STATE OF NEW JERSEY v. IBN MUHAMMAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5475-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBN MUHAMMAD,

Defendant-Appellant.

______________________________

June 28, 2013

 

Submitted November 15, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09 2743.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

A jury convicted defendant of first-degree murder, weapons offenses and hindering prosecution by attempting to induce a witness to withhold testimony or evidence. At sentencing, the court imposed life imprisonment of which thirty years must be served without parole, a concurrent five-year sentence and concurrent ten-year sentence on two of the weapons offenses, and a consecutive ten-year sentence on the hindering and remaining weapons offenses for which he was convicted. On appeal, defendant raises the following points for our consideration:

POINT I

 

THE ADMISSION OF DETECTIVE JAMES'[S] TESTIMONY THAT OTHER WITNESSES WERE TOO TERRIFIED TO COME FORWARD, AND MELISSA MUHAMMAD'S TESTIMONY THAT SHE TOLD ROSALIND FISHER THAT "THEY'RE TRYING TO HURT US BECAUSE THEY THINK THAT WE'RE YOU," WERE VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, THE HEARSAY PROHIBITION OF THE EVIDENCE RULES AND STATE v. BANKSTON. MOREOVER, THE PROSECUTOR'S SUMMATION, WHICH TOOK FULL ADVANTAGE OF THAT TESTIMONY, CONSTITUTED FLAGRANT MISCONDUCT. (PARTIALLY RAISED BELOW).

 

POINT II

 

THE CHARGES INVOLVING THE ALLEGED SEPTEMBER 6, 2007 SHOOTOUT SHOULD HAVE BEEN SEVERED FROM THE INDICTMENT CHARGING DEFENDANT WITH THE JANUARY 12, 2008 MURDER OF JEFFREY CHRISTOPHER PURSUANT TO R. 3:15-1(b) AND N.J.R.E. 404(b). IMPROPERLY JOINING THESE SEPARATE OFFENSES DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. COUNSEL'S FAILURE TO MOVE FOR SERVERANCE PRIOR TO TRIAL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE TRIAL COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION, SUA SPONTE, REQUIRES REVERSAL. (NOT RAISED BELOW).

 

THE SEPTEMBER 6, 2007 SHOOTOUT AND THE JANUARY 12, 2008 MURDER SHOULD HAVE BEEN SEVERED FOR TRIAL.

 

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE A PRETRIAL MOTION TO SEVER COUNTS IN THE INDICTMENT SEPARATE TRIALS. [SIC]

 

C. THE TRIAL COURT ERRED IN FAILING TO GIVE AN N.J.R.E. 404(b) LIMITING INSTRUCTION SUA SPONTE.

 

POINT III

 

THE STATE IMPROPERLY INFORMED THE JURY THAT "WARRANTS WERE ISSUED FOR ARREST" AFTER DETECTIVE JAMES INTERVIEWED FISHER, WATTS, AND MELISSA MUHAMMAD AND HE "PRESENTED THE FACTS RELATED TO THE CASE" TO AN ASSISTANT PROSECUTOR. (NOT RAISED BELOW).

 

POINT IV

 

THE PROSECUTOR'S SUMMATION EMPHASIZING THE RELIABILITY CONFERRED ON THE OUT-OF-COURT IDENTIFICATIONS BY VIRTUE OF THE NEWARK POLICE DEPARTMENT'S STEADFAST COMPLIANCE WITH THE ATTORNEY GENERAL GUIDELINES, WHICH SHE ASSURED THE JURY WERE PROMULGATED TO ENSURE RELIABILITY, CONSTITUTED IMPROPER BOLSTERING AND DENIED THE DEFENDANT A FAIR TRIAL.

 

POINT V

 

THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT SEEMINGLY FAILED TO RECOGNIZE THAT DEFENDANT'S LIFE TERM OF IMPRISONMENT WAS SUBJECT TO THE NO EARLY RELEASE ACT AND THE TRIAL COURT FAILED TO EXPLAIN THE PAROLE LAWS AS THEY APPLY TO DEFENDANT'S SENTENCE. MOREOVER, DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

Having considered the points raised and the arguments advanced in support of the contentions and, in light of the record and applicable legal principles, we are satisfied that other than the sentence imposed, which the State agrees requires a remand, the remaining points do not implicate errors warranting reversal of defendant's conviction. We therefore affirm the convictions but remand for re-sentencing.

