STATE OF NEW JERSEY v. JERERAD HOLLAWAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERERAD HOLLAWAY,

a/k/a JEREAD HOLLAWAY,

a/k/a JAREAD HOLLAWAY,

a/k/a RHADE HOLLAWAY,

a/k/a JALLEEM HOLLAWAY,

Defendant-Appellant.

________________________________

May 3, 2016

Submitted January 20, 2016 Decided

Before Judges Hoffman, Leone and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-04-1035.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Jererad Hollaway was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), and second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). His first trial resulted in a hung jury. At the retrial, defendant was acquitted of all charges other than unlawful possession of a handgun.

Defendant appeals from his May 12, 2013 judgment of conviction. He contends the trial court erred: (1) in failing to suppress out-of-court identifications by witnesses M.G. and D.T.;1 (2) in making evidentiary rulings that deprived defendant of his constitutional right to present a defense; and (3) in imposing an excessive sentence and a $200 illegal assessment under the Victims of Crime Compensation (VCC) Act, N.J.S.A. 2C:43-3.1. We affirm, but remand only to correct the amount of the assessment to be paid to the VCC Board (VCCB).

I.

The following facts are taken from the testimony at defendant's retrial. At around 4:00 p.m. on November 8, 2009, police officers found the body of Michael Tyrone Reese midway up the leaf-covered driveway of a house on Norwood Street in Newark. Reese had been shot three times.

Officers searched the surrounding area for evidence, and discovered a single shell casing near a house at the corner of Norwood Street and Lindsley Avenue, which was located on the same side of the street as the victim. Detective Jose Ramirez returned to the scene on November 10, and noticed landscapers blowing the fallen leaves near where the body had been found. Ramirez looked down and discovered a second and third shell casing. A crime scene officer discovered a fourth shell casing. A ballistics expert later determined that all four shell casings, had been fired from the same 9 mm handgun.

Meanwhile, detectives found two eyewitnesses in the neighborhood who identified defendant at trial as being at the scene at the time of the shooting. On November 9, detectives interviewed witness M.G., who lived in an apartment on the opposite side of Norwood Street. M.G. told the officers that, when she heard gunshots, she looked out her window and saw two men running south down Norwood Street. One man appeared to be chasing the other. The pursuing man was lighter-skinned and was extending his arm in the direction of the man he was chasing. Although M.G. could not see anything in the lighter-skinned man's hand, she heard gunfire and assumed he was shooting at the man he was chasing. The first man went out of M.G.'s sight after he turned into the same driveway where the body was later found. The lighter-skinned man followed closely behind, also disappearing from M.G.'s sight. M.G. then heard three shots. Afterwards, the lighter-skinned man emerged from the driveway and ran north up Norwood Street and crossed Lindsley Avenue. The man being chased never emerged.

Shortly thereafter, M.G. witnessed a BMW drive south down Norwood Street from the direction the lighter-skinned man had fled. As the car passed her home, M.G. was able to see the lighter-skinned man slouching in the passenger seat with his hoodie pulled up.

On November 10, Detective Ramirez and Detective Anthony Iemmello conducted a formal video-taped interview of M.G. M.G. reiterated what she had stated in her initial interview. She then identified the pursuing man as "Red," a tall, light-skinned man with short dreadlocks. She recognized him because she had once seen Red hanging out on her back porch with her daughter. M.G. was then asked: "So if we showed you a picture of him meaning Red would you be able to identify him?" M.G. told the detective that she could. She was then presented with an array of six photographs by Detective David Rubin, who was uninvolved in the investigation. M.G. identified defendant's photograph.

Detectives also showed M.G. a photo of a stolen BMW that had been recovered. M.G. identified the vehicle as the one she saw drive past after the shooting with Red in the passenger seat.

On November 9, detectives also interviewed witness D.T., who lived in an apartment near the corner of Norwood Street and Lindsley Avenue. D.T. told detectives that she was napping in her bedroom when she awoke at around 4:00 p.m. to the sound of gunshots right outside her house. D.T. said she dove for cover.

