December 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAKESHA P. JONES, A/K/A LAKESHA A. JONES, LIKESHA JONES, SHAKIKA JONES AND SHANIKA JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-06-1241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Lakesha Jones appeals from her conviction for first degree armed robbery (liable for conduct of another), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; criminal restraint, N.J.S.A. 2C:13-2b; possession of weapons for an unlawful purpose (conduct of another), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:13-1b; possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of weapons, N.J.S.A. 2C:39-5b; and eluding, N.J.S.A. 2C:29-2b. She also appeals from the aggregate twenty year sentence imposed. We affirm.
The case arose from the January 24, 2003 armed robbery of a health spa in Fort Lee, New Jersey. Prior to the trial, the court ruled that the prosecutor could introduce evidence relating to armed robberies at two other health spas, for the purpose of establishing defendant's identity. We first summarize the Rule 104 hearing on the admissibility under N.J.R.E. 404(b) of this other crimes evidence, and then address the evidence presented at the trial.
The Pre-Trial Hearing
During the pretrial hearing, the State sought to have a videotape from a January 13, 2003 robbery, of the Eastern Therapy Spa in Franklin Township, admitted into evidence under N.J.R.E. 404(b). The State argued that the videotape was relevant to the issue of identity, because the jackets seized by the police in this case were identical to those worn by the participants in the Eastern Therapy crime. The State contended that it needed to show this evidence, plus additional evidence concerning other robberies, in order to rebut the contentions of Jones and her co-defendant that they were not participants in the Fort Lee robbery but were innocent bystanders who were carjacked.
By showing that within the same general time frame, several other spas were robbed by persons wearing the same clothing and using the same modus operandi as defendant and her co-defendants, the State intended to show that the same people robbed the Fort Lee spa. Also, by connecting defendant to the clothing worn at those other robberies, the State intended to show that defendant was present at those robberies and, hence, that it was highly unlikely that she was at the scene of the Fort Lee robbery by accident or happenstance (e.g., carjacking).
Applying the four-part test of State v. Cofield, 127 N.J. 328, 338 (1992), the trial court ruled that the Eastern Therapy tape was admissible. First, the information on the tape was relevant to the material issue of identity. Second, the robberies were similar in that they both involved a spa, and were close in time as they occurred within one month of each other. Third, the evidence of the other crime was clear and convincing because it was clear from viewing the tape that another robbery was taking place. Finally, the judge concluded that the probative value of the videotape was not outweighed by the risk of undue prejudice.
The State also sought to enter into evidence the video of a January 16, 2003 robbery of the Ace Health Spa in East Brunswick, which had been found in a vehicle searched after the robbery in the current case. The court held that admitting this videotape, which showed the actual robbery and a victim being duct-taped, would be unduly prejudicial. However, the judge ruled that the State could redact the video to show only the jackets worn by the perpetrators. The judge also permitted the prosecution to introduce four still photographs culled from the Ace Therapy video, which the State contended were photographs of defendant.
The following evidence was presented at the trial. On January 24, 2003, an armed robbery occurred at the KOA Spa, located in Fort Lee, New Jersey. The spa was located on the third and fourth floors of the building, and customers entered by taking a glass enclosed elevator from the rear parking lot.
Kyong McCormick was working at the fourth floor reception desk after 9 p.m. on January 24, 2003. She testified that she observed on a video monitor two men and two women waiting outside the elevators on the ground floor. When the elevator arrived on the fourth floor, only one person stepped out. This was a black male, with curly hair, of medium height, and wearing a dark jacket; he was later identified as Darnell Bland. Bland gave McCormick the $60 entrance fee, and she gave him a key to a locker.
Bland entered the locker room and encountered Ray Leahy, a customer who had just completed a massage. Leahy testified that Bland looked around the locker room, and then asked for directions to the bathroom, which Leahy gave him. Leahy showered and returned to his locker to get dressed.
While Leahy was at his locker, Bland returned to the locker room with a towel attendant, pulled out what appeared to be a .45 caliber handgun, and ordered both Leahy and the towel attendant to the ground. Bland taped both men's wrists behind their backs. Bland went through Leahy's pockets and took out about $120 in cash, ripped a chain from around his neck, and took off his watch and a ring from his finger.
The towel attendant, who did not understand English well, started to get up. Bland pistol whipped him, causing him to fall to the floor. He taped the attendant's wrists and ankles, and told him not to get up or he would blow them away.