The salient facts presented at trial relevant to this appeal unfolded on September 6, 2007. On that day, around 7:00 p.m., Newark Police Crime Scene Officer Wilfred Betha was dispatched to 214 Fairmount Avenue to investigate an alleged shooting. Upon arrival, he found ballistics evidence in the grassy area on the sidewalk and a black Chevrolet trailblazer with bullet holes through the "front windshield." The home located at 214 Fairmount Avenue was also struck by gunfire. A second shooting occurred on January 12, 2008. Detective Thomas Sheehan of the Essex County Prosecutor's Office, Crime Scene Unit, was dispatched to the scene of a fatal shooting, 214 Fairmount Avenue, at 4:00 p.m. and arrived at 4:45 p.m. He took photographs, prepared a sketch of the scene, and collected evidence, including seven shell casings, a baseball hat, and a leaf with blood on it. No fingerprints were found. A small bag of a white powdery substance was later recovered by the hospital and turned over to the Newark Police Department. Dr. Lyla Perez, an expert in the field of forensic pathology, reviewed the autopsy reports performed on the victim and found a gunshot wound to his back with an exit wound in front, a graze wound to the left hip, a gunshot wound to the right thigh, and a gunshot wound on the right heel. The wound to the back perforated the victim's right lung and went through his aorta, causing death. The remainder of the wounds indicated the victim had been shot while running. The death was ruled a homicide.

Detective Lydell James of the Newark Police Department was assigned the January 12, 2008 homicide. His investigation ultimately led him to interview a number of witnesses, who provided formal typewritten statements. He also testified, over defense counsel's objection based upon grounds of relevancy, that "[t]here were a few who were fearful of providing statements, so their information was just basically taken as hearsay information." He did, however, interview Paula Epps, Rosalind Fisher, and Clinton Watts, who provided formal written statements and identified defendant from a photo array. He also interviewed Melissa Muhammad,1 who provided an audio statement. The detective explained that "[Melissa] was very reluctant and fearful basically like providing us with a statement. . . . So, based on that, [he] decided to go with an audio [and] let her explain her version." She also identified defendant, as the shooter from January 12, 2008, after reviewing the photo array.

Based upon the information gathered during the interviews, the identifications made of defendant from the photo arrays, which Detective James testified, without objection, were conducted in accordance with the Attorney General's Guidelines, he presented the results of his investigation to an assistant county prosecutor and an arrest warrant was subsequently issued for defendant's arrest.

Melissa, who lived a few doors down from the shooting on Fairmount Avenue, testified that on February 4, 2008, she was on her way to the drugstore on Central Avenue when a black four-door car pulled up to her and rolled down the window. The man in the front passenger seat asked her if she was Rosalind. After responding no, the man, who had a gun on his lap, asked her to show him her ID and take her hat off. She testified she was scared while being questioned. She removed her hat as requested and the man in the back seat, who she identified later that day as defendant and also identified in court as defendant, said she was not Rosalind.

Although Melissa had not witnessed the shooting, she knew there had been a shooting on Fairmount Avenue on January 12. After the vehicle pulled away, she forgot about going to the drugstore and went back to her apartment and spoke to her next door neighbor, Rosalind Fisher. Fisher's boyfriend, Clinton Watts, was also present. She told Fisher that

I don't know what's going on, but people are mistaking other people for you, and we're -- you know, they're trying to hurt us, because they think that we're you. You need to go and talk to the homicide detectives about what happened, with whatever it is that you saw.

Melissa did not reach out to police at that point to report what had just happened but later that day police came to her apartment and she was transported to the police station where she spent about four hours and, ultimately, provided police with a statement and identified defendant as the rear seat passenger from a photo array.