D.T. then stood up and cautiously approached a window. She saw a man directly outside her window heading north on Norwood Street. He was holding an object in his hand, and his face was obscured because he was wearing a hoodie. D.T. waited and then opened her door and peered out her doorway, expecting the man would be gone. However, the man was still limping through the intersection of Norwood Street and Lindsey Avenue. Possibly hearing D.T.'s door open, the man turned around and faced D.T. D.T. recognized the man as "Red," a person she had known for over nine years from the neighborhood. D.T. noticed Red was holding a black object, which she believed to be a gun. Red then continued north up Norwood Street.

D.T. said that shortly thereafter, she saw two BMWs speeding south down Norwood Street. The front BMW contained three people, and the second contained two males. D.T. saw a man in the passenger seat of the rear BMW, whom she recognized as Red because he was wearing the same hoodie.

D.T. was taken to the police station, where she provided a tape-recorded formal statement in which she reiterated her prior interview. Detective Iemmello asked D.T.: "If you were to see a photo of this kid, would you be able to identify him?" When D.T. indicated that she would be able to, Detectives Iemmello and Ramirez left the room. Detective Ugo Bellomo, who was not involved in this investigation, entered and presented D.T. with an array of six photographs. Each of the photographs depicted the face of a black male. D.T. said, "that's Red," when she saw defendant's photograph.

Defendant was arrested on November 13, 2009. He moved to suppress the out-of-court identifications by M.G. and D.T. After a hearing, the trial judge denied defendant's motion in a written opinion dated December 22, 2010. A trial was held before the judge and a jury between September 13, 2011, and October 3, 2011, but the jury was unable to reach a verdict.

The retrial occurred before the same judge and a new jury in March 2013. That jury acquitted defendant of murder and possession of a firearm for an unlawful purpose, but found defendant guilty of unlawful possession.

On May 3, 2013, the same judge sentenced defendant to a term of nine years in prison, with a four-and-a-half year period of parole ineligibility. The court also imposed a $200 VCCB assessment, and other fines.

Defendant now appeals, arguing

POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO RECONSIDER HIS APPLICATION TO SUPPRESS HIS IDENTIFICATIONS BY [M.G.] AND [D.T.] UNDER THE SUPREME COURT'S NEW STANDARD AND/OR ARTICULATION OF PERTINENT IDENTIFICATION FACTORS IN STATE V. HENDERSON, BECAUSE HENDERSON'S NEW RULE APPLIED IN THE RETRIAL, THE CRITERIA IDENTIFIED IN HENDERSON IN ANY EVENT WERE AUTHORITATIVE IN AN APPLICATION OF THE TRADITIONAL STANDARD, AND THE EVIDENCE ADDUCED DURING THE WADE HEARING AND FIRST TRIAL INDICATED THAT THE IDENTIFICATIONS WERE INSUFFICIENTLY RELIABLE UNDER EITHER STANDARD TO BE ADMITTED.

POINT II: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO AN EFFECTIVE OPPORTUNITY TO PRESENT HIS DEFENSE.

POINT III: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, AND THE COURT IMPOSED AN ILLEGAL VCCB PENALTY.

II.

Defendant argues the trial court erred in denying his motion to suppress the out-of-court identifications of witnesses M.G. and D.T. We must hew to our standard of review.

We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record.

[State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).]

Moreover, we owe no deference to a trial court's "'interpretation of the law' because '[l]egal issues are reviewed de novo.'" Ibid. (quoting State v. Vargas, 213 N.J. 301, 327 (2013)).

On December 21, 2010, the trial court conducted a Wade hearing to address defendant's motion to suppress the out-of-court identifications of defendant by M.G. and D.T. See United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The court heard testimony from Detectives Rubin and Bellomo, reviewed the witnesses' video-taped statements and identifications, and examined the photo arrays and reports.

At the Wade hearing, defendant argued the out-of-court identifications by M.G. and D.T. should be suppressed because: (1) defendant's face filled more of his photograph than the faces in the other photos in the arrays; (2) D.T. read the lineup instructions aloud, rather than having the detective read them to her; (3) Detective Iemmello asked each witness whether she could identify Red if she saw a photo of him, which defendant contended implied that a photo of Red would be in the array; and (4) defendant alleged that after each witness had identified his photo, the detectives told the witness defendant's name, alias, and SBI number.

