On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication June 17, 1997.
Before Judges Petrella, Wallace, and Kimmelman. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
Tried before a jury, defendant Izel Kelly was convicted of felony murder, contrary to N.J.S.A. 2C:11-3a(3), and second degree robbery, contrary to N.J.S.A. 2C:15-1. At sentencing, the Judge merged the robbery conviction into that for felony murder and sentenced Kelly to seventy years in prison, thirty years parole ineligibility, and assessed $1,000 in VCCB penalties and assessments.
On appeal, Kelly argues that he was denied a fair trial because the trial Judge refused to interrogate the jury regarding racial bias during voir dire. He also argues, for the first time on appeal, that the Judge should have given the jury an identification charge. *fn1 In a pro se supplemental brief, Kelly contends that he was denied his right to a fair trial because the trial court improperly denied his attorney's motion to withdraw.
On the morning of January 20, 1992, the body of Petronillo Jiminez, a man of Mexican descent, was found dead, laying on the railroad tracks at the Freehold bus station with his jacket pulled up over his head and his torso exposed. His jacket pockets were turned inside out. According to the medical examiner's report, Jiminez died from blunt trauma to the head and neck region with hypothermia as a significant factor. *fn2
The previous day Pedro Lopez Garcia met Jiminez at a Freehold laundromat. They spent the day together and eventually ended up at Garcia's apartment, where Jiminez consumed approximately eight beers. Around 10:30 p.m., Jiminez and Garcia left the apartment.
As they exited the apartment building, Garcia noticed a black man, wearing a green jacket and work boots, knocking on the door. Jiminez and Garcia proceeded to walk to the Freehold bus station. Jiminez was going to take a bus home and Garcia was taking a bus to work in Adelphia.
Garcia walked behind the station, near the train tracks. Two black men approached him; one from behind and one in front and asked him for money. Garcia remembered the man in front of him as the same man who was knocking at the apartment door, wearing the same boots and jacket. Jiminez told the men that they did not have any money and they left.
These events were corroborated by another witness, who described the black men as being six-feet-two inches tall; one wearing a gray colored coat and another wearing a darker colored coat, both with hooded sweat shirts. This witness took the same bus with Garcia at 11:00 p.m. As the bus was departing, he saw one of the black men approach Jiminez.
Around 11:15 p.m., Tarshell Parrish drove by the bus station. She noticed two black men, who were about six feet tall with dark skin, and a Mexican man in the last parking lot next to the bus station. One black man was standing about a foot and a half in front of the Mexican man and one was standing behind. She testified that the Mexican man was "holding his palms up and shaking his head." She did not see anyone else in the area and kept driving.
At 6:48 a.m. on January 20, 1992, a patrolman from the Freehold Borough Police Department was dispatched to the bus station to investigate a report that a man was laying on the tracks and possibly was dead. Located near the body was one of the victim's matching gloves, a broken wine bottle, a dollar bill, a cassette tape and a bottle of breath spray. Another patrolman observed a glove which appeared ...