PER CURIAM.
Defendant Kareem Prunty appeals his conviction for first-degree murder and related weapons offenses, urging evidentiary errors that he claims denied him a fair trial. Defendant also contends the trial judge erred when he failed to remove a juror who, after deliberations had begun, expressed concerns about the financial hardship allegedly caused by his continued service on the jury. In a pro se supplemental brief, defendant additionally argues, for the first time, that the verdict was against the weight of the evidence. We affirm.
In October 2009, defendant was indicted and charged with: first-degree murder,
Defendant was sentenced to a forty-eight-year prison term, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA),
Defendant appeals, arguing:
In his pro se supplemental brief, defendant argues:
We reject these arguments and affirm.
Before examining defendant's arguments, it is helpful to recount the evidence adduced at trial.
The State presented evidence that Gregory Fils-Aime and his girlfriend, Renner Williams, lived with his father, Frederic Fils-Aime, and Frederic's wife in Roselle. Gregory was home most of April 17, 2007.
In the evening, Michael Whetstone, described in testimony as a black man, in his early thirties and around 5'9" tall, came to the house to pick up Gregory. Gregory sometimes called Whetstone "Unc," Whetstone knew Gregory as "G." According to Whetstone, Gregory was wearing a black "North Face" jacket and blue jeans. He also believed Gregory was wearing a hat, and because it was cold outside, Whetstone thought "it was like a skully or something." Whetstone was wearing a blue hoodie and a "skully" with a Yankees logo on it.
They left Gregory's home and walked to Mike's Tavern on Roselle Street in Linden, arriving after 10:00 p.m.
Once at Mike's Tavern, Gregory and Whetstone sat at the bar, talked and drank. Gregory apologized for his earlier suspicion that Whetstone may have been responsible for $14 that Gregory thought was missing but was later found, and he bought Whetstone some drinks. As the night wore on, Gregory became intoxicated.
Ann Marie Dampach, a bartender at Mike's Tavern for approximately sixteen years, testified she knew Gregory and described him as "ill mannered," that he was "a very arrogant person, basically, loud mouth, obnoxious, but never bothered anybody, overall." Dampach testified that Gregory introduced her to Whetstone, whom she had not seen before, as his uncle. She also testified Gregory was "rude" to her that night.
Barry Geiger, another bartender at Mike's Tavern, testified that he and Kathleen McCann arrived at approximately 10:00 p.m. He saw Gregory, who was wearing blue jeans, a dark jacket (he thought it was black), and a Pittsburgh Pirates hat. Geiger knew Gregory from the bar and knew him as "G." A week earlier, he and Gregory "had words" because Gregory "disrespect[ed]" McCann. And a couple of days prior to that, Geiger had security escort Gregory out of the bar for failing to show identification.
Mike's Tavern is equipped with seven surveillance cameras. Footage from these cameras, admitted into evidence, demonstrated that at 11:52 p.m., two African-American men, one of them defendant, entered the bar and sat to the right of Geiger and McCann, and across the bar from Gregory and Whetstone. Dampach recognized the two men as having been in the bar approximately eighteen months earlier; she said they were not "regulars." One of the men walked with a limp; he explained he had had knee surgery. This man used a cane and was dark-skinned; he was wearing a hat and a black jacket emblazoned with a dragon.
Shortly after defendant and his companion arrived, Gregory started "mouthing off," saying: "Yo, I'm G. I'm bad"; "I'm thug-like"; and "[a] little punk ass on the street." Geiger did not think Gregory's mouthing off was directed at anyone in particular, and according to Geiger, this was consistent with Gregory's normal behavior.
Defendant and his companion reacted to Gregory's remarks. Whetstone testified the two men looked at Gregory and said, "come here." Gregory responded, "no, you come here." Whetstone thought Gregory knew the two men and whispered to Gregory, "[w]hy are you saying that to them?" Gregory responded, "I'm G."
Gregory eventually approached the two men and had a conversation that Whetstone did not hear, although Whetstone did hear one of the two men ask Gregory, "Is you Blood?" He did not hear Gregory's response, but heard one of them say, "Get away from me. Go back over there with your friend." According to Geiger, although he could not hear what was being said, the voices got gradually louder until they were shouting; Gregory was yelling and the two men started yelling back. Geiger said he did not feel threatened because he was not involved.
