State v. Drew

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEMARCUS DREW, Defendant-Appellant.

DOCKET NO. A-5494-14T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted September 19, 2017

August 8, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 12-09-2526 and 11-06-1382.

Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Arielle E. Katz, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Demarcus Drew challenges his July 9, 2015 judgment of conviction in Indictment No. 12-09-2526. We affirm.

I.

Defendant and Lisa Drew were dating for about six years, but titled themselves as husband and wife.¹ Lisa's son Dennis Harris lived with them in a second-floor apartment in Camden.

Harris testified as follows. Lisa let it be known to defendant that she was having a relationship with Marvin Simpson, known as Saleem. Defendant was jealous and angry, and did not want that relationship to continue. Defendant and Simpson had a violent relationship. They had a fight in which defendant "wouldn't stop punching" Simpson.

Harris testified that a "couple days" after the fight, in the pre-dawn hours of November 4, 2011, Harris awoke to hear Lisa screaming his name. Harris looked out the window. Harris could see defendant "perfectly" because defendant was standing right underneath a lamppost. Harris saw defendant standing with his arm out holding a gun, heard six shots fired, saw flashes from the gun, and saw a man fall to the ground. Harris went outside and saw defendant running across a field carrying a revolver. Lisa was huddled over the fallen man, yelling out "Saleem."

At around 4:45 a.m., the police arrived and found Simpson being held by Lisa, who was hollering. Simpson was taken to the hospital. Detective Virginia Fallon processed the crime scene. She found no shell casings, and testified a revolver does not eject shell casings. No gun was ever recovered.

Harris was taken to the prosecutor's office, where he identified a photograph of defendant as the man he had seen with the gun. Harris initially denied he had seen the shooting. He later testified he did so because defendant "was still on the loose" and he was scared for Lisa and himself.

Wesley Ruiz testified as follows. He was with Simpson during the pre-dawn hours of November 4, smoking marijuana and drinking. While they went for a walk, Simpson had Ruiz knock at defendant's house, and yell upstairs for Simpson's female friend who lived there. Ruiz saw a man come to the window and say "don't come back here." The man was "dark skinned, skinny" with a "short haircut."

Ruiz testified that Simpson went to the house and yelled upstairs for his female friend. The man came to the window again and slammed it shut. The man then came running out of the house with a gun, got really close to Simpson, and started shooting. Ruiz ran. He heard three or four shots, perhaps more.

Later that day, detectives showed Ruiz a photo array, and a video of the procedure was shown to the jury. Ruiz testified that he was unable to make a positive identification, but indicated one photo "looked close" and "look[ed] something like him with an Afro, but he didn't have no Afro." The photo showed defendant with an Afro. Ruiz was unable to identify defendant at trial.

Simpson died from his five gunshot wounds. Defendant was indicted for murder and other offenses. On December 7, 2011, deputy U.S. Marshals in Chicago arrested defendant, who was accompanied by Lisa.

Benjamin Alford testified defendant was housed with him at the county jail, and they discussed defendant's case. Alford testified that defendant said: he had a confrontation with a man, and told him to stay away from his house; the man showed up at his house one night; he chased and shot the man with a .22 revolver; and he left for Chicago that day with the gun. Alford testified against defendant under a cooperation agreement which gave him five years in prison for robbery.

The jury acquitted defendant of murder, but convicted him of second-degree manslaughter committed in the heat of passion resulting from reasonable provocation, N.J.S.A. 2C:11-4(b)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4; and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5. The trial court sentenced him to a total of twenty years in prison for those convictions.

Defendant appeals, arguing:

POINT I - THE COURT FAILED TO CONDUCT THE THIRD STEP OF THE GILMORE ANALYSIS, REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT II - THE COURT ERRONEOUSLY ADMITTED A WITNESS'S NON-IDENTIFICATION, AND THE PROSECUTOR IMPROPERLY ARGUED TO THE JURY THAT THIS INADMISSIBLE NON-IDENTIFICATION ACTUALLY PROVED THAT THE DEFENDANT WAS THE SHOOTER. THESE ERRORS REQUIRE REVERSAL OF DEFENDANT'S CONVICTIONS. (Partially Raised Below).

