April 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JARON D. REEVEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-11-2080.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 12, 2008
Before Judges Axelrad, Payne and Messano.
Defendant Jaron D. Reevey appeals from his conviction and sentence. A jury convicted him of first-degree murder, N.J.S.A. 2C:11-3a(1) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of weapon, N.J.S.A. 2C:39-5b (count five); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count six). The court merged count two with count one and count five with count four, and imposed the following custodial sentence: life with thirty-five years of parole ineligibility on count one, a consecutive eighteen-year sentence subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count three, and a concurrent eight-year term with four years of parole ineligibility on count four and a concurrent eight-year term on count six.
On appeal defendant asserts the following arguments through counsel:
THE TRIAL COURT'S INSTRUCTIONS REGARDING THE CO-DEFENDANT'S TESTIMONY AGAINST DEFENDANT WERE ERRONEOUS AND HIGHLY PREJUDICIAL IN TWO RESPECTS: (1) THE JUDGE SHOULD NOT HAVE TOLD THE JURY TO "DRAW NO NEGATIVE CONCLUSION" FROM THE CO-DEFENDANT'S ADMISSION THAT SHE REHEARSED HER TESTIMONY PRIOR TO COMING TO COURT, AND (2) THE JUDGE SHOULD HAVE INCLUDED IN HIS LIMITING INSTRUCTION A CHARGE THAT THE CO-DEFENDANT'S GUILTY PLEA WAS NOT SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT. (Not Raised Below).
AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
THE JUDGE ERRED WHEN HE DID NOT DISMISS THE INDICTMENT WITH PREJUDICE FOR THE FAILURE TO COMPLY WITH THE INTERSTATE AGREEMENT ON DETAINERS (IAD).
THE CONVICTION FOR CONSPIRACY AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD MERGE INTO THE MURDER AND/OR ROBBERY CONVICTIONS.
THE OVERALL SENTENCE IS MANIFESTLY EXCESSIVE AND THE ROBBERY SENTENCE IS UNCONSTITUTIONAL UNDER STATE V. NATALE.
Defendant asserts the following argument in his pro se supplemental brief:
AS WAS THE BASIS FOR DISMISSAL IN STATE V. GAUGHRAN, AND STATE V. CHANDLER, THE JUDGE ERRED WHEN HE DID NOT DISMISS THE INDICTMENT FOR FAILURE TO ESTABLISH A PRIMA FACIE CASE AGAINST THE DEFENDANT.
The State concedes that defendant's conviction for felony murder (count two), armed robbery (count three), and conspiracy (count six) must be reversed and remanded for a new trial because the jury instructions as to armed robbery did not include a definition of criminal attempt, and thus would not provide a basis for a felony murder conviction. See State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999). At oral argument the State also acknowledged that possession of a weapon for an unlawful purpose (count four) should have merged with murder (count one) under State v. Diaz, 144 N.J. 628, 636 (1996). We reverse and remand in connection with the State's concessions. We also vacate the merger of defendant's unlawful possession of a weapon conviction (count five) with his conviction for possession of a weapon for an unlawful purpose (count four) and remand for resentencing on count four. See State v. Deluca, 325 N.J. Super. 376, 392-93 ((App. Div. l999) (holding a conviction for unlawful possession of a handgun does not merge with a conviction for a substantive offense committed with the weapon because the gravaman of unlawful possession is possessing the firearm without a permit and without regard to the commission of another crime), aff'd on other grounds, 168 N.J. 626 (200l). We otherwise affirm defendant's convictions and sentences.
The State presented the testimony of three responding police officers; two forensic detectives; the Fire District official; the Medical Examiner; a co-employee of the victim; four inmates, Kenneth Lyons, Anthony Vitelli, Anthony Simmons, and Charles Quinn; a police officer who took Lyons' statement, co-defendant Sabrina Wright, and the police officer who interviewed Wright. Defendant presented the testimony of a co-employee of the victim; defendant's older sister; and Darryl Chandler, a former cellmate of Simmons. The following testimony and evidence was adduced at trial. At 9:08 p.m., on May 9, 2000, Neptune Township patrolman Luis Cuevas responded to an emergency call about an injured man at the Rite Aid located at 1607 Highway 33. He observed the victim, later identified as George Lockhart, a pharmacist employed by Rite Aid, lying on his back in the parking lot, bleeding profusely from his face, and conscious but unable to speak. The officer found the victim had a gunshot wound to his face. Lockhart was transported to the hospital, where he died later that evening. There were no witnesses to the shooting. At the scene, the forensic detective observed blood, a pair of broken glasses, a vehicle key with an alarm fob belonging to Lockhart's Mercedes Benz parked in the lot, and two buttons from Lockhart's shirt. Two unidentified fingerprints were also discovered on the exterior of Lockhart's Mercedes. None of the physical evidence linked defendant or co-defendant to the shooting.
