STATE OF NEW JERSEY v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0048-04t40048-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN WYATT,

Defendant-Appellant.

__________________________

 

Submitted January 28, 2008 Decided

Before Judges Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2-11-04083.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Brian Wyatt was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). He was sentenced to thirty years imprisonment subject to thirty years of parole ineligibility on the murder count. See N.J.S.A. 2C:43-7.2; N.J.S.A. 2C:43-6. On count two, he was sentenced to five years concurrent with count one, and count three was merged into count one. Appropriate monetary penalties were also assessed. This appeal followed. We affirm.

During an evening cookout on June 23, 2002, the victim, Clydell Leakes, attempted to hold a conversation with a woman identified only as defendant's niece. Apparently, the conversation soured quickly and developed into an argument. Defendant's niece called Leakes a "crackhead" and he called her a foul name. Defendant then interceded and told Leakes he could not "disrespect" his niece in that fashion. The two men stepped into the street as if to engage in a fistfight and Leakes swung at defendant but did not connect.

The two men then walked away from the quarrel and nothing further occurred until the following night, June 24, 2002, while another cookout was ending in the same alley. Terrence Sheffield appeared at the cookout in order to sell drugs and actually sold three bags of crack cocaine to Leakes. Shortly afterwards defendant approached Leakes and told him that "he was not allowed to be around anymore." Sheffield intervened, and told defendant that it was not up to him to decide who did and did not come into the area to buy or sell drugs. Defendant left, saying "I be right back." Minutes later, defendant returned to the alley and walked toward Leakes until he was standing approximately three feet away from him. Defendant's hand was covered by a white rag; he raised his arm to chest height. According to Sheffield, at that point four shots rang out. Leakes grabbed his chest and fell to the ground; he died before the authorities arrived.

When Leakes was shot, everyone in the area fled before the police responded. Sheffield was the only eyewitness who eventually came forward. Shortly after midnight on the night of the shooting, Sheffield called an Essex County Prosecutor's Office detective who was a longtime friend, Wilson Carter. Sheffield told Detective Carter about the murder and identified defendant as the shooter. That same night defendant visited the home of his child's mother, Tiheisha Liggins, and told her, as she testified at trial, "that somebody had got shot or whatever and they thought he did it."

Two neighborhood residents, Sean Bell and Martin Kemp, also testified at trial. Bell testified that he owned two guns for "protection" that he shared with Kemp, Sheffield and others from the neighborhood, including defendant. One of the guns was a .357 revolver, and the other a chrome .380 semi-automatic. Bell had seen a man he identified as "Malik," with the .380 semi-automatic on the day before the shooting. Bell admitted at trial that Malik's real name was Brian Wyatt, but refused to identify defendant as the person he knew as Malik. Kemp also placed defendant, Sheffield and Leakes at the cookout on the day of the murder, although he claimed that he left prior to the shooting.

Sheffield, Kemp and Bell all had charges pending when they testified at trial and all had prior criminal histories. Although the three men denied having received any consideration in exchange for their testimony, they were awaiting sentence. Bell admitted that he was hoping he would get some sentencing benefit in exchange for his testimony.

Despite extensive forensic testing of the items found in the alley, only an empty food container with defendant's fingerprints tied defendant to the scene. Bullets recovered from Leakes's body and spent shell casings discovered at his feet came from a .380 semi-automatic.

On appeal, defendant raises the following points:

POINT I

THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF AN EYEWITNESS, CONCERNING BIAS FROM PRIOR COOPERATION WITH LAW ENFORCEMENT AS AN INFORMANT, INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY THAT DEFENDANT COULD BE CONVICTED OF PASSION-PROVOCATION MANSLAUGHTER, AGGRAVATED MANSLAUGHTER, OR RECKLESS MANSLAUGHTER, AS LESSER INCLUDED OFFENSES OF MURDER, 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.

