On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Lintner and Sabatino.
The sole issue raised in this criminal appeal is whether the trial judge's multiple instructions to the jury concerning the guilty plea of a co-defendant, who had recanted at defendant's trial when he was called as a prosecution witness, were confusing and unduly prejudicial. Because we are satisfied that the judge's instructions were comprehensible, fair and consistent with the law and the model criminal jury charges, we affirm defendant's convictions.
The State's proofs at trial showed the following. On the evening of February 27, 2005, defendant Jake Brady was in the company of his brother Mike and his brother's close friend, Raheem Pearsall. The three men drove to an apartment complex in Gloucester Township, where Mike Brady had arranged to purchase drugs from a seventeen-year-old male, R.C. Upon arriving at the apartment complex, Mike Brady left and went looking for "blunts," cigars emptied of tobacco and refilled with marijuana.
R.C. then approached the apartment complex on a bicycle. He encountered a short white male, who he identified at trial as defendant, and a tall black male, who he identified at trial as Pearsall. Defendant said to R.C., "What's up?," or "Sup?" R.C. responded, "What's up?" According to R.C., defendant then began to strike him, knocking him off his bicycle. After R.C. fell to the ground, defendant jumped on him, forced him into a headlock and started going through his pockets. Pearsall joined in and kicked R.C. in the head, while defendant yelled, "Give me everything. Give me everything now."
Fearing for his life, R.C. managed to pull out a snub-nosed handgun that he had been carrying. While still in defendant's headlock, R.C. fired at Pearsall. The shot hit Pearsall in the stomach. Defendant tried to wrest the gun away. R.C. then fired a second shot, which went through defendant's hands. The shots enabled R.C. to break free. He rode his bicycle back to his apartment. His attackers did not succeed in taking the drugs or cash that were in his pockets.
Following this violent encounter, defendant and Pearsall found Mike Brady and drove to a friend's house nearby. Police and first aid personnel then arrived at the house, in response to an emergency call. Defendant and Pearsall, who was badly injured, were taken to a local hospital.
In a tape-recorded statement he provided to the police before he was considered a suspect, defendant admitted that he had gone to the apartment complex with Pearsall and his brother Mike, knowing that Mike was planning to buy drugs there from another young man. He asserted that, after Mike had dropped him and Pearsall off to make the purchase and driven away, the young man approached on a bicycle and, without provocation, shot Pearsall. To protect his friend, defendant then allegedly lunged at the bicyclist, and got him into a headlock. This caused the bicyclist to shoot defendant in the hands.
Defendant altered his story, however, in another tape-recorded statement he gave to the police two weeks later, after being issued Miranda*fn1 warnings. In that second recorded statement, defendant acknowledged that when he drove to the apartments, he knew that Pearsall was planning to rob the young drug dealer. Defendant stated that when he and Pearsall encountered the youth, the youth stopped his bicycle. Pearsall then grabbed the youth by the shirt, and the youth, in response, pulled out a gun and shot Pearsall. Defendant then admittedly "jumped on" the youth, because he knew the youth "was going to try to shoot me next."
The attack on R.C. and the ensuing gunfire was observed by another minor, G.P., who resided at the same apartment complex. G.P. testified at trial that he had seen "this guy riding up pretty slowly on a bike to these two other guys." He then saw the rider knocked off his bike, and heard words exchanged. According to G.P., who was approximately seventy-five feet away at the time, "it looked like [the two men] were trying to beat [the bicyclist] up or rob him or something." G.P. then saw "a couple [of] gunshot flashes." G.P. then ran off in the opposite direction. G.P. reported the incident to the police, telling them that he "saw the whole thing." He could not, however, identify the participants, because he had been too far way to see their faces.
Defendant and Pearsall were subsequently arrested. They were indicted together in a two-count indictment charging them with second-degree robbery, contrary to N.J.S.A. 2C:15-1, and second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.
Meanwhile, R.C. also was taken into police custody and charged as a juvenile with possession of a weapon without a permit. R.C. pleaded guilty to the weapons charge and served a term at the New Jersey Training School juvenile facility at Jamesburg. When he testified at defendant's trial, R.C. verified that he had planned to sell drugs to Mike Brady near the apartment complex. He then recounted how defendant had knocked him off his bike and had physically attacked him with Pearsall's assistance. R.C. perceived that ...