On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 96-03-0404I.
Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A-5583-98T4 Argued and A-5811-98T4 Submitted April 3, 2001
These appeals arise from the trial of co-defendants Sylvester Livingston and Derrick Grimsley in Mercer County. Livingston's appeal was argued and Grimsley's was submitted, and we consolidate them for purposes of this opinion.
Both defendants were indicted and were tried by a jury on the following charges: carjacking, first degree, N.J.S.A. 2C:15- 2 (Count One); robbery, first degree, N.J.S.A. 2C:15-1 (Count Two); theft, third degree, N.J.S.A. 2C:12-3(a) (Count Three); unlawful taking of a motor vehicle, fourth degree, N.J.S.A. 2C:20-10(b) (Count Four); attempted murder, first degree, N.J.S.A. 2C:11-3 and 2C:5-1 (Count Five); aggravated assault, second degree, N.J.S.A. 2C:12-1(b)(1) (Count Six); aggravated assault, fourth degree, N.J.S.A. 2C:12-1(b)(4) (Count Seven); possession of a weapon for an unlawful purpose, second degree, N.J.S.A. 2C:39-4(a) (Count Eight); and unlawful possession of a weapon, third degree, N.J.S.A. 2C:39-5(b) (Count Nine).
Each defendant was found guilty on all Counts and, after appropriate mergers, each was sentenced on Counts One, Five and Nine. The court imposed the following respective sentences on these convictions:
Livingston: life, with a period of twenty-five years without parole for carjacking (Count One); twenty years, with a period of ten years without parole for attempted murder (Count Five), concurrent to the sentence on Count One; and five years with a period of two and one-half years without parole for unlawful possession of a weapon (Count Nine), consecutive to the other sentences;
Grimsley: life, with a period of twenty-five years without parole for carjacking (Count One); life, with a period of twenty-five years without parole for attempted murder (Count Five), concurrent to the sentence on Count One; and ten years with a period of five years without parole for unlawful possession of a weapon (Count Nine), consecutive to the other sentences.
Also indicted with these defendants on the same charges, but tried separately from them, was Marcus Payton, who testified at their joint trial. At Payton's trial he was found guilty on all charges except attempted murder. After appropriate mergers, Payton received an aggregate sentence of ten years imprisonment, with a period of five years without parole.
Evidence presented by the State could have led the jury to find that the victim, Rodney Jenkins, had parked his girlfriend's vehicle at a closed service station in Trenton early in the morning of August 8, 1995, and was making a telephone call from a pay phone at the station. Meanwhile, Payton was driving around the area with Livingston and Grimsley when they observed Jenkins talking on the phone. After circling the area, Payton stopped his vehicle and got out, purportedly to relieve himself, and as he was thus engaged the other two walked over to Jenkins. Jenkins was twice shot in the back and was seriously wounded by more than one round. Livingston and Grimsley left Jenkins on the ground and fled in the vehicle Jenkins had been driving. Jenkins, who was near death when taken to the hospital and underwent lengthy hospitalization and rehabilitation, has lost the use of both legs and his left arm and shoulder. He had been a security officer at Trenton Psychiatric Hospital at the time of the crimes and had been captain of the security officers' basketball team. Due to his condition, he was unable to assist materially with identification procedures for a considerable period after the crime, but after his hospitalization he was able to identify a photograph of Livingston in a photo array. He was unable to identify Grimsley.
In Livingston's appeal of his conviction and sentence, he contends:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE TRIAL COURT ADMITTED BOTH IN-COURT AND OUT-OF-COURT IDENTIFICATIONS MADE BY THE VICTIM, WHO HAD TOLD BOTH THE POLICE AND THE F.B.I. THAT HE DID NOT SEE THE MEN RESPONSIBLE FOR THIS OFFENSE.
II. THE DEFENDANT'S DUE PROCESS RIGHT TO PRESENT A DEFENSE WAS VIOLATED WHEN THE TRIAL COURT REFUSED TO ADMIT A PHOTOGRAPH OF HIM THAT WAS PUBLISHED IN THE NEWSPAPER PRIOR TO THE VICTIM'S PHOTO IDENTIFICATION.
III. THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT'S REFUSAL TO GIVE A CHARGE ON IDENTIFICATION WHICH EXPLAINED THE LAW IN THE ...