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State v. Scott

February 11, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRADFORD SCOTT, DEFENDANT-APPELLANT, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERMAN RAINEY, DEFENDANT-APPELLANT.



A-7006-93T4

Argued: December 12, 1997 Before Judges Dreier, Keefe and Wecker. On appeal from the Superior Court of New Jersey, Law Division, Essex County.

The opinion of the court was delivered by: The opinion of the court was delivered by Keefe, J.A.D.

A jury found defendants Herman Rainey, a.k.a. Michael Davis, and Bradford Scott guilty of the following offenses *fn1: count one, second degree conspiracy to commit robbery in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; count four, second degree aggravated assault on Corey Johnson in violation of N.J.S.A. 2C:12-1b(1); count eight, third degree hindering apprehension in violation of N.J.S.A. 2C:29-3(b); count twelve, fourth degree assault on Pedro Zamora in violation of N.J.S.A. 2C:12-1b(4), a lesser included offense of second degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1) for which they were indicted; count fifteen, first degree attempted murder of Robert O'Connor in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count sixteen, second degree aggravated assault upon Robert O'Connor in violation of N.J.S.A. 2C:12-1B(1); count nineteen, first degree attempted murder of Yvette Lopez in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count twenty, second degree aggravated assault upon Yvette Lopez in violation of N.J.S.A. 2C:12-1B(1); count twenty-two, fourth degree assault on Charles Cefalu in violation of N.J.S.A. 2C:12-1b(4), a lesser included offense of second degree aggravated assault in violation of N.J.S.A. 2C:12-1B(1) for which they were indicted; count twenty-three, third degree unlawful possession of an assault weapon in violation of N.J.S.A. 2C:39-5(f); count twenty-four, third degree unlawful possession of a weapon, a shotgun, in violation of N.J.S.A. 2C:39-5(c); count twenty-five, third degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b); and count twenty-six, second degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a).

The jury found only Rainey guilty of the following offenses: count two, first degree armed robbery of Corey Johnson in violation of N.J.S.A. 2C:15-1; count three, first degree attempted murder of Corey Johnson in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count five, first degree kidnapping of Corey Johnson in violation of N.J.S.A. 2C:13-1b(1); count six, third degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-5b; count seven, second degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4a.

The jury found both defendants not guilty of: count eleven, first degree attempted murder of Pedro Zamora in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count thirteen, first degree attempted murder of Jose Montalvo in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count fourteen, second degree aggravated assault upon Jose Montalvo in violation of N.J.S.A. 2C:12-1b(1); count seventeen, first degree attempted murder of William Connolly in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; count eighteen, second degree aggravated assault upon William Connolly in violation of N.J.S.A. 2C:12-1b(1); count twenty-one, first degree attempted murder of Charles Cefalu in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1.

On defendants' motion, the trial Judge dismissed count nine, first degree attempted murder of Robert Russo in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, and count ten, second degree aggravated assault upon Robert Russo in violation of N.J.S.A. 2C:12-1B(1) pertaining to both defendants, and count twenty-seven, fourth degree unlawful possession of "dum dum" bullets in violation of N.J.S.A. 2C:39-3(f) pertaining only to defendant Scott.

Defendant Rainey was sentenced to the following: on count five (kidnapping of Johnson), to an extended term of life imprisonment with a twenty-five year period of parole ineligibility; count sixteen was merged into count fifteen and on count fifteen (attempted murder of O'Connor), to a consecutive term of twenty years, with a ten year period of parole ineligibility; count twenty was merged into count nineteen and on count nineteen (attempted murder of Lopez), to a consecutive term of twenty years, with a ten year period of parole ineligibility; count four was merged into count three and on count three (attempted murder of Johnson), to a concurrent term of twenty years, with a ten year period of parole ineligibility; count one was merged into count two and on count two (robbery), to a concurrent term of twenty years, with a ten year period of parole ineligibility; on count six (unlawful possession of a handgun), to a concurrent term of five years, with a two and one-half year period of parole ineligibility; count seven was merged into counts two and three; on count eight (hindering apprehension), to a concurrent term of five years, with a two and one-half year period of parole ineligibility; on count twelve (aggravated assault), to a concurrent term of eighteen months, with an eighteen month period of parole ineligibility; on count twenty-two (aggravated assault), to a concurrent term of eighteen months, with an eighteen month period of parole ineligibility; on count twenty-three (unlawful possession of an assault weapon), to a concurrent term of five years with a two and one-half year period of parole ineligibility; on count twenty-four (unlawful possession of a shotgun), to a concurrent term of five years with a two and one-half year period of parole ineligibility; and on count twenty-five (unlawful possession of handguns), to a concurrent term of five years, with a two and one-half year period of parole ineligibility. In sum, Rainey's aggregate sentence is life imprisonment, plus forty years, with a forty-five year period of parole ineligibility. He was also assessed a $2,400.00 V.C.C.B. penalty.

