Opinion
DOCKET NO. A-2422-13T4
03-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAHEEM CLEVELAND, a/k/a FUQUAN PAIGE, and NAIM PAIGE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0875. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury found defendant Raheem Cleveland guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). On August 6, 2013, the trial judge sentenced defendant to an aggregate custodial term of fifty-five years.
Relevant to this appeal, the judge sentenced defendant to a forty-year prison term on the murder charge and a consecutive fifteen-year prison term on the attempted murder charge, both subject to eighty-five-percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues that the trial judge erred in admitting a witness's prior statements and admitting the testimony of two officers regarding the gunshot residue (GSR) test. He also argues that prosecutorial misconduct occurred and that he received an excessive sentence. For the reasons that follow, we reject these arguments and affirm.
We derive the following facts from the record. In the early morning hours of July 5, 2011, Marquis Robinson and his fiancée, Amina Nobles, were sitting on the front porch of his mother's house in Newark. From her bedroom, Marquis' mother heard gun shots. When she opened her front door and looked outside, she saw Amina lying on the front porch and bleeding. Amina told Marquis's mother she had been shot. The mother then saw that her son had also been shot, and called 911. Newark Police Officer Kareem Yarborough arrived at the scene at approximately 12:50 a.m., and found the two victims lying on the front porch. Both Marquis and Amina were taken to the hospital, where Amina underwent surgery to remove a bullet from her abdomen and Marquis died at 3:36 a.m.
For ease of reference, we refer to Marquis Robinson and Amina Nobles by their first names.
An autopsy revealed that Marquis sustained five gunshot wounds — four to the torso and one to the left arm. Two bullets were recovered from his body, near the spine and the right lower back. The autopsy revealed no evidence of stippling, indicating the shots had been fired from over two feet away. Of the two recovered bullets, one was a .40 caliber; the other was not identifiable because it was too damaged. Three .40 caliber shell casings found at the scene were determined to have been fired from the same semiautomatic handgun. The three casings were entered into the Integrated Ballistics Information System (IBIS).
Several hours after the shooting, Homicide Detectives of the Essex County Prosecutor's Office (ECPO) went to the hospital to speak with Amina, but she was still in surgery. On July 8, Detectives Tyrone Crawley and Murod Mohammed went to the hospital and the staff permitted them to speak with Amina. When asked by Detective Crawley who shot her, Amina responded, "Raheem Cleveland shot me and my boyfriend." She further stated, "I have known him for two years," although she later testified at trial she knew him her whole life, and defendant was "like a brother to [her]." The detectives did not record their hospital interview with Amina but Detective Crawley did document her responses in his report; defendant became a suspect in the case as a result of the interview. Regarding the hospital interview, Detective Crawley testified that no one threatened, coerced, or physically abused Amina; rather, "[s]he was sort of pleasant. She wasn't upset or anything, [and showed] a little relief."
On July 12, 2011, a few days following her release from the hospital, Detective Crawley and another officer picked up Amina at her friend's house in Newark, after she agreed to give a formal statement. Detective Crawley testified that the interview began ten minutes after Amina entered the interview room of the Homicide Unit, and that he conducted no preliminary interview before turning on the video camera. Detective Crawley explained that he showed Amina only one photograph because she knew defendant. A review of the short video shows that Amina does appear reluctant to sign the photograph and a bit frightened, but no coercion is apparent. In the video-recorded statement, Amina gives the name "Raheem" and proceeds to sign and date the back of the photograph.
A ballistics report issued on July 12, 2011, revealed that the semiautomatic gun used to commit the shootings in the case under review was also used on July 11, in another shooting in Newark. The July 11 shooting occurred a few hours after Marquis' funeral, during which defendant and seven other individuals were shot. Specifically, the three .40 caliber shell casings found at the July 5 shooting matched eight .40 caliber casings found at the July 11 shooting. A GSR test, performed on defendant's hands hours after the July 11 shooting, proved negative. In addition, three .223 caliber shell casings were also recovered at the scene of the July 11 shooting. Detective Crawley opined before the grand jury, based on his observations of the scene and the ballistics match, that someone in the street shot .223 caliber bullets at defendant, who returned fire from the driveway of a residence. Defendant was shot in the leg.
On July 12, following Amina's interview, Detective Crawley obtained an arrest warrant for defendant and a search warrant for his home. Later that day, Detective Crawley arrested defendant and searched his home; however, the search failed to produce any evidence linking defendant to either shooting.
