PER CURIAM.
Following a five-day trial, a jury convicted defendant Quadir Nelson of second-degree unlawful possession of a handgun,
The facts as adduced from the trial record are as follows. On May 6, 2010, at or around 8:00 p.m., Newark Police Officer Maysa Washington and her partner, Officer Elvis Roman, were on patrol. The uniformed officers were driving separate, marked patrol cars. After hearing a radio report from Officer Roman that he heard shots fired in a nearby area, Officer Washington proceeded in that direction. While en route, Officer Roman reported via radio he was chasing a suspect, later identified as defendant, on foot.
Once in the area, Officer Washington spotted Officer Roman and defendant running through a park. Defendant was wearing a white t-shirt, blue jeans, and a blue bandana. After parking her car at the entrance to the park, Officer Washington exited her vehicle and began chasing defendant. Quickly passing Officer Roman, Officer Washington became "the primary officer in the foot pursuit." It was still light outside when she began chasing defendant. Officer Washington transmitted her location to dispatch.
Officer Washington followed defendant through the rear entrance of an auto body shop, which was well lit. At that point, she was "no more than five feet to maybe an arm's length" away from defendant, who "was in front of [her]." As defendant was running, Officer Washington saw him throw a black gun "nudged somewhere on his body" towards his left. She heard the gun hit the ground and slide towards a red car, which Officer Washington saw in her peripheral view.
Knowing Officer Roman was behind her, Officer Washington yelled, "Gun, gun," and pointed in the direction where defendant had thrown the gun. Officer Washington continued her pursuit of defendant, while Officer Roman remained with the discarded weapon.
After exiting the body shop, Officer Washington continued to pursue defendant, who, at that point, removed a white t-shirt, a white tank top, and a blue bandana before entering a convenience store. Officer Washington followed defendant into the store where she was unable to grab him from behind. Defendant ran out of the store with Officer Washington still giving chase. Upon recognizing plainclothes officers, Officer Washington yelled, "There he is. There he is." Defendant, then only wearing blue jeans, ran toward Detective Alan Knight, who body-checked him to the ground and handcuffed him.
While walking defendant back to the parked patrol car, Officer Washington retrieved the items of clothing defendant had discarded. Officer Washington also returned to the body shop where she saw Officer Roman safeguarding the discarded gun. Crime Scene Unit Officer Roderick Brown met Officer Roman at the body shop to process the gun. Although Officer Brown found the gun operable, it tested negative for gunshot residue. Officer Brown was also unable to lift any fingerprints from it. In light of Officer Brown's investigation, the parties entered into two stipulations: one, that defendant did not have a permit to carry a handgun, and two, that defendant had no gunshot residue on his hands when he was arrested.
At trial, Officer Washington identified the nine-millimeter handgun found next to the tire of the red car in the body shop as the gun she saw defendant discard. Officer Washington also identified defendant as the person who threw the gun.
Defense counsel cross-examined Officer Washington about her failure to conduct any subsequent investigation. Officer Washington, for example, admitted she did not return to the convenience store to interview possible witnesses to the chase. She further admitted she neither investigated whether any surveillance video cameras had recorded the chase, nor requested DNA testing on the articles of clothing she recovered to confirm a connection to defendant. When asked why she did not interview possible witnesses, Officer Washington replied, "I didn't need to ask who it was. I was in pursuit. I didn't need a witness to know that I chased him."
Defendant appeals from his conviction and sentence, raising the following issues for this court's review:
We have considered these arguments in light of the record and applicable legal standards, and conclude they lack merit.
Defendant first contends the trial court violated his constitutional rights by denying his application to permit the jury to hear a recording of a 9-1-1 call between a dispatch operator and a female caller, who reported a nearby shooting. Defendant maintains the recording was properly authenticated, it constituted relevant evidence of third-party guilt, and it was admissible as a present sense impression. We reject defendant's arguments.
We review a trial court's evidentiary determinations under an abuse of discretion standard.
Following a
Immediately thereafter, defense counsel sought admission of a second recording in which a female called 9-1-1 to report gunshots. The recording captures the female caller consulting with an unidentified individual, who relayed to the caller a physical description of a man with a gun. The caller then reported that description to the operator. Notably, the caller delivered her description in the past tense, stating to the operator, "I want to tell you what the guy with the gun was wearing."
Defense counsel acknowledged the caller was unavailable to testify, but argued the recording was nevertheless admissible under the present sense impression exception to the hearsay rule. Defense counsel further argued the recording presented no authentication issues.
The judge listened to the 9-1-1 recording in camera. After doing so, he first found the recording lacked "the intrinsic reliability of a conventional present sense impression." The judge could not determine whether the female caller or the unidentified individual in the recording had an opportunity to deliberate or fabricate, as defense counsel had failed to call either individual as a witness to testify at the hearing. Thus, the State was unable to engage in any meaningful cross-examination of the declarants.
