SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5981-91T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES CHERRY,
Defendant-Appellant.
_______________________________________
Submitted October 3, 1995 -
Decided December 18, 1995
Before Judges Pressler, Keefe and A.A.
Rodríguez.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County.
Susan Reisner, Public Defender of New Jersey,
attorney for appellant (Arnold I. Budin,
Designated Counsel, on the brief).
Deborah T. Poritz, Attorney General of New
Jersey, attorney for respondent (Lisa Sarnoff
Gochman, Deputy Attorney General, of counsel
and on the brief).
James Cherry, appellant, filed a pro se
supplemental brief.
The opinion of the court was delivered by
KEEFE, J.A.D.
On September 30, 1970, Atlantic City police officer, John Burke, was killed by a shotgun blast to his throat. He was in uniform and on duty at the time. On December 18, 1970, defendant, James Cherry, was indicted for second degree murder,
contrary to N.J.S.A. 2A:113-1, -2 (count one), and first degree
murder of a police officer in the execution of his duties,
contrary to N.J.S.A. 2A:113-1, -2 (count two).
By the time the indictment was returned, defendant had fled
Atlantic City to Cuba. He stayed there until September 27, 1990,
when he surrendered to the FBI in Miami, Florida. He
subsequently waived extradition and was returned to New Jersey.
After a twelve day jury trial, defendant was found guilty on both
counts of the indictment. The trial judge merged count one into
count two for the purpose of sentencing, whereupon defendant was
sentenced to life in prison.
Defendant now appeals and presents the following issues for
resolution.
POINT I THE TRIAL COURT ERRED IN ALLOWING
THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF
DEFENDANT TO GO TO THE JURY
POINT II THE TRIAL COURT ERRED IN ADMITTING THE
IN-COURT IDENTIFICATION OF THE DEFENDANT BECAUSE
THE IDENTIFICATION WAS TAINTED BY THE SUGGESTIVE
OUT-OF-COURT IDENTIFICATION
POINT III THE IMPROPER ADMISSION INTO
EVIDENCE OF A CO-CONSPIRATOR'S HEARSAY
TESTIMONY PURSUANT TO EVID. R. 63(9)(B) AND
EVID. R. 55 DEPRIVED THE DEFENDANT OF DUE
PROCESS OF LAW WHERE THE HEARSAY WAS
IRRELEVANT, THE COURT FAILED TO MAKE A
FINDING ON THE SUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE CONDITION OF RELEVANCY, AND THE
COURT FAILED TO INSTRUCT THE JURY PURSUANT TO
EVID. R. 6 OF THE LIMITED EFFECT TO BE GIVEN
TO THE HEARSAY TESTIMONY
POINT IV IT WAS IMPROPER TO ADMIT THE HEARSAY STATEMENT OF FORMER DEFENDANT AS A CO-CONSPIRATOR TO CONCEAL EVIDENCE WHERE THERE WAS NO EVIDENCE OF THE ALLEGED
CONSPIRACY OR OF THE DEFENDANT'S
PARTICIPATION THEREIN
POINT V IMPROPER ADMISSION OF PRIOR
INCONSISTENT STATEMENT DENIED THE DEFENDANT A
FAIR TRIAL WHERE THE COURT DID NOT DETERMINE
WHETHER THE PRIOR STATEMENT WAS MADE OR
SIGNED UNDER CONDITIONS ESTABLISHING
SUFFICIENT RELIABILITY
POINT VI THE JUDGE'S FAILURE TO CHARGE THE
JURY TO CONSIDER ALL RELEVANT CIRCUMSTANCES
TO EVALUATE WHETHER RELIABILITY HAD BEEN
SUFFICIENTLY ESTABLISHED IN ASSESSING THE
CREDIBILITY AND PROBATIVE WORTH OF PRIOR
INCONSISTENT STATEMENT ADMITTED AS
SUBSTANTIVE EVIDENCE DENIED DEFENDANT A FAIR
TRIAL
POINT VII THE PROSECUTOR'S HIGHLY IMPROPER
AND PREJUDICIAL REMARKS CONCERNING THE
DEFENDANT'S POLITICAL MOTIVE, INTENT AND
STATE OF MIND FOR FIRST DEGREE MURDER OF A
POLICEMAN, MADE THROUGHOUT THE TRIAL,
CRIMINALIZING THE DEFENDANT'S MEMBERSHIP IN
AN UNPOPULAR POLITICAL ORGANIZATION, VIOLATED
HIS FIRST AND FOURTEENTH AMENDMENT RIGHTS
POINT VIII TRIAL COURT'S FAILURE TO
ACCURATELY AND COMPLETELY CHARGE THE JURY ON
THE ESSENTIAL ELEMENT OF INTENT IN FIRST
DEGREE MURDER OF A POLICEMAN DEPRIVED
DEFENDANT DUE PROCESS OF LAW
POINT IX THE TRIAL COURT'S FAILURE TO CHARGE
THE JURY IN ACCORDANCE WITH THE 1965
AMENDMENT TO N.J.S.A. 2A:113-2 DEPRIVED
DEFENDANT OF DUE PROCESS
POINT X PREJUDICIAL EFFECT OF PLAIN ERROR
IN ERRONEOUS INSTRUCTION OF N.J.S.A. 2A:113-2
AS TO FIRST DEGREE MURDER OF POLICE OFFICER
WHERE PROOF FAILED TO INDICATE OFFICER WAS IN
THE EXECUTION OF HIS DUTY, RESULTED IN THE
DEFENDANT'S CONVICTION FOR FIRST DEGREE
MURDER AND VIOLATED DUE PROCESS OF LAW.
