STATE OF NEW JERSEY v. TYRIUS GREEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2832-05T42832-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRIUS GREEN,

Defendant-Appellant.

____________________________________________________________

 

Submitted April 2, 2008 - Decided

Before Judges Wefing, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-05-0329.

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

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

PER CURIAM

Defendant Tyrius Green appeals from a July 11, 2005 judgment of conviction based upon a May 11, 2005 jury verdict finding him guilty of murder, N.J.S.A. 2C:11-3(a)(1), second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On July 8, 2005, the court sentenced defendant to life in prison with a thirty-year period of parole ineligibility for the conviction of murder; it merged the two weapons offenses and imposed a concurrent prison term of ten years on count four for the crime of second degree charge of possession of a weapon for an unlawful purpose. We affirm the convictions and the sentence imposed for murder, but we reverse and remand that portion of the judgment of conviction relating to the sentences imposed for counts four and five, the weapons offenses.

The charges against defendant stem from the events of August 14, 2003. At trial, Kenute Brown testified that at about 10:00 p.m. that night, while Brown was purchasing crack-cocaine, he heard defendant shout out, "Dred, Dred," one of Brown's nicknames. However, when Brown started to approach defendant, defendant made it clear that he was referring to another person, Edgerton Munroe, who also went by the nickname, "Dred." Brown told Munroe that defendant wanted to speak to Munroe, and Munroe made his way over to defendant. Brown could not recall what defendant was wearing that night, but he "could see his face." Defendant and Munroe walked into an area known as "The Hole", a dark, wooded area where people "stopped to go get high, and [be] away from police." A few minutes later, Brown heard three to four gunshots coming from the area where defendant and Munroe had just entered. About ninety seconds from the time of the gunshots, Brown saw Munroe run from "The Hole" and fall to the ground.

Patrolman Brian Kowalczyk of the Trenton Police Department responded to the scene of the shooting. He observed Munroe, near a curb, lying on the ground with a gunshot wound to his chest area. Attempts to revive Munroe were unsuccessful; he was transported to a local hospital, but Munroe died as a result of excessive bleeding from a bullet wound. The medical examiner, Dr. Rafaat Ahmad, testified there was an entrance wound in the back and an exit wound in the front abdomen area. The bullet "entered his stomach, the liver and damaged his kidney and his spleen, which were removed by the surgeons, and it perforated his small intestine, large intestine."

At the outset of the police investigation, members of the Trenton Police Department interviewed and took written statements from a number of individuals who had been in the vicinity of "The Hole", including Kenute Brown, Carol Guerra, Avia Fowler, Linda Brown and Willie Peters. Guerra indicated she was in "The Hole" at the time of the shooting, getting high. According to Guerra's August 17, 2003 statement, two males came into the area and chased another man who was wearing a light-colored shirt. She described one of the pursuers as between five-eight and five-nine; the other was shorter. Both men were dressed in black. The taller man had a black fedora type hat; the shorter one wore a black ski mask. The taller man held a "Dirty Harry [type of] gun." Guerra heard gunshots and saw the taller man following the male in the light-colored shirt, shooting at him. Although she did not see their faces, when the two men in black entered "The Hole", Guerra had thought the taller man was defendant, Tyrius Green, because of "his build and the way he walked. Tyrius has a very distinctive walk, especially when he thinks he is being macho." Guerra had known defendant for between ten and fourteen years.

Guerra had certain doubts about her recollection, however, when she was called to testify at trial. On cross-examination, she stated that her main concern at the time of the shooting had been "getting high." She was not paying a lot of attention to how the men in black were walking or to what actions they were taking. She testified she was high both at the time of the shooting and at the time she gave her police statements.

Avia Fowler was also in "The Hole" at the time of the shooting. She was there "smoking 'coke.'" She had known defendant "since he was a little boy" and "s[aw] him everyday." She related in her statement that on the night of the shooting, defendant was wearing all black with a black mask across his face. Nevertheless, she asserted "I know Tyrius anywhere." Like Guerra, Fowler also claimed to know defendant's walk. In her statement, Fowler gave the following account of what happened:

Tyrius told him [Dred Brown] to tell Dred [Munroe] that there was a hundred dollar sell. [Munroe] came back a few minutes later, and when he came back, as soon as he came through the walkway, Tyrius reached out and tried to grab him from the back, but Dred dodged him and started to run . . . . That is when Tyrius pulled the gun out, aimed it at Dred and said 'Freeze.' He said it again and then fired. That is when I heard "Dred" say ouch but he kept running. The second time that Tyrius fired the gun I saw "Dred" hop up off the ground a little bit. I don't think he was hit I think he was just saying ouch because somebody was firing at him. Tyrius shot three times back to back. Every time he shot the gun I saw sparks come out of it. Then Tyrius and the short guy chased after "Dred". Then I left to go find my boyfriend everyone else that was back there ran out in different directions.

