State v. Tindell

• Decision Date: 07 January 2011
• Citation: 417 N.J.Super. 530,10 A.3d 1203
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Omar TINDELL, Defendant-Appellant.
• Court: New Jersey Superior Court

10 A.3d 1203

417 N.J.Super. 530

STATE of New Jersey, Plaintiff-Respondent,

v.Omar TINDELL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 20, 2010.

Decided Jan. 7, 2011.

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).

Debra G. Simms, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

Before Judges FUENTES, GILROY and NUGENT.

The decision of the court was delivered by

FUENTES, J.A.D.

Defendant Omar Tindell ¹ was indicted by an Essex County Grand Jury and charged with first degree conspiracy to commit murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3a; first degree purposeful or knowing murder, N.J.S.A. 2C:11-3a (1) and (2); first degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; seconddegree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third degreereceiving stolen property, N.J.S.A. 2C:20-7; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree endangering the welfare of children, N.J.S.A. 2C:24-2; and third degree terroristic threats, N.J.S.A. 2C:12-3a. Hassan Reeds was indicted as a codefendant and charged with committing the same offenses as Tindell, except for the charge of third degree terroristic threats.

Defendant and Reeds were tried together before the same jury. Reeds was convicted of third degree receiving stolen property and acquitted of all of the other charges.² The jury convicted defendant of second degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser included offense of murder, third degree receiving stolen property, third degree possession of cocaine, one count of third degree unlawful possession of a handgun, and one count of third degree terroristic threats. Defendant was acquitted of the remaining charges.

The court sentenced defendant to five consecutive maximum terms, with maximum periods of parole ineligibility. Specifically, the court sentenced defendant on the reckless manslaughter conviction to a term of ten years, with 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 term of five years on the receiving stolen property conviction, with two and one-half years of parole ineligibility; a term of five years on the possession of a controlled dangerous substance conviction, with two and one-half years of parole ineligibility; a term of five years on the unlawful possession of a weapon conviction, with two and one-half years of paroleineligibility; and a term of five years on the terroristic threats conviction, with two and one-half years of parole ineligibility. This resulted in an aggregate sentence of thirty years with eighteen and one-half years of parole ineligibility.

After reviewing the record before us, we affirm defendant's convictions of second degree reckless manslaughter, third degree possession of cocaine, and third degree unlawful possession of a weapon, reverse and remand for a new trial the conviction of third degree terroristic threats, and vacate the conviction of third degree receiving stolen property and remand for the entry of a judgment of acquittal on that charge. We also vacate the sentence imposed by the court in its entirety and remand for re-sentencing before a different judge.

The following facts will inform our analysis of the legal issues presented on appeal.

I

The first link in the tragic chain of events that led to the death of a police officer was forged in the context of a seemingly banal event: an altercation between two teenaged girls who attended the same high school, one of whom is defendant's sister.

In the afternoon hours of July 18, 2005, unarmed School Security Officer Alice Thomas and armed plain-clothes Special Police Officer ³ Dwayne Reeves intervenedto break up a fight between these two girls. The officers brought the girls to the principal'soffice, Reeves called for medical assistance, and both girls' parents were notified of the incident.

Shortly thereafter, the school principal and a number of school security officers and special police officers noticed a white Chrysler 300 driving up and down Chancellor Avenue, the street directly in front of the school's main entrance. Defendant was the driver of the car and Reeds was a passenger.

Tracy Whidbee was one of the school security officers present at the time. She testified that on at least one occasion she saw defendant exit the car and yell to a group of girls standing nearby: "which one of y'all jumped ... my sister[ ], if I find out who jumped my sister, they're going to be planning their funerals today—tonight."

Kevin Batty, the high school's assistant dean of discipline, was also present when defendant confronted a separate group of teenaged students who were standing near the school's athletic field. Batty testified that he heard defendant yell to this group of juveniles that the person who jumped his sister "would be going on a long vacation." According to Batty, as he escorted defendant away from the students he noticed that defendant appeared "angry."