Dampach testified this situation did not make her "nervous." However, when she heard some of the things being said, she backed away and "stopped paying attention to what they were talking about," explaining it was "[n]ot something I wanted to listen to," that it was "not my business," and she had other customers to attend to.
On the other hand, McCann testified the situation made her nervous. She said Gregory and the two men were not loud, and she could not hear what they were saying, but she could tell they were arguing. She asked Geiger if they could move a few stools away because she wanted to distance herself, thinking something might happen. McCann testified she saw the person, whom she identified as defendant, lift up his jacket and shirt, showing Gregory his waistline. She opined: "I thought he was showing him a gun." But she also acknowledged she did not see a gun and could not see defendant's waistline from where she was seated.
According to McCann, after defendant motioned toward his waistline, Gregory said something like, "Oh, okay," or "Oh, it's like that." And Whetstone said, "I'm outta here," and got up and left. Geiger similarly testified that Whetstone was angry with Gregory and said: "I had enough of this shit. I'm out of here." Gregory said, "Oh, you are going to leave me like that"? Whetstone testified he wanted to leave because Gregory was "talking gangsta stuff" and he was "not with that." Gregory had a drink to finish, so Whetstone exited the bar and waited for Gregory outside.
While Whetstone was outside the bar waiting, Dampach also went outside to smoke. She could tell Whetstone was angry with Gregory, but she did not know why. At this time, defendant and his companion exited the bar, and Dampach heard Whetstone apologize for Gregory's behavior. Whetstone told them, "don't pay my friend no mind. He was drunk a little bit." One of the two men said, "I ain't paying him no mind."
Dambach saw defendant and the other man get in their vehicles and leave. She believed defendant drove a tan or beige minivan or SUV, but she was not sure of the make or model. She told police the vehicle was gold.
Whetstone testified the two men left in separate vehicles; one got into a gray minivan parked across the street, the other walked around the corner and entered a dark-colored minivan. They both drove up Roselle Street toward a convenience store on St. George Avenue. As Dampach walked back into the bar, Gregory exited; she heard Whetstone yelling at Gregory, "You are going to get yourself killed." She could tell Whetstone was mad at Gregory.
Whetstone testified that when Gregory exited the bar, he told Gregory to "knock it off" and "stop messing with people." He told Gregory to stop saying "gangsta" stuff because "that will get us killed." He testified they argued for approximately five minutes outside the bar.
Whetstone wanted to leave and Gregory wanted to stay, but they eventually left the tavern premises together and walked on Roselle Street towards St. George Avenue, the same direction the two minivans had taken. As they crossed the intersection of Roselle Street and Cleveland Avenue, Whetstone observed a gray minivan pull up. It looked familiar to him, "like the one the boys got in." Whetstone testified he did not recognize the driver as one of the two men from Mike's Tavern; he did not see the driver of the minivan in the courtroom. In his recorded statement, however, Whetstone identified the two occupants of the minivan as the same two men from Mike's Tavern.
According to Whetstone, the driver asked Gregory for a light. Whetstone asked Gregory if those were the same men from the bar; Gregory said, "no." He told Gregory to come on, "[d]on't give nobody no light," "just keep walking." But Gregory approached while Whetstone waited on the corner. Whetstone could see the driver's face because the window was down. When Gregory was a few feet away from the vehicle, Whetstone heard two gunshots and started running. When he turned around, he saw the driver of the minivan with a gun in his hand.
Whetstone saw the minivan take off quickly after the shots were fired. He started running up Roselle Street and thought Gregory was behind him. Upon reaching St. George Avenue, he did not see Gregory and kept running until he got home. He said that while he was running he also "was rubbing my back" to check to see if he was shot, and added: "I didn't see the first two shots . . . [but] thought they, probably, shot me in the back."
Upon arriving home, Whetstone did not call police. He testified he did not have a telephone in the house and was too afraid to leave. He did not sleep that night and maintained vigil at the window to ensure nobody had followed him.
At approximately midnight that night, the Linden Police Department received a call about gunshots being fired in the vicinity of Roselle Street and Cleveland Avenue. Officers Perrella and McPhail were the first officers to arrive at the scene. Perrella saw Gregory's body on the lawn in front of the apartment building located at 1213 Roselle Street. He taped off some of the area around the crime scene and searched for evidence, finding shell casings on the sidewalk near the body. He also found two projectiles at the intersection of Cleveland Avenue and Roselle Street.