Leahy testified that while this was going on, he heard static and a woman's voice coming from a walkie-talkie in Bland's pocket. The woman's voice kept saying "where are you, where are you?" Bland took out the walkie-talkie and told her to "come on up." Bland left the locker room, telling Leahy and the towel attendant not to get up or he would kill them.
Bland returned to the reception area, complaining to McCormick, the reception desk attendant, that the key did not work. McCormick offered to help Bland open the locker, and walked toward the locker room with him. When they reached the door to the locker room, Bland pulled out a gun, pointed it at McCormick's head, and forced her inside. Once inside the locker room, he taped her arms behind her back with duct tape and put her inside a locker.
Shortly after, a black woman entered the locker room. She was wearing a hat and mask and carrying a gun. Leahy described her as being about five feet, three inches in height and 120 pounds. Leahy did not describe her jacket. Bland left the locker room with this woman.
As soon as they left, Leahy started removing the tape from around his wrists. McCormick began to scream from inside the locker, and Leahy let her out. He asked her if there was a fire alarm, and walked toward the front after she pointed in that direction. He saw the fire alarm, which had been taped with duct tape. He ripped off the tape and pulled the alarm box, which seemed to have already been pulled. Leahy saw about five people taped up in the reception area. He asked for a cell phone and called 9-1-1, and was told that police were already on the scene. Meanwhile, McCormick ran to the nightclub next door and asked them to call the police.
Eduardo Ponce de Leon, a bouncer at the nightclub, was at the door checking identification. He testified that McCormick ran up to the door, crying and saying they had been robbed. The head of security at the nightclub told Ponce de Leon to go to the back of the building to see if anyone was there. He ran to the back, and saw two men and a woman exit the glass elevator and run toward a red Ford Explorer, which was parked with a fourth person at the wheel. All four of the people he observed were black; he could not identify them because they were wearing masks. One of the women wore a puffy jacket. The spa was located near the Fort Lee police station, and the police were in front of the building by the time Ponce de Leon ran from the parking lot back to the front of the building.
KOA Spa customer Dante Joa testified that he exited a massage room and saw several customers tied up with duct tape. Two black males and one female, whom he described as short with black hair, were yelling at them not to move. Joa ran to the front and pulled the fire alarm, which was covered in duct tape. He could hear the alarm go off. He then ran down the stairs and called 9-1-1. He heard a commotion, and saw the two men heading for the roof or possibly down the exit stairs.
Myrna Marte, an employee at the spa, testified through an interpreter that she came out of a massage room around 10 p.m. and saw several people tied up with duct tape. She walked out to the front, where someone asked her to call 9-1-1. She made the call, and was told that the police had already been called and were on their way. She then took the elevator down to the street. Her pocketbook, which she kept in a locker, was taken during the robbery.
At approximately 10 p.m., Fort Lee police officer Alejandro Lorenzo was having dinner at a restaurant located one block from the KOA spa. After receiving a report of an armed robbery in progress, he responded to the scene in less than thirty seconds. People were gathered in front of the building, pointing down the street to a red Ford Explorer and yelling "they have guns."
Lorenzo saw that the SUV was at the intersection of Main Street and Lemoine Avenue. He testified that he ran and took cover behind the concrete "lip" of a bank, pulled out his firearm, and ordered the occupants to exit the vehicle.
After Lorenzo had repeated this command several times, a black male exited the vehicle holding a silver plated handgun in one hand and a purse in the other. He was wearing a dark, heavy jacket and black pants, and was later identified as Darnell Bland. Lorenzo ordered the man to drop the weapon and purse and to kneel on the ground. The man dropped the items, then ran towards Main Street and away from the officer. Lorenzo notified dispatch of his flight.
Lorenzo decided to stay with the vehicle because he saw the brake lights flicker, and observed two silhouettes of people in the car. He ordered the remaining occupants to exit the vehicle. Instead, with the traffic in front of the Explorer having cleared, the vehicle made a right turn onto Main Street. Lorenzo stayed at the scene, retrieving the purse and handgun dropped by Bland. The gun was subsequently identified as a replica of a Baretta model 9 millimeter handgun, which was operable but only capable of shooting blanks.
Police officer Michael Pappachristou also responded to the armed robbery call. He heard Lorenzo calling out that he had a vehicle that fit the description of the one driven by the actors described in the robbery. Pappachristou was a couple of hundred yards from the spa when he saw Lorenzo point to the Explorer, and made a right turn onto Main Street in his police cruiser in an attempt to cut it off.
Another officer in the area saw a black male, later identified as Al Mustafah Baldwin, wearing a black jacket with light colored sleeves, and ordered the man to stop. The man ran, and Pappachristou drove his vehicle parallel to the man and attempted to cut him off. The man hurdled over the patrol car and ran behind a sandwich shop and a florist.
Officer Michelle Morgenstern was responding to the KOA Spa when she saw the man jump over Pappachristou's car and run away. She testified that she followed him down an alleyway, but she was not able to find him. However, a black jacket with gray sleeves and "New York" written on the front was recovered at the bottom of a fence in the alleyway. Inside the jacket was a roll of duct tape, a metal lighter, a ring and a bag of candy. Baldwin was apprehended approximately thirty minutes after the robbery in Englewood Cliffs by the Port Authority Police.
Officer Michael Gerardo also responded to the scene after receiving a call about an armed robbery in progress. He testified that while at the intersection of Main Street and Jerome Avenue, he observed what appeared to be the taillights of a red SUV. He followed the vehicle onto Beverly Hills Road, a dead end street, without turning on his lights or siren. When Gerardo reached the end of the street, he saw the red Explorer with the driver's side door open and two females standing outside the vehicle. One of the women, later identified as Alneisha Minitee, was holding a black and copper North Face down jacket and a purse. The second woman was later identified as defendant.
Gerardo exited his vehicle and drew his weapon, ordering the women to lie down on the ground. They complied. Both women told the officer that they had been carjacked,
The police processed both the North Face jacket and the vehicle. Inside the jacket was a Motorola walkie-talkie, a black plastic bag with six .32 caliber bullets and a bloodstained cardboard core of an empty roll of tape. In the vehicle, the officers found a number of items, including a black skull cap, a black wool visor, and a black ski mask.
Also found in the vehicle were four rolls of duct tape,*fn1 a roll of electrical tape, and the January 16, 2003 surveillance tape from Ace Therapy Spa in East Brunswick, New Jersey. The police also recovered classified sections of the Star-Ledger from January 8 through January 20, 2003. Under the column marked "massage," there were asterisks, and the words "no" and "maybe" next to several spas and health centers. Police were later able to trace telephone numbers dialed from a cell phone found in the car to the numbers listed for the spas in the newspaper. Finally, the police found a green sheet of paper with directions to the KOA spa in the vehicle.
Detective Howard Ginsburg, of the Fort Lee Police Department, testified that he was dispatched to Beverly Hills Road where he assisted in securing defendant and Minitee. Both women "were screaming that they were carjacked, that they didn't know who jumped in their car." The jury also saw a videotape of the police arresting the two women, taken from cameras in the police cars. These included the women screaming about being carjacked by two strangers. However, Ginsberg testified that police recovered from the car an invitation to a party for Bland and Baldwin.*fn2
According to Ginsburg, the morning after the robbery, at about 8:15 a.m., he recovered a silver colored handgun from a location on Beverly Hills Road near where the Explorer had stopped. Ginsburg also obtained a photograph of a black male from the Franklin Township Police Department. The male in the photograph was involved in a January 13, 2003 robbery of the Eastern Spa in Franklin Township. He was later identified as Bland, who was eventually arrested.
Co-defendant Minitee testified, claiming that she was shopping with defendant, Bland and Baldwin at Willowbrook Mall, after driving there in a car that belonged to defendant. When they left the mall, defendant asked her to drive them to Fort Lee. Bland gave her directions, and once they arrived at the KOA spa, Bland and Baldwin entered the building. A few minutes later, defendant got a call on a "radio" that Minitee had seen earlier at defendant's house, asking defendant to come upstairs. Defendant left the car and got into a see-through elevator, and Minitee saw her go upstairs.
About fifteen minutes later, the two men and defendant came down the see-through elevator and out of the building and ran to the car, "screaming and yelling" for Minitee to drive away. Bland pointed a gun at her and told her to drive. Bland and Baldwin jumped out of the vehicle and ran away when it was stopped in traffic.
Minitee also testified that Baldwin was wearing a gray and black jacket with the words "New York" on the front, and defendant was wearing a black and copper North Face jacket. She had seen defendant wearing that jacket before. Minitee testified that at the time, she had no idea what had happened at the KOA spa, and that she told the officer that she had been carjacked because Bland had put a gun to her head and told her to drive. Minitee denied that the police tried to stop her car at that point, and denied trying to elude the police. She claimed she drove away from the scene because she was scared. She also contended she told the police she was carjacked by strangers because she did not want to get her friends in trouble.