POINT III - THE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE ABSENCE OF JURY INSTRUCTIONS ON HOW TO EVALUATE THE TESTIMONY OF A COOPERATING WITNESS. (Not Raised Below).

POINT IV - DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S FAILURE TO CHARGE THE JURY REGARDING THE PROPER ASSESSMENT OF STATEMENTS ALLEGEDLY MADE BY HIM. (Not Raised Below).

POINT V - THE COURT FAILED TO PROPERLY APPLY THE YARBOUGH FACTORS SUCH THAT DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

II.

Defendant's first challenge concerns the prosecutor's exercise of peremptory challenges during jury selection. "[T]he opponent of the strike bears the burden of persuasion regarding racial motivation, and a trial court finding regarding the credibility of an attorney's explanation of the ground for a peremptory challenge is entitled to great deference." State v. Thompson, 224 N.J. 324, 344 (2016) (quoting Davis v. Ayala, ___ U.S. ___, ___, 135 S. Ct. 2187, 2199 (2015)). "[A] trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." Ibid. (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). We must hew to our standard of review.

During voir dire, an African-American potential juror, No. 197, testified he had a brother who had been arrested for multiple charges. The prosecutor exercised a peremptory challenge. After the next juror was questioned, there was a sidebar. Defense counsel noted Juror No. 197 was African-American and "just ask[ed] for the purposes of the record if there was any other reason" for excusing him.² The prosecutor responded:

[A]s he sat down, right before we got started, he looked over at me with a weird smile, and he made a motion with his finger across — across his neck back and forth as if to make the symbol of like cutting somebody's head off or sawing someone's head off. . . . It made me feel very uncomfortable that he was sort of making motions to me and . . . I struck him.

The trial court asked defense counsel if he saw any gestures, and counsel replied: "I'm not challenging whether he saw it, but I didn't."

Meanwhile, that next potential juror, No. 375, a Hispanic-American female, had been asked: "If the State merely produces testimonial evidence, which is the testimony of individuals, and doesn't have things like fingerprints, and you were satisfied beyond a reasonable doubt, could you return a verdict in favor of — of the State?" She answered "Possibly," "I guess no," and then "No." When asked again, she replied "No," saying "[i]t would have to be more than testimony — [it] would have to be scientific, things of that nature." When asked a third time, she said "No," and then: "Without physical evidence? I don't know, . . . I would probably have to hear the testimony." The trial court then asked: "Could you follow my instructions as to the law in the case and apply that law to the facts that you find?" She said "Yes."

At the same sidebar, the prosecutor challenged Juror No. 375 because "[s]he specifically said she couldn't convict someone without physical evidence." The trial court said it was not going to excuse Juror No. 375 for cause because she said she could listen to the testimony and follow the court's instructions. The prosecutor responded that her statement was "enough of a reason . . . to use one of my peremptories." The court stated "Okay." The prosecutor excused her with his next peremptory challenge.

An African-American potential juror, No. 893, said he had a problem reading, saying "I need help with it" and "I understand verbal. It's just reading." He also said that he had family members "doing time right now," and that some of them were not "dealt with fairly by the court system and the prosecutor." Asked to explain, he said: "Like my uncle. My uncle, he's locked up right now. They gave him . . . a long charge to make because they gave him a burglary charge" though "he wasn't really on the premises. . . . I think it was a setup type thing."

The trial court invited "followup questions" regarding Juror No. 893, and the prosecutor asked the juror whether his feeling that his uncle "was charged unfairly with this burglary [would] affect your ability to judge the police" witnesses or the "witnesses from the Prosecutor's Office," and the juror indicated it would not. The prosecutor also asked the juror whether he would "be able to read for yourself" the written jury instructions and understand them. The court interrupted and said it "would verbally give those instructions," and the juror responded he could "handle that."³

The prosecutor excused Juror No. 893 with his next peremptory challenge, and defense counsel objected. At sidebar, the...