DOCKET NO. A-0786-09T3
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0494.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Omar Holmes appeals from his conviction by a jury for murder and weapons offenses. The charges arose from the shooting of a young man outside a club in Elizabeth after a fight broke out at closing time. At defendant's trial, what happened to the victim was not disputed. The dispute was whether defendant was the person who fired the shots.
We reverse defendant's conviction and grant him a new trial because the trial court admitted evidence of defendant's affiliation with the Bloods street gang without assessing properly the probative value of that evidence pursuant to N.J.R.E. 404(b), and also without adequately instructing the jury as to its limited purpose.
At closing time on April 3, 2006, patrons were leaving a club located on Routes 1 and 9 in Elizabeth, which at the time was named Club Flight. A twenty-two-year-old man from Jersey City named Damielle Tondee accidentally bumped into a twenty-six-year-old man from Newark named William Green. Green did not accept Tondee's apology and began to argue. Soon, others were lined up on opposite sides. Three off-duty police officers who were working as security at the club could not control the dozens of people in the parking lot threatening to escalate the incident into a brawl. The security officers called for help from the Elizabeth Police Department.
Tondee and Green moved to the back of the parking lot and started a fist-fight. Others joined in the fighting. Before the police arrived, shots rang out and Green was struck. He fell to the ground, and he died before medical emergency responders could get him to a hospital.
After the shooting, Elizabeth police officers tried to stop and identify the many patrons that were quickly departing in their cars. Some patrons, however, left the area without being stopped by the police.
In the parking lot, Tondee approached Kameel Brown, a woman he knew. Brown had heard the shots as she and a girlfriend were walking toward her car. She saw that Tondee was bleeding from his ear and his hands and asked about his injuries. He told her he was in a fight and asked her to drive him back to Jersey City in his car since he did not have a valid license. Brown agreed to drive Tondee's car, and she asked her girlfriend to drive her car. They planned to meet at a diner in Jersey City, a gathering spot for the young people from their neighborhood who had been in attendance at the club.
During the ride with Brown, Tondee received a call on his cell phone and also a "chirp," that is, a message. Brown could hear Tondee's side of the conversation. Tondee asked the caller what happened at the club, and he said to the caller that he would be at the diner. Shortly after Tondee and Brown reached the diner, defendant arrived as a passenger in another car. Brown knew that defendant was from an area of Jersey City that she frequented, and she knew him only by the names "O" and "OB." As Brown and her girlfriend were going into the diner, defendant got into Tondee's car, and the two left.
About two weeks later, an attorney contacted the Elizabeth police and offered to present his client as someone with information about the shooting. The client, whom we will call "the first identifying witness" or simply "the witness," had some charges pending and hoped to trade information about the shooting for favorable treatment on his case.
At the Elizabeth police department on April 20, 2006, the witness gave an audio-recorded statement in which he identified a photograph of Tondee as the person he saw in the parking lot get punched in the mouth by the victim of the homicide and a photo of defendant as the person whom he saw come from the back of the parking lot and fire shots at the victim. He knew Tondee only by the name Damielle, and he said defendant's street name was OBrim. The witness said he had seen Damielle and OBrim together at Club Flight on several Sunday nights. According to the witness, both were associated with the Bloods street gang. He also identified photographs of other men he knew from Jersey City but said they were either present but not involved in the shooting or he did not see them at the club that night.
Regarding what he witnessed when the shots were fired, the witness said he did not see a gun but he heard about four or five shots and, at the same time, he saw sparks coming from defendant's hand. He was standing about fifteen feet away from defendant. A short time later, he heard Tondee ask defendant whether he "had put up the gun," which meant whether he had put the gun away. At his first interview, the witness refused to state his own name on the audio recording. He said he was afraid for his safety because defendant and Tondee were Bloods.
In September 2006, the police reported to the witness that they had overheard a threat made against him on a wiretap. The witness came again to the police department to give a second statement. This time the interview was video-recorded, thus revealing the witness's identity, and the witness provided his name. On the video-recording, the witness again selected a photograph of Tondee from a photo array as the person involved in the fight and one of defendant as the shooter. He signed the backs of the photos.
The prosecution proffered this information to the trial court, but it was not revealed to the jury.
In November 2006, Elizabeth detectives interrogated Tondee and video-recorded parts of his statements. Tondee was then in custody in the Hudson County Jail on drug charges. At the beginning of the interview, which was being recorded, Tondee was cooperative and talkative, but he refused to say who had fired the shots that killed Green. He referred obliquely to the danger he faced in jail if he revealed that information, and he wanted to know what would happen to him and the charges he was facing if he cooperated with the police. The detectives made no promises of reduced charges, but they represented to Tondee that they would try to maintain the confidentiality of his identity as a cooperator until such time as a trial of the shooter approached.
Unwilling to be recorded without further assurances, Tondee asked repeatedly that the recording be turned off. The detectives eventually complied with his request and turned off the recording. Shortly after that, the detectives spoke to Tondee during a bathroom break. According to one of the detectives, Tondee first revealed in the bathroom that defendant was the shooter. After the break, Tondee returned to the interview room, and recording of the interview resumed. During that second part of the recorded session, Tondee selected a photograph of defendant as the person who had fired the shots, and he signed the back of the photo.
In January 2007, Jersey City Police were investigating illegal drug activity in the neighborhood where defendant lived. They recovered a .40 caliber handgun from a young man who was fleeing the police. The gun was matched by ballistics evidence with the five bullets that had struck and killed Green nine months earlier.
On January 23, 2007, Elizabeth detectives videotaped an interrogation of defendant at police headquarters. Appearing confident and sparring verbally with the detectives, the twenty-one-year-old defendant denied he had fired the shots that killed Green. He said he had gone to the club that night with an acquaintance that the police later identified as Kevin Best, but that he did not get into the club because he did not have identification. He said he and Best left the area before the fight occurred and he only heard about the shooting from others. Defendant denied going to the diner in Jersey City and getting into a car with Tondee. He acknowledged during the interview that he had been a Blood in the past but claimed he had stopped his association with the street gang after being shot himself in April 2006.
The police found and interviewed Kevin Best after the interrogation of defendant. Best denied he had been with defendant on the night of the shooting and identified another person as having been the passenger in his car to and from the club. He said he left the parking lot without being stopped by the police.
In June 2007, a Union County grand jury indicted defendant on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The same grand jury returned a separate indictment charging defendant with second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7(b).
At defendant's trial in March 2009, no witness testified that defendant was the shooter. The prosecution called both Tondee and the first identifying witness to testify, but both recanted their recorded statements.
Tondee, who was then serving a twenty-two-year sentence on drug charges, was extremely aggressive and uncooperative. Before the jury was brought into the courtroom, he refused the judge's request that he change into street clothes, and he then physically prevented officers from removing his handcuffs. He testified before the jury while shackled and handcuffed. In belligerent responses to questions from both attorneys, Tondee claimed he had been deceived by the Elizabeth detectives into lying to implicate defendant during his video-recorded statement. He alleged the detectives told him during a bathroom break that defendant had been an informant against him, resulting in his Hudson County charges. He said he retaliated against defendant by falsely saying that defendant had fired the shots at the club.
In his pro se supplemental brief, defendant argues that he was prejudiced because Tondee appeared before the jury in prison garb and restraints. See State v. Kuchera, 198 N.J. 482, 496-97 (2009). We find no abuse of discretion in the trial court's proceeding in the face of Tondee's refusal to change into street clothes or to allow his handcuffs to be removed. See id. at 498, 501-02.
The first identifying witness claimed before the jury that he had been high on PCP-laced marijuana cigarettes during his interviews and while at the club on the night of the shooting. He claimed he had no memory of the shooting or the prior identifications.
After conducting hearings out of the presence of the jury in accordance with State v. Gross, 121 N.J. 1 (1990), the trial court permitted the video-recorded statements of Tondee and the witness to be played for the jury.
Similarly, the court held a pretrial hearing and determined that defendant's video-recorded statement would be admissible. Before the jury saw defendant's recorded statement, however, portions were redacted by agreement of the parties to remove references to defendant's prior record of arrests and convictions. His admission that he had been associated with the Bloods remained in the redacted statement without further objection by the defense.
In addition to the recorded statements, the prosecution relied on the testimony of Kameel Brown about the immediate aftermath of the shooting and Tondee's meeting with defendant at the Jersey City diner. The prosecution also called Kevin Best to testify that he was not with defendant on the night of the shooting. The prosecution used defendant's recorded statement as evidence that defendant had lied to the police and attempted to present a false alibi.