We have carefully reviewed the record in light of the issues
presented and affirm the judgment under review for the reasons
stated herein.
The trial record reveals that a jury could have found the
following facts. The shooting occurred in front of the Paddock
Bar located on Atlantic and Illinois Avenues in Atlantic City.
Detective William Horner, an off-duty Atlantic City police
officer, was inside the bar at the time and heard the shotgun
blast. Almost simultaneously, Shelly Kravitz, the owner of the
bar, rushed in and exclaimed "that two colored men just downed a
cop outside the bar."See footnote 1
Detective Horner ran outside and observed Burke lying in
front of his patrol car. His throat was blown apart and there
was a fragment of a shotgun shell embedded in his throat.
Burke's gun was still holstered, and his patrol dog was in the
car, leashed to the door. Detective Horner observed a green
duffel bag several feet from the victim, and an empty shotgun
casing. He approximated the time to be about midnight.
Three days later, Officer William Stewart went to an alley
near Leeds Place on the report of a person finding several
shotgun shells. After retrieving the shells, Stewart searched
the alley and found a sawed-off shotgun in a brown shopping bag.
Defendant's father lived on Atlantic Avenue, between Ohio Avenue
and Leeds Place. The gun was found near his apartment.
The shotgun was examined by a State Police Officer who
testified that the spent shotgun shell found at the scene
compared positively to tested shells fired from the shotgun.
Katherine "Kitty" Feifer was employed as the seating hostess
for the Paddock Bar at the time of the shooting. Sometime
between 10:30 and 11:00 p.m. on the night of the shooting, Feifer
observed two black men walk into the bar. Feifer approached them
and asked if they wanted to be seated. Neither of the two men
responded. The taller of the two went to the men's room and the
other followed Feifer to the cigarette machine in the middle of
the room. The shorter man, the one who went to the area of the
cigarette machine, was carrying an object in his left hand that
was wrapped in what Feifer described as a burlap bag or laundry
bag. The area was well lit. The object was partially concealed
by the sleeve of the man's overcoat. Feifer became suspicious
because both men were wearing overcoats and it was a warm night.
Feifer, who is five foot five inches tall but wore high heeled
shoes, was almost at eye level with the man who was carrying the
bag. When the taller of the two men exited the men's room, both
men left the bar without saying anything to Feifer. Feifer was
so concerned about their behavior that she informed Kravitz about
them after they left.
Feifer said that about an hour later, Kravitz exited the bar
but came running back in shortly thereafter shouting that a cop
had been shot. She followed Kravitz outside and observed Burke
lying in the street and a bag nearby. The bag was the same one
the man had been carrying earlier that evening in the bar.
Feifer talked to several police officers and gave a
description of the men and the bag. She also spent time with a
sketch artist who produced two drawings that looked like the men
who entered the bar that evening. Feifer said that the man with
the bag had a goatee-like beard and was thin, approximately five
foot six inches to five foot eight inches tall, with a short afro
haircut.
Officer Stewart knew both the defendant and Craig Jackson.
When Stewart saw the composite drawing, both individuals came to
mind. Stewart remembered that defendant had a goatee, a Foo
Manchu mustache, and was very thin. (Defendant's gun permit
application listed defendant as five foot ten inches tall and 160
pounds.)
Feifer testified that she recollected viewing photographs
five or six times between October and December 1970. She
remembered seeing different groups of photographs at different
times. Feifer believed that she identified a photograph of the
defendant sometime in November and then again picked out other
photographs of defendant on a later occasion in December, 1970.
Numerous photographs were marked at the time of trial, and Feifer
testified that she had identified the photographs marked numbers
eight, twenty-seven, twenty-eight and thirty, all of which were
of defendant.
Detective Dooley of the Atlantic City police department
contradicted Feifer's testimony concerning the number of times
she viewed photographs. According to Dooley, Feifer identified
several photographs on December 10, 1970. He said that Feifer
was not shown a picture of defendant before that time. On
December 10, Feifer was shown a forty-two picture array whereupon
Feifer identified photos eight, twenty-seven, twenty-eight and
thirty.
All of the pictures in the array were black and white
photographs. There were multiple photographs of the defendant,
but Dooley said he was not concerned about showing multiple
photographs of defendant to Feifer because there were multiple
photographs of others as well. For example, Craig Jackson's
photographs appeared two times and Larry Good's photographs
appeared three times, including an enlarged version of Good's
mugshot.