The trial court found none of the arguments raised by defendant proved the identification process impermissibly suggestive. The court also found that the witnesses' identifications of defendant appeared to be reliable, and that defendant had not shown a substantial likelihood of misidentification. We uphold the trial court's rejection of defendant's arguments substantially for the reasons set forth in its December 22, 2010 written opinion. We add the following.

The trial court properly applied the "two-prong test articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)," which "was adopted essentially verbatim by [our Supreme] Court in" State v. Madison, 109 N.J. 223, 232-33 (1988). State v. Micelli, 215 N.J. 284, 290 (2013). Our Supreme Court held in Madison

a court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.

[Madison, supra, 109 N.J. at 232 (citations omitted).]

Defendant argues the trial court erred before his first trial in denying his September 14, 2011 motion to reconsider his motion to suppress. Defendant's reconsideration motion sought application of our Supreme Court's August 24, 2011 decision in State v. Henderson, 208 N.J. 208, 288 (2011). In Henderson, our Supreme Court revised Madison's two-prong test, articulating a more detailed framework to be applied by suppression courts "in future cases." Id. at 302.

Our Supreme Court was clear that, except for the defendants in Henderson and in a companion case, "[t]he revised principles in this decision will apply purely prospectively." Id. at 220. The Court stated: "As to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 300-02. The new model jury charges took effect almost one year after defendant's first trial. See Model Jury Charge (Criminal), Identification: In-Court And Out-Of-Court Identifications (eff. Sept. 4, 2012).

Even though defendant's retrial occurred thereafter, "[t]he Madison standard applie[d] to this case because the out-of-court identifications were completed prior to [the Court's] August 24, 2011 decision in" Henderson. Micelli, supra, 215 N.J. at 287, 294-95 (ruling that in such a case even "a new Wade hearing" would be governed by "the Manson/Madison test"). "Because the events underlying this case arose before the Henderson decision was handed down, the guidelines established in Manson/Madison are applicable to this matter." State v. Jones, 224 N.J. 70, 86 n.1 (2016). Accordingly, we reject defendant's claim that the court should have reconsidered its suppression ruling using the inapplicable Henderson test.

Alternatively, defendant argues that even if the Henderson test does not apply, the trial court erred in its application of Manson/Madison without considering Henderson's authoritative scholarly findings, its research, its insights, and its identification of pertinent factors. Essentially, defendant argues that the trial court should have applied the reasoning in Henderson, even though its test is inapplicable. However, as our Supreme Court recently made clear in Jones and Micelli, Henderson is wholly inapplicable as a basis to find error.2

At the retrial, with the agreement of the parties, the trial court instructed the jury consistent with the new model jury charges, which apply the Henderson criteria. Defendant argues this was inconsistent with not reconsidering suppression using the Henderson test. However, the agreement to give defendant the benefit of the new model charges in no way alters the Supreme Court's clear dictate that Henderson's new procedures cannot be applied to suppress identifications where "both the State and trial courts have, without question, relied in good faith on settled constitutional principles in applying the Manson/Madison test." Henderson, supra, 208 N.J. at 302.

III.

Defendant next argues he was improperly barred from introducing evidence that the police failed to properly investigate all leads and test the victim for gunshot residue. "Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82, (1998); see also State v. Koedatich, 112 N.J. 225, 300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Nonetheless, "evidentiary rulings that undermine confidence in the validity of the conviction or misapply the law are subject to reversal." State v. Weaver, 219 N.J. 131, 149 (2014).

A.

Defendant argues the trial court abused its discretion in denying his request to cross-examine D.T. regarding a statement allegedly made by a neighbor. Defendant claims he did not seek to introduce the neighbor's statement for its truth, but to show the police failed to investigate the case thoroughly.