Meanwhile, Fisher testified that she and her boyfriend, Watts, went to the police station because she feared for her life after Melissa told her what happened. According to Fisher, on January 12, she was sitting on her porch, at about 3:00 p.m., when she saw "[t]hree [or] four guys standing outside talking." She identified one man as "Jeff," whom she had never spoken to and knew his name only from hearing other people speak to him.

Fisher testified that she was approximately twenty-seven feet away from the individuals on the street. There was no argument, nothing drew her attention to the men, and she had no cause for concern. Then, "[a]ll of the sudden, [she] just [saw] Jeff running, and the guy ran behind him." Jeff was running because the man running behind him had a gun and, when he caught up with Jeff, he shot him seven or eight times, with the last bullet hitting Jeff in the back. The men were running with their backs to Fisher. She saw Jeff fall face down in front of a tree in an empty parking lot approximately forty-six feet from Fisher's house and the man shot Jeff one last time. The shooter turned towards Fisher so she was able to see him. Neither the shooter nor the other men were wearing anything covering their faces. The shooter then entered the back passenger's seat of a black, four-door, low car. In court, Fisher identified defendant as the shooter.

Watts testified that on September 6, 2007, between 2:00 p.m. and 3:00 p.m., he went to his balcony, which faced Fairmount Avenue in Newark, after hearing gunshots and seeing two men shooting at each other. He knew one of the men as "Jeff." He did not know Jeff well, rather he knew him casually from around the neighborhood and that he sold drugs. He did not know the other man.

Watts saw Jeff standing behind a neighbor's black Chevrolet Blazer, while the other man was behind a white car in front of Watts's house, and there was a third man standing by a tree. Jeff stopped shooting when he ran out of bullets and "jumped into the car and hauled tail[,]" with someone else driving the car.

Watts explained that he did not contact the police about the shooting he had witnessed at that time but did so in February 2008 after he became worried about Fisher. He went to the station with Fisher and, while there, identified defendant as the person shooting at "Jeff" on September 6, 2007, from a photo array and also made an in-court identification of defendant as the shooter.

Paula Epps testified that she witnessed the shooting. According to Epps, she was walking down the street to a liquor store at about 3:00 p.m. on January 12, when two men exited a black four-door car with tinted windows. The men approached a third man and then Epps heard gunshots. She looked up and saw a man she knew as Ibn, whom she identified in court as defendant. She knew defendant because "[h]e used to mess with [her] daughter." Epps did not see the gun in defendant's hand but saw him get back into the car. In her statement to the police, Epps said Jeff was shot in the head, and that the shooter had on a mask that showed only his eyes and mouth.

On the day of the shooting, Epps had ingested one bag of heroin at 9:00 a.m. and usually ingested three bags per day. On January 22, 2008, Epps was in the Essex County Jail with charges pending when she was transported to the Newark Police Department and shown a photo array, where she identified defendant as the shooter.

I.

Defendant first claims that Detective James's testimony about some witnesses not coming forward out of fear as well as Melissa's testimony that she told Fisher that the men who stopped her were "trying to hurt us because they think that we're you[,]" violated his Sixth Amendment right of confrontation, State v. Bankston, 63 N.J. 263 (1973), the Rules of Evidence prohibiting hearsay evidence, and the assistant prosecutor took advantage of this impermissible testimony in her summation. We disagree.

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend VI. The text of our state constitution contains identical language. N.J. Const. art. I, 10; State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007). The clause has been interpreted to bar "the admission of '[t]estimonial statements of witnesses absent from trial' except 'where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.'" State v. Rehmann, 419 N.J. Super. 451, 454-55 (App. Div. 2011) (alteration in original) (quoting Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004)). "[B]oth the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." Branch, 182 N.J. 338, 350 (2005) (citing Bankston, supra, 63 N.J. at 268-69). Moreover, "it is the 'creation of the inference, not the specificity of the statements made,' that determines whether the hearsay rule was violated." State v. Roach, 146 N.J. 208, 225 (1996) (quoting State v. Irving, 114 N.J. 427, 447 (1989)).

Here, even if Detective James's testimony implied that non-testifying witnesses had information that could implicate defendant but failed to come forward out of fear, the jury heard testimony about the expressed fears of witnesses in coming forward, independent of Detective James's testimony.