Officer Gardner and Detective Dustin of the Union County Sheriff's Office also responded and photographed the scene. Gardner testified that a projectile was recovered from a tree and another from the ground. She also testified that the front driver's window of an SUV parked across the street "appeared to have been recently blown out," opining that the window "could have, also, been struck during the shooting." Based on this information, Gardner concluded the bullets were fired from Cleveland Avenue, not Roselle Street.
Gardner also testified there was no blood trail or footprints found, no tire tracks on the street, and no evidence of a car peeling away. No weapon was recovered, and there were no fingerprints or other trace evidence connecting defendant to the shooting.
Dr. Junaid Shaikh, Union County Deputy Medical Examiner, was qualified as an expert in forensic pathology and testified about the autopsy performed and the report authored by Dr. Leonard Zaretski, the medical examiner at the time. Although his findings were consistent with Zaretski's, Shaikh testified he made independent findings he described as being within a reasonable degree of medical certainty.
The autopsy report revealed the victim was struck by three gunshots. One, described as serious but not fatal, hit the victim's right arm, seven inches below the shoulder. Another hit the victim's left arm, nine-and-a-half inches below the left shoulder, shattering the bone; a bullet was recovered from that region. A third and fatal gunshot wound was located on the victim's back "in the scapular or the big bone region on the left side," that perforated several vital organs and caused significant blood loss. Shaikh concurred with Zaretski on the cause and manner of death: "multiple gunshot wounds as the cause of death, and the manner of death is homicide."
Detective Kenneth Mikolajczyk of the Linden Police Department attended the autopsy, and collected some of the victim's clothes, a spent bullet recovered from the victim's clothes, and fragments of bullets extracted from the victim's body.
Vincent Desiderio, a scientist employed by the New Jersey State Police, was qualified as an expert in gunshot residue and trace analysis. He explained that gunshot residue often ends up on the shooter's hands and clothes, but he never evaluated defendant's or any other suspect's clothes. Because he did not have the weapon or weapons used in the shooting for comparison purposes, Desiderio was unable to determine the distance between the shooter or shooters and the victim.
Lieutenant Michael Sanford of the Union County Police Department was qualified as an expert in forensic firearms examination and ballistic comparisons. Based on his examination of the recovered projectiles he concluded there were, "at least, two weapons that were used to fire these particular pieces of evidence."
Paul Dossantos and his wife, Adriana Pequeno, lived on Cleveland Avenue in Linden; they both heard gunshots around midnight. At trial, Dossantos estimated he heard between four and five gunshots, although he told the police in his statement he thought it was between five and six. Pequeno thought she heard between five and seven gunshots. Both Dossantos and Pequeno heard the sound of a car peeling off immediately after hearing the gunshots, and Pequeno thought it sounded as if the vehicle was on Roselle Street headed in the direction of Mike's Tavern. Neither Dossantos nor Pequeno saw the shooting.
Julena Gray Green and her boyfriend, Elliot Brantley, were sitting and talking in her car, which was parked across the street from Brantley's home on Roselle Street that night. Green testified she saw two men walking from the direction of Mike's Tavern. She described the street as being "very busy that night and all I know is two guys crossed the street, they made it to the corner." She said, "there was a tall guy and short guy. The short guy turned around. He went to walk back, then they started running, then you heard gunshots." Green explained the shorter one turned and started to walk back towards Mike's Tavern, "[t]hen it's like the tall one said, `Oh, shit,' or something, and they took off running. That is when you heard the gunshots." Based on what she heard, she thought the gunshots came from the area of Mike's Tavern. She testified she saw nothing that would indicate that "the taller one" shot "the shorter one"; to the contrary, she saw both run toward St. George Avenue.
In a statement given that night, Green told police she saw a silver or gray minivan drive past them and make a right turn towards Mike's Tavern. She said "it sounded like it could have been a minivan pulling off because it just sounded heavy." Green, however, could not identify any type of minivan involved in the shooting, and she did not see shots come from any vehicle.