Good had become a suspect when, on October 16, 1970, Feifer
identified a photograph of him. However, the photograph had been
"doctored" to include glasses, facial hair and a goatee in an
effort to make it look like the composite. Inspector Kane, who
interviewed Good after Feifer's identification, concluded that he
was not a viable suspect and testified that Good did not resemble
the composite sketch.
Inspector Kane conducted a search of the Atlantic City Black
Panther Party's headquarters in December 1970. He found a strip
of negatives, and after holding them up to the light, recognized
photographs of defendant. The negatives were developed.
Defendant appeared in three of the photographs which were
apparently a part of the photo array shown to Feifer in December
by Officer Dooley.
Aside from Feifer's identification, there was other evidence
linking defendant with the crime. There was testimony that
defendant was a member of the Black Panther Party, or the
Committee to Combat Fascism, a political splinter group of the
Black Panther Party. Craig Jackson was also a member of that
group. Good was not a member, but he attended some meetings and
was a friend of Craig Jackson. Although there was conflicting
testimony on the subject, the jury could have found that
defendant was a "revolutionary" and had discussed killing the
"pig," a pejorative term used to describe a police officer.
Willy Gaymon was a member of the group and helped defendant
purchase a shotgun for $85 from Henry Glass either in the summer
or fall of 1970. Glass confirmed that he sold Gaymon and
defendant a shotgun in the summer of 1970. Gaymon told the
police that after the purchase of the gun, defendant took it from
Gaymon's apartment where it had been kept prior to the shooting.
After taking the shotgun, defendant later told Gaymon that he
sawed it off. Gaymon identified the shotgun at trial as looking
almost like the shotgun they had purchased, except that the stock
was no longer present and the barrel was cut down.
After seeing a photo of the shotgun that was involved in the
murder in 1970, Glass feared that his shotgun had been used, and
contacted Gaymon, inquiring about defendant and the condition of
the gun. Gaymon told him that defendant had left town. Glass
testified that the shotgun, though modified, "could [have] very
easily been the same one," and upon trying the mechanism of the
gun, said it had a malfunction similar to the malfunction in the
shotgun he sold.
Norman Ford was also a member of the Black Panther Party and
knew the defendant.See footnote 2 On the day of the murder, Ford was at a
bar with Craig Jackson. While at the bar, Ford and Jackson
talked about robbing the Paddock Bar that evening. Later that
evening, defendant came into the bar and sat down next to Ford.
Defendant asked Ford about robbing the Paddock Bar, which
prompted Jackson to state that he and Ford had already discussed
the robbery. All three men then decided to do the robbery.
Subsequent to that conversation, Ford began arguing with his
girlfriend Cordelia Henry, who was also present, about Ford's
participation in the robbery. Ford and Henry eventually left the
bar together.
Pearline Robinson, who married Jackson on April 2, 1971,
also testified at defendant's trial.See footnote 3 She testified that
Jackson woke her up that evening and asked her to help him move
Norman Ford's car. The car was parked near a bar on Atlantic
Avenue, directly across the street from where Burke was murdered.
After observing the scene, Jackson and Robinson drove off, and
soon thereafter met defendant who was cradling a long object
wrapped in cloth. The three then drove towards Baltic Avenue
where Jackson and defendant exited the vehicle. Defendant walked
alongside a building and later returned without the object.
Defendant testified that he was a member of the Black
Panther party but became disenchanted with the movement in August
1970 and left it. He denied meeting Ford and Jackson to discuss
the robbery of the Paddock Bar. He testified that late in the
evening of September 30, 1970 he left his apartment, stopped at a
pool room and at Hope Davis's apartment.See footnote 4 He then proceeded to
his father's apartment. Before arriving at his father's
apartment, defendant was stopped, frisked and questioned by
Detective Robinson.See footnote 5 After he left his father's apartment,
several police officers and a car load of black people approached
defendant concerning the murder. According to defendant, these
events caused him to believe that he would be implicated because
of his association with the Black Panther Party. He therefore
decided to leave Atlantic City. When he later learned that he
was a suspect, he went to Cuba.
Defendant ultimately decided to return to the United States.
When he surrendered to the FBI in Miami, he was given his Miranda
rights. Defendant denied shooting Officer Burke and maintained
that he was framed.
After defendant was turned over to Officer Dooley and
Officer Porcelli of the Atlantic City Police Department, he
signed a rights form. The evidence in the case was then
explained to him. Defendant was said to have remarked that the
version made sense, that he did not want to say anything
specific, and that he wanted to talk to someone. Defendant also
said: "I've thought about all the things that you have said and
I agree with your opinions. I can almost guarantee you that the
process will be a short one."
At trial, defendant explained that the statement given to
the police was not intended to inculpate him. Rather, he meant
to say that the extradition process to New Jersey would not take
long because he would not fight it. Defendant also maintained
that his statements were taken out of context.
