview Leary. After Manzo informed Leary that the identity of the assailant was known to him, Leary said "Lord shot me." Manzo then showed Leary the photograph of defendant, after which Leary signed it, identifying defendant as the person who shot him.

On October 9, 2003, Thomas obtained a signed statement from Leary. In the statement, Leary provided that, at the time of the incident, he and Funderburg were getting ready to go to work, and stopped at a convenient store for water. At that time, they ran upon defendant, and Funderburg exited the vehicle "to make sure everything was [alright]." Leary then stated:

I went across the street to the liquor store where Lord was at. He was inside of there. He was getting ready to purchase a drink. So he reached out and was looking for a handshake. I told the man, I ain't going -- I ain't doing all that, you did my brother dirty. After I didn't shake his hand, he said, let me talk to you outside. I was standing inside for a minute talking to the Spanish guy in the store. I walked out the store and noticed Lord was still standing there waiting for me to talk to him. He started telling me, Nigga followed me home. He was telling me he was the only person who got into it with my brother. I told him I can't run with that story. I don't even want to talk about it. I seen him pull a .357 revolver out of his pocket. As soon as he pulled it out, he started shooting at me. The first shot got me in my right leg. The second shot hit my left leg by my knee. He took off running, and I fell. He got into a gold car and left. Then the police came first and they set up a perimeter. And then the ambulance got there like seconds later.

To clarify his statement that defendant "did [his] brother dirty," Leary explained:

[A]bout a few weeks prior to, my brother sent his girlfriend to come find me. When she came and found me, she told me my brother had just got jumped, and was calling for me all night because his face was busted open. When I got to the hospital, he said he had got jumped by Lord . . . .

Contrary to Funderburg's description, Leary identified defendant's vehicle as a gold Buick. Leary signed a second photograph of defendant during the course statement, identifying defendant as the person who shot him. After Thomas printed the statement from his computer, Leary read it and signed it.

II - B.

Shootout with TAC Officers Austin and Mendez.

In the meantime, Sergeant Mendez and Detective Austin were directed to canvas the area of the shooting for the silver car described by Funderburg. After returning to headquarters to obtain a photograph of defendant, the officers received the radio broadcast from Manzo instructing them to begin their search in the area of Camden and Passaic Streets, an area defendant often frequented. The officers were further instructed that defendant was "considered armed and dangerous, and should be in possession of a handgun."

The officers spotted defendant on Passaic Street; as they exited their vehicle to approach defendant, they unholstered their weapons, identified themselves as police officers, and ordered defendant to lie down on the ground. In response, defendant reached for his waistband, spun around, and started running away from the officers. The officers pursued defendant on foot, with Austin directly behind him, and Mendez at a 45 degree angle.

As defendant was running, he kept reaching for something on his right side. After running about 100 feet, defendant stumbled, causing Austin and defendant to fall into a chain-link fence. As they bounced off of the fence, defendant turned around holding a silver revolver with a black handle. "Fearing for [his] safety and [his] partner's safety and relying on his training, [Austin] dropped back into a weapons retention stance, and fired [his] weapon to stop [defendant]."

When Mendez asked Austin if he had been shot, defendant "turned and started running east on Passaic Street towards Camden Street[.]" After defendant rounded the corner onto Camden Street, he turned around and began firing his weapon at the officers. Mendez "ran out of the line of fire and ran across the street. At the same time, Detective Austin returned fire. He fired his whole magazine which is 13 rounds in the magazine and one in the chamber." While Austin fired, defendant "kept on running across the street," dodging the bullets.

Defendant took cover behind a vehicle parked on the street. While Austin reloaded his magazine, Mendez, then behind defendant, observed defendant point his gun at Austin. Mendez fired three shots at defendant, after which defendant collapsed face down onto the sidewalk.

