Just after 2 a.m. on December 16, 2001, Kevin Phillips got into a fight at Toby’s Lounge in Newark, New Jersey, which left him with a bloody mouth and nose. It was near closing time, and the bouncers quickly hustled the patrons out onto Bergen Street.
Timothy Phillips began questioning people in the crowd outside, trying to learn the identity of the man who had fought with his brother.
Kevin Phillips would later testify that he also left the bar to gather himself and see the extent of his injuries. He would later testify that he looked up, saw Timothy, and then heard five to seven shots from across Bergen Street. He saw a man who “slid on top of [his] brother and shot some more times.” He did not see the shooter’s face but described him as having a “small build.” By contrast, Kevin Phillips described the man he fought with as about 6’1” and weighing around 300 pounds.
Timothy, who was 29 years old, died on the way to University Hospital. Stacy Davis, who was 35 years old, was shot in the left leg and also taken to University Hospital, where he remained for about three months.
Detective Murad Muhammad with the Newark Police Department and Investigator Ben Powell with the Essex County Prosecutor’s Office investigated the shooting. Muhammad would later say that they heard on the street that 22-year-old Naeem Miller might have been involved. (The officers’ case notes did not identify the source of this information.)
On December 21, Davis identified Miller from a six-pack photo array. An arrest warrant for Miller was issued on January 18, 2002, but he was not captured until May 8, 2004, when police in Scranton, Pennsylvania, arrested Miller for disorderly conduct. At the time, there was also a warrant for Miller’s arrest issued in Cuyahoga County, Ohio, where he had been charged with murder in a shooting in East Cleveland on February 3, 2003. In the Toby’s Lounge shooting, he was charged with first-degree murder, aggravated assault, and two weapons charges.
Miller’s trial in Essex County Superior Court began on March 21, 2005, before Judge Thomas Vena. Joseph Gordon of the Essex County Public Defender’s Office represented Miller. He had previously represented Timothy Phillips in several drug cases, and Miller told Judge Vena that he waived any potential conflict of interest.
The state did not have a motive for the shooting, and Gordon told jurors in his opening statement that there was no evidence that Miller and Phillips knew each other or had interacted during the evening at the bar.
Prior to the trial, Gordon moved to exclude testimony about a meeting between Davis and the investigating officers on December 18, 2001. Powell and Muhammad had visited Davis at the hospital and brought a six-pack photo array that included Miller’s photo. According to Muhammad, Davis began to cry when he got to Miller’s photo, which was third in the sequence.
“We talked to him a little bit, and we asked him what was wrong, and he wouldn’t speak,” Muhammad said. “He just continued to cry, and we decided—we told him that we would come back. We retreated and we told him we’d come back at another time.” When they returned three days later, Muhammad said, they brought back the same array, and Davis made his identification.
Neither Muhammad nor Powell made any notes of that first viewing. Judge Vena said that while Davis’s identification on December 21 could be used, the jury could not hear from the state about the December 18 viewing.
At the trial, Davis testified that he had signed his name behind photo number three, indicating that he had identified Miller as the man who shot him and Phillips. “That’s the dude I saw with a gun,” Davis testified. But he was unable to make a courtroom identification. In the photo that Davis had selected, Miller had dreadlocks. At trial, Miller had close-cropped hair.
Prosecutor Gregory DeMattia asked Davis: “Does that picture look different than the individual in court today?”
Davis answered. “That can’t be him right there.”
Later, Davis testified, “He [doesn’t] look you know—crazy with the dirty dreads and all that.”
Over Gordon’s objection, the prosecutor was allowed to ask Davis about his testimony before an Essex County grand jury, where Davis had testified that he identified Miller from the photo array as the man who shot him.
The prosecutor also questioned Davis about his lengthy criminal record, and Davis—who was in prison at the time of Miller’s trial—testified that he had not received any favorable treatment from the state in exchange for his testimony.
Felicia Wright testified that she was near the front door at Toby’s when the shooting occurred. She testified that she heard the shots, went outside, saw Phillips on the ground, and saw Miller running away with a “black gun.”
She said she had known Phillips for about five years. She also said that she knew Miller because he was the cousin of her daughter’s father, but did not “know him know him.”
Wright testified that she felt uncomfortable testifying, because she knew both men and their families, but that her discomfort did not affect the truthfulness of her testimony.
Wright testified that she left the bar about 15 seconds after the shooting and saw Miller from about 45 feet away running with an “automatic weapon.” She said that her view was mainly from the side and back; she could not see Miller’s clothing but saw his dreadlocks. Gordon asked if anyone else at Toby’s had dreadlocks. Wright said everybody did. She also said that Miller looked different now, because he had cut his hair and grown a beard.
Wright testified she initially had doubts that it was Miller whom she saw, but she said she felt stronger about her identification after hearing other people name him as the shooter. It was “possible,” she said, that the talk on the street had influenced her identification.
Wright’s testimony was at times in conflict with itself. She testified both that she was “certain it was him,” and that she was unsure, saying: “I don’t know. I don’t—I don’t know.”
The police did not recover the murder weapon, but a crime-scene technician testified that investigators found six shell casings from a semi-automatic weapon in the area around the bar.
Miller did not testify, and Gordon called no other witnesses.
In closing arguments, the state and defense disagreed about the reliability of the identifications made by Davis and Wright, but they agreed that Kevin Phillips had not identified Miller.
