STATE OF NEW JERSEY v. GYASI ALLEN (17-02-0125, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4695-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GYASI ALLEN, a/k/a
EYASI ALLEN, GYASI I.
ALLEN, TYRE GYASHI,
GYASI TYRE, and DRAMA,
Defendant-Appellant.
_________________________
Submitted January 26, 2022 – Decided February 25, 2022
Before Judges Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Indictment No. 17-02-
0125.
Alan Dexter Bowman, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
A jury found defendant Gyasi Allen 1 guilty of murder, conspiracy to
commit murder, and two related weapons offenses. He appeals his conviction,
claiming that his right to be present at all critical stages of his trial was
violated and the trial court committed plain error by admitting a stipulated
identification of defendant as the person depicted on a surveillance video. We
affirm.
Excepting as noted, a Passaic County grand jury returned an indictment
that charged defendant and co-defendant Wade with: second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count one); first-degree
knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two);
first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:11-3 (count three); second-degree possession of a weapon for an unlawful
purpose, 2C:39-4(a)(1) (count five); fourth-degree unlawful taking of a means
of conveyance, N.J.S.A. 2C:20-10(d) (count seven); and fourth-degree certain
persons in possession of a firearm, N.J.S.A. 2C:39-7(b)(1) (count eight).
(Da11). Counts four and six charged only Wade and counts seven and eight
charged only defendant.
1
For clarity, we refer to Allen as defendant and co-defendant Jamal Wade by
his surname. They were tried in a single trial.
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2
We derive the following facts from the evidence adduced at trial. At
approximately 11:50 p.m. on September 30, 2016, Paterson Police Department
(PPD) officers responded to a shooting in the area of 12th Avenue and E. 23rd
Street in Paterson. They found Cosmiek Gee unresponsive in the driver's seat
of his vehicle with apparent gunshot wounds. Gee succumbed to his injuries
despite efforts to render aid at the scene. There were no eyewitnesses to the
shooting.
Police recovered surveillance video of the shooting from a camera at
12th Avenue and E. 22nd Street. The video, timestamped at 11:46 p.m.,
showed a dark Audi sedan drive out of William Street and approach Gee as he
was entering his car. The passenger of the Audi, who was wearing a light gray
hooded sweatshirt under a black jacket, exited the Audi and fired several
gunshots into Gee's car.
Police collected additional surveillance video of other locations that
showed the movements of defendant and Wade before, during, and after the
shooting. During his statement to police, Wade identified himself in a video
recorded at a liquor store located on 10th Avenue between 22nd and 24th
Streets, which was corroborated by a police officer who knew him. Defendant
was identified by PPD Officer Jason English as the person depicted in a
surveillance video in front of the same liquor store. Based on these
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identifications, police were able to connect the defendants' movements
depicted in other surveillance video based on the timeline and their clothing.
Prior to the shooting, New Jersey State Police (NJSP) were investigating
the theft of a black 2012 Audi A6 sedan that was stolen from Summit on
September 16, 2016. State Police located the car, placed a GPS tracker on it,
and tracked its movements from September 20 to October 3. Data generated
by the GPS tracker showed the Audi was stationary on William Street
beginning at 11:28 p.m., then moving in the area of 362 E. 22nd Street at
11:47 p.m., which is located about three to four blocks from the shooting. The
GPS showed the Audi moving from 11:47 p.m. until it stopped at 11:53 p.m. at
15th Street, where it remained for almost seven hours. A video depicted
defendant wiping the door handles with a rag. Attempts to obtain fingerprints
and DNA from the Audi were unsuccessful.
In addition, a surveillance video showed the Audi parked on William
Street from 11:06 p.m. until 11:47 p.m. At 11:46 p.m., the video shows the
Audi's headlights turn on as Gee enters his car. The video captured the Audi
driving out of William Street into the intersection where the shooting occurred.
FBI Special Agent David Ajit analyzed historic cell site data to
determine the location of Wade's cell phone at times relevant to the shooting.
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He testified that four telephone calls on Wade's cell phone could have
coincided with the locations indicated by the GPS tracking data.
PPD Detective John Scully processed the crime scene. He marked the
locations of nine shell casings found on the street near Gee's vehicle. Scully
photographed the crime scene, including the bullet holes in the driver's side
door of Gee's car. The shell casings were all .45 caliber. NJSP Detective
Edward J. Burke testified as an expert in toolmark identification and opined
that all nine shell casings were fired from the same gun.