Mendez called for an ambulance and started running towards defendant. Hamilton Township police officer David DeLeon arrived at the scene and observed defendant on the ground, with "a weapon about approximately a foot in front of [him]." The weapon was a "chrome Rossi .357 magnum, 6-shot revolver." Mendez directed DeLeon to recover the weapon.

Detective Ivan Mendez (Ivan), Adrian Mendez's brother, arrived to process the scene, as no other detectives were available. DeLeon gave Ivan the recovered revolver found next to defendant. At the time, the revolver had "two live rounds and . . . four spent shell casings in the cylinder." A bullet removed from Leary matched the ".357 magnum caliber revolver" found near defendant.

II - C.

The Trial.

On January 10, 2006, having been informed that Funderburg and Leary recanted their prior transcribed, signed statements, the court conducted an N.J.R.E. 104(a) hearing regarding the admissibility of the statements at trial. It found the statements reliable and admissible if the witnesses testified inconsistent with the statements.

At trial, Funderburg originally refused to testify for the State, but after being threatened with contempt, he complied. However, he testified that he had no recollection of the details of the evening when Leary was shot, and, although he positively identified defendant in the courtroom, he claimed that he never identified defendant as Leary's assailant to the police, only referring to the person who shot Leary as "dude."

Furthermore, he denied seeing Leary get shot, stating that he "was in the back of the store" at the time shots were fired. Thereafter, Funderburg recanted the remainder of his prior statement. Specifically, he testified that he did not remember speaking to Thomas, stating: "I never gave no names. I never read [the statement]. I just signed it, I just signed it and left."

As to his signing the statement, Funderburg explained that he told the officers "anything to get away from [them], you know what I mean. I'll tell them what they want to hear to get away from them, but I [did not] read [the statement], though. I just signed it to get out of the police station." Likewise, he admitted signing the photograph of defendant, but denied signing it to confirm defendant as Leary's shooter. Importantly, Funderburg stated that neither he nor Leary was carrying a gun on the night of the shooting.

Funderburg also stated that, once Manzo arrived at the scene of the shooting, he directed other officers to handcuff him and place him in Manzo's car. Upon arrival at the Bureau, he alleged that Manzo would not let him leave until he signed the statement, and that Manzo threatened to charge him with various unsolved offenses, in particular, an offense from 2003 for "[p]utting a gun to somebody['s] head or something." However, on redirect, Funderburg admitted that he follows a "code" of not testifying against anybody in court.

He admitted that at the time of trial he was confined to Southwoods State Prison, having been convicted of possession of a firearm by a convicted person, and receiving a sentence of five years of incarceration. He also acknowledged a 2001 conviction for aggravated assault with a weapon.

Leary testified directly after Funderburg. At the time of trial, Leary was serving a three-year sentence at the Riverfront State Prison as a result of a 2005 conviction for aggravated assault; and he also had a 1998 conviction for robbery for which he received a seven-year sentence. As a result, he remained in handcuffs throughout his testimony.

Leary claimed not to remember any details about the night he was shot, other than getting out of the car at the liquor store. Additionally, although he signed a statement providing otherwise, Leary contended that he did not know defendant, by his given name, or street name "Lord." Likewise, he could not recall Manzo or any other detective approaching him in the hospital to take a formal statement. Like Funderburg, Leary was reluctant to answer any of the prosecutor's questions.

During summation, the defense counsel took issue with Mendez's and Austin's version of defendant's apprehension. Specifically, counsel argued that, when defendant was taking cover behind the car, defendant "got up . . . , started to run away because [the officers] stopped firing, and Austin yells, shoot him, he's getting away, and that's when Mendez shot him in the back."

On February 2, 2006, the jury returned a verdict finding defendant guilty of the lesser-included offense of third-degree aggravated assault on Count One; guilty of Counts Two, Three, Nine, Ten and Eleven; and acquitted defendant on the remaining charges.

III.