The court further determined the recording constituted double hearsay, as the female caller's statements to the 9-1-1 operator were predicated on information she received from "the unidentified individual in the background[,] tending to suggest that the unidentified individual, not the woman, made the observations." As to authentication, defense counsel did not offer either the 9-1-1 operator, the female caller, or the unidentified individual to testify to the recording's contents.
Additionally, the court determined the 9-1-1 recording was not relevant because the female caller's statement to the operator did not bolster defendant's theory that the police arrested the wrong person; in part because the shooting reported in the 9-1-1 recording occurred at a different location from where Officer Roman heard the gunshots prompted his pursuit of defendant. The court determined the recording had minimal probative value, which was outweighed by the risks of undue prejudice to the State and jury confusion.
We first address defendant's contention that the trial court erred in finding the second recording was not authenticated. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims."
As the trial judge explained, "[n]either the 9-1-1 operator, the woman[,] [n]or the unidentified individual were called to render the tape authenticated or identified consistent with
Nevertheless, defendant urges this court to relax the authentication requirement where the opponent of the offered statement, the State, allegedly has "greater access to proof of authenticity than the [statement's] proponent," defendant. Biunno,
Contrary to the trial court's finding, defendant contends the 9-1-1 recording was relevant evidence of third-party guilt because the description of the man in the 9-1-1 call did not match that of defendant. This contention also lacks merit.
"A defendant is entitled to introduce evidence that another person committed the crime or crimes of which the defendant is charged."
The admissibility of such evidence hinges on its relevance. Generally, evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action."
Deferring to the trial court's decision, the 9-1-1 recording was not relevant evidence of third-party guilt because the female caller's statement describing a man with a gun had no tendency to prove or disprove any fact of consequence.
Defendant further submits the trial court erred in finding the 9-1-1 recording did not meet the present sense impression exception to the hearsay rule. He requests this court remand the matter to determine and compare the time of the 9-1-1 recording relative to the admitted recording. He contends if the recordings were made relatively contemporaneously, it would prove the female caller in the 9-1-1 recording did not have an opportunity to deliberate or fabricate. We disagree.
The hearsay exception for a present sense impression make admissible certain statements of observation as well as statements describing or explaining an event or condition.
In interpreting the phrase "immediately after," our Supreme Court has recognized that a delay of mere minutes between the occurrence of an event and a declarant's recounting of that same event could take the statement outside of the exception.
Thus, the
Here, neither the female caller nor the unidentified individual testified at the hearing, thus, there is no evidence in the record upon which to determine the timing of the caller's observation. Thus, defendant could not establish the female caller recounted what she had allegedly seen either "while or immediately after" it occurred.
Furthermore, we reject any suggested significance based on a temporal nexus of the 9-1-1 and officers' recordings, as such would not cure the unalterable fact that the 9-1-1 recording constituted double hearsay.
We now turn to defendant's contentions that (1) the court denied him a fair trial by refusing to excuse two jurors for cause, thereby forcing him to exercise two of his peremptory challenges, and (2) the court improperly refused to ask defense counsel's proposed questions during voir dire. Defendant's arguments lack merit, and we will not address defendant's second contention.
Defendant contends he was denied his right to an impartial jury after the court improperly refused to dismiss certain jurors for cause. As our Supreme Court has recognized, the mere dilution of the number of prescribed peremptory challenges by a trial judge's "erroneous failure to excuse a juror for cause is of no moment to the constitutional guarantee of an impartial jury."
Defendant questions the impartiality of jurors number six and eight. First, he alleges the court should have excused Juror 8 when, during voir dire, he disclosed he had served as a prosecutor in another state for the past thirty-three years. At sidebar when asked whether he could "weigh and evaluate the evidence, consult with [his] fellow jurors and reach an impartial verdict based upon the evidence[]" Juror 8 responded, "Yes," further explaining in response to defense counsel's question that he no longer tried cases. Based upon Juror 8's responses, the trial judge found he could be fair and impartial. Defendant then exercised a peremptory challenge.
Defendant now insists Juror 8 should have been dismissed but offers no argument as to why it was error for the trial judge to refuse to do so. In light of his subsequent confirmation that he could decide the case solely based upon the evidence presented in the courtroom and be fair and impartial, we see no abuse of discretion or error in the trial judge's determination. Potential Juror 6 responded affirmatively when asked by the court whether she would give more credence to a police officer testifying than any other witness. The court engaged in the following exchange with Juror 6:
At defense counsel's request, additional questioning took place at sidebar:
Defendant argues the court should have excused Juror 6 based on her favoritism towards police officers. The court denied the request, finding defense counsel's characterization of Juror B's comments inaccurate. Because the court refused to excuse Juror 6 for cause, defense counsel exercised another peremptory challenge.
We discern no abuse of discretion in the court's refusal to excuse Juror 6. Notwithstanding Juror 6's admitted initial confusion, she stated she could be fair and impartial, that she would listen to all of the witnesses, and that she would evaluate a police officer's credibility in the same manner as she would any other witness. The trial court found Juror 6's statements to this effect credible, a determination to which we defer.