At the time of trial when she was asked about the statement she had given to the police, Fowler testified she did not remember being in "The Hole" at the time of the shooting. Although she remembered being brought to the police station for questioning and signing papers, she did not remember reading any of the papers that she signed. Fowler testified she believed that the papers she had signed were blank and that she signed them only because the detective had instructed her to do so. Fowler explained that at the time she was questioned by Detective McMillan, she "was out of it," i.e., she was "cracked out" and had "been up for three weeks." In fact she stated, "I never seen [defendant] back there in "The Hole" with a gun shooting or none of that." When the prosecutor asked if her signature was on the police statement, she responded

And at the time I was cracked out, to get out of there, I was all ready to go, all I wanted was my $10 that man offered me, the money, he offered me money, and when he told me he was going to get it, all I wanted to do was go smoke the rest of my crack. Get up out of that police station and get his ten dollars and get me some more crack.

Linda Brown was also in "The Hole" at the time of the shooting. She indicated she saw two individuals, one noticeably taller than the other, enter the area. They were dressed all in black with black scarves around their faces. The taller man shouted "Don't move" to a person who entered. He then proceeded to fire four shots. When asked about defendant, Brown said she had known him her entire life and, at first, she thought the taller man who fired the gun was defendant. However, she could not positively identify him. She indicated she had tried to get the taller man's attention by calling out "Young'n", one of defendant's nicknames, but he did not respond. Because of this, she concluded that the taller man was someone other than defendant.

Willie Peters was in the vicinity of "The Hole"; but he did not see the shooting. He heard three gunshots and he thought that he saw defendant running from "The Hole" after the shots were fired. Like Brown, Peters had known defendant since he was a child.

Detective James McMillian of the Trenton Police Department was assigned to investigate Munroe's death. Based on statements he had obtained, an arrest warrant was issued for defendant. McMillian went to defendant's residence on several occasions. Despite knocking on the door and leaving his card three separate times, he could not locate defendant. Defendant's mother, who testified on behalf of defendant, indicated defendant frequently visited his sister in the Bronx and that she, the mother, was staying with her boyfriend between August 14 and August 19. Eventually, on August 19, 2003, law enforcement officers in the Bronx informed Detective McMillian that they had arrested defendant at defendant's sister's residence.

On May 26, 2004, a Mercer County grand jury returned an indictment against defendant Tyrius Green containing five counts: first degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five). The matter was tried before the judge and a jury on May 3, 4, 5, 10 and 11, 2005. At the close of the proofs, defense counsel moved for judgments of acquittal on all counts. The court granted the motion only in part, entering judgments of acquittal and dismissing the felony murder count and the robbery count. The three remaining counts were considered by the jury, which found defendant guilty on each count.

Defendant has appealed and urges that we consider the following points of asserted error:

POINT I: GUERRA, FOWLER AND BROWN'S LATE-NIGHT, DRUG INDUCED MUSING ON THE IDENTITY OF THE MASKED SHOOTER FAILED TO SUFFICIENTLY ESTABLISH BEYOND A REASONABLE DOUBT THAT THE SHOOTER WAS TYRIUS GREEN. THEREFORE, THE TRIAL COURT ERRED IN DENYING GREEN'S MOTION FOR A JUDGMENT OF ACQUITTAL. ALTERNATIVELY, THIS COURT SHOULD SET ASIDE THE JURY'S VERDICTS OF GUILT AS BEING AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II: THE TRIAL JUDGE'S ERRONEOUS IDENTIFICATION CHARGE, WHICH WAS UNACCEPTABLY VAGUE AND CONTAINED GROSS MISSTATEMENTS OF FACT, WAS CLEARLY CAPABLE OF LEADING THE JURY TO A VERDICT IT OTHERWISE WOULD NOT HAVE REACHED. THE SEVERE POTENTIAL FOR PREJUDICE CAUSED BY THIS ERRONEOUS CHARGE IS EVEN GREATER WHEN THE CHARGE IS EVALUATED AGAINST THE PROSECUTOR'S INSIDIOUS PRESENTATION OF GUERRA'S AND BROWN'S IDENTIFICATION TESTIMONY. (NOT RAISED BELOW).