Defendant did not raise the arguments presented in Points II and III during the trial. Accordingly, we review those issues under the plain error rule, R. 2:10-2. A reviewing court will reverse on the basis of an unchallenged error, only if the error was "clearly capable of producing an unjust result." Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971). To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336. Under Rule 1:7-2, a defendant waives the right to contest an instruction on appeal "if he [or she] does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005).

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. "However, a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

We are satisfied that the trial court properly informed the jury of the appropriate principles of law governing its deliberations on the charge of aggravated assault and on the principles of presumption of innocence and proof beyond a reasonable doubt. Accordingly, we discern no error, much less plain error.

IV.

Defendant argues in Point I that the trial court erred in failing to instruct the jury as to self-defense on the charges of aggravated assault against Leary and resisting arrest; and by failing to instruct the jury on possession of a handgun for protective purposes on the charge of possession of a weapon for an unlawful purpose during defendant's confrontation with Leary. Defendant contends that the record contains sufficient facts from which a jury could have reasonably concluded that Leary was the person who brought the handgun to the liquor store and after Leary brandished the firearm, he and Leary fought over it, with the gun accidentally discharging into Leary's legs. Defendant asserts that he did not possess the gun for an unlawful purpose but only wrestled the gun away from Leary, "gain[ing] possession of th[e] weapon for his own self-protection against the imminent threat that either Leary or Funderburg would recover the gun and use it against [him]." Lastly, defendant argues that the record contains facts from which the jury could have reasonably concluded that, even if he had turned and fired in the direction of the police officers, he fired in self-defense after the police shot at him. We disagree.

"New Jersey's Code of Criminal Justice shields a defendant from criminal liability when the defendant is found to have acted in self-defense." State v. Jenewicz, 193 N.J. 440, 450 (2008); see also N.J.S.A. 2C:3-4a. "When deadly force is used, the justification of self-defense exculpates a defendant when he [or she] 'reasonably believes that such force is necessary to protect himself [or herself] against death or serious bodily harm.'" Ibid. (quoting N.J.S.A. 2C:3-4b(2)). "A self-defense claim therefore requires a jury (1) to discern whether the defendant had a subjective belief at the time that deadly force was necessary and then (2) to determine whether that subjective belief was objectively reasonable." Ibid. (omitted footnote and citation).

The initial burden to adduce evidence in support of the defense is upon the defendant; however, that evidence may appear in either the State's case or the defendant's case. State v. Abbott, 36 N.J. 63, 72 (1961). Once such evidence is adduced during the trial, the jury is to be instructed on the issue of self-defense. Ibid. The instruction must inform the jury "that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence, there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense." Ibid.

Here, defendant neither testified nor produced witnesses; and the evidence produced by the State did not warrant the court instructing the jury on the issue of self-defense or providing the jury with a protective purpose charge. Defendant's arguments are based solely on speculation and innuendo; they are not based on facts adduced during the trial or on reasonable inferences therefrom.

V.

In Point IV, defendant argues that the trial court erroneously permitted the State to elicit the prior inconsistent oral statements that Funderburg and Leary had given to Detective Manzo concerning the assailant's identity. Defendant contends that "[t]hese hearsay statements [improperly] bolstered the [State's] efforts to impeach the recantation of both Funderburg and Leary." We agree.

A trial court's discretionary decision concerning whether to admit or exclude evidence is reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). "To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)). "[A] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" is hearsay. N.J.R.E. 801(c). Unless admissible under the Rules of Evidence or by other law, "hearsay is not admissible" at trial. N.J.R.E. 802.

N.J.R.E. 803(a)(1) governs the admissibility of prior inconsistent statements of witnesses. That rule provides in pertinent part:

The following statements are not excluded by the hearsay rule:

(a) PRIOR STATEMENT OF WITNESSES. 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) is inconsistent with the witness'[s] 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[,] or

(B) was given under oath subject to the penalty of perjury at a trial or other judicial . . . proceeding[.]

[(Emphasis added).]