Because defendant has failed to satisfy the first element of the
We now turn to defendant's contention the court erred by failing to charge the jury on identification. Defendant argues such a charge was necessary despite Officer Washington and Detective Knight's in-court identification and testimony that defendant is the person who was chased and apprehended. This argument lacks merit.
It is well established that "[a]ppropriate and proper [jury] charges are essential for a fair trial."
A trial court's failure to honor a request for a charge on a fundamental or substantially material matter will ordinarily be deemed prejudicial and result in reversal on appeal.
Specifically, a trial court must instruct the jury on identification if the identification of the defendant is a "key issue" in the case.
Based on Officer Washington's in-court identification of defendant, defense counsel requested that the trial court give an identification charge. The trial judge denied the request, explaining:
Because identification was not a legitimate issue here, we conclude the trial court did not err in refusing to instruct the jury as such. As the trial court found, Officer Washington's identification of defendant was certain based upon her pursuit. She chased him at arm's length for quite some time while it was still light outside. She stayed with defendant as he ran into a well-lit body shop where he discarded a gun directly in front of Officer Washington. She saw him remove his clothing before entering the convenience store where she was a hand's grasp away from stopping him.
Officer Washington followed defendant until he ran directly into Detective Knight's path. After Detective Knight subdued defendant, Officer Washington personally escorted defendant back to her patrol car. The fact that Officer Washington failed to conduct an extensive follow-up investigation is of no moment.
She, with the help of Detective Knight, apprehended defendant. The legitimacy of the officers' observations of defendant is not at issue here. Thus, the trial court did not err in refusing to give the requested identification charge.
Defendant contends the trial judge's instruction to the jury to continue deliberating after they announced they were deadlocked was coercive and interfered with the deliberative process, thereby depriving him of a fair trial. We disagree.
In
In this case, the judge provided the following instructions in his initial general charge to the jury:
The charge was the precise charge approved by the Court in
The jury began its deliberations at 11:49 a.m. on May 17, 2011. At 12:15 p.m., the jury sent a note to the judge, requesting to listen to the dispatch CD. With no objection from either party, the judge sent the jurors to lunch first, and played the dispatch CD upon their return at 1:30 p.m. The jury resumed deliberations at 1:39 p.m. and forty-four minutes later, the jury sent a second note, which read, "Dead lock." At that point, the jury had deliberated for a total of one hour and ten minutes.
The judge reviewed the matter with counsel, then stated he would "call them back out and tell them, you have only been deliberating for two hours." Defense counsel objected, arguing that statement by the court would not provide the jury with any guidance as to what they are to do, and requested an
The jury resumed deliberations at 2:30 p.m., and twenty-two minutes later, requested a read-back of Officer Washington's testimony. Following the read-back of the testimony, the jury resumed deliberations for twenty-three minutes before being dismissed for the day at 4:43 p.m. During the first day, excluding the time for the court's response to questions and testimony read-backs, the jury deliberated for approximately two hours. Deliberations resumed at 9:15 a.m. the following day. At 10:20 a.m., the jury reached a unanimous verdict, finding defendant guilty of unlawful possession of a weapon.
Defendant argues he was "deprived . . . of a free and untrammeled verdict" when, upon receiving a note from the jury stating it was deadlocked, the court made "comments chastising the jurors for either announcing that they were deadlocked, or reaching that decision per se or in a time that the court considered too short," thereby "impermissibly intrud[ing] on the jury's deliberations and coerc[ing] its verdict." Defendant argues because "the matter before the jury was neither lengthy, nor complex, and involved only a single indicted charge[,] . . . the jury's impasse was most likely rooted in a difference of opinion concerning which inferences should be drawn from the uncomplicated testimony." "Under these circumstances," defendant argues, "the court's decision to instruct the deadlocked jurors to continue deliberations contained a very substantial risk of improperly coercing a verdict." We are not persuaded.
When jurors first report an impasse, it is appropriate for the trial judge to advise them to continue deliberations.
Here, the trial was relatively short, entailed only one charge, and six witnesses testified. The jury was required to determine whether the State had proven all of the elements of unlawful possession of a weapon beyond a reasonable doubt. The jurors asked one question and requested a read back of testimony. When the jury sent its note to the judge, it had only deliberated one hour and ten minutes, although the judge stated two hours.
Moreover, the note sent after only two short periods of deliberation did not indicate that there was "no reasonable probability of agreement."
We turn to defendant's final argument that his sentence is excessive. Specifically, he argues the aggravating and mitigating factors do not support the sentence imposed herein, and the court should have ordered that his sentence be served concurrently with, rather than consecutively to, the sentence he was already serving. We disagree.
We do not find defendant's sentence to constitute an abuse of discretion. A review of the record clearly demonstrates that the trial judge properly determined and weighed the aggravating and mitigating factors.
Nor was it error for the trial judge to impose consecutive sentences. After considering the factors set forth in
For all of the reasons set forth above, we conclude that there were no trial errors or combination of errors sufficient to warrant reversal of defendant's conviction or sentence, which was clearly supported by credible evidence in the record.
Affirmed.