Around the same time, other officers were dispatched to investigate the report of a brush fire occurring about four blocks from the Rite Aid pharmacy. Officials determined the fire was intentionally started, but law enforcement did not draw any connection between the fire and Lockhart's murder at this point.
The police continued their investigation and unsuccessfully pursued several leads. On May 12, 2000 and January 21, 2001, they obtained statements from Lyons inculpating defendant. On January 23, 2001, the detectives interviewed Sharon Eason, who prompted them to contact Wright. Wright proved elusive, but she was finally picked up and made a formal statement on March 15, 2001, during which she asserted defendant told her he was responsible for Lockhart's murder. The detective believed seventeen-year-old Wright, who was dating defendant, had more information than she revealed, namely her own participation in the shooting, and did not arrest defendant at that time.
On January 28, 2002, Detective Smentkowski learned Wright had been arrested in Baltimore, Maryland on federal carjacking charges. He went there with two other officers to interview her and after being given Miranda*fn1 rights, Wright gave a taped formal statement. Wright admitted her involvement in the murder and related that defendant set a fire prior to meeting with her to distract the police from the incident to take place in the Rite Aid pharmacy parking lot. Prior to Wright's statement, there had been no connection between the fire and the shooting. Wright remained incarcerated in Baltimore and within a week, the State filed charges against defendant and Wright for the murder of Lockhart.
Because Wright was a juvenile at the time of the murder, the State thereafter requested a waiver hearing, which was granted. Defendant and Wright were indicted on November 19, 2003 by a Monmouth County Grand Jury.
On March 29, 2004, Wright pled guilty to second-degree armed robbery in which she agreed to testify against defendant in exchange for a recommended six-year sentence subject to NERA, as a third-degree offense, and dismissal of the remaining counts of the indictment. At trial, Wright testified that the week before Lockhart's murder defendant asked her to help him steal Lockhart's red Mercedes Benz from the parking lot of the Rite Aid store when the store was closed and told her he planned to take the car to a "chop shop." She explained that on May 9, 2000, she met defendant at approximately 9:00 p.m. at his house located at 2002 Rutherford and they walked to the Rite Aid, which was only minutes away. Defendant informed her he had set a fire nearby to distract the police. Defendant asked Wright to distract the owner of the Mercedes by asking him the time.
Defendant and Wright arrived at the Rite Aid at closing time as planned. Five minutes later, after a few women left the store, a tall man in his thirties, with dark hair and glasses, exited the store. After defendant pointed Lockhart out to her, Wright approached him from the back of the store, along the walkway, and asked him the time. Lockhart responded, and she continued walking away from the store towards the highway. When Lockhart was in the parking lot, Wright observed defendant approach from the woods and, from about twenty-four feet away, she observed a slight struggle between the two men and heard defendant say something to the victim about the keys or the trunk. Defendant never touched the Mercedes or took anything from Lockhart. A few seconds later, she heard a gunshot. Defendant ran, and Wright ran and caught up with him in the woods past Washington Avenue. Defendant admitted he had to shoot Lockhart because the man would not give him the keys to the car and saw his face. Wright saw the gun, a black revolver, which defendant later explained does not leave shells. Wright and defendant then parted ways. On cross-examination, when asked if she "practiced" her testimony, Wright responded that she "went over it [herself] a couple of times and with the prosecutor." There was never a time, however, that she "gave an answer and someone corrected [her] and told [her] what a better answer would be to give."
Lyons, who was incarcerated pending trial for unrelated charges and who had a criminal record, testified about statements he gave to law enforcement on May 12, 2000 and on January 24, 2001. He mentioned having a conversation with defendant on March 7, 2000, concerning defendant's plan to steal a Mercedes with "buggy eyes" from the pharmacy parking lot. At the time of the first statement, Lyons was under the influence of embalming fluid.