Scott was sentenced as follows: count sixteen was merged into count fifteen and on count fifteen Scott was sentenced to an extended term of life imprisonment with twenty-five years parole ineligibility for the attempted first degree murder of Officer O'Connor; count twenty was merged into count nineteen and on count nineteen to a consecutive term of twenty years imprisonment with ten years parole ineligibility for the attempted first degree murder of Officer Lopez; on count four, to a consecutive term of ten years imprisonment with five years parole ineligibility for the second degree aggravated assault of Johnson; on count one, to a concurrent sentence of ten years imprisonment with five years parole ineligibility for conspiracy to commit the second degree robbery of Johnson; on count eight, five years imprisonment with two and one-half years parole ineligibility for third degree hindering apprehension; on counts twenty-three, twenty-four, and twenty-five, five years imprisonment with two and one-half years parole ineligibility for each of the third degree unlawful possession of weapons counts; and on counts twelve and twenty-two, eighteen months imprisonment with eighteen months parole ineligibility for each of the two fourth degree aggravated assault counts. The court merged count twenty-six, second degree possession of a weapon for an unlawful purpose, with counts twelve, fifteen, nineteen, and twenty-two. Thus, Scott's aggregate sentence is life imprisonment plus thirty years, with forty years of parole ineligibility. The court also imposed a $2,200.00 V.C.C.B. penalty.

Defendants' convictions stemmed from related incidents that began at approximately 4 p.m on May 28, 1991, involving Corey Johnson. Johnson was in a liquor store when he was approached by Rainey and co-defendant Maurice Davis who robbed him of $114.00 at gunpoint and attempted to abduct him. Johnson resisted their efforts to force him into a gray Cadillac Seville and escaped, but in doing so was shot in the head. Investigation would later reveal that the Cadillac Seville was owned by Milda Rainey, Maurice Davis's mother.

Eric Hankerson (Eric) informed Officers Lopez and O'Connor that he believed the individuals involved in shooting Johnson were in a white Chevette. The three individuals, later identified as the three defendants, Rainey, Scott and Davis, had previously approached Eric and asked him if he knew "Malik." Scott was then armed with a shotgun. Eric also reported that he saw an Uzi in the backseat of the car that Rainey was driving with Scott and Davis as passengers. Eric said that he had seen the same three men in a gray Cadillac Seville two days before, and the same three in the same car the day before Johnson was shot.

Later that evening, Lopez and O'Connor stopped the Chevette that Eric described. Shots were fired from the Chevette at the officers, and a chase ensued. Rainey, who was driving the car, jumped out of the car while it was moving and exchanged gunfire with two other police officers, Cefalu and Zamora. Rainey ran from the scene and was apprehended later in a garage.

In the meantime, the driverless Chevette crashed. By this time, the four police officers already identified were joined by three more, Connolly, Montalvo and Russo. Scott and Davis fired at the officers, and the officers returned the fire. Defendant Scott was shot in the buttock and defendant Davis was shot in the shoulder during the incident. Davis was found in the backseat of the car in a fetal position cradling a machine gun in his arms. Scott was found to be in possession of a loaded .380 semi-automatic in an ankle holster. An expert witness would later testify that the bullet that wounded Johnson came from that gun. A shotgun was also recovered from the scene. Evidence offered at trial showed that the shotgun was owned by Samuel Johnson, who lived in Virginia with his daughter, Laverne Scott. The State contended that Laverne Scott was defendant Scott's wife.

Tony Hankerson (Tony), Eric's brother, gave a statement to the police concerning his knowledge of the incident resulting in the shooting of Johnson. He said that on May 28, 1991, at approximately 4 p.m., he was in a delicatessen in Newark when he saw defendant Scott get out of a gray Cadillac Seville and walk into the delicatessen. Scott then asked those in the store if anyone had seen "Fella," Corey Johnson's apparent nickname. Scott also inquired about a person named "Skeet." Tony replied that he had not seen either "Fella" or "Skeet." Tony then left, and last saw Scott using the telephone inside the store. The evidence would reveal that the delicatessen was only a few buildings away from the liquor store where Johnson was accosted by Rainey and Davis. Tony later recanted his statement concerning his encounter with Scott in the delicatessen, but his statement was admitted into evidence.

Defendants have raised numerous issues on appeal. We have reworded and reorganized them for Discussion as follows:

I. WHETHER THE TRIAL COURT'S REFUSAL TO ENTERTAIN ALTERNATIVE REMEDIES TO A POTENTIAL GILMORE VIOLATION BY THE PROSECUTOR DURING JURY SELECTION, AND SUBSEQUENT FAILURE TO QUESTION THE PROSECUTOR AS TO HIS REASONS FOR ...


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