Prior to trial, the court conducted an N.J.R.E. 104(a) hearing to determine the admissibility of Funderburg's and Leary's prior written statements provided to Detective Thomas. Following that hearing, at which only Funderburg, Leary, and Thomas testified, the court, after considering the statements and the circumstances under which they were provided to Thomas against the fifteen factors in State v. Gross, 121 N.J. 1, 10 (1990), determined that the statements were reliable and admissible if the witnesses testified inconsistent with the statements.

During the trial, the State called Funderburg and Leary as its initial witnesses. The witnesses testified in accord with their N.J.R.E. 104(a) testimony, that is, they recanted the prior written statements provided to Thomas in which they stated that defendant shot Leary. In addition, although Funderburg admitted speaking to Leary while inside a police vehicle at the crime scene, he denied telling Manzo that he witnessed defendant shoot Leary. Leary testified that he could not recall speaking to Manzo at the hospital, informing Manzo that defendant had shot him, or identifying a photograph of defendant as his assailant. After Funderburg and Leary testified, the State called Manzo followed by Thomas.

Manzo testified to his interview of Funderburg at the scene. Manzo stated that initially Funderburg had told him that he was not aware of who had shot Leary. When the prosecutor asked Manzo whether he had any further conversation with Funderburg, and Manzo answered in the affirmative, the prosecutor inquired what had been said. Defendant objected, arguing that to allow Manzo to testify to the information Manzo received from Funderburg at the scene would violate not only the hearsay rule, but also his right of confrontation. The court overruled the objection and provided the jury with a limiting instruction that Manzo's testimony was not offered for the truth of what Funderburg had said, but only to explain why Manzo proceeded in the manner in which he did, broadcasting an alert for defendant and defendant's vehicle. Manzo then testified to his conversation with Funderburg in the police car:

MANZO: He told me that Lord had shot the victim in the legs. He stated that the victim entered inside the deli, and he went to shake his hand. The victim refused to shake his hand, then he pulled out a handgun out of his right pocket and shot him in both legs. At this point I know -- he says, Lord showed him. I know an individual named Lord, so I asked him to describe the individual that shot him, see if it's the same description of the Lord that I know. He stated he was 5'8", heavyset, medium skin. At that point that's the same Lord that I know. I put out a possible suspect description over the air of [defendant], possibly armed with a .38 caliber handgun, and then I put out the description where he hangs out, that I know where he hangs out at.

PROSECUTOR: Now, the information that you put out relating to the handgun, where did that come from?

MANZO: Came from the witness.

PROSECUTOR: From Funderburg?

MANZO: Yeah, uh-huh.

PROSECUTOR: Did he describe the gun as well?

MANZO: Yes, yes.

PROSECUTOR: Did he describe to you the vehicle -- any vehicle that the perpetrator left in?

MANZO: Yes. Before he told me who Lord, he said it was Lord, he stated that the individual got into a silver vehicle and drove off.

. . . .

PROSECUTOR: And the person that you know by the name of Lord was who?

MANZO: Albert Barnes.

The prosecutor next asked Manzo about his interview of Leary at the hospital. The prosecutor questioned Manzo whether Leary identified the person who shot him. Manzo answered in the affirmative, and the prosecutor then asked of Leary's response. At that time, defendant objected, arguing that Leary's response constituted hearsay. The State again countered that it was not offering the statement for the truth of the matter contained therein, but "as the basis upon which the officer presented [Leary] with a photograph and had it signed by the witness."

The court overruled the objection and instructed the jury that Manzo's testimony as to Leary's out-of-court statement was not offered "for the purpose of proving anything in the statement," but rather for explaining the conduct of the police officers and that the jury could only consider it for that limited purpose. Following that instruction, Manzo testified as follows:

PROSECUTOR: After Mr. Leary indicated that he couldn't identify or, no, he didn't know who shot him, did you have further discussion with him?