(i)

Shortly before jury selection, defense counsel moved for disclosure of the identity of the confidential informant known to have called Detective Carter after the murder. The State objected on the basis that disclosure would jeopardize the informant's safety, as the caller had acted as an informant on prior occasions. The court ruled that, at a minimum, the State would be required during the course of a pre-trial hearing to present a police witness who could testify about the circumstances surrounding the tip, as well as the details regarding the confidential informant's proximity to the shooting. During the course of that hearing, the State's witness testified that the confidential informant was on the State's witness list, was considered to be reliable, and was still active in his "work" with the Essex County Prosecutor's Office. Although the witness did not know if the confidential informant had been paid for the information supplied about the murder, the prosecutor informed defense counsel and the court that no promises or payment of any kind were made to the confidential informant in exchange for the informant's tip about the murder or for his anticipated testimony.

Following the hearing, the court denied defense counsel's application to compel disclosure of the confidential informant's identity. As the court explained,

you'll be able to cross-examine any witness whether they're identified as the confidential informant or not. You can cross-examine any person who actually testifies what their expectation is in return for their testimony.

. . . .

The [S]tate does not have to disclose the confidential informant. Which of its witnesses was, in fact, a confidential informant.

The judge also concluded that, in light of the absence of any payment or other consideration for the tip or the anticipated testimony, there was no need to run the risks associated with disclosure and that he was therefore "going to weigh on the side of protection of the life of this person."

During Sheffield's trial testimony defendant came to the conclusion that he was the confidential informant. As a result, defense counsel renewed his application for disclosure of the informant's identity. He contended that if Sheffield was in fact the confidential informant it would be vital to the defense to impart that information to the jury, in order to undermine Sheffield's credibility, because Sheffield was the only eyewitness who identified defendant as the shooter. In response, the judge permitted defense counsel to ask Sheffield if he had ever been paid by police in the past, or if he was being paid by police now, but precluded counsel from using the term "CI," or the words, "confidential informant." Counsel was also barred from asking Sheffield about other occasions when he may have supplied information to police.

Both "[t]he Sixth Amendment to the United States Constitution and Article 1, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant's right to confront witnesses." State v. Harvey, 151 N.J. 117, 187-88 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Nevertheless, "the scope of cross-examination . . . rests within the sound discretion of the trial court." Id. at 188 (citing State v. Martini (Martini I), 131 N.J. 176, 263 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)). Therefore, a defendant has no constitutional right to "unlimited cross-examination of a witness." Ibid. (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985)). "[T]he court may limit defense cross-examination that otherwise would result in harassment, prejudice, confusion of the issues, irrelevancy, or would jeopardize witness safety." State v. P.H., 178 N.J. 378, 389-90 (2004) (citing State v. Budis, 125 N.J. 519, 532 (1991)). Moreover, "[i]f a compelling reason exists for excluding a particular form of impeaching evidence that outweighs its relevance to a fair evaluation of a witness's credibility, such evidence may be barred." Id. at 390 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)).

The compelling reason for barring defense counsel from asking Sheffield whether he was a confidential informant is obvious, namely, his safety. Furthermore, Sheffield's credibility was more than adequately attacked when defense counsel cross-examined him as to the following: (1) that on the night of the murder he sold drugs to the victim, (2) that he was in the business of dealing drugs at this location and had been for some time, (3) that he had a prior criminal history, (4) that he had charges pending not just in Essex, but in another county, and (5) that he had actually grown up with the victim but had known defendant only for a short time. Any benefit that defendant would have gained by cross-examining Sheffield as to whether he had acted as a confidential informant would have been merely cumulative. Any probative value to defendant would have been outweighed by the potential of harm to Sheffield, if defense counsel's suspicion was borne out, given all the other extensive impeaching information that was admissible. Ibid. (citing Van Arsdall, supra, 475 U.S. at 679, 106 S. Ct. at 1435, 89 L. Ed. 2d at 683). The information as to whether Sheffield was a confidential informant may have been highly relevant, but the jury had ample evidence with which to otherwise assess his credibility.

That Sheffield was an established drug dealer alone was a fact having potentially greater impeachment value than his possible status as a confidential informant. As the judge told the jury in closing instructions, pursuant to the Model Jury Charge as to credibility:

[a] jury has a right to consider whether a person who has previously failed to comply with society's rules, as demonstrated through a criminal conviction, would be more likely to ignore the oath requiring truthfulness on the witness stand than a law [a]biding citizen.

[See Model Jury Charge (Criminal), "Credibility-Prior Conviction of a Witness" (2003).]

In this case, Sheffield's ready acknowledgement of his failure to abide by "society's rules" because he was a drug dealer put him squarely in the category of persons "more likely to ignore the oath requiring truthfulness." As to the admissibility of evidence, "[t]he ultimate question is whether 'exclusion serves the interests of fairness and reliability.'" State v. Castagna, 187 N.J. 293, 310 (2006) (quoting State v. Williams, 184 N.J. 432, 444 (2005)). The trial judge's exclusion in this case was intended to protect the safety of a witness whose bona fides were substantially brought into question through other testimony.

(ii)

Defense counsel requested that the court instruct the jury on the lesser included offenses of passion-provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). The first time the request was made, the judge declined, explaining as follows:

[The prosecutor] may not agree with my interpretation but I mean their case really rises and falls on Mr. Sheffield's testimony and, if he's believed, there's no passion provocation. No basis for it and no basis for aggravated manslaughter and reckless manslaughter. I'm not going to charge it. I think it will just confuse the jury and there's no basis for any of the [three].

After the State's summation, defense counsel renewed his request that the jury be charged with passion-provocation manslaughter.

A lesser included offense should be charged when "'there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Brent, 137 N.J. 107, 113 (quoting N.J.S.A. 2C:1-8(e)). The court correctly reasoned that there was no rational basis to give the requested charges because of the circumstances which led to the killing.

Passion-provocation manslaughter occurs when "[a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The four elements of traditional passion-provocation manslaughter are that "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law 7.10, at 255 (1986)). The first two elements must be judged objectively; the second two elements are judged subjectively. Ibid. In this case, the provocation was minimal and concerned a slight to a third person. There was no evidence of ongoing tension, or even contact, such as in State v. Erazo, 126 N.J. 112, 124 (1991). Twenty-four hours lapsed between the initial, relatively inconsequential confrontation and the shooting. Considering the first two elements from an objective vantage point, the provocation was insufficient and there was an adequate cooling-off period. It is not clear that the first confrontation even troubled defendant, as he walked away from the argument after the victim threw a punch. Therefore, the trial judge properly declined to give the instruction as there was no rational basis for it in the record.

Aggravated manslaughter occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). Reckless manslaughter occurs when homicide "is committed recklessly." N.J.S.A. 2C:11-4(b)(1). Defendant argues that the jury "could have concluded that defendant acted recklessly but without the requisite mental state for murder." He contends that the circumstances "provided a basis for the jury to conclude that defendant fired the shots in an effort to intimidate the victim rather than with the intent to cause death or serious bodily injury."

On the contrary, Sheffield testified that defendant saw the victim, warned him he would return, left to retrieve a gun, hid the gun under a cloth as he made his way from the location of the gun back to the alley, and shot the victim at least three times in the torso from a distance of three feet without saying another word. As in State v. Hammond, 338 N.J. Super. 330, 338 (App. Div.), certif. denied, 169 N.J. 609 (2001)

the evidence suggests only that defendant acted intentionally and knowingly rather than with mere recklessness. Nor for that matter does the record support a finding that defendant acted under circumstances manifesting extreme indifference to human life. The evidence, including [an] eyewitness account[] of the event, rationally supports no finding other than that defendant acted deliberately and intentionally in causing the victim's death.

Shooting a gun at a victim from a distance of three feet is more than extreme indifference to the value of human life or mere reckless conduct. It is conduct which rationally supports no other finding than that defendant acted "deliberately and intentionally" to cause Leakes's death. It is conduct which established the requisite mental state for murder. It was not conduct intended to merely intimidate, it was conduct intended to kill. As the trial judge said in this case:

I mean the only testimony deals with the defendant coming out, pointing the gun, and shooting. Nothing reckless about it. If they believe that it happened. That's the question.

Under the circumstances, we concur that there was no rational basis for the judge to charge the lesser included offenses of passion-provocation, aggravated or reckless manslaughter.

Affirmed.

 

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A-0048-04T4

April 3, 2008