State v. Cherry

• Decision Date: 18 December 1995
• Citation: 289 N.J.Super. 503,674 A.2d 589
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James CHERRY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 503

289 N.J.Super. 503

674 A.2d 589

STATE of New Jersey, Plaintiff-Respondent, v. James CHERRY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 3, 1995.

Decided Dec. 18, 1995.

Susan Reisner, Public Defender of New Jersey, for appellant (Arnold I. Budin, Designated Counsel, on the brief).

Deborah T. Poritz, Attorney General of New Jersey, for respondent (Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).

James Cherry, appellant, filed a pro se supplemental brief.

Before Judges PRESSLER, KEEFE and ARIEL A. RODRIGUEZ.

The opinion of the court was delivered by

KEEFE, J.A.D.

On September 30, 1970, Atlantic City police officer, John Burke, was killed by a shotgun blast to his throat. He was in uniform and on duty at the time. On December 18, 1970, defendant, James Cherry, was indicted for second degree murder, contrary to N.J.S.A. 2A:113-1, -2 (count one), and first degree murder of a police officer in the execution of his duties, contrary to N.J.S.A. 2A:113-1, -2 (count two).

By the time the indictment was returned, defendant had fled Atlantic City to Cuba. He stayed there until September 27, 1990, when he surrendered to the FBI in Miami, Florida. He subsequently waived extradition and was returned to New Jersey. After a twelve day jury trial, defendant was found guilty on both counts of the indictment. The trial judge merged count one into count two for the purpose of sentencing, whereupon defendant was sentenced to life in prison.

Defendant now appeals and presents the following issues for resolution.

POINT I THE TRIAL COURT ERRED IN ALLOWING THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT TO GO TO THE JURY

POINT II THE TRIAL COURT ERRED IN ADMITTING THE IN-COURT IDENTIFICATION OF THE DEFENDANT BECAUSE THE IDENTIFICATION WAS TAINTED BY THE SUGGESTIVE OUT-OF-COURT IDENTIFICATION

POINT III THE IMPROPER ADMISSION INTO EVIDENCE OF A CO-CONSPIRATOR'S HEARSAY TESTIMONY PURSUANT TO EVID.R. 63(9)(B) AND EVID.R. 55 DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW WHERE THE HEARSAY WAS IRRELEVANT, THE COURT FAILED TO MAKE A FINDING ON THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONDITION OF RELEVANCY, AND THE COURT FAILED TO INSTRUCT THE JURY PURSUANT TO EVID.R. 6 OF THE LIMITED EFFECT TO BE GIVEN TO THE HEARSAY TESTIMONY

POINT IV IT WAS IMPROPER TO ADMIT THE HEARSAY STATEMENT OF FORMER DEFENDANT AS A CO-CONSPIRATOR TO CONCEAL EVIDENCE WHERE THERE WAS NO EVIDENCE OF THE ALLEGED CONSPIRACY OR OF THE DEFENDANT'S PARTICIPATION THEREIN

POINT V IMPROPER ADMISSION OF PRIOR INCONSISTENT STATEMENT DENIED THE DEFENDANT A FAIR TRIAL WHERE THE COURT DID NOT DETERMINE WHETHER THE PRIOR STATEMENT WAS MADE OR SIGNED UNDER CONDITIONS ESTABLISHING SUFFICIENT RELIABILITY

POINT VI THE JUDGE'S FAILURE TO CHARGE THE JURY TO CONSIDER ALL RELEVANT CIRCUMSTANCES TO EVALUATE WHETHER RELIABILITY HAD BEEN SUFFICIENTLY ESTABLISHED IN ASSESSING THE CREDIBILITY AND PROBATIVE WORTH OF PRIOR INCONSISTENT STATEMENT ADMITTED AS SUBSTANTIVE EVIDENCE DENIED DEFENDANT A FAIR TRIAL

POINT VII THE PROSECUTOR'S HIGHLY IMPROPER AND PREJUDICIAL REMARKS CONCERNING THE DEFENDANT'S POLITICAL MOTIVE,

INTENT AND STATE OF MIND FOR FIRST DEGREE MURDER OF A POLICEMAN, MADE THROUGHOUT THE TRIAL, CRIMINALIZING THE DEFENDANT'S MEMBERSHIP IN AN UNPOPULAR POLITICAL ORGANIZATION, VIOLATED HIS FIRST AND FOURTEENTH AMENDMENT RIGHTS

POINT VIII TRIAL COURT'S FAILURE TO ACCURATELY AND COMPLETELY CHARGE THE JURY ON THE ESSENTIAL ELEMENT OF INTENT IN FIRST DEGREE MURDER OF A POLICEMAN DEPRIVED DEFENDANT DUE PROCESS OF LAW

POINT IX THE TRIAL COURT'S FAILURE TO CHARGE THE JURY IN ACCORDANCE WITH THE 1965 AMENDMENT TO N.J.S.A. 2A:113-2 DEPRIVED DEFENDANT OF DUE PROCESS

POINT X PREJUDICIAL EFFECT OF PLAIN ERROR IN ERRONEOUS INSTRUCTION OF N.J.S.A. 2A:113-2 AS TO FIRST DEGREE MURDER OF POLICE OFFICER WHERE PROOF FAILED TO INDICATE OFFICER WAS IN THE EXECUTION OF HIS DUTY, RESULTED IN THE DEFENDANT'S CONVICTION FOR FIRST DEGREE MURDER AND VIOLATED DUE PROCESS OF LAW.