POINT III: THE TRIAL JUDGE ERRED IN INSTRUCTING THE JURY THAT IT COULD NOT CONSIDER EVIDENCE OF PREMEDITATION OR THE LACK THEREOF IN DETERMINING WHETHER THE STATE PROVED BEYOND A REASONABLE DOUBT THAT GREEN WAS GUILTY OF KNOWING OR PURPOSEFUL MURDER. (NOT RAISED BELOW).

POINT IV: THE PROSECUTOR'S IMPROPER REFERENCES TO THE WARRANT FOR GREEN'S ARREST WERE HIGHLY PREJUDICIAL AND CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.

POINT V: OVER DEFENSE COUNSEL'S OBJECTION, THE JUDGE ADMITTED COPIES OF THE WRITTEN STATEMENTS ALLEGEDLY MADE TO POLICE BY FOWLER AND GUERRA EVEN THOUGH THE RELEVANT PORTIONS OF THOSE STATEMENTS HAD ALREADY BEEN READ INTO EVIDENCE. THE UNNECESSARY INTRODUCTION OF THESE STATEMENTS, PARTICULARLY FOWLER'S, WAS UNDULY PREJUDICIAL.

POINT VI: THE COURT SHOULD NOT HAVE PROVIDED THE JURY WITH A FLIGHT CHARGE.

After a careful consideration of defendant's arguments and the applicable legal precedents, we affirm the convictions. Although defendant did not challenge the sentence, it is manifestly illegal. Accordingly, we remand the matter for reconsideration and modification of the sentence in respect of counts four and five.

Defendant first asserts that the trial court wrongly denied his motion for judgments of acquittal on all counts. The applicable rule provides that the court shall "order the entry of a judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to warrant a conviction." R. 3:18-1. "In deciding whether the trial court was correct in denying the motion, we of course, take into account only the evidence on the State's case, unaided by what defendant later developed at trial." State v. Lemken, 136 N.J. Super. 310, 314 (App. Div. 1974), aff'd, 68 N.J. 348 (1975). If "the proofs at the end of the State's case plainly permitted reasonable inferences by a jury that defendant committed the crimes charged beyond a reasonable doubt, the motion for acquittal was properly denied." Id. at 315.

We are satisfied that sufficient evidence was developed by the State to justify submitting to the jury the issue of defendant's guilt on the charges of murder, possession of a firearm for an unlawful purpose and unlawful possession of a firearm. While the evidence may not have been overwhelming, "viewing the State's evidence in its entirety, . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967).

The State presented several witnesses who knew defendant and who indicated defendant was present at the time of the shooting. At least two of the witnesses gave statements that were admitted into evidence in which they identified defendant as the shooter. Another, who said that defendant was not wearing a mask at all, placed defendant in the company of the victim immediately before the shooting began. Accepting this evidence as true and drawing reasonable inferences therefrom, a reasonable jury could and did find him guilty of the crimes charged. See, e.g., State v. Cotto, 182 N.J. 316, 323 (2005) (upholding identification of a robber by a victim who was able to identify her ex-boyfriend based on his voice and his eyes and nose, although his face was covered by a ski mask).

In the alternative, defendant urges that we should reverse those convictions as against the weight of the evidence; however, it is not disputed that counsel did not make a motion for a new trial, so the issue should not be cognizable on appeal. See State v. Love, 245 N.J. Super. 195, 198 (App. Div. 1991).

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

[R. 2:10-1.]

It is noted that the court may, even absent a motion for a new trial, consider a challenge to the weight of the evidence in the interests of justice. State v. Smith, 262 N.J. Super. 487, 511 (App. Div. 1993). We do not perceive any interests of justice that militate towards our consideration of this request by defendant.

Defendant argues vigorously that the court issued an erroneous identification charge to the jury that unduly prejudiced him. The standard governing our review was recently recited by the Supreme Court in State v. Chapland:

Because defendant did not object to the court's instruction when it was delivered, a plain error standard applies. As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The alleged error is viewed in the totality of the entire charge, not in isolation. In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case.