Nine days after identifying defendant as the shooter, Amina telephoned Detective Crawley and recanted her identification. Amina said "[t]he person that shot me was Gerald Moore," and indicated that she did not want to participate in the investigation anymore. She attempted to withdraw her prior statement, both in letters to the ECPO and in her testimony before the grand jury. At trial, Amina testified that Moore walked up the steps of the porch, gave her a hug, and spoke briefly with her and Marquis; as Moore turned to leave, he displayed a gun and said, "It's a set up," and opened fire on them. Amina said she saw Moore run back toward the library and the hospital from where he first appeared.
Detective Crawley then interviewed Moore, who was incarcerated at the time. Further investigation revealed no connection between Moore and the shooting, and Moore was not charged. Nevertheless, at trial, Amina denied that defendant had any motive to kill Marquis, and disputed the State's allegation that the two had been feuding before the incident. Rather, she claimed she had mentioned Moore several times to the police and also told the grand jury that Moore was the shooter.
Amina further testified she did not speak with any detectives on July 8, and claimed she did not want to give a statement to police on July 12, but was told she would "get locked up" if she refused to cooperate. She testified that when the detectives picked her up that day, she was "under the influence of medicine," which the police took from her and gave to her mother for safekeeping. Amina also claimed the detectives did not allow her to get dressed and took her to the ECPO in her pajamas. She further testified that during the interview, she was shown a photograph of "the wrong guy," and that she signed and dated the photograph and wrote "Raheem" on the back of it because she had been held in the interview room for seven hours and had been coerced by police. She also said she was bleeding from her stomach wound, and was scared and wanted to leave. Moreover, she claimed that the police made ten videotape recordings of her, and that the video played for the jury was the final recording. Amina later contradicted her testimony about a seven-hour interrogation, stating instead that the interview lasted from about 12:00 p.m. to 3:30 p.m.
Amina further testified that a close family friend, George Givens, saw blood on her nightgown when he picked her up following the interview. Amina said she told Givens that the police had interrogated her and made her sign a photograph of defendant, who was not the shooter. The State called Givens as a rebuttal witness, and he testified no blood was visible on Amina's clothing when he picked her up at 3:30 p.m., she was not bleeding, and she did not complain about police abuse or coercion.
On appeal, defendant raises the following arguments for our consideration:
POINT IDefendant's pro se supplemental brief presents the following additional arguments for consideration:
THE COURT ERRED IN ADMITTING THE PRIOR STATEMENTS OF AMINA NOBLES INTO EVIDENCE AS THE STATE FAILED TO SATISFY THE STANDARDS OF STATE V. GROSS, 216 N.J. SUPER. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). U.S. CONST., AMENDS VI, XIV; N.J. CONST., ART. 1, PAR. 10.
POINT II
THE TRIAL JUDGE ERRED IN PERMITTING DET. CRAWLEY TO TESTIFY AS AN EXPERT IN GUNPOWDER RESIDUE. U.S. CONST. AMENDS. VI, XIV; [N. J. CONST.] ART. I, PARA. 10. (Not Raised Below).
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
POINT I
THE APPELLANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL WAS VIOLATED IN VIOLATION OF ART. 1, PARA. 1, 8, 9, 10 OF THE NEW JERSEY STATE CONSTITUTION AND AMENDMENTS V, VI, XIV TO THE UNITED STATES CONSTITUTION RAISED UNDER THE FOLLOWING SUBPOINTS.
A. When Detective Tyrone Crawley Refused to Answer Questions Concerning Who Gave Him Information That The Victim
Amina Nobles Came Face to Face and Eye to Eye With The Gunmen It Violated The Appellant's Right To Confrontation And A Fair Trial And Compulsory Process By Allowing The Introduction of Hearsay Testimony.
B. The Appellant Submit[s] That The Trial Court Erred In Allowing Into Evidence The July 8th, 2011 Hearsay Statement Of Ms. Amina Nobles In Violation Of His Due Process Under Both The Fifth Amendment To The United States Constitution And Fourteenth Amendment To The New Jersey State Constitution.
POINT II
THE APPELLANT WILL ARGUE PROSECUTOR MISCONDUCT WHERE PROSECUTOR ROMESH SUKHDEO'S ROLE IN THE INVESTIGATION OF THE VICTIM AMINA NOBLES AFTER THE SHOOTING ON JULY 12, 2011 VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION['S] AMENDMENT V AND XIV AND N.J.S.A. 40A:9-22.5(D).