Vitelli, another State prison inmate and a childhood friend of defendant's gave statements to detectives on May 23, 2003 and October 14, 2003. He testified that after the murder defendant came to his house, located approximately six blocks from the Rite Aid pharmacy. Defendant admitted he pulled a gun on the "guy" exiting the pharmacy and ordered him to get in the trunk of his Mercedes, but when "the guy" refused and rushed defendant instead, defendant panicked and shot him in the face. Defendant and his girlfriend then fled the scene. Defendant also told Vitelli he had set a fire using a Molotov cocktail to distract the police while he stole the car. According to Vitelli, defendant appeared nervous, as though in shock. After about twenty minutes, defendant left. Vitelli admitted he had no intention of reporting his friend to the police and would not have come forward but for the unrelated drug charges against him. Sometime between Vitelli's two statements, defendant called Vitelli and asked him to be an alibi witness. Vitelli responded by saying he would "see about it."
Simmons, serving a state prison sentence, had given a statement on August 25, 2003. He related that a few weeks earlier in the Monmouth County Correctional Institution he overheard a conversation between his cellmate Chandler and defendant in which defendant admitted he had committed the Rite Aid murder, told the victim to go back into the store, and when the victim refused and rushed at him, defendant "blasted" the victim.
On March 18, 2005, detectives took a statement from Quinn, who was also a State inmate and friends with defendant. He related that in April 2004, while he and defendant were in the county jail, defendant asked him to be his alibi for the night of the murder. Quinn refused, and reported that a week before the murder defendant had asked him to get him a gun, which he refused to do. Defendant next asked if Quinn knew of any "chop shops" in the area because he had his eye on some cars, particularly a red Mercedes.
Chandler, the defense witness, denied that defendant ever told him he committed the murder. He claimed Simmons told him he could reduce his own jail exposure by giving a false statement against defendant. Chandler claimed he would not do that because he did not "want nobody to tell a lie on [him]." Defendant was convicted of all counts of the indictment.
Pertinent to this appeal, defendant and Wright were incarcerated in federal prison in Maryland on carjacking convictions for offenses occurring in February 2002. Wright received a forty-six month sentence and defendant received a 205 month sentence. A New Jersey detainer was lodged against defendant for the present case. On April 14, 2003, defendant invoked the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-3, demanding speedy disposition of the New Jersey charges. He was transported to New Jersey in late July 2003. On October 8, 2003, the State moved for a continuance of the 180-day deadline of N.J.S.A. 2A:159A-3(a), which the court granted over defendant's objection, ruling the State demonstrated "good cause" for the extension.
On appeal, defendant contends the trial court abused its discretion in not dismissing the State's indictment against him for failing to comply with the IAD. Though acknowledging the IAD threshold is low for proving "good cause" and the remedy of dismissal of the indictment is extreme, defendant urges that the State's behavior in this case was "off the charts" in that it made no effort to move the case. Defendant contends: (1) the State did nothing to obtain an indictment in the twenty months from the filing of the complaint though it was perilously close to the 180-day deadline for bringing the matter to trial; (2) Wright's waiver to adult court was a formality that should not have impacted the decision to indict defendant; (3) nothing was done to make a determination of whether to charge defendant with a capital offense within the intervening time; and (4) the State appeared to have done nothing to move defendant to New Jersey sooner than July 2003.
We disagree and are satisfied the State presented sufficient credible reasons for its delay in prosecution to support the court's finding of good cause as defined by the case law. As the court noted, significant complications arose from Wright's status as a juvenile in another jurisdiction as well as the procedural aspect of the waiver hearing, which was not completed until October 3, 2003. The prosecutor also explained there had been numerous back-and-forth negotiations between Wright's attorney and himself over a one-year period as to whether Wright would consent to the waiver application and whether the case would be resolved against Wright by way of a guilty plea. The State filed a proceeding in Family Court on July 17, 2003. During an August 5 conference with the court, it was determined the case could not be resolved at that time so the court scheduled a waiver hearing for September 3. The waiver hearing was adjourned to October 3, 2003 based, in part, on process problems and the inability to transport Wright from federal prison to New Jersey until the end of September. Additionally, the case involved death penalty issues at one point, and the extensive and ongoing negotiations with Wright and her counsel to gain her voluntary cooperation were essential in determining whether to pursue the death penalty against defendant.