The defense called no witnesses at the trial. Defense counsel's summation challenged the credibility of the identifications provided in the recorded statements of Tondee and the first identifying witness. Counsel argued that both were seeking favorable treatment on their own criminal charges and falsely identified defendant as the shooter.
The prosecution's summation focused on the identifications contained in those statements, but it also emphasized defendant's association with the Bloods as providing the motive for defendant's shooting of Green. The prosecution claimed that defendant had fired the shots to help a fellow Bloods member, Tondee. In addition, the prosecutor argued that the jury should find defendant guilty because Tondee and the first identifying witness had expressed fear of retaliation and also because other witnesses who were at the club that night displayed reluctance in the manner that they testified. Furthermore, the prosecution suggested to the jury that other persons who must have been witnesses to the shooting were not cooperative in coming forward with evidence because they feared the Bloods.
The jury convicted defendant on all charges of the first indictment. Defendant then pleaded guilty conditionally to the second indictment, which charged possession of a firearm by a convicted person. Subsequently, the trial judge sentenced defendant to sixty years in prison on the murder charge, with eighty-five percent of the sentence to be served before eligibility for parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Other counts were either merged with the murder charge or the sentences on those counts were to run concurrently with the sentence for murder.
On appeal, defendant argues:
POINT IDefendant has also filed a pro se supplemental brief, in which he makes the following arguments:
ADMISSION OF AN EXTRAORDINARY AMOUNT OF INADMISSIBLE AND UNDULY PREJUDICIAL EVIDENCE AND INFORMATION DENIED DEFENDANT A FAIR TRIAL. (Raised in Part Below)
A) The Trial was Infected with Repeated References to Defendant's Membership in the Bloods and Statements by the Investigating Detectives about Violent Gang Activities.POINT II
B) The Expressions of Opinion by the Investigating Detectives that Defendant Was Guilty should Not Have Been Heard by the Jurors.
C) The Jury Heard Impermissible Victim Impact Testimony During the Playing of Omar Holmes' Statement.
THE COURT SHOULD HAVE INSTRUCTED THE JURY ON PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below)
THE SENTENCE WAS EXCESSIVE.
APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHEN [THE] TRIAL JUDGE ABUSED HIS DISCRETION BY FAILING TO GIVE THE JURY CURATIVE INSTRUCTIONS ON A MATTER OF IMPORTANCE.
APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHEN THE PROSECUTION MADE UNJUST COMMENTS ABOUT DEFENSE COUNSEL.
We find merit in Point I.A of defense counsel's brief, as supplemented in Point II of defendant's pro se brief. The prosecution's theory that defendant killed the victim because he was fist-fighting with another member of the Bloods was not adequately supported by the evidence. General evidence of the Bloods associations was not admissible to prove motive without additional and more specific evidence, and the use of that evidence by the jury was not properly limited by the court's instructions to the jury. Nor was the evidence properly admitted to prove that prosecution witnesses feared retaliation by defendant.
The admission of the Bloods evidence and its emphasis in the prosecution's summation had the capacity to influence the jury improperly in reaching its verdict. R. 2:10-2; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 336 (1971).
Before trial, the defense knew that evidence in the case included references to the Bloods street gang. The recorded statements prepared by the Elizabeth detectives contained questions and answers indicating that Tondee and defendant were associated with the Bloods. Also, Tondee and the first identifying witness expressed fear of retaliation if they identified defendant as the shooter. Those statements and their transcripts were provided to the defense in discovery.
The prosecution, however, did not make a pretrial motion or give other notice to defense counsel and the court that it intended to prove at trial defendant's association with the Bloods street gang as motive for the shooting. See State v. Rose, 206 N.J. 141, 181 (2011) (establishing prospectively a notice requirement for N.J.R.E. 404(b) evidence so that trial court can conduct proper analysis of its admissibility). The trial court had carefully considered other potentially sensitive evidentiary issues before a jury was selected and the trial began. But the first time the judge's attention was directed to evidence about the Bloods was on the second day of trial testimony shortly after Kameel Brown testified. At the end of Brown's direct examination, the prosecutor asked her whether Tondee was a member of any street gang. Defense counsel did not object. Brown answered that Tondee was a Blood. Also, on redirect examination, Brown testified that Tondee did not and would not reveal to her who had fired the shots that night in the parking lot because "he's in a gang and he wouldn't tell on nobody."
