State v. McCoy
| Decision Date | 28 June 2021 |
| Docket Number | A-5010-18 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH MCCOY, a/k/a ABDUL M. AKBAR SALAAM, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2021
On appeal from the Superior Court of New Jersey, Law Division Atlantic County, Indictment No. 17-06-1173.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M Gennaro, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
Before Judges Rothstadt and Susswein.
Defendant appeals from his convictions for murder and related firearms offenses. The victim, J.H., [1] was defendant's girlfriend and was fatally shot in the apartment they shared in Atlantic City. Defendant was sentenced on the murder conviction to a fifty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends the prosecutor committed misconduct by failing to instruct the grand jury that it could consider lesser-included homicide offenses. He also contends: the trial judge should have suppressed text messages found on the victim's cellphone that the prosecutor failed to provide in discovery until the eve of trial; the trial judge erred by denying defendant's request to instruct the jury that it could draw an adverse inference from the State's failure to call a witness whose statement to police was mentioned at the grand jury the trial judge erred by not instructing the petit jury on passion/provocation manslaughter; and the trial judge imposed an excessive sentence. After carefully reviewing the record in light of the arguments of the parties and the applicable principles of law, we reject these contentions and affirm the convictions and sentence.
We briefly recount the procedural history and the facts that are pertinent to the issues raised in this appeal. In June 2017 the prosecutor presented testimony to an Atlantic County grand jury from Detective Joseph Rauch, who had been assigned to investigate the shooting death of J.H. Detective Rauch testified that he obtained statements from several individuals whom defendant communicated with shortly after the shooting. Those witnesses-Lance Byard, Shamirah Dorsey, and Isaiah Seldon-were acquaintances of both defendant and J.H. Detective Rauch told the grand jury that defendant admitted to Seldon that defendant and J.H. had "got[ten] into a dispute, they were struggling and sustained-and the gun went off and she got shot." Defendant asked Seldon for transport out of Atlantic City. Seldon declined, telling defendant his vehicle "had problems."
Detective Rauch also testified that he took a statement from defendant's close friend and confidante, Stella Powell-Nixon, who stated that defendant had called her that night upset and crying. Powell-Nixon was able to pick out the words "Jackie," "hit," and "shoulder" from defendant's excited utterances. Detective Rauch testified that those words corresponded to the injuries J.H. sustained.
After presenting the detective's testimony, the assistant prosecutor asked the grand jury if they had any questions. The grand jurors declined to pose questions to the prosecutor and proceeded to return an indictment charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree unlawful possession of a handgun, 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). The grand jury returned a separate indictment charging defendant with second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).
Defendant thereafter moved to dismiss the indictment, contending the grand jury should have been presented with the option of charging defendant with the lesser offenses of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter. On September 25, 2018, Judge John R. Rauh heard oral argument and denied the motion.
The trial was scheduled to start on April 8, 2019 before Judge Donna M. Taylor. On that day, the State informed the judge that it had recently been notified that police were in possession of J.H.'s cellphone. The police had overlooked the cellphone as a source of potential evidence until the State had begun its trial preparation.[2] According to the explanation of the assistant prosecutor assigned to the case, approximately one week before trial, as the State was interviewing its witnesses in preparation for trial, one witness (Keturah Foster) identified J.H.'s cellphone. Recognizing its inadvertence, the State immediately applied for and obtained a communications data warrant (CDW) to extract data from the phone. On the afternoon of April 2, 2019, the assistant prosecutor received a forensic report that included text messages that were stored on the phone. The assistant prosecutor reviewed the records, deemed them to be relevant to the case, left a voicemail message for defense counsel that evening, and the next day emailed counsel a pdf copy of the text messages. The assistant prosecutor also made several unsuccessful attempts to communicate with defense counsel by phone, email, and in-person. The assistant prosecutor finally spoke with counsel on April 5-the Friday before the Monday scheduled trial date-at which time she turned over a CD containing the data that had been extracted from the victim's phone.
At the April 8 hearing, Judge Taylor denied counsel's request to suppress the text messages based on their belated production in discovery. Instead, the judge granted a one-week continuance to permit defendant and his attorney an opportunity to review the material.
On April 15, 2019-the rescheduled date for the start of trial-defendant personally objected to the trial commencing, claiming that he had difficulty accessing the digital information and insufficient time to review the text messages. He also registered his dissatisfaction with his attorney's decision to not file a motion for a further continuance. The State refuted defendant's claim that he could not access the digital information, noting that it had provided defendant with a computer to review the text messages the State intended to introduce at trial. The State had also told defendant that it would assist him with viewing the material for "as long as the defendant needed." Judge Taylor found the State had made the information available to defendant and his counsel. She thereupon overruled defendant's personal objection and declined to adjourn the trial.
Defendant was tried over the course of five consecutive days, after which the jury returned guilty verdicts on the counts charging murder, unlawful possession of a handgun, and possession of a firearm for an unlawful purpose. Defendant waived his right to a jury trial for the bifurcated certain-persons charge. The court held a bench trial on May 30, 2019, finding defendant guilty of that offense.
We briefly summarize the evidence the State adduced at trial.
The State presented four witnesses-Keturah Foster, Lance Byard, Shamirah Dorsey, and Isaiah Seldon-who testified as to the acrimonious romantic relationship between defendant and the victim.
Keturah Foster testified she shared an apartment with defendant and J.H.-the same apartment in which J.H. was later found dead. Foster claimed she observed frequent arguments between defendant and the victim culminating in defendant moving out shortly before J.H.'s death. Foster testified the couple argued over whether defendant could take the mattress they shared. She heard defendant tell the victim:
Foster also testified that at about 11:40 p.m. on the night of J.H.'s death, Foster saw defendant's Facebook post depicting "a gun, a box of Newport [cigarettes], weed, and a liquor bottle of Amsterdam green apple [vodka]" on defendant's lap. Since Foster was not in the apartment at the time, she asked J.H. via text message whether defendant was there with her. J.H. confirmed that defendant was in the apartment with her.
Lance Byard and Shamirah Dorsey, who lived together, testified they received a call from defendant on the night of the murder. They corroborated Keturah Foster's account that defendant and J.H. were undergoing relationship problems. On the night of the shooting, they were awoken by a call from defendant's close friend, Stella Powell-Nixon. Powell-Nixon alerted them that defendant had tried calling them to ask for assistance. Byard noted that he had a missed call from defendant at 3:06 a.m. Byard and Dorsey arranged for Isaiah Seldon to drive them to the victim's apartment. There, they discovered J.H. lying unconscious, under the mattress she and defendant had previously shared, with a gunshot wound on the side of her abdomen.
Isaiah Seldon testified that after he dropped Byard and Dorsey off at the apartment, he parked the car and entered the apartment. He also observed J.H. lying under the mattress. Seldon testified he then left the apartment and went to defendant's known drug "stash house." There, he encountered defendant conferring with Stella Powell-Nixon. Seldon told defendant that he had come from the victim's apartment but did not ask defendant what happened. Seldon and defendant then "smoked a blunt." Defendant stated to Seldon, "I f***ed up" and "I know I did her in." Defendant then asked Seldon for a ride out of Atlantic City, but Seldon made up an excuse that his vehicle was inoperable.
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