The court considered the appropriate factors in concluding, under the totality of the circumstances, the legal, factual and procedural complexities of the case demonstrated good cause for an additional 180-day extension for the disposition of the charges against defendant.*fn2 The court took into consideration the length of delay, the prosecutor's explanation for the delay in indictment and representation that the case would be presented to the grand jury on October 20, 2003, and the lack of prejudice to defendant in that there was no lost evidence or unavailable witnesses. See State v. Lippolis, 107 N.J. Super. 137, 148-49 (App. Div. 1969) (Kolowski, J. dissenting), rev'd on dissent, 55 N.J. 354 (1970); see also State v. Millet, 272 N.J. Super. 68, 105 (App. Div. 1994); State v. Johnson, 188 N.J. Super. 416, 422 (App. Div. 1982), certif. denied, 93 N.J. 282 (1983). In its discretion, the court properly concluded the State did not unduly delay in bringing the proceedings and acted appropriately to facilitate the disposition of the matter, which was unavoidably delayed by the complications in the case.
Defendant next asserts, as plain error, two jury instructions involving co-defendant Wright. The first, given after Wright admitted she had practiced her testimony alone and with the prosecutor, was that the jury should draw "no negative conclusion" from the fact of rehearsal. The second was the omission of a Murphy*fn3 instruction specifically not to consider Wright's guilty plea as substantive evidence against defendant. Although we agree the judge erred in both instances, we are not convinced these errors, individually or cumulatively, were "sufficiently grievous" in that they had a clear capacity to bring about an unjust result in light of the "totality of the charge" and the "overall strength of the State's case" so as to constitute reversible error. State v. Burns, 192 N.J. 312, 341 (2007); see also R. 2:10-2.
During cross-examination, defense counsel first asked Wright if she "rehearsed" her testimony, then rephrased it as "practiced." Wright admitted practicing her testimony, both by herself and with the prosecutor. Defense counsel then asked Wright whether she rehearsed her testimony. She admitted doing so, both by herself and with the prosecutor. The court immediately interjected with the following instruction to the jury:
All right. Let me just tell the jury that most people do speak to whichever side they're going to be testifying for in advance. Most cases are no secrets. The parties exchanged discovery which means what's in the prosecutor's file is available for defense counsel. He knows what the case is about; and in preparation of the case, people talk to witnesses. So draw no negative conclusion from that. Go ahead.
Defendant acknowledges there was nothing wrong with the court telling the jury that parties in criminal cases routinely exchange discovery and routinely speak to their own witnesses. He contends, however, it was inappropriate to instruct the jury not to draw the inference that defense counsel sought, i.e., that Wright was less believable because she had practiced her testimony, including with the prosecutor. According to defendant, the curative instruction unfairly impacted the jury's credibility determination of the primary State's witness by tipping the balance in the State's favor, in that it dissuaded the jury from drawing the reasonable negative inference that Wright had to rehearse her testimony numerous times because she was either lying or at least grossly embellishing her testimony.
Although the trial judge should not have interjected this instruction during Wright's cross-examination, we note that in its context, the comment to "draw no negative conclusion" referenced attorneys speaking to their own witnesses. The judge did not use the word "rehearsal" and did not explicitly instruct the jury not to draw a negative inference from Wright's multiple practicing of her testimony. Additionally, ample other bases existed upon which the jury could have found Wright not credible, including her admission of initially lying to the police and giving an incomplete statement to avoid culpability, and on the fact she testified pursuant to a plea agreement in which she would be receiving a lesser sentence.
Defendant contends the judge made matters worse by instructing on evaluating Wright's credibility but omitting an instruction that her guilty plea was not substantive evidence to be used against defendant. Defendant relies on State v. Murphy, supra, although he acknowledges the judge in the present case omitted some of the harmful Murphy language, particularly the part about a judge not accepting a plea unless it is deemed credible. Defendant urges, however, that the previously discussed error regarding co-defendant's rehearsal of her testimony cumulatively cut to the heart of the jury's function to assess credibility. We are not so persuaded.