The State offered the videotape of the Ace Health Spa robbery; this tape was found in defendant's car after the robbery in this case. The tape was redacted to only show the jackets worn by the perpetrators. Because the redaction of the tape caused the facial features of the perpetrators to become blurred, the State also offered four photographs of defendant's face, taken at different angles, that were distilled from the video. The court held that the redacted videotape and photographs could be admitted into evidence.
When the Ace Health Spa tape and photographs were shown to the jury, the court gave a limiting instruction:
Some evidence is relevant to the trial and the proceedings, others is not. Others has [sic] a limited purpose as to what that evidence is being used for.
Here the State is going to offer to you a videotape, an attempt to convince you that the clothes worn in the videotape shown and the clothes allegedly used in the robbery in Fort Lee are the same or the same person or persons were wearing them.
You may not draw the inference that the same person was wearing these clothes unless you conclude that the clothes are so unusual and distinctive as to conclude that they are the same. So it's only for a very limited purpose as to the clothes only.
The tape of the Eastern Therapy robbery was also played for the jury, during the testimony of police officer Greg Borlan of the Franklin Township Police Department. One of the perpetrators in this video wore a black and copper North Face jacket, which was the same jacket found in the SUV after the KOA robbery. The court gave a limiting instruction prior to that videotape being played for the jury.
In his final instructions to the jury, the trial judge gave an extensive charge on other crimes evidence. The jury convicted defendant, but was unable to reach a verdict on the charges against Minitee.
On this appeal, defendant raises the following points for our consideration:
POINT I: ADMISSION OF THE SURVEILLANCE VIDEOTAPES OF THE EASTERN THERAPY SPA AND ACE HEALTH SPA ROBBERIES CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION AND IS REVERSIBLE ERROR.
A. The State Failed To Clearly
And Convincingly Show That The Identified Bad Act Of The Defendant, In Fact, Occurred.
B. The Trial Court applied An Erroneous Standard In Finding That The Risk Of "Undue" Prejudice Did Not Outweigh Probative Value.
POINT II: THE TRIAL COMMITTED ERROR IN ITS JURY CHARGE ON OTHER CRIMES EVIDENCE. (Not Raised Below)
POINT III: THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)
POINT IV: THE COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY PERMITTING THE PROSECUTOR TO HAVE AN EX PARTE CONFERENCE WITH THE COURT INTERPRETER AND BY FAILING TO INSURE THAT THE COURT INTERPRETER WAS SWORN ON THE RECORD. (Not Raised Below)
POINT V: THE AGGREGATE BASE SENTENCE OF TWENTY (20) YEARS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION.
A. Imposition Of A Base Sentence
That Exceeded The Statutorily Authorized Ten (10) Year Term For A Crime Of The First Degree On Count Two Was Manifestly Excessive.
B. The Trial Court Abused Its Discretion In Running The Sentences Imposed On Counts Two and Seven Consecutive To Each Other
We decline to address defendant's point III concerning ineffective assistance of counsel, without prejudice to defendant's right to raise this issue in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992).
Having reviewed the entire record, we conclude that Point IV is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond noting that defense counsel should have been included in any discussion with the court interpreter. We find no possible basis on which this error, to which defense counsel raised no objection, could warrant reversal of defendant's conviction. See R. 2:10-2; R. 1:7-2. We likewise find no merit in defendant's contention, raised for the first time on appeal, that the trial court gave an improper jury charge on other crimes evidence. Defendant waived his right to raise this contention on appeal by failing to object to this aspect of the charge, R. 1:7-2, and in any event the charge was not a source of error, plain or otherwise. See R. 2:10-2. No further discussion of this point is warranted.
We turn next to defendant's central contentions on this appeal, concerning the admission in evidence of the surveillance videotapes of the Eastern Therapy and Ace Health Spa robberies. Evidence of other crimes, wrongs, or acts cannot be introduced to show that a person is in general disposed toward criminal behavior, and therefore guilty of committing the crime charged, but may be admitted for other purposes:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [N.J.R.E. 404(b).]
In State v. Cofield, 127 N.J. 328 (1992), the Supreme Court provided a framework for determining whether "other crimes" evidence should be admitted for the jury's consideration. The evidence must meet four tests:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Id. at 338.]
We review a trial judge's decision to admit evidence under N.J.R.E. 404(b) for abuse of discretion. State v. Lykes, 192 N.J. 519, 534 (2007).
Defendant contends that the State failed to present sufficient evidence that defendant committed the robberies depicted in the two videotapes and that their admission in evidence was more prejudicial than probative. "The third prong of the Cofield test 'requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong.'" State v. Koskovich, 168 N.J. 448, 485 (2001)(quoting State v. G.V., 162 N.J. 252, 275 (2000) (Coleman, J., concurring in part and dissenting in part)). That evidence must be clear and convincing. Lykes, supra, 192 N.J. at 536.
We consider these principles in the context of this case. The State's case against defendant rested on evidence that the KOA spa was robbed by two men and two women, or by two men and one woman while a female accomplice waited in a getaway car. The masked suspects were seen leaving the spa and entering a red Ford Explorer. The police were called and arrived on the scene as the Ford Explorer was attempting to exit the parking lot behind the spa. They blocked the vehicle and two men fled the car. While fleeing, one of the men discarded a black and gray "New York" jacket. After the men fled, the red vehicle then took off and the police gave chase and caught up with it. At that point, defendant and her co-defendant Minitee got out of the car and claimed to have been carjacked.
In the car, police found considerable evidence linking the car to the KOA robbery as well as to other similar robberies. Minitee was carrying a jacket later identified as having been worn by one of the robbers. Both Jones' and Minitee's cell phones were recovered and were found to have been used to call the KOA spa and a large number of other spas, including several that had been robbed. In short, both women were firmly linked by circumstantial evidence to the KOA robbery. Their explanation to the police for their presence at the crime scene and in a car filled with evidence of the crime, was that two strangers had carjacked them, i.e., that they were there due to mistake, accident, or misadventure.
Under N.J.R.E. 404(b), the State was entitled to introduce evidence of defendant's presence at the scene of other similar crimes, and her participation in those crimes, to rebut the defense that defendant fortuitously happened to be at the KOA crime scene because she was carjacked. The State also intended to show that the KOA robbery was a signature crime, because of the modus operandi and the clothing worn by the participants, and that defendant had committed other crimes with similar signature characteristics. Such signature crime evidence is admissible, where there is proof that defendant committed the other signature crimes. See State v. Porambo, 226 N.J. Super. 416, 421-23 (App. Div. 1988).
In this case, the three robberies were committed by perpetrators wearing essentially the same distinctive clothing, including a gray and black "New York" jacket and a black and copper North Face jacket. They used duct tape to bind the victims, used silver handguns and, in the Eastern spa robbery, they used the same general approach as the KOA robbery, whereby an individual clearly identifiable as Bland went in first followed by the others. We conclude that the crimes were sufficiently distinctive to qualify as signature crimes. See State v. Fortin, 189 N.J. 579, 594-95 (2007). Further, in the Ace Spa robbery, the face of a woman can be seen on the video and in still photographs. The woman also happened to be wearing a puffy two-tone North Face jacket. The jury could reasonably have concluded it was defendant.
The Eastern Spa robbery video presents a closer question. In that tape, one can see a man clearly identifiable as Bland, and an individual wearing a gray and black jacket matching the description of the one discarded by Baldwin after fleeing the KOA crime scene. The only link to defendant is a figure, whose gender cannot be determined from the video, wearing what appears to be the North Face jacket. We conclude that this was insufficient to establish by clear and convincing evidence that defendant committed the Eastern Spa robbery.
However, we are also firmly persuaded that admission of this video was harmless error. Having reviewed the record, we are left with no reasonable doubt that defendant would have been convicted even without this evidence. See State v. Macon, 57 N.J. 325, 333 (1971). In its case-in-chief, the State presented a very strong circumstantial case linking defendant to the KOA robbery. She was caught in what was obviously the getaway car, which was filled with evidence of the robbery. Forensic evidence even established that the duct tape used to bind the KOA victims came from one of the rolls of duct tape found in the car. The only possible exculpatory evidence was defendant's statement to the police that she and Minitee were hijacked by two strangers. The State presented witness testimony that defendant, Minitee, Bland and Baldwin all knew each other. Finally, when the defense presented its case, Minitee's testimony welded shut the last link in the State's chain of evidence against defendant. Given the strength of the State's case, we cannot conclude that the Eastern Spa tape influenced the jury to reach a verdict it would not otherwise have reached. See Macon, supra. Therefore we affirm defendant's conviction.
We likewise find no abuse of discretion or other basis to disturb the fifteen year sentence for the first degree robbery conviction. See State v. Dalziel, 182 N.J. 494, 501 (2005); State v. Roth, 95 N.J. 334 (1984). The multiple victims of the KOA robbery were terrorized. One employee was locked in a locker and another was pistol whipped. Given the multiple victims, the brutality of the crime, and the multiple uses of the handgun to terrorize the victims and to assault the locker room attendant, we find no error in the consecutive five-year sentence. See State v. Yarbough, 100 N.J. 627 (1985).