Brantley testified, "as I was sitting there I just seen a person like, walk across the street" from Mike's Tavern to St. George Avenue. He thought the person that he saw cross the street was wearing a jacket and a baseball hat. Later, he saw a minivan drive by. Brantley said that ten or fifteen minutes after seeing the person cross the street, and approximately five minutes after seeing the minivan drive by, he heard three or four gunshots that sounded like they came from the area of Roselle Street and Cleveland Avenue. After he heard the gunshots, Brantley testified he heard a vehicle revving its engine.
Brantley's trial testimony, however, was inconsistent with a statement he gave police on February 3, 2011. In that statement, which was recorded, Brantley said a van drove past them and came up to the intersection of Roselle Street and Cleveland Avenue at approximately the same time a man was crossing the street; as the man reached the corner, the van turned, and Brantley heard gunshots. After a
Officer Kendell Vaughn, of the Roselle Police Department, was off duty on the night of April 17, 2007, and in his apartment on Roselle Street in Linden when he heard three gunshots. He went outside and observed an individual walking across the street from his apartment at a fast pace: "He appeared to be tucking what I thought at the time was a weapon in the back of his waistband in the small of his back" and kept looking behind him. Vaughn described the individual as a dark skinned, African-American male, approximately 5'10" to 6' tall. He believed the individual was wearing gray pants and a sweatshirt; Vaughn later gave a statement to police that the individual was wearing a sweatshirt and gray, maybe blue, pants. Vaughn was never asked to view a photo array.
Officer Matthew Jones, of the Linden Police Department, spoke to Vaughn on April 18, 2007, and took a statement. After reviewing his report, Jones testified that "[Vaughn] only told me that he saw a black male running north on Roselle Street towards Saint George Avenue clutching his right side." Vaughn did not mention anything about a gun when he gave his statement; if Vaughn had mentioned a gun, Jones said he would have taken notice of it and included it in his report.
On the night of April 17, 2007, Aisha Christian was on Roselle Avenue when she heard three gunshots; she was 100% sure it was three gunshots. She testified she did not see what happened, explaining: "I didn't look, at all." Approximately fifteen seconds later, she saw someone running towards her: "with his hand in" the "[f]ront pocket in whatever, hoodie, jacket he was wearing."
Christian said the individual was running "from the area by Mike's Tavern back towards Saint George Avenue." He was running towards her at first, but then he started walking. She did not see him carrying a weapon but said there was something about his hand in his right pocket that led her to believe he had something in his hand. He also looked "a little frazzled." In her statement to police, Christian said the man had "a nasty look on his face and looked distraught."
That night, police showed Christian an array of six photographs and asked if she could identify the man she saw running down the street. She identified a man named K.B., whom no one has argued was involved in any way, and said she was "100 percent" certain that was the man she saw run past her. She never told police she saw any type of minivan that night.
Rashad Gilliam testified he lived in Linden, across the street from Mike's Tavern, and on the evening of April 17, 2007, he saw defendant, whom he had known for approximately ten years, in Mike's Tavern. He said defendant walked with a limp and used a cane. Gilliam identified defendant in court.
Gilliam left the bar and went home, but later came back outside to smoke a cigarette. He testified he saw defendant leave the bar and drive away in a pick-up truck. He did not know what time Gregory left the bar, and he did not hear gunshots. Gilliam testified he did not see anything out of the ordinary, he did not see defendant fight with anybody, and he did not see defendant with a weapon.
On the morning of April 18, 2007, Linden police officers went to Whetstone's home and escorted him to the police station. He was advised of his
During the April 18, 2007 interview, Detective Michael Manochio, of the Union County Prosecutor's Office, and another officer, accused Whetstone of murdering or setting up Gregory. They told Whetstone he was the prime suspect and later explained to the jury that they played good cop/bad cop with Whetstone, grilled him hard, called him a "coward" and a "fag" for not doing anything to help his friend, and told Whetsone "all roads lead to" him. Whetstone denied murdering Gregory. He did not reveal to the officers that Gregory had accused him of stealing money, or that they had gotten into an argument outside the bar.
At trial, Whetstone was shown some of the surveillance video taken at Mike's Tavern, and he identified himself and Gregory in the video, which also revealed that when Gregory walked outside of the bar he and Whetstone got into "a heated argument." At trial, Whetstone admitted he lied to police about what had happened on the night of the shooting and also lied about how much alcohol he consumed on April 17, 2007. In addition, he testified he did not tell police he had previously been convicted of unlawful possession of a weapon, aggravated assault, and drug possession.