Defendant's request for a Wade hearing was denied on the ground that he failed to demonstrate that the police impermissibly suggested to Feifer that she should pick out defendant's photographs from the array.See footnote 6 Defendant argues that the judge erred because the out-of-court identification made by Feifer was impermissibly suggestive and unreliable. Alternatively, defendant maintains that the in-court
identification was improperly admitted because it was tainted by
the out-of-court identification. A Wade hearing should be
granted if defendant presents "some evidence of impermissible
suggestiveness" in the identification process. State v.
Rodriguez,
264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b.
135 N.J. 3 (1994) (citing State v. Ortiz,
203 N.J. Super. 518,
522 (App. Div.), certif. denied,
102 N.J. 335 (1985).
The first issue to be decided is whether the procedure
utilized by the police was "in fact impermissibly suggestive."
State v. Madison,
109 N.J. 223, 232 (1988). However,
"[s]uggestiveness alone is not fatal." State v. Santoro,
229 N.J. Super. 501, 504 (App. Div. 1988). If suggestiveness is
found, the second issue to be decided is whether the
objectionable procedure resulted in a "very substantial
likelihood of irreparable misidentification." State v. Madison,
supra, 109 N.J. at 239 (quoting Simmons v. United States,
390 U.S. 377, 384,
88 S. Ct. 967, 971,
19 L. Ed.2d 1247, 1253
(1968)). The essence of the second inquiry is reliability, that
is, "whether the identification was prompted by the eye witness's
own recollection of the crime or by the suggestive manner in
which the identification procedure was conducted." State v.
Santoro, supra, 229 N.J. Super. at 504.
Defendant argues that the identification procedures were
impermissibly suggestive because Feifer initially identified
Larry Good as the man who had been in the bar; the array of the
forty-two photographs was never corroborated by both Feifer and
Dooley; and defendant's photograph appeared several times, thus
suggesting to Feifer that defendant, not Larry Good, was the true
suspect.
The discrepancy between Feifer's and Dooley's testimony as
to whether Feifer had actually seen forty-two photographs at one
viewing is a matter of credibility, and does not preclude
Feifer's ultimate identification testimony. As such, the issue,
is one for the fact finder and does not trigger Wade. State v.
Farrow,
61 N.J. 434, 451 (1972), cert. denied,
410 U.S. 973,
93 S. Ct. 1396,
35 L. Ed.2d 602 (1973). The prior identification of
Good in contrast with the subsequent and, according to Feifer,
definitive identification of defendant, is also a question of
credibility and weight for the fact finder to consider.
We also find no merit in defendant's contention that
multiple photographs of the defendant presented in the array
constitute impermissible suggestiveness. In State v. Rodriguez,
supra, 264 N.J. Super. at 269, and State v. Gunter,
231 N.J.
Super. 34, 40 (App. Div.), certif. denied,
117 N.J. 80 (1989),
this court held that the inclusion of multiple photographs of a
defendant in an array was not unduly suggestive. Here, as in
Gunter, the photographs of the defendant were not the same,
Feifer was not told that they were the same, and the police did
not tell Feifer that she was tentatively identifying the same
person. In addition, Feifer was never told by the police
officers that the pictures depicted suspects in the murder case.
All of the photographs shown to Feifer were black and white
and all of them depicted black males of the approximate same age
group and general physical appearance. Unfortunately, the police
did not have mug shot photos of the defendant available for
presentation. Thus, the police were constrained by circumstances
to present unposed black and white photographs of the defendant.
In two of the photographs defendant is depicted with others. The
photographs of defendant were different from the other
photographs in the array in that the pictures, though black and
white, were clearly less formal. With the exception of the
enlarged photograph showing Larry Good, the four photographs of
the defendant stand out from the rest in terms of size and the
appearance of informality. Thus, without imputing any improper
motive to the police, we nonetheless conclude that the array was
suggestive.
However, the failure to conduct a Wade hearing does not
mandate a reversal. Although the trial judge in our view
improperly concluded that the array was not suggestive, he
nonetheless correctly recognized that the ultimate object of the
inquiry was whether the identification was truly that of Feifer's
or imposed upon her by the process. See United States v. Crews,
445 U.S. 463, 474,
100 S. Ct. 1244, 1251,
63 L. Ed.2d 537, 547-548 (1988); Wade, supra, 388 U.S. at 240, 87 S. Ct. at 18, 18 L.
Ed.
2d at 1149 (holding that clear and convincing evidence must be
produced that the in court identification is based on the
witness's independent opportunity to view the defendant at the
time of the crime, and not because of the tainted identification
procedures). The trial judge here made the decision on the
question of reliability as recommended by the Supreme Court in
State v. Madison, supra, 109 N.J. at 244. In our view he decided
that issue correctly.
The absence of taint, or conversely the presence of
reliability, must be determined from "the totality of the
circumstances in the particular case." Id. at 239. Considering
the evidence as a whole, certain factors are suggested for
particularized attention: 1) the opportunity of the witness to
view the criminal at the time of the crime; 2) the witness's
degree of attention; 3) the accuracy of the witness's prior
description of the criminal; 4) the level of certainty
demonstrated at the time of the confrontation; and 5) the time
between the crime and the confrontation. In analyzing these
factors it must be remembered that the purpose of the inquiry is
to determine whether the identification of the defendant was made
by the witness because of the suggestiveness of the photographs,
or as a result of her own independent recollection. Id. at 240.
"The strength or credibility of the identification is not the
issue on admissibility; that is a matter of weight, for the fact
finder, under appropriate instructions from the trial judge."
State v. Farrow, supra, 61 N.J. at 451.
In this case, Feifer was in defendant's presence for
approximately five to six minutes in a well lit area. She took
particular notice of defendant because of his suspicious
behavior. Furthermore, there was no evidence that she was
distracted by other work activities during this entire period of
time. More importantly, as the trial judge pointed out, her
attention to defendant is proven by the description she gave to
the police artist. The sketch that was produced from her
statement resembled defendant and prompted other individuals to
conclude that it was defendant who was depicted. Further, she
only identified Larry Good's photo when the photo had been
altered with glasses and facial hair in order to resemble the man
she had depicted in the sketch. Aside from the misidentification
of Good, Feifer's identification of defendant remained consistent
and steadfast. The sketch, of course, was prepared shortly after
the murder, and the identification of the four photographs was
accomplished no later than 2 1/2 months after the murder.
Identifications of photographs after much longer periods of time
have been sustained. Neil v. Biggers,
409 U.S. 188, 201,
93 S.
Ct. 375, 383,
34 L. Ed.2d 401, 412 (1972) (seven months); State
v. Miller,
522 A.2d 249, 254 (Conn. 1987) (eight months).
The State offered Norman Ford's testimony in order to prove that defendant was involved in a conspiracy to rob the Paddock Bar on the night of the murder, thereby creating the inference that defendant would have a reason to be at the location where the murder occurred. Defendant maintains that it was error to do so.
The hearsay statements made by Jackson and defendant to Ford
were admissible if they were made in furtherance of or in the
course of a conspiracy, and if there is independent evidence of
the conspiracy and of the defendant's participation in it. State
v. Phelps,
96 N.J. 500, 508-510 (1984). Furthermore, the
statements are admissible notwithstanding the fact that the goals
of the conspiracy were frustrated. State v. La Fera,
35 N.J. 75,
86 (1961).
Contrary to defendant's argument, Ford's testimony was
relevant because it proved that defendant was involved in a
conspiracy that would have placed him at the Paddock Bar that
evening. The conversation between Ford and Jackson furthered the
conspiracy and was made during the conspiracy inasmuch as the
statements established how the robbery was to take place. Ford's
testimony also placed defendant at the initial stages of the
conspiracy, when the plan was formed. Under the co-conspirator
exception, Ford's testimony clearly fits within Phelps because
the statements made by Jackson and Ford implicated defendant
based on his subsequent conduct.
Interestingly, defendant does not dispute that independent
proof of the conspiracy existed. Feifer's testimony corroborates
Ford's in that defendant entered the Paddock Bar and engaged in
conduct that would reasonably lead one to conclude that he and
his companion were casing the bar for a robbery. Further,
defendant's possession of the bag, and the concealment of the bag
with his overcoat, are additional facts that support a reasonable
conclusion that a robbery was being planned.
The State offered the conspiracy evidence in order to place
defendant at the scene of the shooting and assist the jury on the
"issue of identity." As such, defendant maintains that the
evidence was inadmissible "other crimes" evidence, and, if
admissible, required a limiting instruction. We disagree with
defendant's contentions.
Evid. R. 55, now, N.J.R.E. 404(b), does not apply when the
"other crimes" evidence is part of the total criminal conduct
that occurred during the incident in question and may be
considered within the res gestae of the charged crime. State v.
Ortiz,
253 N.J. Super. 239, 243 (App. Div.), certif. denied,
130 N.J. 6 (1992). Nor does the Rule apply to uncharged acts of
misconduct that are components of the subject matter crime.
State v. Martini,
131 N.J. 176, 241 (1993), post conviction
relief denied,
139 N.J. 3 (1994), cert. denied, ____ U.S. ____,
116 S. Ct. 203, _____ L. Ed.2d ____ (1995). Evidence of events
that take place during the same time frame as the crime charged
in the indictment will not be excluded if the evidence
establishes the context of the criminal event, explains the
nature of, or presents the full picture of the crime to the jury.
State v. Louf,
64 N.J. 172, 178 (1973). A jury "cannot be
expected to make its decision in a void -- without knowledge of
the time, place and circumstances of the acts which form the
basis of the charge." United States v. Masters,
622 F.2d 83, 86
(4th Cir. 1980). Because the evidence was not "other crimes"
evidence, the requirement that a limiting instruction be given
when "other crimes" evidence is used is inapplicable. Therefore,
the trial judge did not err in admitting the evidence, nor in
failing to instruct the jury as to its limited relevance.
The State offered Robinson's testimony to show that Jackson and defendant had conspired to conceal evidence of the murder, specifically the shotgun. Her testimony was also used to show that Jackson and defendant had conspired to avoid apprehension when Jackson directed Robinson to serve as his alibi, and when defendant fled to Cuba. Defendant argues that no conspiracy to conceal evidence existed, and if it did, defendant did not participate in it.
As previously stated, a co-conspirator's statement is admissible if the statement was made in furtherance of and during the course of the conspiracy. Phelps, supra, 96 N.J. at 508-10. Further, there must be independent evidence of the conspiracy and of the defendant's relationship to it. Ibid. Defendant argues that the first two steps were not met, but appears to concede the third.
The conspiracy continues until the object of the conspiracy is fulfilled, or proof exists that a member has withdrawn from the conspiracy. State v. Farinella, 150 N.J. Super. 61, 67 (App. Div.), certif. denied, 75 N.J. 17 (1977). No proof was offered at the Rule 8 hearing to show that defendant withdrew from the
conspiracy. Indeed, the argument was never raised, and it can be
inferred from this record that the conspiracy continued until
defendant arrived in Cuba. That notwithstanding, Jackson's
participation did not terminate until after he explained
Robinson's alibi role to her. At that point in time his scheme
to conceal himself from apprehension and prosecution was
complete. However, up to that point, his statements and conduct
were attributable to defendant as a co-conspirator. As noted,
the statements by Jackson to Robinson obviously furthered the
conspiracy because they sought to shield Jackson, and, in turn,
defendant from prosecution by establishing a plan to prevent
detection. The goals of the conspiracy were carried out as
Jackson's alibi removed him from participation in the murder. In
turn, the alibi would protect defendant because Jackson and he
would not be associated together on that night. First, Jackson
had Robinson accompany him to move Ford's car that was directly
across from the Paddock Bar. Second, they picked up defendant,
Jackson and defendant talked, and then defendant hid the object
he was carrying. Next, defendant was dropped off and then
Jackson advised Robinson how she was to serve as his alibi.
Defendant contends that the trial judge improperly admitted Hope Davis's written statement to the police as a prior inconsistent statement, and further alleges that the circumstances surrounding the prior inconsistent statement failed
to establish its reliability. State v. Gross (Anthony),
121 N.J. 1, 9 (1990).
Davis admitted giving a statement to the police in December
1970, two weeks after delivering a baby fathered by defendant.
She maintained that her oral statement to the police was the
truth, but when the police returned with the written statement
for her signature (which she signed without reading it), the
statement contained facts that were not true. At trial, she
testified that she could not remember any of the facts contained
in the statement, nor could she remember that she talked to
defendant on October 2, 1970 when she was instructed to obtain
suitcases from his father for the purpose of taking them to New
York. She also testified that defendant never discussed killing
police officers with her, and that the statements in the report
to the contrary were untrue. She characterized defendant as
quiet and non-violent.
The trial judge conducted a hearing under former Evid. R. 8,
now N.J.R.E. 104(a), because the State wanted to offer her
statement as a prior inconsistent statement. Inspector Kane
testified for the State in that respect. Kane testified that the
statement began in the apartment where Davis was staying, but
when he realized that a formal statement was needed, Davis
accompanied him to headquarters. At that time, Davis never
expressed any hostility toward the police, a desire not to give a
statement, or an inability to remember the events surrounding the
murder. Though not a suspect, Davis was given Miranda rights and
never requested the presence of an attorney. Questions were
asked by Kane and two other police officers who were also
present. Davis initialed and signed all eight pages of the
statement. Her signature was notarized.
The trial judge ruled that her trial testimony was
inconsistent because she answered questions with "I don't recall"
where that response was plausible and non-incriminating, but
answered in the negative when the response would have seriously
incriminated defendant. The judge found that the circumstances
surrounding the 1970 statement made the statement reliable
because Davis had no motive to fabricate, her statement was
substantially corroborated, she was not under arrest, and she was
not coerced or threatened. Therefore, he held the statement was
admissible under Evid. R. 63(1)(a), now N.J.R.E. 104.
Defendant appears to challenge the written statement only as
to its reliability. The party seeking admission of the statement
must prove its reliability by a fair preponderance of the
evidence. A. Gross, supra, 121 N.J. at 16. The fact that the
witness inculpates defendant is merely one of several
circumstances to be considered in the admission of the statement
into evidence. State v. Gross (Frank),
121 N.J. 18, 28-9 (1990).
In A. Gross, supra, the court identified fifteen relevant factors
in determining reliability. 121 N.J. at 10 (quoting State v. A.
Gross,
216 N.J. Super. 92, 109-10 (App. Div. 1987). The factors
that are relevant to this case were satisfied.
