On appeal from Superior Court of New Jersey, Law Division, Passaic County, 03-07-0677-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Weissbard, S.L. Reisner and Baxter.
Defendants Deon Ellis and Kenton Rodney appeal their convictions after a joint jury trial. A six count indictment charged the defendants, along with Christopher Hall and Dawn Smith, with the following offenses: murder, N.J.S.A. 2C:11-3a(1) or (2) (Ellis) (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Ellis, Hall, Rodney and Smith) (Count Two); possession of a weapon -- a handgun -- for an unlawful purpose, N.J.S.A. 2C:39-4a (Ellis, Hall and Rodney) (Count Three); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Ellis, Hall and Rodney)(Count Four); possession of a weapon by a previously convicted felon, N.J.S.A. 2C:39-7 (Ellis) (Count Five); and tampering with evidence, N.J.S.A. 2C:28-6(1) (Smith) (Count Six).
Following a trial in November 2004, Ellis was convicted on Counts Two, Three, Four and Five, but the jury was unable to reach a verdict on Count One. Rodney was acquitted of Counts Three and Four but the jury was unable to reach a verdict on Count Two. Hall was convicted of robbery and unlawful possession of a weapon. Smith entered into a plea agreement wherein she agreed to plead guilty to the first-degree robbery in Count Two, to be sentenced as a second-degree offense, subject to NERA, and Count Six, a fourth-degree offense, to run concurrent with Count Two. As part of her plea agreement, Smith agreed to testify against her co-defendants.
In June 2005 Rodney and Ellis were retried on the undecided counts. Ellis was convicted of aggravated manslaughter as a lesser offense of murder. Rodney was convicted of second-degree robbery as a lesser offense of first-degree robbery. On July 15, 2005, Ellis was sentenced to twenty-seven years in prison, subject to the 85 percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On September 9, 2005, Rodney was sentenced to nine years in prison, subject to NERA.
The defendants having separately appealed, we ordered that the appeals be calendared back-to-back and we now dispose of both appeals in this single opinion. In his appeal Ellis presents the following arguments:
POINT I: BECAUSE NO EVIDENCE INDICATED THAT DEFENDANT INTENDED TO CAUSE THE VICTIM'S DEATH, THE PROVISION OF THE FACTUALLY UNSUPPORTED JURY INSTRUCTIONS THAT DEFENDANT COULD BE FOUND GUILTY OF MURDER IMPROPERLY INFLUENCED THE JURORS TO RETURN A VERDICT OF AGGRAVATED MANSLAUGHTER, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Partially Raised Below)
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF JURY TAINT.
POINT III: THE COURT SHOULD NOT HAVE PROVIDED THE JURY WITH A FLIGHT CHARGE, AND THE CHARGE PROVIDED WAS INADEQUATE BECAUSE IT FAILED TO INCLUDE THE DEFENDANT'S EXPLANATION FOR HIS DEPARTURE. (Not Raised Below)
POINT IV: THE IMPOSITION OF A TWENTY-SEVEN YEAR TERM, 85% TO BE SERVED WITHOUT PAROLE, IS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT GAVE UNDUE WEIGHT TO THE AGGRAVATING FACTORS AND FAILED TO FIND RELEVANT MITIGATING FACTORS.
POINT V: IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE v. NATALE, 184 N.J. 458 (2005). (Not Raised Below)
In his appeal, Rodney argues:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF JURY TAINT.
C. THE DEFENDANT WAS DENIED THE RIGHT TO HAVE HIS CASE TRIED BEFORE AND DECIDED BY A COMPLETELY FAIR AND IMPARTIAL JURY BY VIRTUE OF THE TAINT ARISING OUT OF THE INFORMATION PROVIDED TO OTHER JURORS BY JUROR NO. 12, WARRANTING THE MOTION FOR MISTRIAL SOUGHT BY DEFENSE COUNSEL.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE STATE AND CO-COUNSEL TO ELICIT ADDITIONAL PORTIONS FROM THE DEFENDANT'S PREVIOUSLY-REDACTED STATEMENT TO THE POLICE WHICH ADVERSELY IMPACTED UPON THE CREDIBILITY OF THE DEFENSE'S CASE.