We have carefully reviewed the record in light of the issues presented and affirm the judgment under review for the reasons stated herein.

The trial record reveals that a jury could have found the following facts. The shooting occurred in front of the Paddock Bar located on Atlantic and Illinois Avenues in Atlantic City. Detective William Horner, an off-duty Atlantic City police officer, was inside the bar at the time and heard the shotgun blast. Almost simultaneously, Shelly Kravitz, the owner of the bar, rushed in and exclaimed "that two colored men just downed a cop outside the bar." ¹

Detective Horner ran outside and observed Burke lying in front of his patrol car. His throat was blown apart and there was a fragment of a shotgun shell embedded in his throat. Burke's gun was still holstered, and his patrol dog was in the car, leashed to the door. Detective Horner observed a green duffel bag several feet from the victim, and an empty shotgun casing. He approximated the time to be about midnight.

Three days later, Officer William Stewart went to an alley near Leeds Place on the report of a person finding several shotgun shells. After retrieving the shells, Stewart searched the alley and found a sawed-off shotgun in a brown shopping bag. Defendant's father lived on Atlantic Avenue, between Ohio Avenue and Leeds Place. The gun was found near his apartment.

The shotgun was examined by a State Police Officer who testified that the spent shotgun shell found at the scene compared positively to tested shells fired from the shotgun.

Katherine "Kitty" Feifer was employed as the seating hostess for the Paddock Bar at the time of the shooting. Sometime between 10:30 and 11:00 p.m. on the night of the shooting, Feifer observed two black men walk into the bar. Feifer approached them and asked if they wanted to be seated. Neither of the two men responded. The taller of the two went to the men's room and the other followed Feifer to the cigarette machine in the middle of the room. The shorter man, the one who went to the area of the cigarette machine, was carrying an object in his left hand that was wrapped in what Feifer described as a burlap bag or laundry bag. The area was well lit. The object was partially concealed by the sleeve of the man's overcoat. Feifer became suspicious because both men were wearing overcoats and it was a warm night. Feifer, who is five foot five inches tall but wore high heeled shoes, was almost at eye level with the man who was carrying the bag. When the taller of the two men exited the men's room, both men left the bar without saying anything to Feifer. Feifer was so concerned about their behavior that she informed Kravitz about them after they left.

Feifer said that about an hour later, Kravitz exited the bar but came running back in shortly thereafter shouting that a cop had been shot. She followed Kravitz outside and observed Burke lying in the street and a bag nearby. The bag was the same one the man had been carrying earlier that evening in the bar.

Feifer talked to several police officers and gave a description of the men and the bag. She also spent time with a sketch artist who produced two drawings that looked like the men who entered the bar that evening. Feifer said that the man with the bag had a goatee-like beard and was thin, approximately five foot six inches to five foot eight inches tall, with a short afro haircut.

Officer Stewart knew both the defendant and Craig Jackson. When Stewart saw the composite drawing, both individuals came to mind. Stewart remembered that defendant had a goatee, a Foo Manchu mustache, and was very thin. (Defendant's gun permit application listed defendant as five foot ten inches tall and 160 pounds.)

Feifer testified that she recollected viewing photographs five or six times between October and December 1970. She remembered seeing different groups of photographs at different times. Feifer believed that she identified a photograph of the defendant sometime in November and then again picked out other photographs of defendant on a later occasion in December, 1970. Numerous photographs were marked at the time of trial, and Feifer testified that she had identified the photographs marked numbers eight, twenty-seven, twenty-eight and thirty, all of which were of defendant.

Detective Dooley of the Atlantic City police department contradicted Feifer's testimony concerning the number of times she viewed photographs. According to Dooley, Feifer identified several photographs on December 10, 1970. He said that Feifer was not shown a picture of defendant before that time. On December 10, Feifer was shown a forty-two picture array whereupon Feifer identified photos eight, twenty-seven, twenty-eight and thirty.

All of the pictures in the array were black and white photographs. There were multiple photographs of the defendant, but Dooley said he was not concerned about showing multiple photographs of defendant to Feifer because there were multiple photographs of others as well. For example, Craig Jackson's photographs appeared two times and Larry Good's photographs appeared three times, including an enlarged version of Good's mugshot.

Good had become a suspect when, on October 16, 1970, Feifer identified a photograph of him. However, the photograph had been "doctored" to include glasses, facial hair and a goatee in an effort to make it look like the composite. Inspector Kane, who interviewed Good after Feifer's identification, concluded that he was not a viable suspect and testified that Good did not resemble the composite sketch.

Inspector Kane conducted a search of the Atlantic City Black Panther Party's headquarters in December 1970. He found a strip of negatives, and after holding them up to the light, recognized photographs of defendant. The negatives were developed. Defendant appeared in three of the photographs which were apparently a part of the photo array shown to...