MANZO: Yes, I stated something in regards to that I believe that he knows who shot him.

PROSECUTOR: And what was his response to that?

MANZO: He said Lord shot me.

PROSECUTOR: Did you have any further discussion with him as to how long he knew or how much he was acquainted with Lord?

MANZO: Yes, I did.

PROSECUTOR: And what did he tell you as to the length of that acquaintanceship?

MANZO: A few years.

PROSECUTOR: Years?

MANZO: A few years, yes.

PROSECUTOR: Based upon that information that he gave you, what action did you take?

MANZO: I showed him a photograph depicting a black male and asked him if he could identify the person in that photograph.

Defendant argues, as he did at trial, that Manzo's testimony concerning what Funderburg and Leary had told Manzo at the scene and at the hospital, respectively, violated the hearsay rule and his Sixth Amendment right to confrontation, citing State v. Branch, 182 N.J. 338 (2005), and State v. Bankston, 63 N.J. 263 (1973). We determine that the two cases are distinguishable from the present matter because each involved police action based on information provided by a non-testifying witness, or as stated in Branch, on "statements of a faceless accuser who remains in the shadows and avoids the light of court." Supra, 182 N.J. at 348. Nonetheless, we conclude that Manzo's testimony concerning Funderburg's and Leary's oral statements constituted hearsay, and the limiting instructions provided by the court at the time the testimony was admitted was unlikely to cure the prejudice to defendant. State v. Manning, 82 N.J. 417, 421-22 (1980).

The statements did not qualify under the hearsay exception, N.J.R.E. 803(a)(1). Although Manzo could have properly testified that he had acted on information obtained during his investigation, Bankston, supra, 63 N.J. at 272, it was not necessary for him to testify in such detail as to Funderburg's and Leary's out-of-court statements, in which defendant was identified as the assailant. These hearsay statements are particularly troublesome in the factual context of this case for several reasons.

The State's case on the first three counts concerning defendant's confrontation with Leary was premised in substantial part on the jury accepting for substantive purposes the two witnesses' transcribed, out-of-court, inconsistent statements that they provided to Detective Thomas. To do so, it was necessary for the jury to accept the court's preliminary determination that the statements were inconsistent with the witnesses' testimony. Permitting the jury to hear Manzo's testimony concerning the witnesses' oral statements improperly bolstered the State's contention that the transcribed statements testified to by Thomas were inconsistent with the witnesses' testimony, permitting the jury to accept the written statements provided to Thomas for substantive purposes.

Additionally, Manzo testified to Funderburg's and Leary's out-of-court oral statements on January 18, 2006. The court provided the jury with a brief limiting instruction that it was not to consider Manzo's testimony concerning the witnesses' oral statements for substantive purposes. However, on February 1, 2006, when the court provided the jury with its final instructions, it charged the jury that it could consider Funderburg's and Leary's prior inconsistent statements for substantive purposes. Although we are convinced that the court intended to provide that charge only as to Funderburg's and Leary's prior transcribed, signed statements provided to Thomas, the court failed to make that differentiation. Without explaining to the jury which set of prior inconsistent statements it could consider for substantive purposes, we conclude that the jury could have reasonably concluded that it was permitted to consider both sets of inconsistent statements, oral and written, for substantive purposes.

Accordingly, we reverse the conviction on the lesser-included offense of third-degree aggravated assault on Count One, and the convictions on Counts Two and Three.

VI.

Defendant argues in Point V that the court erroneously applied the Gross factors in determining that Funderburg's and Leary's prior transcribed, signed written statements were reliable and admissible. Defendant contends that the court failed to provide the jury with proper instructions as to its consideration of those statements. We are satisfied that defendant's argument, challenging the trial court's determination that the statements were reliable, lacks merit. Because we reversed the conviction of third-degree aggravated assault as a lesser-included offense on Count One and the convictions on Counts Two and Three, we need not address defendant's arguments challenging the court's instructions on the jury's consideration of the statements.

In determining the admissibility of a witness's prior inconsistent statement, trial courts are required to apply the fifteen-factor test adopted by the Court in Gross:

(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.

[Gross, supra, 121 N.J. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987), aff'd, 121 N.J. 1 (1990)).]

The State has the burden of proving the reliability of the prior statement by a "fair preponderance of the evidence." Id. at 15-16.

Here, the trial court conducted an N.J.R.E. 104(a) hearing to determine the reliability of each witness's statement. In so doing, the court carefully analyzed each statement, and the circumstances under which each statement was provided to Detective Thomas against the Gross factors. The court found Detective Thomas's testimony credible, the witnesses' testimony not credible, and that the statements were inherently believable. Accordingly, the court properly determined that the two statements would be admissible during trial if the witnesses testified inconsistent with their prior statements. The court's findings of fact are supported by sufficient, credible evidence in the record, and its credibility determinations are entitled to deference.

VII.

We have considered defendant's remaining arguments in light of the record and applicable law. We determine that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

In Point VI-C, defendant argues that he was prejudiced when Funderburg and Leary testified while handcuffed. The Supreme Court recently addressed the issue of State witnesses testifying in restraints or in prison garb. State v. Kuchera, 198 N.J. 482 (2009).

Six years prior to Kuchera, the Court held that a trial court should not allow either a defendant or his or her witness to appear at trial in restraints, absent the court's determination that the restraints are necessary to maintain the security of the courtroom. State v. Artwell, 177 N.J. 526, 534-38 (2003). Additionally, the Court held that a trial court should not order a defendant or his or her witnesses to appear at trial in prison garb. Id. at 534-39. In Kuchera, the Court applied the same principles to the State's witnesses. Supra, 198 at 497.

Accordingly, in exercising its discretion to order a State's witness to appear in restraints, the court must determine whether the witness "is a security risk sufficient to justify the use of [the] restraints." Id. at 496. If the witness is directed to testify in handcuffs, the court shall provide the jury "in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt." Id. at 497 (quoting Artwell, supra, 177 N.J. at 538).

Defendant did not object to Funderburg or Leary testifying while handcuffed. Kuchera, supra, 198 N.J. at 497 (quoting Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result"). Within the context of this case, we are satisfied that allowing Funderburg and Leary to testify while handcuffed did not constitute plain error. Macon, supra, 57 N.J. at 336 (determining that for plain error to require a reversal the error "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached").

Here, the jury heard the witnesses' testimony that they were incarcerated for serious offenses, Funderburg for possession of a weapon by a convicted felon and for possession of hollow-point bullets; and Leary for robbery and aggravated assault. In fact, defendant cross-examined Funderburg as to his prior convictions and knowledge of firearms. Accordingly, we do not discern plain error by the witnesses testifying while handcuffed, although the court neither conducted a preliminary inquiry concerning whether it was necessary to have the witnesses testify in handcuffs to preserve the security of the courtroom, nor instructed the jury not to consider the fact that the witnesses were handcuffed in assessing defendant's guilt.

In conclusion, we reverse the conviction of the lesser-included third-degree aggravated assault on Count One; we reverse the convictions on Counts Two and Three; and remand those charges to the trial court for further proceedings consistent with this opinion. We affirm the convictions and sentences imposed on the remaining counts.

 
Affirmed in part; reversed in part.

The judgment of conviction incorrectly states that defendant was found guilty of second-degree aggravated assault on Count One, rather than third-degree aggravated assault as a lesser-included offense.

The record indicates that Leary testified while handcuffed, as he was not able to point to those parts of his legs where he was shot in response to the prosecutor's question asking him to do so. Defendant contends that, as to Funderburg, he was "in all likelihood" handcuffed because he was incarcerated at that time at South Woods State Prison. The State does not challenge that assumption in its brief.

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10

A-6319-05T4

August 20, 2009