Security Officer Kameleh Williams also interacted with defendant that day. She testified that after breaking up the altercation between the girls, she saw defendant drive the white Chrysler up to the school's main entrance. Defendant then walked up the "four stairs" leading to the school's main doorway and demanded to know "who touched [his] sister," because those who touched his sister "were going to die tonight." According to Williams, defendant referred to the school's principal as "a punk ass." With respect to Special Police Officer Akhia Scott, who was standing in the school's doorway, Williams testified that defendant stated "[f]uck that cop" and threatened to "shoot him, too" because defendant "didn't give a fuck."

Minutes before this interaction, defendant and Reeds had attempted to drive on Aldine Street toward the high school; when they reached a police barricade blocking the road, Reeds exited the car and removed the barricade. According to Police Officer Kenneth Irvin, when he told Reeds to replace the barricade, Reeds did not respond immediately; defendant, however, told Reeds to "[d]o what the officer says, give him his respect...." Reeds complied and replaced the barricade. The two men then proceeded to the school in a different direction.

Special Police Officer Reeves was in the principal's office when he received a radio report that defendant was threatening a group of students standing near the athletic field. After calling for back-up, Reeves, fellow Special Officer Scott, and Security Officer Thomas proceeded to the athletic field. Reeves and Scott were in one car; Thomas drove in a different car. When the three officers arrived, they saw a white Chrysler double-parked in the middle of the street near the field; defendant and Reeds were outside of the vehicle talking to the group of juveniles.

Reeves told Thomas to drive up the street and block the white car to prevent it from moving. Security Officer DejauhithaSabahtino, who was standing in an area where she could see and hear what was taking place, testified that she saw Reeves attempt to calm defendant down. Reeves asked defendant for identification and to produce documentation with respect to the vehicle, to which defendant responded, "I'm moving it now."

According to Scott, when Reeves touched defendant on the elbow and said "[l]et me talk to you for a minute," defendant pulled away and responded "don't put your fucking hands on me." This prompted an immediate physical response from Reeves resulting in the two men pushing each other. When Reeves attempted to subdue defendant to place him under arrest, defendant physically resisted and yelled out (presumably to Reeds), "Don't let him take me."

At this point in time, defendant was up on a brick ledge, behind which was a fence. Reeves had defendant up against the fenceand was attempting to handcuff him, while defendant was attempting to climb the fence in order to frustrate Reeves' efforts. As this was taking place, Security Officer Thomas saw a handgun on defendant's waist. Thomas immediately informed Scott, who in turn responded to assist Reeves. Seconds later, Thomas heard two gun shots.

Two people without any connection to the event witnessed the shooting: Zenola Moncrease, who was driving in the area directly across the street from the scene, and Richard Ferguson, an on-duty bus driver. They testified that they saw defendant with a gun in his hand shoot Reeves in the head. According to Moncrease, Reeves dropped to the ground "like a piece of tissue." Scott was also shot in the hand.

Reeves died of a single gunshot wound to the neck. The bullet entered from the right side back of his neck, traveled in a downward direction, and exited at the left side of his chin, in the front of his face. There was no evidence of gun powder residue around the wound. Based on this evidence, the medical examiner testified that he could not determine the distance between Reeves and the shooter. However, the shirts worn by Reeves and Scott tested positive for gunshot residue, suggesting that a firearm had been discharged in close proximity.

Witnesses characterized what transpired immediately after the shooting as "chaos." Moncrease testified (without objection) that an unidentified girl became hysterical and kept repeating to defendant, "Why'd you shoot him? Why'd you have to do that? You didn't have to do that. Why'd you shoot him? You didn't have to do that."

Both defendant and Reeds ran from the scene immediately after the shooting. Scott was able to draw his weapon and shoot three times in defendant's direction, striking him once in the wrist. Defendant then continued running...