Dr. Lyla Perez, the State's expert in forensic pathology, testified that Gee
sustained three gunshot wounds to his torso. One bullet went through Gee's
heart, and another went through his aorta. Dr. Perez opined that the cause of
death were the gunshot wounds, and the manner of death was homicide.
PPD Detective Anthony Petrazzulo testified that he searched for video
evidence of the homicide. He accessed the camera located at the corner of
12th Avenue and E. 23rd Street to see if there was evidence of the homicide.
Using this footage as a starting point, Petrazzulo backtracked the Audi and
defendants' movements earlier that night. Discussions with other investigators
and the surveillance video led to focusing on the liquor store located on 10th
Avenue, which had cameras near it that faced E. 23rd and 24th Streets.
Petrazzulo testified that the video showed two males walking towards the
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liquor store in clothing which showed they were the same individuals seen on
multiple videos. Petrazzulo showed the video to PPD Detective Jimmy
Maldonado, who identified Wade as the driver of the Audi. Petrazzulo then
showed the video to English, who identified defendant as the Audi's passenger.
The issues raised by defendant in this appeal center on the following
aspects of the trial. On the first day of trial, the prosecutor and defense
counsel discussed certain testimony with the court. However, defendant and
Wade did not arrive to court on time because they were "not ready" for
transport from the jail.
In the meantime, the judge, the prosecutor, and defense counsel
discussed what they labelled "a housekeeping matter" involving the defendants
being identified by police officers on a surveillance video. The prosecutor
explained that defendant was identified by several officers who watched the
video and "recognized him from prior police encounters." The prosecutor and
defendant's counsel proposed that English, who had no other involvement in
the case other than recognizing defendant from the video, testify as a lay
witness as to identification. Wade's counsel stated he had no problem having
his client being placed at the liquor store because Wade admitted it was him in
the video and counsel would rather have one police officer, rather than four
testify that they knew it was Wade on the surveillance video.
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Before the court decided the issue, it noted that defendant had not yet
arrived in court and asked defendant's counsel if he was waiving defendant's
appearance during the discussion of this issue. Counsel responded that he
waived defendant's appearance and stated that having English testify as a lay
witness was "a much more prudent way to proceed" because "it doesn't take up
the [c]ourt's time unnecessarily" and would avoid an entire hearing. He
indicated that counsel would work out the exact details amongst themselves.
Later, while discussing how English's name should appear on the witness list,
counsel and the prosecutor agreed that it should not indicate he was affiliated
with the police department. Counsel stated that the attorneys would "come up
with a fiction" they could "both live with as to what, [English's] testimony is
going to be."
The prosecutor and the court expressed difficulty in choosing an
identification instruction because many did not apply, and it was "not like a
one-on-one in person identification." The court commented that English's
testimony "isn't even being offered for the purposes of identification. It's
really just to show why he was arrested. Because . . . [in the] instruction we're
giving [the jury], we're saying [it was] . . . just to give [an] . . . idea as to why
they were identified, but it's up to [the jury] to decide . . . if it's accurate."
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Prior to resting, the prosecutor read the identification stipulation into
evidence. The identification stipulation stated: "It is agreed by the parties that
a video was shown to an individual named Jason English who works for the
City of Paterson and that he identified Gyasi Allen as the person in the video
wearing the black jacket outside of 350 Liquors." Neither defense counsel
objected to the stipulation.
Defendant and Wade did not testify or produce any witnesses at trial.
During summation, defendant's counsel criticized the identification and
highlighted the jury's ability to choose whether to believe it, stating:
So ladies and gentlemen, let's talk about those
two videos and let's start with the question of whether
the man exiting the car at 350 Liquor Store on 10th
Ave is my client . . .
[The man exiting the liquor store] is wearing a very
distinctive black jacket. The black jacket is over a
white sweatshirt with a white hoodie. He stands out . .
. because of his jacket. It is dark black and it contrasts
dramatically with his white hoodie and white pants.
This is the man they say is my client. But it's not true.
When you look carefully at the video, you'll see
that it's difficult to get a good look at the person's
face. You'd probably have to know the person to tell
who he is. So what do we get, ladies and gentlemen?
We get a stipulation read to you from a guy named
Jason English who claims he recognizes him as my
client.
We don't know anything about English other
than the fact that he didn't testify. We do know that if
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he did testify, he would say that the guy in the black
jacket is Gyasi Allen. But we don't get a chance to
assess his credibility. We don't get to cross-examine
him. We have no opportunity to ask him how he
could possibly make that kind of identification. We
only know that if he were to come to court, he would
say it's him.
[T]hat's not the kind of evidence that you can rely on
to make a judgment in something as serious as a
murder trial. This is a critical identification . . .
because the prosecution is going to argue that the man
with the black jacket outside the liquor store is the
same guy who got out of the Audi on 7th Ave an hour
later, after the murder.
The court provided the following instruction regarding the stipulations :
"One, the parties have agreed to certain facts. The jury should treat those facts
as undisputed. That is, the parties agree that those facts are true. Two, as with
all evidence, undisputed facts can be accepted or rejected by the jury in
reaching a verdict."
The jury found defendant guilty on all counts. Defendant was sentenced
to an aggregate forty-year term subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Counts three and four were merged into count two.
This appeal followed. Defendant raises the following points:
POINT I
APPELLANT WAS DENIED HIS RIGHT TO BE
PRESENT AT ALL CRITICAL STAGES OF TRIAL.
(Not raised below).
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POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR
IN ADMITTING THE HEARSAY STIPULATED
IDENTIFICATION. (Not raised below).
Defendant contends that he was not present in court during the
negotiation of the identification stipulation on November 8, 2018. The record
shows otherwise. The transcript of the proceedings that day reveals that while
defendant was not present in court, counsel and the court discussed the
parameters of English's expected testimony. A stipulation in lieu of his
testimony was not discussed or mentioned that day.
The record further reveals that defendant and Wade were present in court
during discussion regarding English's identification of defendant and two
additional stipulations on December 11, 2018. The transcript shows the
stipulation that English identified defendant in the surveillance video from the
liquor store was negotiated and formulated by the parties in the presence of
defendant and Wade. Later that day, the stipulation was read to the jury in the
presence of defendant and Wade. Defendant's claim that he unaware of the
stipulation until he reviewed the transcripts after the trial is thus belied by the
record.
In addition, defendant and Wade waived their appearances at the charge
conference, where the stipulation was discussed in the context of the
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identification instruction, including a cross-racial instruction. Aside from
waiving his appearance, defendant has not demonstrated how he was
prejudiced by not being present at the charge conference.
Defendant did not object to his absence during the discussion of
English's expected testimony or the admission of the stipulation in evidence,
waived his appearance at the charge conference, and did not object to the jury
charges. "When a defendant fails to object to an error or omission at trial, we
review for plain error. Under that standard, we disregard any alleged error
'unless it is of such a nature as to have been clearly capable of producing an
unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough." Ibid. To warrant
reversal, the error must be "sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have reached[.]" State
v. Trinidad, 241 N.J. 425, 445 (2020) (quoting State v. Macon, 57 N.J. 325,
336 (1971)); accord State v. Dunbrack, 245 N.J. 531, 544 (2021).
Defendant argues he was denied the right to be present at all critical
stages of trial. As we have explained, however, defendant was present when
the stipulation was negotiated and formulated in court. He acknowledges that
counsel waived his appearance on November 8, 2018, and that he waived his
appearance at the charge conference, but contends counsel's calculated strategy
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was "unfathomable," "eliminate[d] confrontation," and "tantamount to a
confession." Defendant asserts the stipulation "basically constituted a plea of
guilty to the indictment" and that "strategic efficacy [was] lacking in all
regards." Defendant claims he did not "willingly and knowingly absent
himself during negotiations of the stipulation" and argues these negotiations
were a critical stage of trial that render the stipulation null and void because he
was not aware of them.
On this record, counsel waived defendant's appearance when the
identification testimony was discussed on November 8, 2018. Under Rule
3:16, a defendant may waive his appearance at a pretrial proceeding or at trial.
The discussion that day did not include negotiation or formulation of the
stipulation. Defendant and Wade were present in court on December 11, 2018,
when the identification stipulation and two other stipulations were discussed,
formulated, and agreed upon. Both defendant and Wade waived their
appearances at the charge conference. Neither objected to the stipulations or
the jury charges.
Defendant also argues that the identification stipulation violated his right
of confrontation. On this record, we disagree. "The Sixth Amendment of the
United States Constitution and Article I, Paragraph 10 of the New Jersey
Constitution guarantee that, in a criminal trial, the accused has the right to ' to
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be confronted with the witnesses against him.'" State v. Williams, 219 N.J. 89,
98 (2014). At trial, defendant did not argue that his right to confront English
was violated. Instead, the stipulation obviated the need for live testimony.
"The right of confrontation, like other constitutional rights, may be waived by
the accused." Ibid.Defense counsel, many times as a matter of trial
strategy, will refrain from objecting to hearsay that
may inure to the advantage of the defendant. Because
counsel and the defendant know their case and their
defenses, they are in the best position to make the
tactical decision whether to raise a Confrontation
Clause objection.
[Id. at 99.]
See also State v. Nyhammer, 197 N.J. 383, 413-14 (2009) (finding no
Confrontation Clause violation where defendant chose "strategic course" not to
cross-examine victim about accusations in videotaped interview).
The record shows that is precisely what occurred here. Defense counsel
elected not to compel English to testify regarding his identification of
defendant on the surveillance video. "It therefore makes perfect sense that
'[t]he defendant always has the burden of raising his Confrontation Clause
objection.'" Williams, 219 N.J. at 99 (emphasis in original) (citing Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 326 (2009)). "It is the defendant's
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choice 'to assert (or forfeit by silence) his Confrontation Clause right.'" Ibid.(quoting Melendez-Diaz, 557 U.S. at 326). Defendant failed to do so.
"Additionally, when a defendant later claims that a trial court was
mistaken for allowing him to pursue a chosen strategy—a strategy not
unreasonable on its face but one that did not result in a favorable outcome —
his claim may be barred by the invited-error doctrine." Id. at 100. "The
doctrine of invited error does not permit a defendant to pursue a strategy of
allowing [identification by stipulation]—hopefully to his advantage—and then
when the strategy does not work out as planned, cry foul and win a new trial."
Id. at 101.
Defendant further argues that English's unrecorded identification
violated Rule 3:11. We disagree. The version of Rule 3:11(a) in effect at the
time of the trial in 2018, stated: "An out-of-court identification resulting from
a photo array, live lineup, or showup identification procedure conducted by a
law enforcement officer shall not be admissible unless a record of the
identification procedure is made." 2 The identification procedure used here did
not involve a photo array, live lineup, or showup. Nor did it involve
identification by an eyewitness. Rule 3:11 is directed at the recordation of an
out-of-court identification by an eyewitness during a police investigation, to
2
Rule 3:11 was amended May 26, 2020, to be effective June 8, 2020.
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prevent investigators from using suggestive identification techniques. State v.
Green, 239 N.J. 88, 100-02 (2019).
Moreover, here, there were no system variables to document. See State
v. Henderson, 208 N.J. 208, 289-94 (2011) (holding that when defendants can
show some evidence of suggestiveness tied to a system variable, they are
entitled to explore all relevant variables to try to challenge the admissibility of
the identification).
We also reject defendant's claim that the video identification was
inadmissible hearsay. Defendant did not object to the admission of the
stipulation—he agreed to the language and admission of the stipulation. Any
hearsay objection was waived. Moreover, "where the errors were invited or
induced by defense counsel they will not serve as a basis for reversal on
appeal." State v. Douglas, 204 N.J. Super. 265, 275 (App. Div. 1985); accord
State v. A.R., 213 N.J. 542, 561-62 (2013).
On this record, we discern no plain error. The admission of the officer's
identification of defendant in the surveillance video by way of stipulation,
viewed in the context of the other evidence presented during the lengthy trial,
was not clearly capable of causing an unjust result by leading the jury to a
result it otherwise would not have reached. R. 2:10-2.
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The court did not conduct a hearing to determine if defendant knowingly
agreed to the identification stipulation and waived his appearance in court on
November 8, 2018, when English's identification of defendant on the
surveillance video was discussed. The record does not disclose the
communications between defendant and his attorney regarding defendant's
absence in court that day, the impact of the stipulation, or the strategic
decision to utilize the identification stipulation in lieu of live testimony subject
to cross-examination.
Because counsel waived defendant's appearance in court and thereafter
agreed to the language of the stipulation, defendant is essentially claiming
ineffective assistance of counsel. Defendant claims the use of the stipulation
was strategically unfathomable. These issues are largely "predicated on
'allegations and evidence that lie outside the trial record.'" State v. Petrozelli,
351 N.J. Super. 14, 22 (App. Div. 2002) (quoting State v. Russo, 333 N.J.
Super. 119, 138 (App. Div. 2000)). They are more appropriately addressed
through at an evidentiary hearing in a post-conviction relief (PCR) proceeding.
See State v. Preciose, 129 N.J. 451, 460-62 (1992). We therefore decline to
consider defendant's ineffective assistance of counsel claims, without prejudice
to raising these issues in a timely-filed petition for PCR.
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Affirmed.
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