Davis's statement evidenced her close connection to, and
interest in the matter. A. Gross, supra, 121 N.J. at 10. The
witness was pregnant with defendant's child at the time she gave
her statement. Davis disclosed that defendant asked her to
obtain his suitcase and send it to New York. Further, Davis
noted that defendant desired to kill a police officer and that
"he had a feeling that he would have accomplished something if he
did something like that." Thus, the close relationship between
defendant and Davis at the time the statement was given, enhanced
the reliability of Davis's statement.
The place, occasion, and circumstances surrounding the
offering of Davis's statement corroborated its reliability.
Inspector Kane began the interview at Davis's home. Although
Davis gave birth only two weeks earlier, there was no indication
that she was suffering from any ill effects from the recent
birth. Further, Inspector Kane asked open-ended questions that
Davis answered in a responsive, detailed, and spontaneous manner.
There was no evidence of threats or enticements for her to give
the statement that was given. Assuming that the police properly
recorded the questions and answers given, there was no motive on
Davis's part to fabricate.
Further, there is substantial trial testimony to corroborate
Davis's statement. William Gaymon testified that defendant often
spoke of obtaining guns and killing policemen. Second,
Antoinette Nedd, Davis's longtime friend, testified that she
helped Davis pick up a suitcase from the home of defendant's
father and check it through to New York at an Atlantic City bus
station.
Defendant further contends that Davis's failure to testify
at the Evid. R. 8 hearing rendered the hearing incomplete. There
is no New Jersey case that supports defendant's argument. We
note that case law in other jurisdictions requires it. State v.
Dexter,
269 N.W.2d 721 (Minn. 1978); People v. Loyd,
139 Cal.
Rptr. 693 (1977). However, even if we were to assume error in
this regard, the error was harmless. Defendant had a full and
fair opportunity to examine and cross-examine Davis in the
presence of the jury both on the issue of admissibility and
reliability. A. Gross, supra, 121 N.J. at 15. Defendant fails
to exhibit how Davis's testimony out of the hearing of the jury
would have been any different. Therefore, we find no error on
these points.
Defendant raises for the first time on appeal the argument that remarks made by the prosecutor in the opening statement, the direct examination of two police officers, and the closing statement relative to defendant's political association with the Black Panther Party denied defendant a right to a fair trial.
As to the arguments of the prosecutor, the defendant's failure to object gives rise to the inference that he did not find the prosecutor's remarks to have crossed the bounds of permissible advocacy when they were made. State v. Darrian, 255 N.J. Super. 435 (App. Div.) certif. denied, 130 N.J. 13 (1992).
Consequently, reversal is warranted only if defendant can show
that the remarks constitute plain error clearly capable of
producing an unjust result. State v. Zola,
112 N.J. 384, 462
(1986), cert. denied,
489 U.S. 1022,
109 S. Ct. 1146,
103 L.
Ed.2d 205 (1989). The same can be said with respect to the
evidentiary matters for which there was no objection. State v.
Macon,
57 N.J. 325 (1971); R. 2:10-2.
In respect of the prosecutor's remarks in the opening and
closing statements, any deviation from perfection "must be clear
and unmistakable and must substantially prejudice the defendant's
fundamental right to have the jury fairly evaluate the merits of
his defense." State v. Bucanis,
26 N.J. 45, 56 (1958), cert.
denied,
357 U.S. 910,
78 S. Ct. 1157,
2 L. Ed.2d 1160 (1958). A
prosecutor's opening statement, for example, may introduce a wide
range of permissible evidence to establish motive. State v.
Carter,
91 N.J. 86, 102 (1982). "Evidence of motive may be
admissible even though it may be prejudicial in the sense that it
will arouse or inflame the jury against defendant." Ibid. "A
wider range of evidence is admissible to establish motive or
intent than is permitted in support of other issues." State v.
Crumb,
277 N.J. Super. 311, 317 (App. Div. 1994).
In the present case, evidence concerning the anti-establishment philosophy of the Black Panther Party, coupled with
defendant's own express hatred of the police, provided evidence
of defendant's motive to kill Officer Burke. The evidence
introduced on that subject properly outlined the underlying
reasons behind the defendant's alleged actions. The probative
value of such evidence outweighed the risks of an adversely
affected jury and prejudice to the defendant. In many respects
this case is not unlike State v. Carter,
91 N.J. 86 (1992), in
which similar statements were made that, although inflammatory,
were found appropriate on the issue of motive. See also Crumb,
277 N.J. Super. at 317 (holding that the probative value of
written material seized from defendant, a white person, which
evidenced defendant's hatred and death wish for black people,
outweighed any danger of unfair prejudice from such inflammatory
materials). Further, with respect to the evidence offered on the
subject, the trial judge is vested with the final authority to
determine if the prejudice of the evidence outweighs its
probative value. Evid. R. 4, now N.J.R.E. 403. We may reverse
on such issues only if the trial judge's decision "was so wide of
the mark that a manifest denial of justice resulted." Carter,
supra, 91 N.J. at 106. Our review of the record satisfies us
that there was no such abuse of discretion. Finally, considering
the relevancy of the motive evidence in this case, we conclude
that the prosecutor's summation did not exceed the bounds of
propriety, and, therefore, did not deprive defendant of a fair
trial. State v. Ramseur,
106 N.J. 123, 322 (1987).
Defendant contends that the trial judge erroneously charged the jury on the element of intent in respect of N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. He contends that, in view of the
testimony during the trial concerning his political association
with the Black Panther Party, the judge was required to include
in the intent charge an instruction on the rights to free speech
and assembly under the First Amendment. It does not appear that
this issue was raised below, although defendant does not alert us
to that problem in his brief. R. 2:6-1(a)(1).