Whetstone told police during the interview that the driver of the gray minivan had been in Mike's Tavern; however, at trial he testified he said that because he just wanted to leave the police station. He also told police he did not see who the shooter was, but he testified at trial that, in fact, he had turned around after the shooting began and had seen the shooter. Whetstone testified he told police whatever they wanted to hear during the interview because he wanted to leave; that he "accused somebody of murder just because [he] wanted to get out of that" interview. He told the officers he was afraid for his safety and did not want to identify anyone out of fear. Whetstone was later interviewed again by police and shown a photographic array; he did not make an identification.
On July 21, 2009, Michael Boyle, a private investigator, spoke with Whetstone and showed him an array of photographs that included one of defendant; Whetstone said he did "not recognize anyone." Boyle testified Whetstone did not appear to be afraid, and he had no reason to believe Whetstone was high that day.
On August 13, 2009, Stephen Biss, a private investigator associated with Boyle, took a statement from Whetstone. In that statement, Whetstone was unequivocal that the minivan involved in the shooting was blue. Whetstone did not appear to Biss to be afraid; Biss found him forthcoming and Whetstone signed the statement Biss prepared for him.
A couple of days after the shooting, Dampach spoke to police and gave a statement. She was shown a series of photographs and identified defendant, recognizing him as having been in the bar the night of the shooting.
Geiger also spoke to police and gave a statement a few days after the shooting. He was shown a series of photographs and identified defendant, recognizing him from the bar and the surveillance video; he said he was "75 percent sure" it was him.
Manochio testified at length about the two-year investigation. Within twenty-four hours of the crime, police had obtained the surveillance video from Mike's Tavern and were able to identify defendant as being in the bar on the night of the shooting. They never questioned defendant about the shooting or about his whereabouts that night, nor did they have any of the witnesses view a lineup that included defendant.
Within five days of the shooting, police confirmed that a 1995 gold Ford Windstar was registered in defendant's name. Efforts to locate that minivan were unsuccessful; those failed attempts were not memorialized by Manochio in any of his reports or grand jury testimony.
By May 2007, police no longer viewed Whetstone as a suspect. Two years later, in May 2009, police obtained a court order to have defendant produced in front of the surveillance cameras at Mike's Tavern under the same conditions as the night of the shooting.
Defendant was indicted a few months later.
In his first point, defendant contends the trial judge erred in admitting evidence relating to the vehicle or vehicles described by witnesses as having left Mike's Tavern shortly before the shooting and from which shots may have been fired at Gregory. We first discuss this evidence and then the legal principles that governed the admission of this evidence.
Specifically, Lauren Ciolino, a Motor Vehicle Commission (MVC) employee, testified she reviewed MVC records relating to defendant and confirmed that, on March 23, 2007, a license plate was assigned to defendant for a 1995 gold Ford Windstar; the registration for that vehicle expired in October 2007.
Over defendant's objection, and following a
The State was also permitted to introduce the testimony of Allen Prince, the service director of an automobile dealership, to testify about the composition of the gold-colored paint used by Ford on its 1995 Windstar minivans and also about a metal plate, which was painted with the same gold-colored paint. The testimony and evidence was presented to support the State's position that gold-colored 1995 Ford Windstar minivans could look silver or gray in the right lighting.
In admitting the testimony and evidence, the trial judge explained:
The judge noted that the photographs of the vehicle were "taken on a cell phone camera [in] very uncertain lighting." Prince did not take the photographs, and he said "from looking at them they looked [like they were taken] at night," although he also said at times that "they were [taken] at dusk."
Kitchen testified that, in 2010, he purchased a gold 1995 Ford Windstar minivan. Two photographs of that vehicle were admitted. One depicted the vehicle when first purchased. Kitchen testified the photograph "fairly and accurately" depicted the way the lower left-hand section of the vehicle looked when he purchased it in 2010, and that the photograph was accurate regarding the color of that vehicle. Kitchen believed the other photograph was probably taken in San Francisco. He did not know what time of day the photograph was taken but believed "it was in the evening prior to becoming completely dark."
