State v. Brown

• Decision Date: 08 October 2021
• Docket Number: A-0876-18
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYHAN BROWN, a/k/a TYHAM BROWN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYHAN BROWN, a/k/a TYHAM BROWN, Defendant-Appellant.

No. A-0876-18

Superior Court of New Jersey, Appellate Division

October 8, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2021

On appeal from the Superior Court of New Jersey, Law Division Camden County, Indictment No. 16-12-3622.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Kevin J. Hein and Rachel M. Lamb, Special Deputy Attorneys General/Acting Assistant Prosecutors, of counsel and on the brief).

Before Judges Messano and Rose.

PER CURIAM.

A jury convicted defendant Tyhan Brown, a/k/a Tyham Brown, of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1)(2); first-degree attempted murder of Amir Dixon, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1); the lesser-included charge of first-degree aggravated manslaughter of Gabrielle Hill-Carter, N.J.S.A. 2C:11-4(a)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful possession of a weapon, N.J.S.A 2C:39-5(b).^[1] After appropriate mergers, the judge sentenced defendant to a sixteen-year term of imprisonment on the attempted murder conviction, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a consecutive twenty-eight-year term of imprisonment subject to NERA on the aggravated manslaughter conviction; and a consecutive seven-year term of imprisonment on the unlawful possession of a weapon conviction, subject to forty-two months of parole ineligibility under the Graves Act, N.J.S.A 2C:43-6(c).

Defendant raises the following points for our consideration:

POINT I - DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE ERRONEOUS ADMISSION OF MULTIPLE INADMISSIBLE HEARSAY STATEMENTS. (Not Raised Below).

POINT II - THE TRIAL COURT COMMITTED ERROR IN PERMITTING EVIDENCE OF PRIOR CRIMINAL ACTIVITY AND/OR DISPOSITION UNDER N.J.R.E. 404(b): THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF DEFENDANT'S PURPORTED GANG AFFILIATION.^[2]

POINT III - THE TRIAL COURT SHOULD HAVE SUA SPONTE DISMISSED ALL THE COUNTS IN THE INDICTMENT UNDER STATE V REYES DESPITE THE DEFENDANT'S COUNSEL'S FAILURE TO MAKE SUCH A MOTION AT THE CONCLUSION OF THE STATE'S CASE. (Not Raised Below).

POINT IV - THE TRIAL COURT SHOULD HAVE SUA SPONTE ENTERED A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT BASED UPON THE INSUFFICIENCY OF THE EVIDENCE. (Not Raised Below).

POINT V - THE SENTENCE TO THREE CONSECUTIVE TERMS TOTALING AN AGGREGATE TERM OF FIFTY-ONE YEARS, FORTY YEARS AND TEN MONTHS PAROLE INELIGIBILITY WAS EXCESSIVE.

Having considered these arguments in light of the record and applicable legal standards, we affirm defendant's convictions but remand to the Law Division for resentencing.

I.

A.

The State moved pre-trial to admit certain evidence, specifically: uncharged prior bad acts of defendant, pursuant to N.J.R.E. 404(b); and, a certain Facebook Live video depicting defendant badmouthing Dixon days before the shooting.^[3] The judge conducted an evidentiary hearing at which Camden County Prosecutor's Office Detective Sherman Lee Hopkins, the lead homicide investigator, was the sole witness.

The State contended that on August 24, 2016, just before 8:30 p.m., police responded to an address in Camden and found eight-year-old Gabrielle "Gabby" Hill-Carter with a gunshot wound to her head. She died two days later. The child, however, was not the intended target of the shooting; instead, the State asserted the target was Amir "Savage" Dixon, someone with whom defendant was having an ongoing gang-related dispute documented on social media.

At the pretrial hearing, Hopkins identified video from a surveillance camera near the homicide scene that showed Dixon, Gabby, and others on the sidewalk immediately before the shooting. The detective also identified a Facebook Live video recording of defendant made on August 20, 2016. In explicit language that contained gang references, defendant blamed Dixon for "call[ing] the cops on us."

Hopkins testified about conversations he had with others during the investigation, including Dixon's friend, Michael Jones. Jones relayed specific details of a prior gang-related incident on August 19 or 20, 2016. According to Jones, defendant and others were on four-wheel all-terrain vehicles (ATVs) when they confronted Dixon on the street; defendant brandished a weapon at Dixon.