At a hearing conducted pursuant to N.J.R.E. 104 (104 hearing), during the first trial, defendant elicited from D.T. that a neighbor told her the victim "was shooting that day." D.T. told that to the police, but refused to reveal the neighbor's identity. The trial court properly ruled that the statement the neighbor allegedly made to D.T. would be inadmissible as hearsay. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible at trial unless excepted under our Rules of Evidence. N.J.R.E. 802.

Defendant claims that the evidence was admissible to show the effect on the listener, seemingly the police officers to whom D.T. told what the neighbor had said. "As a general proposition, '[w]here statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay.'" Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (citation omitted). Defendant argues that "[h]ad the police investigated the neighbor's account that [the victim] was a source of the shots . . . , there is a reasonable possibility that they would have discovered evidence which would have established a strong possibility that [the victim] in fact had fired the shots[.]" However, as the trial court found, defendant's argument depends on the truth of the neighbor's statements. If the neighbor was lying that he had seen the victim shooting, there is no reason to believe that questioning him would have led to any such evidence.

Defendant stresses that "[c]ourts must provide criminal defendants with a '"meaningful opportunity to present a complete defense."'" State v. Cotto, 182 N.J. 316, 332 (2005) (citations omitted). However, the trial court advised defense counsel she could "ask [D.T.] if she gave information to the police that there may have been other individuals in the neighborhood that may have seen something, and possibly the location from which they saw it." Indeed, defendant repeatedly called the sufficiency of the police investigation into question at trial, and thus was not prevented from presenting this defense. For example, defendant cross-examined Detective Ramirez about whether the police investigated statements allegedly made to D.T. by the neighbor; the detective testified that the police attempted to contact the neighbor on multiple occasions, but they never received an answer.

Because defendant was otherwise permitted to introduce evidence in support of his claim that the investigation was inadequate, any error was not "clearly capable of producing an unjust result," R. 2:10-2, and must be "deemed harmless and disregarded." Toto v. Ensuar, 196 N.J. 134, 144 (2008).

B.

Defendant next argues that the trial court also wrongly excluded testimony about a possible witness named "Bolo." At the 104 hearing, defendant proffered that D.T. had heard that "this whole thing happened over Bolo. Bolo had gotten shot at the Sunset bar, and that this was somehow retribution for Bolo getting shot." Defense counsel also proffered that Bolo "meets the same physical description [of] the defendant."

For all the reasons set forth above, the trial court properly excluded any hearsay testimony from D.T. about what she might have heard from others about Bolo. Defendant argues that the statements "pointed to a suspect other than defendant" and thus investigation "reasonably could have led to the discovery of a suspect who would have been identified by the eyewitnesses instead of defendant." Once more, defendant's argument depends on the truth of the hearsay statements he wished D.T. to relate. However, "to be admissible, evidence of third-party guilt must 'satisfy the standards of the New Jersey Rules of Evidence,'" including the hearsay rules. Cotto, supra, 182 N.J. at 334 (citation omitted).

Indeed, it was not shown that the person(s) who spoke with D.T. had themselves witnessed the alleged Bolo incident. Thus, the testimony defendant sought to elicit from D.T. involved multiple layers of hearsay, which defendant failed to show met "an exception to Rule 802." N.J.R.E. 805. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010); see also State v. Long, 173 N.J. 138, 152-53 (2002) (even if a statement is not being offered for its truth, it is hearsay if the proponent "must rely on hearsay to prove that" the statement was made); see, e.g., State v. Collier, 316 N.J. Super. 181, 199-200 (App. Div. 1998) (ruling it was inadmissible hearsay that "the word on the street was that defendant and Lane were looking for the victim" to retaliate), aff'd o.b., 162 N.J. 27 (1999).

C.

Finally, defendant argues the trial court prevented him from presenting a defense when it denied his request to explicitly ask police witnesses whether the victim's hands had been tested for gunshot residue. However, during the cross-examination of Detective Root, defense counsel was permitted to elicit testimony that no gunshot residue tests were performed on anyone in the investigation of this case. In so doing, the defense was again provided the opportunity to question the adequacy of the investigation.

