State v. Loyal

• Decision Date: 12 June 2006
• Citation: 386 N.J. Super. 162,899 A.2d 1009
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Shihaab LOYAL, Defendant-Appellant.
• Court: New Jersey Superior Court

Page 1009

899 A.2d 1009

386 N.J. Super. 162

STATE of New Jersey, Plaintiff-Respondent, v. Shihaab LOYAL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued February 16, 2006.

Decided June 12, 2006.

Jodi L. Ferguson, Acting Deputy Public Defender II, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Ferguson, of counsel and on the brief).

Lucille M. Rosano, Special Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

Before Judges WEFING, WECKER and FUENTES.

The opinion of the court was delivered by

WEFING, P.J.A.D.

Defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3); attempted robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; aggravated assault, N.J.S.A. 2C:12-1(b)(1); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Tried to a jury, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1)¹, as a lesser-included offense of murder and found not guilty of felony murder and attempted robbery. He was convicted of the balance of the charges. The trial court sentenced defendant to twenty-five years in prison for aggravated manslaughter and twenty years in prison for attempted murder. The trial court directed defendant to serve these terms consecutively; both were subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court also merged the conviction for aggravated assault into the conviction for attempted murder and made the terms for the weapons' convictions concurrent. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded defendant's convictions must be reversed and the matter remanded for a new trial.

In the early morning hours of May 17, 2000, Khalfani Slue was standing on Vermont Avenue in Newark, talking with Gregory Mark Dubbissette. Both young men lived on Vermont Avenue, and Slue had been waiting for his girlfriend to come out from a nearby house. While the two were talking, another friend, Carlton Elliott, pulled up in his car to pick up his girlfriend. He remained in his car, and Slue and Dubbissette went over to talk with him. Another car then pulled up and a passenger asked Dubbissette and Elliott if they had any marijuana; they replied they did not, but the man persisted, asking if they knew where he could purchase some. Slue later identified the defendant as this man. There was testimony that this second car pulled to the side of the street and parked, and the occupants, including Kalief and Lonnie Spruiel and Jihad Lassiter (sometimes referred to as Jihad Green), began to get out of the car.

Slue became concerned that he was about to be robbed and he and Dubbissette ran and got into Elliott's car, Slue in the front passenger seat, Dubbissette in the rear, and yelled for him to drive away. As Elliott pulled out, gun shots rang out. Both Slue and Dubbissette were shot. Elliott drove them directly to the hospital, where Dubbissette died later that night. Although a bullet struck Slue in the head, he survived and was discharged from the hospital several days later.

Slue could not see who was firing, but Lassiter later testified that defendant had a gun with him that night and fired the shots. Lassiter also testified that when they all got back into the car, defendant pointed his gun at Kalief Spruiel's head and said, "if you say anything, I'll shoot you." Kalief and Lonnie Spruiel gave statements to the police to the effect that they had seen defendant shooting a gun and that defendant, on re-entering the car, had threatened to shoot Kalief. At trial, however, they testified they had not seen defendant with a gun and said defendant had not threatened Kalief.

Police responded to the scene of the shootings. They canvassed the area and recovered four spent .380 shell casings.

Several days later, on the evening of May 22, the Newark police stopped a car that bore marks as if its locks had been pried open. Defendant was the driver; Alterique Robinson and Corey Webb were his passengers. They had earlier stopped at a liquor store and purchased a bottle of gin, which they were drinking as they were driving. Lieutenant O'Connor of the Newark Police Department testified that he approached the car and asked defendant for his license and registration. He said he was using a flashlight and that when he directed it into the car, he saw the open bottle of gin and two cups. Lt. O'Connor testified that the center console of the car was partly open and that he saw "two colored eyes staring at me." He thought it was a toy in the console and then immediately realized they were the reflective night sights of a real gun. The men were ordered out of the car, and the gun was seized. Ballistics tests later linked the gun to the May 17 shootings in Newark. The prosecution sought to link defendant to the gun through the testimony of Webb and his then-girlfriend, Monique Daniels.

