On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Defendant Kenneth Hardison and his co-defendant Jerry Jackson were charged in the same indictment with conspiracy to commit robbery, armed robbery of three individuals in a tavern on November 19, 1980, possession of a handgun for an unlawful purpose, and aggravated assault and armed robbery of a motel manager in his office later the same night. Hardison was also charged with possession of brass knuckles for an unlawful purpose.
Both defendants were found not guilty of the tavern robberies*fn1 but were convicted on all other charges. Prison terms were imposed on Hardison as follows: on the conspiracy charge, a five year term; on the charge for possession of a gun for an unlawful purpose, a five year term consecutive to the conspiracy sentence; on the aggravated assault charge, a ten year term consecutive to the conspiracy sentence; on the charge for armed robbery of the motel manager, a fifteen year term consecutive to the conspiracy sentence; on the charge for possession of brass knuckles for an unlawful purpose, a five year term concurrent to all other sentences. All of the sentences were imposed to run concurrently except for the conspiracy sentence to which all others (except the brass knuckles sentence) were made consecutive. Thus, an aggregate term of
twenty years in prison was imposed together with parole ineligibility for five years and a $125 penalty payable to the Violent Crimes Compensation Board.
On this appeal, defendant Hardison challenges the trial judge's refusal to grant separate trials to each of the two defendants, the refusal to sever the counts of the indictment for trial, admissibility of identification evidence, failure to dismiss the conspiracy charge, admissibility of his out of court statements, certain evidence rulings, and the weight of the evidence. He also attacks the sentence imposed as manifestly excessive. Co-defendant Jackson has filed a separate appeal which we will resolve in a separate opinion.
On the evening of November 19, 1980, co-defendants Jackson and Hardison travelled from Paterson to New Brunswick with Dennis Porter and Bernard Brown in a 1974 red and white Cadillac. When Jackson got into the car he was asked if he wanted "to make some money." All four arrived at the Lincoln Cafe, a tavern in New Brunswick, at approximately 11:30 p.m. They ate and drank and played pinball and pool. When only three other persons, two customers, Patrick Howlin and Janet Marino, and the bartender, Donald Wilson, remained in the tavern, one of Hardison's group jumped on the bar and pointed a gun at Wilson's head. Wilson was forced to lie on the floor behind the bar and his watch was taken. One of the robbers took $301 from the cash register. Marino's pocket book was taken from her and she was ushered into the men's room followed by Howlin and Wilson. The four robbers then moved the cigarette machine against the door and left the tavern.
At approximately midnight Hardison and his three companions arrived at the Edison Motor Lodge. Two of them entered the registration office. After inquiring about accommodations, they told the manager that they would go outside to confer with their girlfriends. They soon returned and robbed the manager at gun point. The victim, who identified Jackson as the gunman and Hardison as his companion, was forced to his
hands and knees in the rear office where he was robbed. One of the robbers, identified as Jackson said, "Let's shoot him" but the other identified as Hardison replied "Let's knock him cold because he won't go any place." With that, Hardison, using brass knuckles, punched the manager in the mouth. The two robbers were then observed fleeing toward a red and white Cadillac.
Shortly thereafter, the red and white Cadillac was observed a few blocks away by police officers in an unmarked car. When they were advised that a red and white Cadillac had been involved in a motel robbery, the police gave chase. The Cadillac stopped suddenly when it straddled a cement divider and the four men fled on foot. Jackson was discovered under a school bus in a parking lot nearby. Hardison was apprehended from underneath a parked car. At 1:40 a.m. Howlin and Marino identified Hardison and Jackson as participants in the tavern robbery. Wilson also identified Hardison but was unsure of Jackson. A day or two later the motel manager, while at home, identified Jackson and Hardison from photographic arrays.
Jackson and Hardison both gave a number of oral statements to the police. Both admitted their presence in the tavern and the occurrence of the robbery. They variously accused their other two companions and denied any intention to participate. In any event, both were acquitted of the tavern robbery charges.
In their statements they also conceded that they stopped at the Edison Motor Lodge. Jackson variously claimed that only Brown and Porter went in. In another statement he admitted being "involved with" the motel robbery. Hardison admitted that he went into the motel office "to inquire about a room." He claimed that Brown and Porter committed the armed ...