[ 187 N.J. 275, 288-89 (2006) (internal citations omitted).]

We acknowledge that proper jury instructions are the cornerstones of any fair trial. See State v. Davis, 363 N.J. Super. 556, 560 (App. Div. 2003); State v. Afanador, 151 N.J. 41, 54 (1997).

An appropriate charge [in a case where identification is the key issue] would state that the State's burden of proof on the issue of identification is beyond a reasonable doubt and [may] set forth the respective factual contentions relating to witness descriptions and identifications.

[State v. Pierce, 330 N.J. Super. 479, 488 (App. Div. 2000); see State v. Green, 86 N.J. at 281, 293-94 (1981).]

The court, however, is not required to refer to the facts of the case, but rather the court has the option of doing so if it decides it to be necessary. State v. Robinson, 165 N.J. 32, 41 (2000).

In this case, defendant charges that the court in its instructions erroneously stated that several witnesses had made in-court identifications of defendant as the shooter. By virtue of that misstatement, defendant contends the charge unfairly favored the State's interpretation of the case. We must weigh the impact of the court's instructions on the jury's ability to independently interpret the evidence presented. That assessment should be realistic and rooted in common sense. We have previously noted that

it is highly unlikely that a jury which sat through a . . . trial in which the primary evidence was victim identification testimony, and then heard summations which discussed those identifications at length, was unaware of the specific identifications covered by the identification instruction.

[State v. Walker, 322 N.J. Super. 535, 550 (App. Div. 1999).]

The court gave the following extensive identification charge to the jury:

Now, the defendant as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of a person who committed the crime is, of course, upon the State. For you to find the defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. And as I told you before, the defendant has no burden to produce evidence or that he is not the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime that was committed was committed by someone else, or to prove the identity of that other person.

You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also, whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it.

Now, the State, in trying to meet that burden, presented the testimony of several witnesses who identified the defendant. You will recall that these witnesses identified the defendant in court as the person who committed the offenses charged. The State also presented testimony that on a prior occasion before this trial witnesses made such an identification -- identified the defendant as the person who was, you may conclude circumstantially or directly or however you conclude, that the defendant was -- the identification of the defendant was based upon the observations and perceptions they made of the perpetrator at the time the offense was being committed. It is your function to determine whether the witness's identification of the defendant is reliable and believable, or whether it is based on mistake, or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged.

In evaluating these identifications, you should consider the observations and perceptions on which the identifications were based, and the witness's ability to make those observations and perceptions. If you determine that the out-of-court identification is not reliable, you must still consider the witness's in-court identification of the defendant, if you find it to be reliable.

Unless the in-court identification resulted from the witness's observation or perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issues of the trustworthiness of the in court and out-of-court identifications are for you to decide.

Fundamentally, there are, as you see, three levels of identification: Identification of the alleged perpetrator at the observation of the witnesses; the subsequent prior identifications through looking through the photo array or identifying photograph; and thirdly, the in-court. So, you make the determinations as I've just instructed you. If you have any questions, look at this. If you have any further questions, you'll let me know and I'll try to explain it further.

To decide whether identification testimony is sufficiently reliable upon which to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I've already explained to you. In addition, you may consider the following factors: The witness's opportunity to view the person who committed the offense at the time of the offense; the witness's degree of attention on the perpetrator when he or she observed the crime being committed; the accuracy of any description the witness gave prior to the identification of the perpetrator; the degree of certainty expressed by the witness in making the identification; the length of time between the witness's observation and the offense at the first identification; discrepancies or inconsistencies between identifications; the circumstances under which the out-of-court identification was made; here, the single and multiple photograph arrays presented to the witness by the police; or any other factor on the evidence which -- or lack of evidence in this case which you consider relevant to your determination whether identifications were reliable.

If, after all of the considerations of the evidence, you determine the State has not proven beyond a reasonable doubt that the defendant was the person who committed these crimes, then you must find the defendant not guilty. On the other hand, after consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant was correctly identified, then you will consider whether the State has proven each and every element of the offenses charged beyond a reasonable doubt.

[(emphasis added to identify the allegedly objectionable portion).]