Defendant presented one witness, Michael Petrillo, an investigator retained by defense counsel. Mr. Petrillo testified that he tried to interview Khalfani Slue but that Mr. Slue refused to discuss the incident with him beyond saying that the statement he had provided to the police department was incorrect.

On appeal, defendant raises the following arguments:

POINT I DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE JURY TO DISREGARD DEFENSE COUNSEL'S CLOSING ARGUMENT THAT THE STATE HAD FAILED TO CARRY ITS BURDEN OF PROVING THE OFFENSES "BEYOND A REASONABLE DOUBT" BECAUSE IT FAILED TO PRODUCE SUFFICIENT CREDIBLE EVIDENCE CONNECTING DEFENDANT TO THE GUN.

POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF HOW TO EVALUATE SEVERAL OF THE DEFENDANT'S ORAL STATEMENTS DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below).

POINT III TESTIMONY FROM STATE WITNESS MONIQUE DANIELS THAT SHE COULD NOT "COUNT HOW MANY TIMES" SHE SAW DEFENDANT WITH A GUN, DENIED DEFENDANT A FAIR TRIAL, IN VIOLATION OF N.J.R.E. 404(b). (Not Raised Below).

POINT IV BECAUSE THE LIEUTENANT'S TESTIMONY WAS NOT CREDIBLE, THE COURT ERRED IN RELYING ON THAT TESTIMONY IN DETERMINING THAT THE SEIZURE OF THE GUN WAS JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT.

POINT V DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS BY THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION FOR A PRETRIAL HEARING PURSUANT TO UNITED STATES V. WADE.

POINT VI DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A. The Court Abused its Discretion by Running the Aggravated Manslaughter Conviction Consecutively to the Attempted Murder.

B. The Aggregate Sentence Was Manifestly Excessive.

POINT VII THE SENTENCE IMPOSED BY THE COURT IS ILLEGAL BECAUSE IT VIOLATES DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

Defendant's first argument revolves around an incident that occurred in connection with defense counsel's summation. In the course of that summation, he discussed the retrieval of the handgun from the console on May 22 and stated the following:

Do the words "fingerprints" ring a bell? Do you have any evidence whatsoever about fingerprints? Do you have any evidence about Mr. Loyal's fingerprints on that gun? Do you have any testimony about Mr. Loyal's fingerprints on that nice, smooth, flat clip into which— remember the ballistics expert kind of showed us how you load the clip, you've got to hold it and you've got to push the bullets in? And you've got to leave fingerprints. Do you have any testimony that Mr. Loyal's prints are on that gun, on that clip, never mind the bullets? Reasonable doubt comes from the evidence, and it comes from the lack of evidence. This is a murder case. And you have no prints.

The prosecution neither made an objection nor attempted to respond in its summation. Neither did it request a curative instruction of any sort. The trial court, however, included the following remarks in its charge to the jury:

[S]peculation or conjecture or other forms of guessing play no role in the performance of your duty. Let me give you an example of speculation. There were discussions here and during the trial about fingerprints on the gun. Now, I would—I think it's fair to say that none of you have any expertise in the handling or lifting of fingerprints other than what you might have seen on television. You have no special knowledge in that regard.

We have no evidence as to whether there were fingerprints on the gun, could have been fingerprints on the gun, whether or not anybody touched the gun, did not touch the gun, whether or not anything would have come up on the gun. You have no way of knowing. To draw conclusions [of] what may or may not have been on that gun is speculation. You simply don't know. It shouldn't enter into your decision in any way.

You may, of course, consider—you're free to consider whether or not there's any proof that the State even examined the gun, and whether or not that is a reflection of whether the State did a complete job in the investigation, or they did not.

Defendant's attorney objected, but the trial court overruled his objection.

Before proceeding to consider the substance of defendant's argument, we consider it important to set forth earlier discussions during the trial on the question of fingerprints. Prior to opening statements, in response to the court's query whether any issues had to be...