Watts, who witnessed a shoot-out several months earlier between the victim and defendant, did not come forward until he became fearful for his girlfriend after the January 12, 2008 killing of the victim. Fisher, who witnessed the January 12 shooting, did not come forward until she feared for her own life after Melissa told her about the encounter with the men in the black vehicle. Melissa, notwithstanding the fear she expressed to Fisher, did not report the incident to police. Rather, police came to her after Fisher and Watts went to police. Thus, there was considerable evidence before the jury of fear on the part of witnesses in coming forward, and defendant was afforded the opportunity to confront each of these witnesses relative to their expressed fears.

Additionally, the prosecutor's summation referencing these fears was based upon the evidence presented from these witnesses and was, therefore, within the scope of the facts in evidence and the reasonable inferences that could be drawn therefrom. See State v. Reddish, 181 N.J. 553, 630 (2004) ("The scope of defendant's summation argument must not exceed the four corners of evidence . . . [which] include the evidence and all reasonable inferences drawn therefrom." (internal citation and quotation omitted)). Consequently, any error in overruling defendant's objection to testimony from Detective James about witnesses not coming forward out of fear was harmless, given the testimony of Fisher, Watts, and Muhammad.

II.

Next, we find no error in the prosecution of the charges stemming from the September 6, 2007 incident with those arising out of the January 12, 2008 incident. Significantly, defendant failed to move for severance pursuant to Rule 3:15-2 and, had he done so, it is not likely the motion would have been granted.

A.

In determining whether multiple offenses should be tried together, the trial judge should consider "whether, assuming the charges were tried separately," proof of one crime would be admissible in the trial of the other pursuant to N.J.R.E. 404(b). State v. Pitts, 116 N.J. 580, 601-02 (1989). The standard set forth in State v. Cofield, 127 N.J. 328, 605 (1992), enumerated a four-part test to admit N.J.R.E. 404(b) "other crimes" evidence is as follows:

(1) The evidence of the other crime must be admissible as relevant to a material issue;

 

(2) It must be similar in kind and reasonably close in time to the offense charged;

 

(3) The evidence of the other crime must be clear and convincing; and

 

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

The decision to grant or deny a motion for severance rests within the "'sound discretion'" of the trial court. State v. Sanchez, 143 N.J. 273, 283 (1996) (quoting State v. Brown, 118 N.J. 595, 603 (1990)).

Here, all of the factors militating against severance were established. The September 7, 2007 incident was relevant to establish defendant's motive in the later shooting. The incidents were similar in kind, both involving a shooting, the latter one resulting in the victim's death. Watts was an eyewitness to the earlier incident and knew defendant from the area, and the probative value of establishing defendant's connection to the victim was not outweighed by undue prejudice to defendant in prosecuting the offenses together.

B.

Defendant's claim of ineffective assistance of counsel is more appropriately addressed in a post-conviction proceeding. State v. Presciose, 129 N.J. 451, 460 (1992). The evidence necessary to determine that defense counsel was ineffective in failing to seek severance is not evident from the record. Ibid.

C.

Nor do we find any merit to defendant's claim that the court committed reversible error when it failed to provide a limiting instruction on the uses to which evidence surrounding the September 7, 2007 shoot-out may be applied. First, no limiting instruction was sought and, therefore, we review the claimed error under the plain error of standard. R. 2:10-2. We recognize, however, that "because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). However, the evidence related to the September 7 incident was introduced as substantive evidence to prove the elements of the offenses for which he was indicted arising out of that incident and, therefore, required no limiting instruction.

III.

Defendant argues the prosecutor improperly informed the jury that warrants were issued for his arrest after Detective James interviewed Fisher, Watts, and Melissa in violation of both State v. Milton, 255 N.J. Super. 514, 516 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999). In State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Court made clear that a jury need not be "shielded from knowledge that . . . warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt" and noted that it was unaware of any authority in support of such a rule. Ibid.

