State v. Michael Ross II (077458) (Middlesex and Statewide)

163 A.3d 278, 229 N.J. 389, 2017 WL 2729615, 2017 N.J. LEXIS 689
Supreme Court of New Jersey·Decided June 26, 2017·No. A-79-15·Published·Cited by 66 cases

Opinions

JUSTICE FERNANDEZ-VINA

delivered the opinion of the Court.

In this appeal as of right, we consider whether the trial court’s active questioning in a first-degree murder trial constituted plain error.

A jury convicted defendant Michael Ross of committing a double murder and related offenses. The State’s theory of the ease was that defendant shot and killed the two victims because he mistook one of them for an individual who had previously threatened him [395]*395with a firearm. At trial, defendant testified and denied involvement in the shooting.

The State presented seventeen witnesses and defendant presented three witnesses, including himself. The trial court questioned many of the witnesses. Defendant did not object at any point during trial to the court’s questioning of witnesses. On appeal, however, defendant argued that the judge’s questioning of a number of the State’s witnesses constituted plain error.

A divided Appellate Division panel affirmed defendant’s convictions. A majority of the panel acknowledged that the trial judge’s conduct was a mistaken exercise of discretion, but concluded that the judge’s participation did not constitute plain error. Conversely, the dissenting judge maintained that the trial court’s conduct warranted reversal of defendant’s convictions.

Although some of the trial court’s inquiries were unnecessary and over-reaching, we conclude that the trial judge’s conduct did not rise to the level of plain error. Upon review of the record, we are satisfied that the trial court’s questions did not deprive defendant of a fair trial. Accordingly, we affirm the judgment of the Appellate Division and uphold defendant’s convictions.

I.

A.

Alesky Bautin and Sergey Barbashov were shot and killed on the evening of October 30, 2003. The men were sitting in Barbash-ov’s red 1999 Volkswagen Passat outside the Forest View apartment complex (“Forest View”) in Avenel when the shooting occurred. Nearly one month earlier, on October 1, defendant was stopped at a traffic signal in the Woodbridge area when a car pulled up and blocked his vehicle. A passenger defendant knew only as “Mitch” got out of the car and pointed a gun at him. In an attempt to avoid the confrontation, defendant drove away, hitting two other cars in the process. On October 2, defendant traveled to police headquarters and gave a statement regarding the incident. [396]*396Defendant told police that the gun-waving individual drove a burgundy or maroon Ford Taurus or Mercury Sable that he had previously seen in the neighborhood.

On October 30, defendant was with Jamil McKnight, Sherrill Williams, and Ronald Huff. The group drove to Forest View in McKnight’s car to visit a friend. McKnight did not drive because of a condition that impaired his vision. Upon seeing a red car parked outside one of the apartment buildings, defendant told the group that he spotted the individuals who had threatened him weeks earlier. Defendant said he wanted to get his gun, which he had left at McKnight’s house. Defendant also described the individuals in the car, including Mitch, as black males.

Before reaching McKnight’s house, Huff asked to get out of the car. Williams stayed at McKnight’s house while defendant and McKnight drove back to Forest View with the gun. As they passed Barbashov’s car, defendant fired multiple shots into the car from approximately three to four feet away. McKnight claimed he and defendant discarded the gun before visiting a mutual friend, Greg Wakefield. McKnight admitted retrieving the gun before dawn on October 31, and that he and Williams gave the gun to a man in Queens whom he knew only as Dante.

Huff, who was walking around the neighborhood at the time of the shooting, heard multiple shots. Walking in the direction of the shooting, Huff approached Barbashov’s car and saw Bautin, who appeared to be dead, and Barbashov, who was still alive. Huff heard sirens and told Barbashov that help was on the way. Officer Christopher Lyons of the Woodbridge Police Department responded to the shooting. When he arrived at the scene, he found Bautin dead with a bullet hole at the base of his skull behind his ear lobe. Lyons found Barbashov alive in the driver’s seat and called for an ambulance. Responders transported Barbashov to the hospital for emergency surgery, but doctors there were unable to save him.

Several spent shell casings and bullets were found in and around Barbashov’s vehicle. Gary Mayer, a forensics ballistics [397]*397investigator, determined that the spent shells, bullets, and fragments recovered from the scene had all been fired from the same nine-millimeter firearm. Mayer examined a nine-millimeter Glock handgun belonging to Barbashov’s business partner and concluded that the rounds at the scene were not fired from that gun.

With no further leads, the investigation stalled. Eventually, the police received information leading to Sharhi Roberts, defendant’s ex-girlfriend. Roberts was arrested on municipal court charges and agreed to give a statement to police in exchange for dropping the charges against her. Roberts told police that defendant had admitted to her on two separate occasions that he committed the murders.

Wakefield, who was also facing charges in an unrelated case, reluctantly gave a statement to the police in which he said that defendant had admitted to committing the murders. Wakefield did not have an attorney present when he gave his first statement to the police, and averred at trial that authorities pressured him to implicate defendant. Sergeant Mark Clements, who investigated the crime on behalf of the Middlesex County Prosecutor’s Office, stated that Wakefield was with authorities for approximately seven and one-half hours on the date he gave his first statement and took a polygraph exam.

In September 2006, nearly three years after the October 30 shooting, police arrested defendant. McKnight was arrested in New York for disposing of the firearm that had been used in the shootings, and defendant was arrested three days later for the murders. Police never recovered the murder weapon.

B.

In October 2006, a Middlesex County grand jury issued an indictment charging defendant with two counts of first-degree murder, contrary to N.J.S.A. 2C:11—3(a)(1) and (a)(2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a [398]*398weapon, contrary to N.J.S.A. 2C:39-5(b); and third-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3(b)(3).

An eight-day jury trial was held in 2008. On April 1, the State called the first of its seventeen witnesses. Officer Vincent Totka, who investigated the October 1 gun-waving incident, was the first witness to testify. The trial judge asked Officer Totka, who took defendant’s statement the day after the incident, a brief series of questions to establish defendant’s age at the time of questioning and to clarify why defendant’s father was not in the room when the officer took defendant’s statement regarding the gun-waving episode. Totka responded that defendant was twenty-one years old at the time and that parental consent was not needed.

Detective Michael Ng, who investigated the motor vehicle accident resulting from defendant’s driving away from Mitch, was the second witness to testify.

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State v. Michael Ross II (077458) (Middlesex and Statewide), 163 A.3d 278, 229 N.J. 389, 2017 WL 2729615, 2017 N.J. LEXIS 689 (N.J. 2017).

163 A.3d 278 (State v. Michael Ross II (077458) (Middlesex and Statewide)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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