When viewed as a whole, this jury instruction was adequate, though mistaken in the respect now pointed out by defendant. See State v. Figueroa, 190 N.J. 219, 246 (2007) (holding that the offensive portion of the jury instruction cannot be viewed in a vacuum); State v. Wilbely, 63 N.J. 420, 422 (1973). "[A]ny alleged error also must be evaluated in light 'of the overall strength of the State's case.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting Chapland, supra, 187 N.J. at 289). While the jury instruction was not perfect, we do not conclude that the mistake had the capacity to prejudice defendant so much as to offend all notions of justice.

The judge did incorrectly state that several witnesses identified the defendant in court as the person who committed the offenses charged. Although defendant now points out in his reply brief that "not one witness identified Green in court as the shooter," there was no objection or request for correction before the jury retired to deliberate. If the judge's misstatement was "a blatant mischaracterization of the evidence," it should have been recognized by defense counsel at the time, and an objection should have been placed on the record.

The mistake is obvious in hindsight and upon close scrutiny of the transcript, however, it apparently was not obvious at the time of trial since defense counsel raised no objection and requested no correction. Ordinarily, a party waives the right to challenge on appeal any portion of the jury charge if he or she fails to object to it. R. 1:7-2; State v. Townsend, 186 N.J. 473, 498 (2006). Because there was no objection, we must consider defendant's argument under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting Afanador, supra, 151 N.J. at 54). As we view it, the misstatement was fleeting and it did not concern an element of an offense or some other legal issues. Rather, it related to the judge's recollection or recounting of events that occurred in open court and in the presence of the jury. As to such matters, the jury had been instructed "Regardless of what counsel may have said, regardless of what I may have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as sole judges of the facts." We do not conclude that the judge's misstatement had the clear capacity to produce an unjust result.

Defendant also takes issue with the State's method of direct examination of certain witnesses, complaining that the sequence of questions presented to Guerra and Linda Brown was unfairly suggestive. The prosecutor inquired of both witnesses how the assailant was dressed. Immediately after he had elicited the description of a man in black from the witnesses, the prosecutor asked the witnesses if they knew Tyrius Green. Defendant contends this creates an inference by proximity in questioning that the man in black was in fact defendant, Tyrius Green. That inference could have been dispelled readily by cross-examination.

Moreover, N.J.R.E. 403 specifies that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." The Court has recognized that "prosecutors have a special duty to seek justice." State v. Wakefield, 190 N.J. 397, 569 (2007) cert. denied sub. nom. Wakefield v. N.J., ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "'[P]rosecutors may fight hard, but they must also fight fair.'" Ibid. (quoting State v. Pennington, 119 N.J. 547, 577 (1990), overruled on other grounds by State v. Brunson, 132 N.J. 377 (1993), and superseded by statute, N.J.S.A. 2C:11-3(i), as recognized in State v. Cruz, 163 N.J. 403, 412 (2000)). Deceptive tactics should be discouraged, but given the other testimony and the opportunity afforded defense counsel to neutralize any false suggestion caused by the juxtaposition of the prosecutor's questions, we are not convinced that this questioning constituted plain error.

Defendant likewise contends that the court's response to a jury inquiry regarding the consideration of premeditation constituted reversible error. We disagree. The jury sent a note to the court asking "Is premeditation a factor in considering question 1A?" Question 1A related to knowing or purposeful murder. The court responded: "The simple answer is no. Premeditation is not a factor." The trial court was essentially correct. Premeditation was not a statutory element of murder under the circumstances of this case. One may be convicted of first degree murder without motive or malice aforethought. Indeed, N.J.S.A. 2C:11-3 instructs that a defendant must have committed the offense knowingly or purposefully. The trial court had carefully outlined the applicable states of mind in its jury charge. Again, there was no objection to charge at trial, and we have no reason to speculate that a more comprehensive discussion of premeditation would have led to a different result.

Defendant also contends that he is entitled to a reversal of his conviction because of a witness's improper references to the warrant issued for his arrest. A judge's involvement in the warrant process is expressly contemplated and permitted by the court rules. R. 3:3-1. A passing reference to the issuance of a warrant, therefore, should not have improperly influenced the jury. See State v. McDonough, 337 N.J. Super. 27, 34 (App. Div. 2001). On the other hand, in certain situations, the mere mention of the existence of a warrant may so mislead the jury as to require a reversal.