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO FIRST DEGREE ROBBERY EMBODIED IN COUNT II, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER OFFENSE OF SECOND DEGREE ROBBERY ARISING THEREFROM.
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find merit in Rodney's Point I and Ellis's Point II, requiring reversal and remand for a new trial. We address only those other issues that may arise at a retrial.
The State's case hinged on the testimony of two witnesses, Michael Messina and Dawn Smith. The following synopsis is primarily drawn from their testimony.
In the early morning hours of March 15, 2003, Michael Messina was driving his Jeep in the area of Auburn Street and Broadway in the City of Paterson. As he was driving, Messina saw Ebony Morris and Dawn Smith. Messina initially thought Dawn was a girl he knew as "Stay High," who was in fact Smith's sister, Nikki Smith. After realizing his mistake, he began to speak with Morris because he was "looking for someone to hang out with, like chill with, a female." Morris cut him off stating that she had a boyfriend and did not sleep around on him. Messina then turned his attentions to Smith after she stated that she had "a man but didn't give a fuck."
Smith told Messina that she would be interested in hanging out but that she could not do it at the moment because her "baby father" was waiting for her to return. Messina gave his business card to Smith, which contained his cell phone number. Messina, a local drug dealer, used the card so that his customers would be able to contact him.
During the conversation, Smith and Morris told Messina they were on their way to pick up some food. Messina offered to give them a ride. While Messina waited outside the restaurant and the women were inside, he received a phone call from a customer looking to make a purchase. Messina, who had offered to drive the women home, told them that before he was able to do that he had to make a delivery to a customer and they were free to join him.
Messina, accompanied by the women, drove to meet with his customer. There he sold the purchaser one bag of heroin and one bag of crack cocaine. When Messina was exiting the car, he reached into his glove compartment and retrieved his bag of drugs. Smith, seated in the front seat, observed Messina's actions. She also saw him make change from a large wad of bills he had in his pocket. After completing the transaction, Messina drove Morris and Smith back to Smith's home, located at 43 Auburn Street. Smith told Messina that she would call him later that day so they could get together.
When Smith and Morris returned to the apartment, Ellis, Rodney, and Hall were in the kitchen talking, and Smith's four daughters were watching cartoons in the living room. Smith told Morris that she planned to call up Messina and "chill with him" so that she could get money from him. She felt that he was the type of male who would give money to a pretty girl and that he was a "sucker."
The next morning, Smith called Messina's cell phone several times. When Messina woke up around 9:00 a.m., he noticed that he had several messages from Smith on his cell phone asking to meet up with him. Messina finally returned Smith's phone calls and said that he was going to pick her up and take her out to eat. They arranged to meet at her place.
Prior to Messina having returned her calls, Smith began talking to Morris about meeting up with Messina. Rodney, who was Morris' boyfriend, overheard the conversation and he, along with Ellis and Hall, became involved in the conversation. Once they joined in, Smith's plan to get some money from Messina began to evolve. Rodney suggested that it would be better if Smith went to Messina's house and called them once she learned the address. He stated that nobody would be hurt, but that he intended to "whoop his ass and take his money." While this was happening defendant did not say anything. Hall, however, stated that he did not want to be involved in the plan.
When Messina arrived to pick up Smith, he parked in front of Smith's building, and noticed three men that he had never seen before walking towards him. The men looked at him in a way that made Messina feel uncomfortable. Eventually, the three men went inside Smith's building. Smith emerged shortly thereafter. Morris met Smith in front of the building and the two women entered Messina's truck. Messina was initially upset that Morris was tagging along, but Smith convinced him that she ...