On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendants were the subjects of a joint indictment. The indictment charged both defendants with conspiracy to commit aggravated arson and first degree arson in violation of N.J.S.A. 2C:17-1a and N.J.S.A. 2C:17-1d. (Count one). Defendant Mickens was also charged with first degree arson, in violation of N.J.S.A. 2C:17-1d (Count two), and theft by deception, in violation of N.J.S.A. 2C:20-4 (Count seven). Defendant Allison was charged with first degree arson, in violation of N.J.S.A. 2C:17-1d (Count three), aggravated arson, in violation of N.J.S.A. 2C:17-1a (Counts four, five, six and eight), burglary, in violation of N.J.S.A. 2C:18-2 (Counts nine and eleven) and theft, in violation of N.J.S.A. 2C:20-3a (Counts ten and twelve). Counts eight through twelve were severed prior to trial because they pertained to incidents unrelated to Mickens.
On February 17, 19, 22, 23, 24, 25 and 26, 1982, defendants were jointly tried by a jury. On February 26, 1982, the jury returned guilty verdicts against both defendants on all counts.
On March 29, 1982, both defendants appeared before the trial judge for sentencing. Mickens was sentenced to a seven year custodial term on Count one, a fifteen year custodial term with a five year parole disqualifier on Count two and a three year custodial term on Count seven. All sentences were ordered to be served concurrently. Mickens was also ordered to pay an aggregate amount of $400 to the Violent Crimes Compensation Board. Allison was sentenced to a seven year custodial term on Count one and to a concurrent fifteen year custodial term on Count three. Counts four, five and six were vacated because
the judge ruled they merged into Count three. Allison's custodial sentence was conditioned upon his receiving proper medical treatment for cancer. Allison was also ordered to pay an aggregate amount of $75 to the VCCB. Both defendants were released on bail pending appeal.
In this consolidated appeal, defendants have filed a joint brief and both contend: (1) the verdicts are against the weight of the evidence (We note that Allison made no motion for a new trial as required by R. 2:10-1); (2) that the court erred in excluding proffered evidence of narcotics paraphernalia observed in the building, and (3) that their conspiracy convictions must be vacated because under N.J.S.A. 2C:1-8 those convictions merge into their convictions for the substantive offenses. (This point is conceded by the State). Additionally, in a point not raised below, Allison argues that the court erred in failing to instruct the jury that Mickens' out-of-court taped statements were not admissible against Allison. Mickens contends his sentence of 15 years with a 5 year parole disqualifier is manifestly excessive.
The State cross-appealed contending the trial judge erred in merging Allison's aggravated arson conviction with his first degree arson conviction.
We see no purpose to be served by a general recitation of the evidence produced at trial. We will address the facts as we deem that process necessary to our discussion of the points raised by defendants.
Our review of the record impels us to the firm conclusion that defendants' assertion that the jury verdict was against the weight of the evidence is clearly without merit. R. 2:11-3(e)(2). Allison's failure to move for a new trial obviates any right to raise this issue, R. 2:10-1, but in any event, the verdicts reached as to both defendants are sustainable and, clearly, there was here no "miscarriage of justice under the
law" apparent in the trial judge's ruling on Mickens' motion for a new trial. R. 2:10-1.
During the testimony of defense witness, Newark Detective Douglas Williams, Mickens' counsel made a proffer of proof that Williams would testify that sometime in July 1980, apparently while "moonlighting" as a carpenter at the building owned by Mickens, another Newark police officer, Williams observed "flammable" drug paraphernalia on the roof of the building which sustained its first fire on September 15, 1980, some two months later. That fire was the first of three Allison allegedly had set in order to fulfill his agreement with Mickens to "torch" the building so Mickens could collect insurance. All three fires occurred within eight days. The first fire occurred at about 4:15 a.m. on September 15 and had its point of origin in a third floor stairway leading to the roof. The second fire occurred on September 18 and originated in a vacant first floor apartment. The third fire, which finally destroyed the building, happened on September 23 and had its origin at two separate points in two different rooms of a first floor apartment. A fire department arson expert described all three fires as having the appearance of "incendiary" fires.
Defendants contended that Williams' evidence was relevant to their theory that drug addicts habitually used the building and probably started the fires for which both defendants stood accused. The judge viewed this proffered evidence as too remote in time and too far removed in space from the place where the first fire originated. Defense counsel argued that Williams' observation should be admitted because counsel might "through all of the witnesses . . . show the continuous activity having to do with the premises." The judge stated that if counsel could "show . . . a pattern" he would consider the admission of Williams' testimony and inquired whether counsel intended to show such a pattern. He also asked whether
counsel would demonstrate "drug paraphernalia in and about the premises" at approximately the time that the fires occurred. Counsel merely indicated that "it may develop into that." (Emphasis ours.). The judge then offered to "hear your other witnesses" and implicitly ruled Williams' testimony was not admissible without such a foundation.
Defendants produced no witnesses to establish that drug paraphernalia, "flammable" or otherwise, was observed in the building at any other time. Defendants did produce seven tenants of the building. One of these, Ms. Montgomery, stated that in August and September 1980 she observed people every day who did not "belong" in the building. Sharon Armstead testified that in the summer of 1980 she observed individuals in the building who did not "belong" there, some may have been "visitors," and some "drifters" had been in the third floor area. None of the other five tenants was asked to speak to the issue of whether unauthorized people frequented the premises and no tenant described any drug related incidents or paraphernalia. No attempt was made by defendants to call Williams after Montgomery and Armstead testified.
We observe that the attempt to assert that these three fires were set by drug addicts appeared to be one which was not denied by defendants and it was, at best, an enterprise more hopeful in nature than factual in foundation. The judge merely asked for some foundation for Williams' single and rather remote observation, but defendants apparently sought no further aid from Williams' testimony after the attempt at laying a foundation was less than they hoped to produce. Thus, the judge's temporary and discretionary ruling was never put to a test. We see no basis here for remand and a new trial. The argument made by defendants on appeal ...