In addition, Kitchen was shown a metal plate that had been painted with the same gold-colored paint used by Ford Motor Company on its 1995 Windstar minivans. He said the color on the plate "appeared to be the same" color that was on the 1995 Ford Windstar minivan he purchased in 2010. On cross-examination, Kitchen stated he could not testify as to the line of ownership of the vehicle he had purchased. He also did not know if it had been repainted before he purchased it.
Prince testified that he sold new and used Fords and professed familiarity with their paints and colors. He said he was also familiar with the computer system used to compile all the information about the vehicles produced by Ford as well as other makers. The system compiled the data by "VIN number, the make, model, color, and all the components of those vehicles."
Prior to testifying, Prince had looked up Kitchen's and defendant's vehicles on the system and determined both were assembled in 1995, one month apart, in Ontario, Canada. Both were the same model and type, and both used the same exterior paint, which the system listed as "DK," signifying pumice pearl metallic on the Ford color chart made by DuPont. The metal plate was colored with the DK/pumice pearl metallic paint. Prince testified pumice pearl metallic paint is a tricolor paint and "looks a different color" in different lights.
Prince acknowledged that April 2007 was approximately twelve years after the vehicle the State was attempting to identify was made, and he agreed weather damage over that time could have affected the paint and the color of the vehicle. He also noted that vehicles do get repainted, and he had no idea if defendant's vehicle had ever been repainted.
Defendant argues the testimony of Kitchen and Prince, as well as the photographs of Kitchen's 1995 Ford Windstar and the metal plate were erroneously admitted because the State failed to properly authenticate the photographs and failed to demonstrate how either the testimony or physical evidence was relevant:
Defendant further argues that this testimony and physical evidence was highly prejudicial:
As a general matter, substantial deference is given to a trial judge's evidentiary rulings.
Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action."
In agreeing with the trial judge that the evidence in question was relevant within the meaning of
We also reject the arguments regarding the authentication of the photographs of Kitchen's vehicle. Kitchen testified that the photographs depicted his vehicle, which was the same year, make, model and color of the vehicle registered in defendant's name. That was sufficient.
Defendant's argument is more accurately viewed not as presenting an authentication question but whether exclusion is required by
Whether evidence should be excluded because its prejudicial effect outweighs its probative value is an issue resting in the discretion of the trial judge.
Grounds for the exclusion of the photographs through application of
To be sure, the defense raised substantial arguments for the exclusion of the photographs on the basis of
In his second point, defendant argues the trial judge's failure to remove a juror who claimed financial hardship deprived him of his right to a fair trial by an impartial jury. He argues that Juror #11 "could not fulfill his obligations to fairly and impartially deliberate and he should have been removed due to his financial hardship over which neither he nor the judge had any control." Defendant also argues "it was improper for the trial court to condition consideration of the defendant's motion to remove the juror on the defendant waiving forevermore any issue relating to the juror's removal." Although we agree with this latter contention, we reject the argument that Juror #11 should have been removed.
On the trial's fourteenth day, after the jury had begun its first day of deliberations, the jury sent a note
After the judge discussed the matter with counsel, the colloquy with Juror #11 resumed:
Trial judges possess "considerable discretion" in such matters and "removal of a prospective juror for cause will not be reversed unless the court has abused its discretion."
The "`inability-to-continue' standard has been acknowledged to be somewhat vague and broad; accordingly, [our Supreme] Court has construed and applied it narrowly."
In
Here, although financial hardship may have provided a basis for the removal of Juror #11, the record did not adequately establish that he suffered from an inability to function as a deliberating juror. In response to the judge's extensive questioning, the juror assured the court he could "[a]bsolutely" proceed as a deliberating juror. We find no abuse of discretion in the judge's refusal to excuse the juror.
Notwithstanding the juror's assurance that he could "[a]bsolutely" continue as a deliberating juror, defense counsel moved to excuse him based on his initial response that it would be difficult for him to fulfill his obligations as a juror because of financial hardship. The following colloquy took place between defense counsel and the trial judge:
Defendant contends on appeal that "it was improper for the trial court to condition consideration of the defendant's motion to remove the juror on the defendant waiving forevermore any issue relating to the juror's removal." We agree. Defendant should not have been placed in the position of waiving one right to secure the full and fair consideration of another. Because, however, the judge possessed the discretion to deny the application to remove the juror, defendant was not prejudiced by the judge's attempt to condition his ruling on such an application on defendant's waiver of the right to appeal such a ruling.