When reviewing the adequacy of a jury charge, a court must read the instruction as a whole. State v. Torres, 183 N.J. 554, 564 (2005). Particular language in a charge is not required as long as the instruction adequately conveys the applicable legal principles to the jury. State v. Ball, 268 N.J. Super. 72, 113 (App. Div. 1993), aff'd, 141 N.J. 142, 181 (1994).
Traditionally, a guilty plea of a co-defendant is inadmissible at the trial of a co-defendant as substantive evidence of the defendant's guilt but is certainly admissible to affect his credibility as a witness. State v. Murphy, supra, 376 N.J. Super. at 122 (citing State v. Stefanelli, 78 N.J. 418, 430, 433 (1979)); see also State v. B.M., 397 N.J. Super. 367 379 (App. Div. 2008). In Murphy we held that "[w]hen evidence of the guilty plea of a co-defendant is admitted at trial, the trial judge must provide a cautionary instruction as to the limited use of the testimony for credibility purposes . . . [and] also the prohibited use of the testimony" as substantive evidence of the defendant's guilt. Id. at 122-23. We reversed the defendant's conviction in part due to the omission of an instruction that the jury could not consider the co-defendant's plea agreement as substantive evidence of defendant's guilt. Critical to our decision was that the trial judge had instructed the jury that the "guilty plea [would] not be accepted by [the] judge unless the judge [was] satisfied that the witness was guilty of the charge" and that the only evidence implicating defendant was provided by the co-defendants who had accepted plea agreements. See ibid.
In State v. Stephanelli, 78 N.J. 418 (1979), the Court found error when the trial court failed to provide an instruction limiting the jury's consideration of the co-defendant's guilty plea for the purpose of determining the credibility of the witness, but found such error harmless in circumstances similar to the present case.
The court noted:
Here, [co-defendant's] complicity in the crime charged against defendants was established independently by his detailed testimony concerning his involvement in the crime; the jury was specifically made aware that the guilty plea was based only upon the facts to which he testified . . . and nothing more. Moreover, he was thoroughly cross-examined and his credibility severely tested.
[Id. at 436.]
In the present case the court instructed the jury on the presumption of innocence and the burden of proof, and also gave general instructions on credibility and detailed instructions on the jury's responsibility to assess the credibility of the various witnesses. The court commented to the jury that it could consider whether Wright obtained the plea terms for her own interest and accept or reject her testimony in whole or in part like any other witness. During the charge, the court specifically instructed the jury on consideration of Wright's guilty plea and the fact she cooperated with the police to obtain a benefit:
The terms of that plea agreement were explored in her examination and her cross-examination so that you would be aware of its existence and could consider it and its terms as one more factor in evaluating her testimony or not.
In weighing this testimony you may consider whether in order to obtain terms favorable to herself she told an untruth to the investigators and to you. Or whether in order to obtain terms favorable to herself she agreed to tell the truth and actually did tell the truth.
The fact that this court - remember I told you I was the one who accepted her plea. The fact that I accepted her plea does not mean that I determine that she was truthful. That's your decision. You make your decision as to whether or not she was truthful, not me. [(emphasis added).]
The court reiterated the possible influence that a hope or promise of favorable treatment would have on the credibility of a witness, in particular, Wright. This instruction was reinforced when the court discussed the testimony of the inmates who were testifying as State's witnesses. The court then continued to emphasize to the jury that it should evaluate Wright's credibility in regard to prior consistent or inconsistent statements.
Thus, reviewed in its entirety, the instructions adequately explained to the jury its role in assessing Wright's credibility and the plea agreement. Although the court did not explicitly instruct the jury not to consider Wright's plea as substantive evidence of defendant's guilt, it expressly reiterated that evidence of her conviction could be used to impeach her credibility. Moreover, Wright's detailed testimony regarding her complicity in the crime independently established defendant's guilt and the defense thoroughly scrutinized her testimony on cross-examination. Considering the record as a whole, we are thus satisfied the trial court's omission of the limiting instruction regarding the plea itself as substantive evidence was harmless error.
The argument advanced by defendant in his pro se supplemental brief is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
In summary, defendant's convictions for felony murder (count two), armed robbery (count three), and conspiracy (count six) are reversed and remanded for a new trial. We affirm defendant's convictions on counts one, four, and five. We affirm defendant's sentence on the murder conviction (count one) and remand for resentencing on the convictions for possession of a weapon for an unlawful purpose (count four) and unlawful possession of a weapon (count five).