In any event, the jury's verdict shows defendant was not prejudiced by preclusion of questioning about whether gunshot residue tests were performed on the victim, whether a neighbor said the victim was shooting, or whether there had been a shooting of Bolo which triggered retaliation. The jury acquitted defendant of murder and possessing a firearm for an unlawful purpose. The precluded testimony was no defense for defendant's unlawful possession of a handgun without a permit.

Defendant makes a strained argument that if the victim was shooting, then D.T. was mistaken in assuming that the gunshots she heard had been fired by defendant, and thus she was also mistaken in believing the black object he was holding was a gun. However, D.T. also testified that she believed the black object was a gun based on the way defendant was holding it. Thus, any error was harmless.

IV.

Defendant alleges that his sentence is excessive. "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). This court is "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted).

The trial court sentenced defendant to nine years in prison, less than the maximum term of ten-years imprisonment. See N.J.S.A. 2C:43-6(a)(2). Given defendant's two prior convictions for unlawful possession of a handgun, the trial court properly found the following aggravating factors: the risk defendant will commit another offense; the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found no mitigating factors.

Defendant contends the trial court erred in imposing a four-and-one-half-year minimum term of parole ineligibility because the court failed to state that it was "clearly convinced that the aggravating factors substantially outweigh the minimum factors," as required to impose a discretionary minimum term under N.J.S.A. 2C:43-6(b). However, that statute and its requirements were inapplicable, as the court here imposed a mandatory minimum term under N.J.S.A. 2C:43-6(c). N.J.S.A. 2C:43-6(c) applied because defendant was "convicted under . . . N.J.S. 2C:39-5[(b)]"; thus, "[t]he term of imprisonment shall include the imposition of a minimum term" of parole ineligibility which "shall be fixed at one-half of the sentence imposed."

Defendant concedes the trial court "had a basis for directing the sentence to run consecutively to the earlier five year sentence with three years parole disqualification because defendant was on bail on [his prior] offense[s] when he committed the instant offense." Such a sentence must run consecutively, unless the court finds that "would be a serious injustice," which did not occur here. N.J.S.A. 2C:44-5(h).

Nonetheless, defendant argues that the sentencing judge did not take into account that defendant was already serving a three-year parole disqualifier. To the contrary, the judge, who had been the judge in both of defendant's prior convictions for unlawful possession of a firearm, acknowledged that defendant had received "five years with three years parole eligibility," and that the sentence here would run consecutively to the "five with a three." Thus, we reject defendant's attacks on his prison sentence.

V.

Lastly, defendant argues, and the State agrees, that the trial court erred in imposing an assessment of $200 under the VCC Act. Such an amount could have been imposed if defendant had been "convicted of a crime of violence . . . which resulted in the injury or death of another person." N.J.S.A. 2C:43-3.1(a)(1). However, defendant was acquitted of murder, and of possession of a firearm for an unlawful purpose. He was convicted solely of unlawful possession of a handgun. A person convicted of "any crime not resulting in the injury or death of any other person shall be assessed $50.00 for each such offense or crime for which he was convicted." N.J.S.A. 2C:43-3.1(a)(2). Absent a showing that a defendant's crime resulted in injury or death, an assessment for more than the amount in N.J.S.A. 2C:43-3.1(a)(2) "is illegal." State v. Thompson, 199 N.J. Super. 142, 145 (App. Div. 1985). There was no such showing here.

Thus, we affirm defendant's conviction and sentence, except we vacate the VCCB assessment and remand for correction of the judgment of conviction by changing the assessment to the $50 dictated by the VCC Act.

Affirmed in part, vacated and remanded in part. We do not retain jurisdiction.

1 We use initials to protect the identity of these witnesses.

2 In State v. Lazo, 209 N.J. 9, 13 (2012), the Court ruled an officer's testimony about the identification procedure was inadmissible under State v. Branch, 182 N.J. 338 (2005). The Court then found that error was not harmless, based in part on "certain concerns about eyewitness identification testimony considered in" Henderson. Lazo, supra, 209 N.J. at 13, 26-27. By contrast, defendant here has not shown the trial court committed error. In any event, the Court in Lazo reiterated that "we do not apply the holding in Henderson because it is prospective only." Id. at 26.