Immediately after Brown's testimony was concluded, defense counsel objected to anticipated testimony about the gang affiliation of defendant. The court questioned the prosecutor about his intentions. The prosecutor said he would elicit testimony about defendant's affiliation with the Bloods as relevant to an alleged motive for the shooting. The prosecutor said he intended to argue to the jury that defendant had fired shots to aid a fellow Blood member who was getting the worst of a fight. The court recognized the prejudicial nature of the proposed evidence and suggested that there might be a stipulation instead that defendant and Tondee were "friends." Defense counsel, however, declined to stipulate that the two were friends.
After a recess in which the court researched the issue of testimony about street gangs, the court ruled that the prosecution would be permitted to present evidence that defendant was affiliated with a gang as proof of his motive to assist Tondee in a fight. At the same time, the court applied N.J.R.E. 403 to bar the prosecution from presenting evidence of an anonymous threat to the first identifying witness as the explanation for his agreeing to give a video-recorded statement in September 2006. However, the court left open the door for evidence of gang membership as relevant on the question of why witnesses were reluctant to inculpate defendant. The court stated that admission of gang evidence for that purpose would depend on the nature and contents of the cross-examination of the prosecution witnesses.
After the court's ruling, defense counsel restated his arguments against the gang references, adding that the prosecution had no specific evidence that defendant was motivated by his gang affiliation to protect Tondee, and that it also did not have expert testimony, as had been presented in other gang-related prosecutions, regarding gang practices and motivations. In response, the prosecution offered to produce an expert witness. Later in the trial, the prosecution proffered testimony it would present from a street gang expert, but the court barred the proposed expert testimony because no discovery of such expert evidence had been provided to the defense before the trial.
The trial then resumed with the recantations of the first identifying witness and Tondee and the playing of their recorded statements, including their references to gang membership. Defendant's statement was also played for the jury, including his admission that he was a past member of the Bloods. None of the statements, however, or any other evidence presented during the trial specifically indicated that defendant was motivated to shoot Green by his common affiliation with Tondee as a Bloods gang member. Instead, the prosecution relied on an inference the jury could draw solely from the Bloods affiliations of defendant and Tondee.
The trial court did not explicitly make reference to N.J.R.E. 404(b) in its ruling on admission of the gang references. Citing case law on admission of gang references, the court based its ruling on N.J.R.E. 403, balancing the probative value of the proposed evidence as proof of defendant's motive against its potential for prejudice.
On appeal, the trial court's rulings under N.J.R.E. 403 and 404(b) are normally subject to the abuse of discretion standard of review. State v. Lykes, 192 N.J. 519, 534 (2007); State v. Marrero, 148 N.J. 469, 483 (1997). However, "[t]hat deferential approach does not fit in cases where the trial court did not apply Rule 404(b) properly to the evidence at trial; in those circumstances, to assess whether admission of the evidence was appropriate, an appellate court may engage in its own 'plenary review' to determine its admissibility." Rose, supra, 206 N.J. at 158.
We begin our plenary review by noting that, after the trial of this case, we held in State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), that evidence of gang membership to prove a defendant's motive must be analyzed under N.J.R.E. 404(b). That rule of evidence states in relevant part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.We stated in Goodman, supra, 415 N.J. Super. at 227, that evidence of gang membership is subject to N.J.R.E. 404(b) because it is "strongly suggestive of [criminal] activity" although not a crime in itself.
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
Over the years, the Supreme Court has further explained this test and adjusted it as applied to a variety of circumstances and purposes for admission of other crimes evidence. See, e.g., State v. Hernandez, 170 N.J. 106, 119-26 (2001); Lykes, supra, 192 N.J. at 535-37; Rose, supra, 206 N.J. at 159-61. In State v. Williams, 190 N.J. 114, 130-31 (2007), for example, the Court modified the Cofield test and explained that the second prong, namely, "that the 'other acts' be similar in kind and reasonably close in time" to the charged offense "need not receive universal application in Rule 404(b) disputes." Thus, evidence of motive may be presented under Rule 404(b) although the other crimes or wrongs were not similar in kind or close in time to the charged offense. Rose, supra, 206 N.J. at 163; Goodman, supra, 415 N.J. Super. at 230.
In this case, the prosecution asked the jury to infer that a member of the Bloods would shoot and kill another person in defense of a fellow Blood engaged in a fist-fight. No one testified to that effect. The prosecution presented no affirmative evidence to support that proposition. Instead, the prosecution expected the jury's general knowledge of the violent propensities of street gangs, and in particular the Bloods, to lead to that inference.
