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State v. Kelly

Decided: January 10, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGERS KELLY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Michels, Deighan and Stern. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[207 NJSuper Page 116] Tried to a jury, defendant Rogers Kelly was convicted of (1) the murder of Carl Grossman, a crime of the first degree, in violation of N.J.S.A. 2C:11-3; (2) unlawful possession of a handgun without having first obtained the requisite permit to carry the same, a crime of the third degree, in violation of N.J.S.A. 2C:39-5b; and (3) possession of a handgun for an unlawful purpose, a crime of the second degree, in violation of N.J.S.A. 2C:39-4a. Defendant's motions for a new trial following

the jury verdict were denied. The trial court thereupon merged the conviction for possession of a handgun for an unlawful purpose with the conviction for murder and committed defendant to the custody of the Commissioner of the Department of Corrections for 70 years, with a parole ineligibility term of 35 years, and assessed a penalty of $1,000.00, payable to the Violent Crimes Compensation Board. In addition, defendant was committed to a concurrent term of 5 years, with a 2 1/2 year period of parole ineligibility, and assessed a penalty of $25.00 for possession of a handgun without having first obtained the requisite permit to carry the same. Both custodial sentences were to be served consecutively to any sentence defendant was then serving for a prior parole violation. Defendant appeals.

Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:

I. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S POST-ARREST VERBAL STATEMENTS TO THE POLICE WERE NOT OBTAINED IN VIOLATION OF EDWARDS v. ARIZONA, AND WERE, THEREFORE, ADMISSIBLE IN EVIDENCE AT THE DEFENDANT'S TRIAL.

II. THE TRIAL COURT ERRED IN PERMITTING USE AT TRIAL OF THE DEFENDANT'S INCRIMINATORY STATEMENTS WITHOUT CONSIDERATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL WHICH WAS ASSERTED IMMEDIATELY AFTER ARREST BY WARRANT.

III. THE TRIAL COURT ERRED IN NOT PERMITTING CROSS-EXAMINATION OF THE STATE'S WITNESS, KATHLEEN CAREY, TO SHOW POSSIBLE BIAS RESULTING FROM HER PERSONAL RELATIONSHIP WITH THE DECEDENT.

IV. THE TRIAL COURT COMMITTED ERROR IN REFUSING THE DEFENSE MOTION TO STRIKE THE TESTIMONY OF KATHLEEN CAREY THAT SHE HAD RECEIVED NUMEROUS PHONE CALLS FOR THE DECEDENT, CARL GROSSMAN, ALLEGEDLY MADE BY AN INDIVIDUAL IDENTIFYING HIMSELF AS ROGERS KELLY, THE DEFENDANT.

V. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING INTO EVIDENCE TESTIMONY AS TO BLOOD ANALYSIS.

VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION AT THE CLOSE OF THE STATE'S CASE PURSUANT TO R. 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL

ON COUNT 3 OF THE INDICTMENT SINCE THE EVIDENCE WAS INSUFFICIENT TO WARRANT CONVICTION.

VII. THE TRIAL COURT COMMITTED ERROR IN SENTENCING DEFENDANT KELLY ON COUNT I TO INCARCERATION FOR A PERIOD OF 70 YEARS WITH A PAROLE INELIGIBILITY PERIOD OF 35 YEARS.

VIII. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR MISTRIAL UPON DETECTIVE HALLIDAY'S ADDED USE OF THE WORD "EXTORTION" DURING TRIAL BEFORE THE JURY.

IX. THE NUMEROUS ERRORS AT TRIAL CONSIDERED IN THE AGGREGATE AND CUMULATIVELY BROUGHT ABOUT AN UNJUST RESULT REQUIRING A NEW TRIAL.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the exception of the challenge to the legality of the sentence (Point VII), they are clearly without merit. R. 2:11-3(e)(2). Further comment is appropriate, however, with respect to several of these ...


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