I.
We first address the issue of whether the trial judge erred in admitting Amina's two prior statements. The State contends that the trial court properly applied the Gross factors and found the July 12 videotaped statement of Amina was reliable and admissible as substantive evidence under N.J.R.E. 803(a)(1)(A), and that the court properly admitted Amina's July 8 oral statement to Detective Crawley to rebut defendant's claim that the police coerced Amina into identifying defendant as the shooter.
State v. Gross, 121 N.J. 1, 10 (1990).
Before the trial court ruled on the motion, the State withdrew its request to admit Amina's July 8 statement. The prosecutor later moved to admit the July 8 statement to rebut defendant's claim that defendant first became a suspect on July 11, and that police had forced Amina to identify defendant on July 12, as the July 8 statement indicated that Amina identified defendant as her assailant four days earlier. The trial court subsequently admitted the statement. --------
A.
N.J.R.E. 803(a)(1) provides the following statements are not excluded by the hearsay rule:
(a) Prior statements of witnesses. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:
Thus, prior inconsistent statements may be admissible as substantive evidence if they are inconsistent with a witness's testimony and, if offered by the party calling the witness, are contained in a sound recording or in a writing made or signed by the witness. State v. Mancine, 124 N.J. 232, 247 (1991); Gross, supra, 121 N.J. at 7-9. Amina's July 12 statement was recorded on a DVD.(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability . . . .
When in dispute, a prior inconsistent statement sought to be admitted for substantive purposes under N.J.R.E. 803(a)(1)(A) must be the subject of a preliminary hearing to establish its reliability as a pre-condition to its admissibility. Gross, supra, 121 N.J. at 16; State v. Spruell, 121 N.J. 32, 41-42, 46-47 (1990). In determining the reliability of pre-trial statements, the Supreme Court in Gross enumerated fifteen factors to be taken into account:
(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was
apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.The trial court should make the determination of the reliability of the statement, based upon all of the relevant factors, outside the presence of the jury. Gross, supra, 216 N.J. Super. at 110. The proponent of the statement, the State, had the burden of proving its reliability by a preponderance of the evidence. Gross, supra, 121 N.J. at 15. Here, the judge conducted a pre-trial Rule 104 hearing in order to determine if the State could meet its burden.
[Gross, supra, 121 N.J. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]
The record supports the trial judge's findings that on the video recording Amina was "[lucid]" and "oriented to place and time." There were no signs of police pressure or intimidation. She unequivocally identified the shooter as "Raheem," whom she had known "for a couple years," as the person who "shot us." She wrote his name on the back of the photograph, signed and dated it, and was "positive" about her identification and that her statement was "the truth." Accordingly, we discern no indication that the trial judge abused his discretion in admitting the recording. See State v. Merritt, 247 N.J. Super. 425, 434 (App. Div.) (applying abuse of discretion standard to admission of prior inconsistent statements), certif. denied, 126 N.J. 336 (1991).
Defendant points out there was no corroborating evidence produced, per Gross factor fifteen. However, the absence of corroborating evidence does not preclude admission: "[T]he substantive elements of a criminal charge may be proven through a prior inconsistent statement alone, provided that the statement was made under circumstances supporting its reliability and the defendant has the opportunity to cross-examine the declarant." Mancine, supra, 124 N.J. at 256; see also State v. Bryant, 217 N.J. Super. 72 (App. Div.) (applying a similar rationale where a prior inconsistent statement, rather than a confession, was sole evidence linking defendant to the crime), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987). Contrary to defendant's assertions, there is no "per se rule barring a conviction based solely on evidence obtained from a prior inconsistent statement." Mancine, supra, 124 N.J. at 251.
B.
Defendant contends that the initial unrecorded statement in the hospital lacks any indicia of reliability and should have been excluded, especially in light of Amina's testimony that the interaction never occurred.
Ordinarily, "witnesses may testify that they took certain investigative steps based 'upon information received.'" State v. Luna, 193 N.J. 202, 217 (2007) (quoting State v. Bankston, 63 N.J. 263, 268-69 (1973)). However, "they cannot repeat specific details about a crime relayed to them by . . . another person without running afoul of the hearsay rule." Ibid.; see also State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 484 (App. Div. 2002)) ("[A] police officer may, without violating either the hearsay rule or defendant's right to confrontation, explain the reasons he apprehended a suspect or went to the scene of a crime by stating he did so 'upon information received.'"). The limited exception occurs where a defendant "opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive[.] . . . [In that case] the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer." State v. Branch, 182 N.J. 338, 352 (2005).