For example, in State v. Milton, the defendant was tried and convicted of cocaine possession. 255 N.J. Super. 514, 516 (App. Div. 1992). In the prosecutor's opening statement, he stated that the police had a search warrant for the defendant's home and for defendant's person. The defendant was, however, not home at the time of the no-knock search. Id. at 519. There was no evidence that the personal search warrant was ever executed, and the arrest warrant for defendant was not executed until three weeks after the initial search of defendant's home. Ibid. This court reversed the conviction because the testimony regarding the unexecuted search warrant served to create a prejudicial inference; namely, a judge believed there to be some evidence that the defendant possessed cocaine. Id. at 520. The Milton case is clearly distinguishable from the facts of the instant case. The witness in this case did not directly testify or imply that a judge made any determination beyond the existence of probable cause or that there had been reliance on evidence other than the investigatory material made known to the jury.

Indeed, our Supreme Court has disagreed with the Milton approach, observing that "a properly instructed jury will not presume guilt based on the issuance of a search warrant. [M]oreover, . . . the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Detective McMillian offered testimony regarding the issuance of the arrest warrant. He merely stated that "[b]ased on the information gathered from the statements and IDs made, we were able to issue an arrest warrant for the arrest of Tyrius Green for his involvement in the death of Edgerton Munroe." The prosecutor then asked questions regarding the timing of the warrant and the timing of defendant's arrest. The prosecutor never mentioned the involvement of a judge. The State witness did not directly testify or imply that a judge had any involvement in the process.

Defendant asserts that the court should not have admitted, pursuant to N.J.R.E. 803(a)(1), copies of written statements made by Fowler and Guerra to the police. He argues that the evidence should have been found inadmissible as cumulative and unduly prejudicial under N.J.R.E. 403 because portions of the statements had been read by the prosecutor during trial. Defendant concedes that the court conducted the proper inquiry to admit the evidence as prescribed by State v. Gross, 121 N.J. 1 (1990), and State v. Spurell, 121 N.J. 32 (1990). A prior inconsistent statement may be admitted for substantive purposes. "[T]he burden of proving reliability of such a prior inconsistent statement is by a fair preponderance of the evidence." Spurell, supra, 121 N.J. at 42. The court must analyze "all surrounding circumstances" before admitting this evidence. Ibid. "[T]he status of the declarant can be a highly relevant circumstance . . . ." Ibid. Defendant nevertheless claims that by admitting the written statements after having allowed the reading of portions of them at trial, the court placed unwarranted importance and credence behind the statements.

At least two of the witnesses, Carol Guerra and Avia Fowler, recanted or seriously retreated from their earlier identifications of defendant while they were being cross-examined. Indeed, Fowler claimed she signed blank sheets and implied she would have said anything in order to receive money she needed to satisfy her addiction. The admission of the prior statements was not, under such circumstances, cumulative or unduly prejudicial to defendant. For example, the trial court ruled the jury had a right to examine the placement of Fowler's signature in relation to the content of her statement. They could then weigh the credibility of her claims that her statements had been fabricated by the investigators. This was an exercise of discretion by the trial court to which we must pay deference.

Defendant next argues that the court should not have instructed the jury as to flight and that the charge itself was inadequate. We disagree. The Supreme Court has recently reaffirmed the relevance of evidence of flight, noting that "evidence of flight occurring after the commission of an offense has been held probative of guilt and admissible." State v. Williams, 190 N.J. 114, 125-26 (2007). We are convinced that the trial court properly allowed the jury to consider whether defendant's post-crime departure was evidence of defendant's understanding of his own guilt or a coincidental excursion to visit his sister.

The language issued by the court regarding flight closely followed the model jury charge and was not inadequate, as defendant contends. While there was not a great deal of evidence that defendant was aware he was being sought or that he specifically fled to avoid capture, there was evidence that he was with Munroe immediately before Munroe was shot and that he left the scene of a shooting after the incident. He went to his sister's residence in New York. Whether his objective was to avoid the police, who attempted to arrest him at his own home, or merely to visit his sister was a legitimate issue for the jury to consider. The charge did not, in any event, deprive defendant of a fair trial.