In his third point, defendant contends the judge erred in allowing the testimony of Dr. Shaikh, the medical examiner, claiming it violated the Sixth Amendment's Confrontation Clause because Shaikh neither performed the autopsy nor prepared the report. That is, defendant argues the autopsy report, which formed the basis of Shaikh's testimony, was testimonial within the meaning of
Although defendant's argument is colorable, it was not urged in the trial court.
Moreover, Shaikh testified as to facts and opinions that were not in dispute. The thrust of the defense was not that Gregory did not die from gunshots wounds but that defendant did not fire those shots. Consequently, any violation of the Confrontation Clause in the admission of the unobjected to testimony of Shaikh could not have impacted the jury's determination of guilt.
In his fourth point, defendant argues that the judge erred in admitting the testimony of Detective Manochio that Brantley allegedly made a statement to Manochio after Brantley concluded his testimony.
The record reveals that, over objection, Manochio testified that Brantley, after testifying and leaving the courtroom, said to him: "I didn't know that was him. I go to Mike's all the time." Manochio did not ask Brantley any questions, but simply "figured [Brantley] was referring to the defendant." He also testified that Brantley "was a little nervous." In response to Manochio's testimony, the trial judge permitted the prosecution to recall Brantley, and Brantley denied the statements attributed to him by Manochio.
Notwithstanding Brantley's denial, defendant complains "the State was permitted to introduce it through Detective Manochio and to use it, over defendant's objection, to argue to the jury that [defendant] was intimidating Mr. Brantley and other witnesses." Defendant further argues that the statement attributed to Brantley by Manochio was inadmissible hearsay "in the absence of any substantive evidence that the witness was under any threat or fear of [him]." In addition, defendant argues that since there was no proof of any threat, by admission of this testimony "the State was permitted, through an inadmissible and prejudicial hearsay statement, to accuse the defendant of committing the crime of witness intimidation in the absence of a hearing." Defendant also argues that even if the statement was admissible, it was highly prejudicial "because it painted a picture that the defendant was a `bad' person . . . [who] somehow threatened Mr. Brantley." Finally, assuming the statement was properly admitted, defendant argues the judge erroneously failed to issue the jury a limiting instruction.
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted."
In
However, "to be admissible under the state of mind exception to the hearsay rule, the declarant's state of mind must be `in issue.'"
Manochio's testimony was properly admitted to help explain Brantley's then existing state of mind — arguably fear, concern, or bias — as well has his conduct, that is, allegedly changing his testimony. Because there was testimony that Brantley did not want to get involved, or have Green involved, and because Brantley's trial testimony was inconsistent with his prior recorded statement, his state of mind while testifying at trial related directly to an issue to be decided by the jury, his credibility. Credibility is always for the factfinder to determine.
Because Manochio's testimony was relevant only as extrinsic evidence of Brantley's prior inconsistent statement,
This obstacle was overcome. Brantley was recalled to the stand and provided an opportunity to explain or deny making the statement. He denied it.
Defendant's argument that the statement was used to argue that defendant was "intimidating Mr. Brantley and other witnesses," and therefore, was other bad act evidence is not persuasive. The State did not argue any type of intimidation or witness tampering on the part of defendant.
Likewise, defendant's argument that "the trial court's failure to issue the jury a limiting instruction as to its proper consideration of the statement deprived the defendant of his right to a fair trial" is unpersuasive. Defendant bases his argument on the premise that under
It might have been wise to provide the jury with a limiting instruction as to how it was to consider the evidence,
Because defendant failed to request a limiting instruction and failed to object to the absence of such an instruction, his argument is waived.
Finally, any error in admitting Brantley's alleged statement was harmless as it was not sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached.
Even if we would not have permitted the testimony, the question is not what we would have done but whether what the judge did constituted an abuse of discretion. That is, on appellate review, evidentiary rulings must be upheld "unless it can be shown that the trial court palpably abused its discretion."