The prosecution also asked the jury to conclude that the witnesses were in fear of defendant because of his Bloods affiliation. There was no evidence, however, that defendant had threatened any witnesses or caused anyone else to make such threats. The inference the prosecution sought was based again on the jury's general knowledge of street gangs outside the evidence presented at the trial. Indeed, the prosecutor referred in his summation to what the jury knew from its knowledge of "the real world" and from "TV" about the reluctance of witnesses to testify. Simply stated, the prosecution's objective in these arguments was improper because it lacked evidential support.
We have not been provided transcripts of the voir dire of the jury before it was selected, and so, do not know whether jurors were asked about their knowledge of street gangs or examined about their predisposed inclinations toward that subject. There was nothing at trial except unknown sources of information for the jury to infer that a member of the Bloods would be motivated to kill in the circumstances that occurred in the club parking lot on the night of the shooting. The prosecution asked the jury to speculate about defendant's motive based on the jury's own prior knowledge of criminal activities of Bloods gang members in general.
Without specific evidence pertinent to motive, the general references to Bloods affiliations were not particularly probative of defendant's motive or his identification as the shooter. There was no evidence of "the structure, organization, and procedures," or "the operations of street gangs" that would explain a motive to shoot and kill in the circumstances of this case. See State v. Torres, 183 N.J. 554, 573 (2005). On the other hand, the general references were prejudicial as allegations that defendant was prone to violence because he was affiliated with the Bloods. Without analyzing appropriately the probative value of the evidence, the trial court did not conduct a proper balancing of the competing considerations in admitting or excluding the evidence.
Furthermore, admission of other crimes or wrongs evidence requires precise limiting instructions to the jury. The court must provide guidance on both the prohibited and the permissive uses of the evidence, and the instructions must be specific "in connection with the facts of [the] case." Hernandez, supra, 170 N.J. at 133. Here, the court instructed the jury that the reference to the Bloods:
in no way should influence you negatively or create any negative inference to the defendant, Mr. Holmes. This testimony was permitted to be given to explain the manner in which [the first identifying witness] and Mr. Tondee gave their statements, and forThis limiting instruction was not precise and specifically tailored to the evidence in the case. It did not explain to the jury how it might use the gang evidence and what uses of it were forbidden.
that limited purpose only, and also for the limited purpose to give a reason for the way the defendant Holmes acted on April 3rd, 2006.
In Hernandez, supra, 170 N.J. at 131, the Court stated:
A carefully crafted limiting instruction must explain to the jury the limited purpose for which the other-crime evidence is being offered. . . . In setting forth the prohibited and permitted purposes of the evidence the trial court must include within the instruction "sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere."
[quoting State v. Stevens, 115 N.J. 289, 304 (1989).]
We conclude that the admission of the street gangs evidence without explicit analysis of its alleged probative value, and without precise instructions for its proper and prohibited uses, was error that entitles defendant to a new trial.
Having concluded that the verdict must be reversed, we need not resolve the other issues raised by defendant on appeal. The defense did not raise objections at defendant's trial to the evidence challenged in other points of counsel's brief. The trial court should consider those evidentiary issues at the retrial if they are raised again.
We also do not reach a conclusion, although we are skeptical, with respect to defendant's argument raised in Point II of counsel's brief that it was plain error for the trial court not to have instructed the jury on the lesser-included offense of passion-provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). See, e.g., State v. Mauricio, 117 N.J. 402, 412 (1990) (discussing the adequacy of provocation for homicide committed in the heat of passion); State v. Crisantos, 102 N.J. 265, 278-80 (1986) (defendant's stepping into a fist-fight between others and stabbing one of the fighters did not warrant a passion-provocation charge as a lesser-included offense). We note that the defense requested and the trial court gave instructions to the jury on the lesser-included offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and manslaughter, N.J.S.A. 2C:11-4(b), based on defense contentions that the jury could find that the shooter exhibited a reckless state of mind rather than purposeful or knowing conduct. We leave the issue of appropriate jury instructions for development on a full record at the retrial.
Defendant's appeal of the sixty-year sentence, and his other pro se arguments, are moot as a result of our reversal of the jury's verdict.
Reversed and remanded for a new trial. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION