- Associated Press - Tuesday, June 18, 2019

NEWARK, N.J. (AP) - A divided New Jersey Supreme Court reinstated the conviction Tuesday of a man in the 2011 drive-by shooting of a Newark police officer who was standing outside a fast-food restaurant. The decision comes 18 months after an appeals court ordered a new trial.

Rasul McNeil-Thomas was convicted in the fatal shooting of off-duty Newark Police Officer William Johnson in May 2011 as Johnson stood outside the Texas Fried Chicken and Pizza restaurant. Several others were injured in the drive-by shooting, which prosecutors said stemmed from an earlier brawl outside McNeil-Thomas’s house and wasn’t aimed at Johnson, a 16-year veteran officer who left behind two daughters.

An appeals court in 2017 granted McNeil-Thomas a new trial, concluding a prosecutor made improper comments during closing arguments and should not have been allowed to show jurors video clips at that time that hadn’t previously been entered into evidence.

In a 4-3 decision Tuesday, the Supreme Court held that the trial judge was correct in allowing the video to be played.

“A careful review of the trial transcript shows that defense counsel consented to the admission of the surveillance footage depicting the moments surrounding the shooting, including the video segment at issue,” Justice Lee Solomon wrote for the majority.

Prosecutors presented evidence that McNeil-Thomas and his stepfather drove past the restaurant and saw their targets before McNeil-Thomas and another man carjacked a silver Chevy Malibu and returned to the restaurant. The Malibu was captured on several surveillance cameras near the shooting scene, and the carjacking victim identified McNeil-Thomas as one of the two people who took her car. Two witnesses at the scene also identified McNeil-Thomas.

McNeil-Thomas’s attorney moved for a mistrial after prosecutors showed jurors a brief portion of video and still photos of vehicles allegedly driven by McNeil-Thomas and his father as they passed the restaurant before the carjacking. The trial judge denied the motion, ruling that the portion of video had been admitted into evidence earlier as part of a longer video.

In her dissent Tuesday, Justice Jaynee LaVecchia agreed with the appeals court and wrote that the prosecutor “in effect, testified during closing argument” by showing the video and telling jurors that the car seen before the shooting was the one McNeil-Thomas was driving, even though a witness who saw him leave his house earlier couldn’t conclusively describe the car’s make and model.

The witness wasn’t asked to identify the car in the video during the trial.

“Rather than present evidence, the prosecutor provided the link himself,” LaVecchia wrote. “He did not suggest it was reasonable for jurors to infer what type of car appeared in the videos. Instead, he told the jury what it was - a ’Cadillac CTS’ - time after time.

“Without the prosecutor’s testimony regarding the video during summation, I am not convinced, beyond a reasonable doubt, that the outcome of the trial would have been the same.”

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