On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-03-0134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Weissbard and Payne.
Defendant, James L. Cox, appeals from his conviction of felony murder, N.J.S.A. 2C:11-3a(3), and second-degree robbery, N.J.S.A. 2C:15-1a(1), as a lesser offense of first-degree robbery. On his felony murder conviction, defendant was sentenced to life imprisonment with a thirty-year period of parole ineligibility. A concurrent twenty-year prison term with ten years of parole ineligibility was imposed on the robbery conviction.
On appeal defendant presents the following arguments:
COX'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED WHERE ONE OF THE JURORS WHO ULTIMATELY SAT ON HIS JURY REVEALED DURING VOIR DIRE THAT HE MAY HAVE HAD AN OPINION REGARDING CO-DEFENDANT HOUSTON'S GUILT. (Partially Raised Below)
THE TRIAL JUDGE'S WOEFULLY INSUFFICIENT CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS AWKWARDLY SEPARATED FROM THE ROBBERY CHARGE AND INSUFFICIENTLY TAILORED TO FACTS OF THE CASE, COMBINED WITH THE JUDGE'S FAILURE TO CHARGE ASSAULT AND TERRORISTIC THREATS AS LESSER OFFENSES OF ROBBERY, DEPRIVED COX OF A FAIR TRIAL. (Not Raised Below)
THE TRIAL JUDGE'S FAILURE TO MOLD THE CAUSATION CHARGE TO THE UNIQUE FACTS OF THIS CASE, COMBINED WITH MISLEADING REMARKS MADE BY THE PROSECUTOR REGARDING CAUSATION, REQUIRES REVERSAL OF DEFENDANT'S FELONY MURDER CONVICTION. (Not Raised Below)
THE PREJUDICE CAUSED BY THE TRIAL JUDGE'S ERRONEOUS ADMISSION OF JORDAN'S, REED'S AND JOYCE'S OUT-OF-COURT STATEMENTS TO POLICE REQUIRES REVERSAL OF COX'S CONVICTIONS.
IN ADDITION TO ERRONEOUSLY IMPOSING A TWENTY-YEAR PRISON SENTENCE FOR SECOND DEGREE ROBBERY WHEN THE MAXIMUM TERM FOR THAT OFFENSE IS TEN YEARS, THE TRIAL JUDGE ERRED IN FAILING TO MERGE THE ROBBERY CONVICTION WITH THE FELONY MURDER CONVICTION. THE JUDGE ALSO ERRED IN USING AGGRAVATING FACTOR (1) AS A BASIS TO SENTENCE COX TO THE MAXIMUM TERM FOR FELONY MURDER -- LIFE IN PRISON WITH A THIRTY-YEAR PAROLE DISQUALIFIER.
IN VIOLATION OF COX'S RIGHT TO COMPULSORY PROCESS, THE TRIAL JUDGE FAILED TO COMPEL REED'S APPEARANCE AT A HEARING ON COX'S MOTION FOR NEW TRIAL WHERE THE MOTION WAS BASED ON REED'S RECANTATION OF HER TRIAL TESTIMONY, REED HAD BEEN SUBPOENAED TO APPEAR AT THE HEARING, AND REED HAD APPEARED IN COURT AT PREVIOUS SETTINGS FOR THE HEARING.
In a pro se supplemental brief, defendant raises the following argument:
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO FAIR TRIAL UNDER ART. 1, PARA. 10 OF THE NEW JERSEY STATE CONSTITUTION, AND UNDER THE SIXTH AMENDMENT OF THE FEDERAL CONSTITUTION, TOGETHER WITH THE DUE PROCESS CLAUSE, BASED UPON IMPROPER REMARKS BY THE PROSECUTION THAT AMOUNTED TO PROSECUTORIAL MISCONDUCT.
We find merit in a portion of defendant's Point Two, warranting reversal and remand for a new trial. We will comment on Point Four since the issues may arise at the retrial. We have no need to address the arguments advanced in Points Five and Six. Defendant's pro se issue is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
To provide a proper perspective for the discussion which follows, it is necessary to set out the facts in some detail. On October 20, 1998, at approximately 3:00 a.m., Michael Jordan and Roy Nelson, truck drivers from Texas, arrived in New Jersey with an eighteen-wheeled tractor trailer full of cargo. After locating their delivery destination in Mount Holly, and having several hours before they were scheduled to make their delivery, Jordan and Nelson drove on Route 541 in search of a restaurant. While looking for an open restaurant they passed a white female walking on the side of the road. When Jordan stopped the truck and yelled to the woman, later identified as Christina Joyce, she crossed the street and approached the truck.
A brief conversation ensued between the three, during which they discussed the possibility of purchasing sex or drugs. A price could not be agreed upon for sex, but Joyce agreed to help the truckers find some drugs. Joyce, who lived in the Mount Holly area, entered the truck and told the two men that she knew where to purchase drugs. She directed Jordan into the "Gardens" section of Mount Holly and told him to pull the truck into the Anne C. Heller School (Heller School) parking lot. Once the truck was stopped, Joyce exited the truck and went towards Levis Drive to purchase drugs. Jordan turned the truck around and waited with Nelson in the truck.
When Joyce arrived on Levis Drive, she met Cox, Shanai Marshall, and Walter Houston. Joyce, who was familiar with Marshall and Houston, approached Marshall and attempted to purchase drugs. Marshall took Joyce's money but gave her imitation drugs. As Joyce was returning to the truck, she inspected the bag that she had purchased and realized it was fake. Once she arrived at the truck, Joyce told Jordan and Nelson that one of them needed to go back with her to purchase the drugs.
At the same time, Cox, Marshall, and Houston went to Timeca Reed's house, which was located approximately twenty-five feet from where the truck was parked. Marshall knocked on Reed's door and asked Reed for "blunts," which are cigars that have the tobacco removed and replaced with crack. Reed gave Marshall the blunts and sat out on her front porch with Cox, Marshall, and Houston. As they smoked the blunts, Reed testified that she heard the three plotting to take Nelson's money. They discussed selling Nelson fake crack and robbing him, believing him to be in possession of $200. After smoking the blunts, the three left Reed's house and headed to the school.
Back at the truck, Nelson agreed to accompany Joyce to purchase drugs. Nelson walked behind the truck with Joyce and followed her as she entered the Gardens through a hole in a fence. Jordan immediately became suspicious because Joyce entered the Gardens through the hole in the fence rather than taking Nelson out to the road where she had gone the first time. His suspicions aroused, Jordan got out of the truck and walked towards the back of ...