Further, Milton and Alvarez are distinguishable. In both cases, the charge was a possessory one and knowledge that a search warrant was issued implied to the jury that a judge had found that the defendant possessed contraband. Additionally, in Milton the prosecution made reference to an unexecuted warrant to search the defendant's person. We found that the natural inference to be drawn from reference to the search warrant was that proof outside of the record had been presented to a neutral judge and that the issuance of the search warrant effectively meant that the defendant was in possession of drugs. Milton, supra, 255 N.J. Super. at 519-20. In State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008), we expressly noted that the "the passing reference to an arrest warrant [does] not imply that the State had any evidence in addition to that which was heard by the jury[.]"

Here, Fisher, Watts, and Melissa all testified before the jury and their identifications were admitted into evidence, so the jury heard or saw the exact same evidence which led police to seek an arrest warrant. Thus, as in Williams, the reference to an arrest warrant did not imply the State had any evidence beyond what was heard by the jury. Consequently, there was no error in the prosecution's mention of the arrest warrant. Williams, supra, 404 N.J. Super. at 168.

IV.

Defendant also contends the prosecutor's remarks about the photo identification process to which the witnesses were subjected, in particular, references to the Attorney General Guidelines, "unfairly bestowed an aura of reliability to the identification process itself" and bolstered the credibility of the witnesses who identified defendant as a result of this process. We disagree.

The remarks referencing the Attorney General Guidelines were as follows:

And then you're going to look at these photo arrays. And you heard testimony from the photo array identification officers, you heard testimony from Detective James, you heard testimony regarding the Attorney General [G]uidelines, and that the Newark police officers were in compliance with the Attorney General [G]uidelines.

 

And those guidelines are there for a reason, Ladies and Gentlemen. There's a reason to use a blind detective to show the photo arrays, somebody not involved in the investigation, because you want to protect the integrity of the investigation, but you also want to protect the reliability of identification. You want the strongest, most sure identification that you can get.

 

We are satisfied the prosecutor's reference to the Attorney General Guidelines during summation was not "so egregious" that defendant was deprived of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). Rather, the prosecutor's remarks were based on information within the record and within the wide latitude afforded during summation. State v. Perry, 65 N.J. 45, 48 (1974). Moreover, no objection was made and, therefore, the remarks should not be deemed prejudicial. Ramseur, supra, 106 N.J. at 322-23. Further, all of the witnesses who identified defendant from the photo array knew him from around the Fairmount Avenue neighborhood. Therefore, even assuming references to the process were improper, it was the witnesses' prior knowledge of defendant which likely bolstered their credibility, rather than the photo identification process.

Additionally, the judge instructed the jury appropriately that "[a]rguments, remarks, openings, summations of counsel are not evidence and must not be treated as evidence." He additionally instructed that the ultimate issue of the trustworthiness of the witnesses' identification of defendant, both in and out-of-court, "was for the jury to decide." Further, the judge specifically discussed how the jury should evaluate the credibility of the identifications. Since the prosecutor's remarks must be viewed in the context of the entire trial and because the judge properly instructed the jury regarding consideration of the evidence, the prosecutor's comments did not reach the level of reversible error. Ramseur, supra, 106 N.J. at 23.

V.

Defendant's final point on appeal is that even if his convictions are upheld, the matter must be remanded for re-sentencing because the trial court failed to consider the implication of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, failed to explain the parole laws as they applied to his sentence pursuant to N.J.S.A. 2C:43-2(f), and that the sentence, overall, was excessive. The State agrees that a remand is warranted but only to amend the judgment of conviction to reflect imposition of the mandatory 85% period of parole ineligibility under NERA.

Pursuant to N.J.S.A. 2C:43-7.2, a life sentence under NERA is "deemed to be 75 years" and requires that a defendant serve 85% of the 75 years, that is, 63 years and nine months, without parole. Therefore, the matter must be remanded for the entry of an amended judgment reflecting the correct NERA sentence. Defendant's remaining claim that the sentence imposed was excessive is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed as to the judgment of conviction, but remanded for the entry of amended judgment of conviction consistent with this opinion. We do not retain jurisdiction.

1 Because defendant and Melissa Muhammad, who are not related, share the same last name, we refer to Ms. Muhammad as "Melissa" throughout this opinion. In doing so, we intend no disrespect.