In his fifth point, defendant contends it was plain error to allow Manochio to testify that the decision to indict defendant was made after several members of the prosecutor's office viewed the May 15, 2009 video of defendant walking in and out of Mike's Tavern. He argues the "`logical implication' was that members of the Prosecutor's Office identified the defendant as being the man in the April 17, 2007 video from Mike's Tavern with whom the decedent spoke prior to his murder based on the May 15, 2009 video," which constituted a violation of
Specifically, Manochio testified that, on May 15, 2009, an investigative detention order was issued and defendant was compelled to walk in and out of Mike's Tavern while recorded on the tavern's surveillance cameras. After the jury was shown that footage, the prosecutor elicited the following testimony from Manochio:
Defendant argues that this testimony contained inadmissible hearsay and violated
Although hearsay is defined as an out-of-court statement "offered in evidence to prove the truth of the matter asserted,"
Indeed, testimony like Manochio's would ordinarily tend to be quite harmful. The most obvious inference from his testimony is that certain nonwitnesses formed an opinion that defendant was guilty based upon their examination of the videotape. The fact that these nonwitnesses were members of the prosecutor's office added the considerable weight of that office to that opinion.
This issue, however, was not raised in the trial court. Consequently, we will not reverse unless the error in admitting this unobjected—to testimony was "of such a nature as to have been clearly capable of producing an unjust result."
In his sixth point, defendant argues the judge erred in permitting Kathleen McCann, a lay witness, to offer opinion testimony.
The record reveals that McCann could not describe in words what she saw in Mike's Tavern on the night in question, so she demonstrated what she had seen, which the judge described for the record in the following way:
McCann also testified she saw defendant "reaching with his right hand towards his waistband," which was consistent with what she had seen that night and the actions she described to the jury. She then testified, over objection, that "I thought he was showing him a gun." McCann admitted she did not see a gun. She did, however, see Gregory's reaction to defendant's motion towards his waistline and heard Gregory say something along the lines of "Oh, it's like that." She testified that she also heard Whetstone, who was with Gregory, immediately say, "I'm outta here," and saw him get up and leave. And she testified that these observations caused her to move a few stools away from them. On cross-examination, McCann repeated that she never saw defendant, or anyone, with a gun or other weapon that night, and she admitted that defendant could have been reaching for his wallet or money.
We consider this question by again invoking the standard of appellate review. "The admissibility of opinion evidence rests within the discretion of the trial court."
"It is well-established that a lay witness may give his opinion in matters of common knowledge and observation."
The trial judge here did not abuse his discretion in allowing McCann to opine on what she believed defendant was showing Gregory. Her testimony was based on her own perception of defendant's movements, as well as Gregory's and Whetstone's reactions to defendant's movements. McCann's opinion testimony assisted the jury to understand her testimony.
In his seventh point, defendant contends for the first time that the admission of Whetstone's videotaped statements of April 18, and May 9, 2007, deprived him of his right to a fair trial. He argues the statements were rendered inadmissible by
Defendant argues there was no justification for playing the entirety of both interviews, which were three hours in length, because "he never denied stating in the interviews that the shooter was the man the decedent spoke to in the bar." Notwithstanding that Whetstone testified the shooter was not the same man Gregory had spoken to in the bar (contrary to his recorded statements), defendant argues the videotaped statements were inadmissible "because he admitted to saying everything attributed to him in his two videotaped statements."
We reject this argument because defense counsel cross-examined Whetstone extensively about his prior statements and about all his so-called "lies." At a sidebar regarding the impact of that cross-examination, defense counsel conceded the admissibility, with some limited redaction, of Whetstone's statements.
After the parties agreed to the redaction of the inadmissible portions, the following colloquy occurred between the court and counsel:
After a proper foundation was laid, the redacted video statements were played for the jury.
To repeat, evidentiary rulings must be upheld "unless it can be shown that the trial judge palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted."
Here, however, if there was an error, it was invited. "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error."
Although it was the prosecution that sought introduction of the videotaped statements, defense counsel not only failed to object but also expressed a desire to have the videotaped statements played for the jury, believing they were the best evidence of Whetstone's inability to identify defendant. We, thus, reject defendant's arguments on this point.
We find insufficient merit in any of defendant's other arguments, whether raised by his appellate counsel or by defendant in his pro se brief, to warrant discussion.
Affirmed.