Given Amina's serious accusation that the Prosecutor's Office forced her into identifying defendant at the July 12 interview, we find no error in the State's rebuttal testimony that the July 12 interview focused on defendant, not because of coercion, but because Amina had previously given them defendant's name on July 8, at the hospital. Moreover, defendant's right to confront and cross-examine Amina was not violated because she testified at trial, avoiding the fears associated with a "faceless accuser." See Branch, supra, 182 N.J. at 348 ("Both the hearsay rule and the right of confrontation protect a defendant from the incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court."). Further, the record reveals that the trial judge's jury instructions were clear that the jury should carefully evaluate Amina's prior statements before convicting defendant solely based on her recanted out-of-court statements.
II.
Defendant next argues the trial judge erred in permitting Detective Crawley to testify as to the reliability of the GSR test:
Q. Do you know anything about the reliability of that particular handgun residue kit?Similarly, after the State rested, the defense called Investigator Telmo Silvestri to discuss the casings from the second shooting in which defendant was shot. At the end of the State's cross-examination, the following exchange occurred:
A. I do know it's unreliable. It's just an unreliable test.
Q. Now as to the gunpowder kit, do you know what that is?Finally, the prosecutor in his summation stated: "The handgun residue test, two witnesses testified it's hardly reliable, been in the hospital for hours any way."
A. Yes, sir.
Q. That's highly [inaccurate], isn't it?
A. Yes, sir.
Q. You don't use those personally, do you?
A. Personally? No, sir.
Defendant now contends, for the first time on appeal, that neither of these two witnesses was an expert on GSR testing nor did they provide any rationale for why these tests were unreliable, "thereby cutting the legs from under a critical part" of defense counsel's theory of the case: that someone else first shot Marquis, and later shot defendant. We conclude defendant invited any potential error.
Defense counsel first raised the subject of the July 11 shooting, and the results of the GSR test of defendant's hands, on cross-examination of Detective Crawley to support his theory that someone else had shot Marquis and Amina. Detective Crawley testified that the ECPO had administered the GSR test to defendant at the hospital, and it yielded negative results. On redirect, Detective Crawley opined that the test was unreliable, but on re-cross he admitted that the ECPO routinely used the test. Defense counsel did not object to the question about reliability. Moreover, defense counsel called Investigator Silvestri to testify about the ballistics recovered from the July 11 shooting. On cross-examination, the prosecutor elicited Investigator Silvestri's personal belief that the test was unreliable, and that he did not personally use it. Defense counsel again did not object to the question about reliability.
"[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (citation omitted). "The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted).
Here, the record reveals that defense counsel introduced the topic of the July 11 shooting and the negative test results of defendant's GSR test because it was the cornerstone of defendant's theory of that case. That is, defense counsel wanted the jury to know about the negative results of the test because it supported the defense theory that defendant never possessed the handgun and that someone else shot Marquis and Amina. This is presumably why defense counsel did not object to the officers' qualifications to render the opinions, or to their testimony about the test's reliability. If, as defendant contends, "[t]he real issue in this matter is the lack of objection from the trial attorney," this issue is better suited for a PCR petition. See State v. Taccetta, 200 N.J. 183, 192-93 (2009).
III.
Finally, defendant challenges his sentence as excessive, claiming that the court erred in imposing a consecutive sentence for the attempted-murder charge. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, we should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obligated to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009).
The trial judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); -1(a)(6) ("prior criminal record"); and -1(a)(9) (deterrence). The judge found no mitigating factors. The judge particularly noted that, as an adult, defendant had "[sixteen] arrests, five prior indictable convictions. This would be his sixth." The judge applied the sentencing guidelines of N.J.S.A. 2C:44-5 and State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Noting the presence of separate victims, the judge concluded, "pursuant to Yarbough[,] there can be no free crimes in a system for which punishment shall fit the crime." Defendant shot two people, one died and the other almost died. A concurrent sentence for defendant's attempted-murder conviction would have effectively granted defendant a free crime.
We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines. Additionally, the judge's reasoning for imposing a consecutive sentence was appropriate and in accordance with the principles articulated in Yarbough, supra, 100 N.J. at 643-44. Accordingly, we discern no basis to second-guess the sentence.
Defendant's pro se arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION