STATE OF NEW JERSEY v. ANTWAN SHANNON

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2082-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANTWAN SHANNON,

Defendant-Appellant.

__________________________________

December 3, 2010

 

Submitted: October 27, 2010 - Decided:

 

Before Judges Cuff, Fisher and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-1043.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

 

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Tracey A. Agnew, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Antwan Shannon guilty of first degree murder, N.J.S.A. 2C:11-3a(1), and N.J.S.A. 2C:11-3a(2) (Count One); first degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); first degree armed robbery, N.J.S.A. 2C:15-1 (Count Three); two counts of third degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Four and Eight); two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Counts Five and Nine); two counts of second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Counts Six and Ten); and second degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Seven). Counts One through Six involve the victim Fidelina Claros; Counts Seven through Ten concern victim Jorge Luiza.

After merging Counts Two and Four with Count One, Judge Kevin Callahan sentenced defendant to a term of life imprisonment, subject to thirty years parole ineligibility. On Count Three, the judge sentenced defendant to a term of twenty years imprisonment subject to a No Early Release Act (NERA)1 85% parole ineligibility term. On Counts Five and Nine, the judge imposed a five-year term of imprisonment. Count Ten merged with Count Six and defendant received a ten-year term of imprisonment, subject to a five-year period of parole ineligibility. Count Seven merged with Count Eight, and the judge imposed a ten-year term of imprisonment, subject to a Graves Act2 five-year period of parole ineligibility. All sentences are concurrent to each other for an aggregate term of life imprisonment with a thirty-year period of parole ineligibility. The appropriate fines, penalties and assessments were also imposed.

On October 30, 2006, defendant called Richard Salsado3 and asked to see him. Salsado drove to defendant's apartment on Academy Street and picked him up. The two took a ride. While stopped at a light on the corner of Webster and Ferry Streets, defendant left the vehicle, entered a neighborhood convenience store known as G & P Deli, and bought a bag of chips. He returned to the vehicle and asked Salsado if he wanted something from the store. Salsado pulled the car over, and defendant re-entered the store.

Jorge Luiza lived near the scene of the crime in Jersey City. He knew the store owner, Fidalina Claros, because she often let Luiza use the phone in her store. Sometime after midday, Luiza entered the open store. Luiza called out to Claros but received no answer and noticed the emptiness of the store. Luiza saw a male behind the register, thought he was one of Claros' sons, and began to thumb through the newspapers on the rack. Then Luiza saw the male approaching him quickly with a gun in his right hand. The man hit Luiza with the gun across his face, and Luiza fell to the floor. The incident happened quickly; Luiza "barely got to see" the man. Luiza was able to notice that the man was African-American and was wearing a dark parka. When Luiza rose, he noticed Claros on the floor behind the counter with blood streaming down her face. Luiza called 9-1-1.

A patrol police officer responded to Luiza's 9-1-1 call within minutes. Detectives then arrived and took over the scene. After determining that the victim had no pulse, police processed the crime scene. They recovered two shell casings, swabs of blood stains, and some latent prints from the convenience store. Sergeant Efrain Diaz, a ballistics expert, identified the bullet removed from the victim as a .22 caliber bullet. The police also recovered a video tape from a security recorder, but the tape was not recording during the murder.

After October 30, 2006, the detectives followed several leads but did not develop a meaningful case until January 2007, when Madeline West filed a second domestic violence complaint against defendant. She noted that she filed the first domestic violence complaint after "he had beat me up bad." The second complaint followed another beating. After West filed the second complaint, she informed police that defendant may have been involved in the robbery and shooting at the G & P Deli.

At trial, West testified that she lived with defendant in October 2006. She also testified defendant returned to the apartment on October 30, 2006, and banged on the door. She let defendant in because "he scared [her]." When defendant entered the apartment, West noticed blood on his boots and pants. Defendant threw money on the bed and told West to count it. West recounted that defendant told her he had just committed a robbery, and thought he had "killed the bitch because I had to shoot her again." Defendant seemed "shook up" and paced about the room. He told West to look out the window and see if Salsado was still parked outside. Defendant counted the money, claimed he had to go outside and share it, and changed his clothes.

West provided police with Salsado's name and told them she saw Salsado seated in a car outside their apartment after defendant returned to change his clothes.

The police went to Salsado's apartment on January 9, 2007. While Salsado hid on the roof of his apartment building, the police searched Salsado's apartment pursuant to consent given by Salsado's wife. The police recovered .22 caliber ammunition, .40 caliber ammunition, and a .40 caliber handgun.

Salsado surrendered either later that day or soon thereafter. He gave the police no information about the October 30, 2006 crime, and he was charged with possession of the .40 caliber handgun found in his apartment. Salsado was in jail for a few days before he posted bail. He claimed he was later contacted by defendant, who was in the Hudson County Correctional Facility, and defendant left him messages telling Salsado to "lay low." On March 21, 2007, Salsado was arrested and charged with felony murder in connection with the October 30, 2006 murder of Claros at the convenience store. Prior to trial, Salsado pleaded guilty to first degree armed robbery in exchange for his testimony against defendant.

At trial, Salsado testified that when defendant returned to Salsado's car, he told Salsado to pull away. Salsado noticed defendant was "shaky and nervous." Salsado recounted that defendant told him "he just robbed the bodega and shot the clerk." Salsado noticed blood on defendant's pant leg. Salsado asked if defendant had killed the clerk, and defendant replied that he had.

Salsado drove defendant north towards Hoboken and then back towards downtown Jersey City. Salsado dropped defendant off at his apartment on Academy Street but waited in the parking lot across from the apartment building. Defendant ran out of the car and went inside the building.

Salsado also testified that defendant left the apartment within two minutes to speak to him. He told Salsado to "be cool" and retrieved a hooded sweatshirt from the back seat. Salsado did not see defendant with a gun or with money when he returned to the car, but Salsado believed he saw defendant with a gun sometime that day. Defendant then returned to the apartment and Salsado left. Salsado also admitted that he gave defendant a .22 caliber gun as partial payment of a drug debt. Police never recovered the gun used in the shooting.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN ADMITTING A PLETHORA OF IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF OTHER BAD ACTS ALLEGEDLY COMMITTED BY THE DEFENDANT, THE PREJUDICIAL VALUE OF WHICH OUTWEIGHED ITS PROBATIVE VALUE, WHICH DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10 (Not Raised Below).

POINT II

THE TRIAL JUDGE'S FAILURE TO REDACT OBJECTIONABLE TESTIMONY IN THE READBACK OF THE WITNESSES' TESTIMONY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT III

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTION. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARS. 1, 10.

In a pro se supplemental brief, defendant raised the following argument:

POINT #1

IDENTIFICATION INSTRUCTION WAS INADEQUATE AND PREJUDICIAL.

Defendant argues that the trial judge erred by admitting evidence of prior bad acts by defendant. These prior bad acts included beating his girlfriend, using illegal substances, and acting as a debt collector for a drug dealer. He contends the admission of this evidence caused him undue prejudice because the jury could infer a propensity to commit violent offenses. Therefore, he argues this evidence deprived him of a fair trial.

We review this issue in accordance with the plain error standard. As such, defendant must demonstrate not only that the trial judge erroneously admitted this evidence but also that this evidence produced an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Defendant has not satisfied this standard.

Defendant's argument ignores the defense strategy at trial. Undermining the credibility of defendant's girlfriend and Salsado formed the core of the defense strategy. Defense counsel sought to demonstrate that West, defendant's former girlfriend, testified against defendant and implicated him in the murder and robbery to retaliate against him because he had beaten her. In accordance with this strategy, defense counsel asked West whether she was "mad at [defendant]" when she filed a domestic violence complaint. He also asked West a series of questions about the timing of her disclosure to police about defendant's involvement in the deli robbery and shooting. The clear goal of this series of questions was either to gain a concession or to create the inference that she disclosed defendant's involvement as retribution for beatings at the hands of defendant.

Defendant's appellate argument also ignores several instances in which Judge Callahan actively intruded to mitigate the prejudice the domestic violence evidence could cause to defendant. He instructed West that she could not testify that defendant had almost killed her. He instructed the jury to disregard West's testimony that her life had improved now that defendant was no longer with her. He informed the jury that the domestic violence incident related solely to her credibility and could not be used to prove defendant's propensity to commit violent crimes.

Similarly, undermining Salsado's testimony was a critical element of the defense strategy. To that end, defense counsel emphasized that Salsado was a minor drug distributor who owed a debt to his supplier, and defendant was the person sent to collect that debt. Defense counsel emphasized that Salsado received a very favorable plea agreement in exchange for his testimony against defendant.