In any event, the argument is without merit. The trial
judge is required to instruct the jury only as to the essential
elements of the crime. State v. Green,
86 N.J. 281, 287 (1981);
State v. Whitted,
232 N.J. Super. 384, 391 (App. Div. 1989).
Intent is an element of the crime of murder, and the jury was
properly instructed as to that element. Defendant's argument
really addresses the issue of motive which, although relevant to
the issue of intent, is not an essential element of the crime of
murder. State v. Beard,
16 N.J. 50, 60-61 (1954). Defendant's
First Amendment rights were not the focal point of the
prosecution. It was not his association or speech that was
criminalized by the prosecution, but rather his intent to commit
murder. As such, the prosecution did not curtail his First
Amendment liberties. Wayte v. United States,
470 U.S. 598,
105 S. Ct. 1530,
84 L. Ed.2d 547 (1985).
Defendant argues that the judge failed to instruct the jury that the killing of a police officer in the execution of his duties under N.J.S.A. 2A:113-2 is second degree murder if the defendant only intended to do bodily harm. This argument is also
raised for the first time on appeal, although defendant does not
note it in his brief. R. 2:6-1(a)(1).
In State v. Thomas,
76 N.J. 344 (1978), the Supreme Court
stated that the murder of a police officer does not automatically
trigger first degree murder. Id. at 355. The Court stated "[i]f
the intent is to do bodily harm, the offense remains murder in
the second degree, and this, as we said, whether the intended
harm is grievous or less than grievous." Id. at 355-366 (quoting
State v. Madden,
61 N.J. 377, 389-90 (1972).
We find it difficult to imagine, in light of the place and
nature of Officer Burke's wound, how a rational jury could
conclude that the shooter's intent was other than to kill. In
any event, we believe the instructions as a whole satisfactorily
conveyed the concept of State v. Thomas to the jury. State v.
Ramseur, supra, 106 N.J. at 280. The judge made a clear
distinction between first and second degree murder, and between
intent to kill and intent to cause bodily harm. Specifically, in
respect of the charge on count two, the judge made it clear that
if the State failed to prove an intent to kill the police
officer, a second degree murder was the result. When considered
in light of the judge's charge with respect to count one, the
jury knew that if there was no intent to kill, but only to cause
grievous bodily harm, second degree murder was the appropriate
finding. Thus, we find no error, no less plain error in these
circumstances.
Defendant argues that the State failed to prove that the
victim was in the execution of his duty, and that the trial court
erred when it charged first degree murder in light of that
failure. This issue also is raised for the first time on appeal
without appropriate designation in defendant's brief. R. 2:6-1(a)(1). The issue is clearly without merit. There is more than
sufficient evidence in the record from which a fact finder could
conclude that Officer Burke was in the execution of his duty at
the time of the murder. R. 2:11-3(e)(2).
We have carefully reviewed the arguments presented in defendant's pro se appellate brief and conclude that, except as to those issues which may overlap the issues raised by appellate counsel previously addressed, the arguments are without merit and do not warrant separate discussion. However, with respect to defendant's claim that he received ineffective assistance of counsel, we specifically do not address that issue in light of State v. Preciose, 129 N.J. 451, 462 (1992). In view of the fact that many of the issues presented by defendant may implicate defense counsel's strategy, the issue may be better left to a post conviction relief hearing should defendant elect to move for such a hearing rather than have the issue fragmented and decided piecemeal.
In all other respects, the judgment under review is affirmed.
Footnote: 1Kravitz died before the trial, but his statement was admitted over objection as an excited utterance, an exception to the hearsay rule. Footnote: 2Ford testified at Craig Jackson's trial in 1971, and was held in contempt because he refused to testify against Jackson, who was his friend. He stated that he decided to testify in this case because it was the truth, the officer should not have been killed, and he no longer had to protect Jackson. Footnote: 3Robinson also testified at Jackson's trial. She admitted that she conformed her testimony at that trial to coincide with what Jackson told her. However she stated that she was testifying truthfully at defendant's trial. Footnote: 4Davis was defendant's girlfriend who he met through the Black Panther Party in late 1969 or early 1970. She gave birth to their child on November 20, 1970. Footnote: 5Detective Robinson died before the trial. Officer Ben Polk, who was Detective Robinson's partner at the time, testified that he was with Robinson the entire evening and he never saw defendant. Footnote: 6United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967).