State v. Moore

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZAHIR D. MOORE, Defendant-Appellant.

No. A-2476-22

Superior Court of New Jersey, Appellate Division

December 2, 2024

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.

Argued November 7, 2024

On appeal from the Superior Court of New Jersey, Law Division Essex County, Indictment No. 20-01-0033.

Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender attorney; Margaret McLane, of counsel and on the briefs).

Hannah Faye Kurt, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Braden Couch, Assistant Prosecutor, of counsel and on the brief).

Before Judges Mawla, Natali, and Vinci.

PER CURIAM

Appellant Zahir Moore appeals from the March 22, 2023 judgment of conviction entered after a jury found him guilty of the murder of Waleik McCullum and related firearms offenses. We affirm.

I.

We summarize the facts adduced at trial. On September 29, 2019, at approximately 3:50 p.m., McCollum was shot multiple times outside his home in Newark, which he shared with his girlfriend, Khaliyah Prosser, and his father, Richard McCullum.^[1] McCullum later died as a result.

Richard and Prosser heard the gunshots. Prosser ran outside but did not see the shooter. When Richard got outside, he saw McCullum on the ground having been shot in the head and chest. Richard tried to rouse McCullum by calling his name and asked him what happened. According to Richard, McCullum responded, and his last words were "[t]hat Pee-wee shot him." Richard did not know the identity of "Pee-wee" at the time. It was undisputed at trial "Pee-wee" was defendant's nickname.

Richard did not report McCullum's statement to police officers who responded to the scene. Richard testified he did not recall speaking with the officers at the scene, but a body-worn camera recording played for the jury showed an officer asked Richard what happened, and he responded that he did not know. Richard accompanied his son to the hospital in an ambulance. Richard spoke with officers at the hospital but did not tell them about McCullum's statement. Newark Police detective Shahid Brown, however, testified he left the hospital with the name "Pee-wee" as the possible shooter. McCullum was removed from life support the following day.

Sometime after McCullum's death, Richard, Prosser, and McCullum's mother went to the prosecutor's office to speak with officers. At the meeting, Richard was asked if he knew anything or "was anything said to [him] and [he] told what was told to [him]. "According to Richard, "Pee-wee's name was out there" after the meeting.

On October 21, Richard gave a formal recorded statement in which he described McCullum's statement that Pee-wee shot him. Prior to October 21, Richard saw an online news story that defendant had been arrested and charged with McCullum's murder. Richard recognized defendant's face, and particularly his distinctive blue eyes, from seeing defendant together with his son several times.

Christopher Diaz, McCullum's neighbor, testified he was in his first-floor residence when he heard gunshots and looked out his window. Diaz saw "a man holding a gun shooting." He described the shooter as five foot six inches "or probably one or two inches taller," and "[d]ark skinned," wearing a gray "Nike sweat suit." He opened the window and saw the gunman fire two more shots. The gunman was approximately fourteen feet from Diaz. Diaz did not see who the shooter was firing at. Diaz did not speak with police the day of the shooting.

On October 2, Essex County Homicide Task Force detectives Norman Richardson and Suzanne Looges were investigating the shooting. The detectives knocked on Diaz's door, and he initially told them he had not seen anything. After speaking with his wife, Diaz went outside to find the detectives. He approached them and invited them into his home. Once inside, he told the detectives he knew McCullum, witnessed the shooting, and provided a description of the shooter. The detectives did not show him any photographs, videos, or mention any names during this interview. The next day, Diaz went to the police station to provide a statement.

Detective Richardson prepared a photo array for Diaz with six photographs. The detective "filled in the eyes of all of the photos "so defendant's distinctive blue eye color would not stand out. Diaz was shown the photo array by Detective Hervey Cherilien, who was not involved in the investigation and acted as a "double-blind administrator."

Diaz was shown all six photographs. The detective asked Diaz to answer "yes" or "no" to each photograph. Diaz did not initially identify any as the shooter, answering "no" to each. Detective Cherilien asked Diaz if he wanted to see the photographs again and he responded, "[b]etween [two] and [three]." The detective began showing him the entire array a second time, and after seeing photograph three, Diaz picked up the photograph, paused for several seconds, and stated "I think it was [three]. Yeah. I think it was [three]." The detective asked, "[s]o that[ is] a yes or no?" to which Diaz responded "[m]mmmmm. (Indiscernible). Yes." The detective did not record Diaz's level of confidence in his identification of photograph three. The detective continued to show Diaz the remaining photographs, and he answered "no" to each. Photograph three was defendant. The identification procedure took approximately five minutes, from 3:41 p.m. to 3:46 p.m. Diaz's entire statement, including the identification procedure, was video recorded and played for the jury.

At trial, Diaz testified photograph three stood out to him the first time he reviewed the array, but he did not pick it out until he saw it a second time because he wanted to be certain. He testified he was "[one hundred] percent certain" photograph three was the shooter. Diaz testified he had seen defendant around the neighborhood a few times before the shooting.

Prosser testified she saw defendant around the neighborhood frequently and she sometimes hung out with defendant and McCullum together. The State introduced photographs of McCullum and defendant sitting on the front stoop of the multi-family residence where McCullum and Diaz lived. The State also introduced various surveillance videos from the day of the shooting and argued the videos showed defendant, wearing a gray sweat suit, walking toward the area of the shooting. Following his arrest, defendant gave a recorded statement in which he stated he was in the area of the incident at the time McCullum was shot.

II.

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). Prior to trial, defendant moved to exclude Richard's testimony regarding McCullum's alleged dying declaration and for a Wade^[2] hearing to determine the admissibility of Diaz's identification.

On October 19, 2020, the court heard oral argument and entered an order denying the motions supported by an oral opinion. The court found McCullum's alleged statement was admissible as a dying declaration pursuant to N.J.R.E. 804(b)(2). Specifically, the court determined, based on a totality of the circumstances, the statement was made voluntarily and in good faith while McCullum believed in the imminence of his impending death. The court found Richard's testimony regarding the alleged statement "has all the indicia of reliability" and it would be for the jury to determine whether the statement was made.

With respect to the Wade motion, the court found "the photo array itself [was] certainly not the least bit suggestive here." The court rejected the claim that asking Diaz for a "yes" or "no" response after he selected defendant's photograph was suggestive. It noted the array was presented by "a blind detective who . . . did[ not] know who the . . . defendant was in the photograph. So, there would[ not] be an ability for the person to somehow even inadvertently suggest one photo over another." The court found "the detective certainly was[ not] in any way suggesting . . . Diaz identify a certain photo or not."

Following a jury trial, defendant was convicted on all counts. After an appropriate merger, the court sentenced defendant to thirty-five years with a thirty-year period of parole ineligibility pursuant to N.J.S.A. 2C:11-3(b)(1), subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for first-degree murder. The court imposed a concurrent sentence of five years with a forty-two-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), for unlawful possession of a handgun.

The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the risk the defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's prior criminal history); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others). The court found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (the defendant has no history of prior delinquency or criminal activity); and fourteen, N.J.S.A. 2C:44-1(b)(14) (the defendant was under twenty-six years of age at the time on the offense). The court found the aggravating factors preponderated over the mitigating factors.

On appeal, defendant raises the following points for our consideration.

POINT I:

THE COURT ERRED IN DENYING A WADE HE

...