As with the testimony offered by West, Judge Callahan issued several limiting instructions regarding Salsado's testimony. He instructed the jury at length concerning Salsado's status as a co-defendant who had pled guilty to a reduced charge. He informed the jury at least twice that it could not consider Salsado's admission of his involvement as substantive evidence of defendant's involvement in the crimes. In doing so, he recognized defendant's trial strategy but tempered the impact of this testimony and minimized the prejudice to defendant by appropriate and timely limiting instructions.

N.J.R.E. 607 allows a party to examine a witness and introduce extrinsic evidence relevant to the issue of credibility. This is a broad rule. It allows any party to attack the credibility of a witness on direct or cross-examination. State v. Martini, 131 N.J. 176, 255 (1993), overruled on other grounds, State v. Fortin, 178 N.J. 540 (2004). The rule is not without limits. N.J.R.E. 404(b) precludes evidence of other bad acts to prove propensity to commit a crime. N.J.R.E. 403 allows a trial judge to limit admission of evidence that is unduly prejudicial to a defendant. Here, defense counsel utilized the broad contours of N.J.R.E. 607, the State never sought to use any evidence that defendant had a propensity to commit violent offenses, and the trial judge issued appropriate and timely instructions to limit the powerful evidence elicited by defense counsel to attack the credibility of the State's principal witnesses.

Defendant also argues the trial judge erred by failing to redact objectionable elements of Salsado and West's testimony during the read-back. Defendant argues this action amplified the prejudice of the earlier introduction of impermissible character and propensity evidence.

The manner in which a trial judge provides a read-back or play back of testimony to the jury is subject to the judge's wide discretion. State v. Miller, 411 N.J. Super. 521, 532 (App. Div. 2010), certif. granted, 202 N.J. 44 (2010).4 Generally, if a jury requests a play back, the witness' entire testimony should be repeated, including both direct and cross examination. State v. Wilson, 165 N.J. 657, 660 (2000).

In support of this argument, defendant relies on State v. Burr, 195 N.J. 119 (2008) and State v. Burr, 392 N.J. Super. 538, 563-65 (App. Div. 2007), to illustrate the prejudicial effect of repeated evidence. In Burr, the defendant was convicted of sexual assault of a child. At trial, the jury heard both the victim's testimony and viewed a videotape of the victim's interview with a prosecutor. Burr, supra, 392 N.J. Super. at 563-65. During deliberations, however, the jury requested both a second opportunity to view the videotaped segment and a transcript of the victim's trial testimony. Id. at 569-73. Instead, the trial judge allowed a read-back of the testimony and replayed the videotape for the jury in the courtroom. Id. at 573-74.

The Supreme Court explained that trial judges must take precautions before replaying testimony like the videotaped victim interview to reduce the risk the jury would unduly emphasize the testimony. Burr, supra, 195 N.J. at 132-33. The Court classified the videotape as "powerful evidence" and in dicta, upheld this court's concern "that allowing unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony." Ibid.

Defendant's reliance on Burr is misplaced because that case deals specifically with a videotaped pre-trial interview. The Court was concerned "the jury may unfairly emphasize [the victim's] videotaped statements over other testimony presented at trial, including [the victim's] own cross-examination." Ibid. Such evidence must be placed in proper context, and the court must determine if repeated videotaped pre-trial testimony should be accompanied by a read-back of direct and cross-examination. Id. at 135. Here, Judge Callahan replayed the entire testimony of Salsado and West and included counsel's objections and the court's ruling as to those objections. There was no reference to pre-trial interviews. Thus, Burr is inapplicable on the facts here.

Moreover, defense counsel did not object to the play-back at the time. Therefore, this issue should also be analyzed under the plain error standard of review. Judge Callahan's decision to allow a full read-back of Salsado's and West's testimony was well within the discretion afforded to him. Notably, the read-back included all limiting instructions, thereby underscoring his earlier rulings.

Defendant's final arguments that cumulative error denied him a fair trial and that the identification instruction was inadequate are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 N.J.S.A. 2C:43-7.2.

2 N.J.S.A. 2C:43-6c.

3 We are using the spelling of his name that appears throughout the record; he is listed in other contexts as Salcedo.

4 As indicated, the Supreme Court recently granted certification in Miller. However, the Court granted certification not to consider the issue raised here but only to consider whether we applied "the appropriate standard of review" in considering "the trial court's determinations to impose consecutive sentences." See http://www.judiciary.state.nj.us/calendars/sc_appeal.htm.