Even though we affirm the convictions against defendant, we remand for modification of defendant's sentence. The sentencing transcript reveals plain error in respect to the merger of offenses. The court noted at the sentencing hearing that "[f]or purposes of Counts 4 and 5, those counts are merged." It then sentenced defendant to a prison term of ten years on count four, the second degree charge under N.J.S.A. 2C:39-4(a), concurrent to the life sentence with the thirty-year parole disqualifier for murder. The court also directed that because the third degree offense in count five was merged into the second degree offense in count four, there would be "no additional penalties." The mergers were clearly wrong. State v. O'Neill, 193 N.J. 148, 163 n.8 (2007); State v. Cooper, 211 N.J. Super. 1, 22-23 (App. Div.) certif. denied sub. nom., State v. Lawson, 105 N.J. 525 (1986). Third degree possession of a weapon is not an included offense of possession of a weapon for unlawful purpose, and the two convictions do not merge. Ibid. As we explained in Cooper, supra,

[t]he gravamen of an offense under N.J.S.A. 2C:39-5(b) is the failure to have a permit while that of N.J.S.A. 2C:39-4(a) is possession of a weapon with the intent to use it unlawfully. These are not included offenses within the meaning of N.J.S.A. 2C:1-8(d) and do not merge. State v. Latimore, 197 N.J. Super. 197, 215-216 (App. Div. 1984).

[211 N.J. Super. at 22-23.]

Whereas the third degree charge under N.J.S.A. 2C:39-5(b) should have been considered separately for sentencing purposes, the charge of possession of a weapon with a purpose to use it unlawfully against the person of another, under N.J.S.A. 2C:39-4(a), should have been merged with the murder count.

Hence, the trial court committed error by failing to merge the conviction for possession of a weapon for an unlawful purpose into the conviction for murder. In State v. Diaz, the Court summarized the analysis to be applied when determining issues of merger:

The standard for merger of offenses set forth at N.J.S.A. 2C:1-8, providing that offenses are different when each requires proof of facts not required to establish the other, has been characterized as "mechanical." State v. Truglia, 97 N.J. 513, 520, 480 A.2d 912 (1984). A preferred and more flexible standard was articulated in the pre-code case of State v. Davis, 68 N.J. 69, 342 A.2d 841 (1975). State v. Dillihay, supra, 127 N.J. at 47, 601 A.2d 1149. In Davis, the Court observed:

Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[ 144 N.J. 628, 637-38 (1996) (quoting Davis, supra, 68 N.J. at 81).]

A defendant may not be convicted of more than one offense if one is included in the other. N.J.S.A. 2C:1-8(a). An offense is included in another if it is established by proof of the same or less than all the facts required to establish the commission of the other offense. N.J.S.A. 2C:1-8(d)(1).

In this case, defendant used a handgun for an unlawful purpose while in the process of committing the murder. Under the Diaz/Davis analysis, the act of murder was directly linked to the possession of the handgun. The failure to merge the convictions for murder and possession of a weapon for an unlawful purpose thus resulted in an illegal sentence for which there is no procedural time limit for correction. See State v. Romero, 191 N.J. 59, 80 (2007).

Finally, as we have noted, the trial court's oral recitation of the sentence does not match the provisions of the judgment of conviction as filed. At the sentencing hearing, the court directed that the sentence for count four would run concurrently to the sentence imposed for count one, however, the written judgment of conviction provides that the sentence for count four is to run consecutively to the sentence on count one. Ordinarily, where there is a discrepancy between the judge's oral pronouncement of sentence and the sentence in the judgment of conviction, the transcript controls. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). Where, however, the transcript is unclear as to the judge's intent, a remand may be necessary for clarification. State v. Murray, 338 N.J. Super. 80, 91 (App. Div.), certif. denied, 169 N.J. 608 (2001). In this instance, we perceive no lack of clarity in the court's oral pronouncement imposing a concurrent term. Nor does the record provide any analysis tending to justify the imposition of a consecutive sentence. See, e.g., State v. Pennington, 154 N.J. 344, 361 (1998) (requiring sentencing court to fully explain why the consecutive maximum sentence was imposed); State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) (setting forth criteria for consecutive sentencing).

Accordingly, we remand so the trial court can merge count four into count one and impose an appropriate concurrent sentence for count five, which should not exceed the range applicable to a third degree offense.

Affirmed and remanded for sentencing.

 

There was a discrepancy between the court's oral articulation of the sentence and the sentence as recorded on the judgment of conviction. The transcript of the sentencing hearing indicates the court announced that the sentence on count four was to run concurrent to the sentence on the murder charge, but the judgment of conviction provides that the sentence is to run consecutive to the sentence on count one, the murder charge.

(continued)

(continued)

29

A-2832-05T4

June 17, 2008