Detective Hopkins also spoke with John Burgos, a friend of defendant. Burgos said he picked defendant up after the shooting on August 24, and that defendant was in possession of either a .380- or 9-mm. handgun. Burgos said defendant told him about an incident earlier in the day, in which Dixon slapped defendant and shot at him. Burgos also told the detective that defendant said he and others had "jumped out" at Dixon later that evening. Defendant fired at Dixon, but his weapon jammed, and he did not hit anyone.

After considering oral argument, and citing State v. Cofield, 127 N.J. 328 (1992), and State v. Goodman, 415 N.J.Super. 210 (App. Div. 2010), the judge concluded evidence of the ATV incident and the Facebook Live video were admissible.

B.

At trial, the State introduced the surveillance video and the testimony of several witnesses who were present at the shooting and its immediate aftermath. The witnesses described, and the video showed, Gabby playing on her bike with other children in the area in front of her home. One of the witnesses said that in the weeks prior to the shooting, there were some "new guys" hanging around the neighborhood and an increase in drug activity. Dixon was one of the "new guys." Another witness, Ida Bush, who lived across the street from Gabby's house, saw Dixon follow a couple to a nearby street corner shortly before the shooting started, presumably to sell them drugs. The woman who intended to purchase the drugs was called as a State's witnesses.

Dixon testified that as he walked toward the street corner, he saw an individual approaching and heard gunshots. He ran past Gabby and into Ms. Bush's house; Dixon closed the door, leaving the child outside on the steps as the shooting continued. When it stopped, Ms. Bush heard someone cry, "the baby, the baby." She opened her front door, and Gabby's body fell into the doorway. None of the witnesses, including Dixon and his friend, Ralph Johnson, who was with Dixon before the firing started, identified defendant as being at the scene.

The Facebook Live video was played for the jury. It suffices to say that in explicit language, defendant blamed "Savage" for calling police after the ATV incident a few days earlier. Additionally, as noted, Detective Hopkins obtained copies of a recorded phone call between defendant and Gerald from the Camden County jail. Defendant instructed Gerald to open a Facebook Live stream while he was on the phone and said he would not start talking until at least six people were watching live. During the call, defendant criticized Burgos for speaking with the police, stating "tell the gang to stay away from John Burgos, he different." Defendant called Burgos a "rat" for giving "two 100-page statements." Defendant said about Burgos, "[h]e think that we cool, we really not cool. . . . He got two statements. . . . Who made him to say my name? What made him say my name?"

Police also recovered a Facebook message defendant posted on his public access page at 8:14 p.m. on August 26, 2016, the night Gabby died. It said:

This beef shit, I give it up. The street shit[, ] I give it up. It's the same shit every[]day. . . . Shit ain't doing nothing but breaking my little family apart. I'm tired of keeping my mom up all times of the night worried about me, stressing her out. I got [five] sisters and a child to look after. Y'all can have that shit. Word up. Y'all can call me what y'all want . . . . The shit y'all trying to do now[, ] I been did that shit man[, ] word up. So when it comes to the street shit, do me a favor and count me out. I just want my mom and my sisters and my whole support system to know I'm sorry and I got this. Trying to save my momma a tear. Got to bury her, can't let her bury me, [it] ain't gonna happen . . . .

In the statement provided to Detective Hopkins while in custody in Tennessee, defendant claimed that he was not at the scene of the shooting. Rather, earlier in the day, his aunt, Shante Land, drove defendant and his family to her home in Sicklerville. According to defendant, his mother was fearful because gunshots were fired at her car earlier in the day, leaving a bullet hole in the window.

The State called a police officer who responded to defendant's mother's call that her car was hit by gunfire earlier in the day of Gabby's shooting. He confirmed that the car was struck by gunfire. Ms. Land, however, testified that although she drove defendant and his family to Sicklerville, they did not arrive until 11 p.m., well after the shooting. This was confirmed by a Gloucester City police officer who testified that he stopped the vehicle for running a red light around 10 p.m.

FBI Special Agent William Schute testified that forensic analysis of defendant's cell phone records revealed the phone was in Camden in "close proximity" to the murder scene at 8:11 p.m., 8:18 p.m., and 8:31 p.m. The State's ballistics experts testified that at least four different firearms were discharged at the scene of the shooting. Three different handguns discharged the shells and casings recovered from different locations around the scene; however,...