Gordon said, “I think he told you straight out and straight up, he didn't know who did it.”
DeMattia said Kevin Phillips was clearing the blood from his face when he heard shots. “He cannot see who the shooter is,” the prosecutor said. “However, he says that that wasn’t that guy inside the bar with him because the silhouette, the figure, was a slim individual.”
In his jury instructions, Judge Vena, said: “The State has presented the testimony of Felicia Wright, Stacy Davis, and Kevin Phillips. You will recall that these witnesses identified—identified the defendant as the person who committed the offenses charged.”
The jury deliberated for three days, twice telling Judge Vena its members were deadlocked. On April 1, 2005, the jury convicted Miller of first-degree murder, aggravated assault, and two weapons charges. Judge Vena later sentenced Miller to 30 years in prison on the murder conviction, seven years—to run consecutively—on the assault conviction, and four years—to run concurrently—on the weapons convictions.
In Miller’s first appeal, he argued that Judge Vena had given the jury confusing or misleading instructions on several issues, including the witness identifications.
A three-judge panel of the Superior Court’s Appellate Division affirmed the convictions on January 8, 2007. The judges agreed that Judge Vena had incorrectly said that Kevin Phillips had identified Miller, but they said the error was harmless, noting that jurors had asked for a readback of Phillips’s testimony during their deliberations.
“In context, therefore, we are convinced the fleeting mention of Kevin as one of the witnesses who identified defendant as the shooter did not have the capacity to mislead the jurors or to cause them to reach a result they otherwise would not have reached,” the court said.
Miller filed a petition for post-conviction relief on May 17, 2007, arguing that Gordon had been ineffective for failing to object to Judge Vena’s flawed instruction on the witness identifications and failing to request different instructions on lesser crimes that the jury could consider. After a hearing, Judge Vena denied the petition, and the state’s appellate courts affirmed his decision.
On May 14, 2010, Miller filed a pro se petition for a writ of habeas corpus in U.S. District Court for the District of New Jersey. The petition repeated the claims Miller made in his 2007 state petition and added that Gordon should have recused himself because of his conflict of interest.
Judge Katharine Hayden denied Miller’s petition on March 13, 2014. She said Miller’s claims were either procedurally barred or without merit, noting that, “There was no evidence of actual conflict and Miller waived the issue of conflict under oath and after questioning by the trial judge.”
In May 2019, Miller, now represented by Jarred Freeman, again moved for a new trial after discovering that the state had failed to disclose that Wright had been indicted a month before the trial on impersonation, forgery, and theft charges from 2004. The motion said that the state had learned of the indictment, which was in neighboring Morris County, a month before the trial and didn’t share that information with Gordon or bring it up during his examination of Wright on the witness stand.
In his closing argument, DeMattia said of Wright: “[There] is no testimony that there is anything wrong with her” and that her testimony should be relied upon because there was nothing to support that Wright was a liar.
On June 1, 2023, Judge Verna Leath of Essex County Superior Court granted Miller a new trial. She said the state’s failure to disclose Wright’s criminal record meant that jurors didn’t have sufficient information to weigh her credibility as a witness.
Miller was released from prison on June 30, 2023.
The state appealed Judge Leath’s ruling. While conceding that it committed a Brady violation by failing to disclose the impeachment evidence against Wright, the state said the violation didn’t require a new trial because Wright’s criminal past was not material to her testimony. The appeal also noted that Davis had identified Miller.
The Superior Court’s Appellate Division affirmed Judge Leath’s ruling on April 3, 2024. The court said, “The suppressed information directly related to her credibility and honesty, particularly given her express reluctance to testify.”
The appellate court noted the problems with Wright’s testimony, even without the impeachment issue. She was a reluctant witness who saw the man with a gun late at night, from about 45 feet, and she became more certain of her identification only after others in the community mentioned Miller’s name.
“Davis’s identification was likewise assailable, especially given his in-court testimony [that] defendant was not the shooter,” the court said. “Because the jury had many grounds on which to find Davis’s testimony unreliable, we agree with the motion court’s finding that Wright’s testimony likely served to bolster his, and conversely, his testimony bolstered hers.”
After Miller’s release from prison in New Jersey, he was arrested by officials in Ohio on November 14, 2023, and returned to Cuyahoga County. He was arraigned two days later and released after posting $1 million bond. An attorney in Ohio filed a motion to dismiss that case on March 25, 2024, arguing that prosecutors were violating Miller’s right to a speedy trial. The murder took place in 2003, and officials had been aware of Miller’s whereabouts since his arrest in Scranton in 2004, the motion said.
“The defendant’s ability to adequately confront the government is now substantially impaired due to the passage of time,” the motion said.
A judge dismissed the case on April 1, 2024.
Miller’s retrial in the Phillips case took place in August 2025, in Essex Superior Court. A jury acquitted Miller on all charges on August 15, 2025.
On March 28, 2024, prior to the resolution of his criminal charges, Miller had filed a federal civil-rights lawsuit against the state of New Jersey, the Newark Police Department, and the prosecutor, seeking compensation for his wrongful conviction. A federal judge dismissed most of the case on August 15, 2025, but gave Miller 30 days to file an amended complaint.
– Ken Otterbourg
Posting Date: 08-25-2025
