On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-10-1123 and 03-10-1127.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges A. A. Rodríguez and Collester.
Indictment No. 03-10-1123
Following a jury trial, defendant, Timothy Strickland, was convicted of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The State moved for imposition of an extended term. The judge granted the motion and imposed a seven-year term, with a three-and-one-half year parole disqualifier and payment of $550 restitution. We reverse, concluding that the judge's instruction to the jury to continue deliberations after the jury had announced a dead-lock, deprived defendant of a fair trial.
Prior to trial, while represented by Assistant Deputy Public Defender Louis Negron, defendant rejected the State's plea offer and decided to go to trial. The pretrial memorandum stipulated that any motion requesting a hearing on Wade*fn1, Miranda,*fn2 and motion to suppress issues, could be made and heard immediately prior to trial. Defendant then retained Jack Venturi. He re-filed these motions with supporting briefs. However, the judge denied defendant's request for hearings on the pretrial motions based on the State's opposition because the briefs were filed late. The pretrial conference was held on March 23, 2004. The briefs were filed on August 16, 2004, and trial commenced on October 13, 2004. On that same day, the judge heard and granted the State's Sands*fn3 motion.
The proofs can be summarized as follows. Maria Gouveia testified that on June 8, 2003, in Rahway, between 10:00 a.m. and 11:00 a.m., she was home alone. She heard someone turn her front doorknob. When she peered through her kitchen window, she saw a man wearing a dark blue sweatshirt, later identified as the defendant. She had never seen him before. Defendant left her property and she observed him walk across the street to several of her neighbors' homes. He then walked back to her home and proceeded to kick open her door. She screamed and defendant ran out of her house and fled into the passenger seat of a black vehicle, which sped off.
Moments later, a block-and-a-half from Gouveia's home, the car in which defendant was traveling missed a stop sign and was involved in a collision. The vehicle fled the scene, however, its license plate, license plate frame and the front blinker fell off the vehicle.
Soon thereafter, the police arrived at the scene. Gouveia reported her recent encounter with defendant. The police also spoke with Timothy Sidowski, Gouveia's neighbor.
At trial, Sidowski testified that on the same day, he saw someone who fit defendant's description walking around to different houses in the neighborhood. Sidowski did not identify defendant.
After the accident, the police determined that the plate belonged to a black Ford Thunderbird owned by defendant. The police went to defendant's home and located the Thunderbird a short distance from the house. Defendant's vehicle was missing a license plate. Gouveia and Sidowski both identified the car used in the crime.
Gale Muhammad and Tamika Jones testified for the defense. Muhammad was engaged to defendant's friend at the time of the incident. She testified that after the car accident, defendant called her to inform her that he had jewelry and money for her fiancé. He also asked if she could pick him up because his car was carjacked. She declined because she was running late to visit her fiancé in prison.
At the time of trial, Jones, defendant's live-in girlfriend, was imprisoned for a different offense. She came to court dressed in prison garb, handcuffs and shackles. Her shackles were removed when she testified. She testified that at approximately 11:00 a.m., defendant called her and told her that Muhammad was going to pass by for jewelry and money. He asked what the scene was like in front of the house. She informed him that there were police officers across the street. She could not recall much else regarding the occurrence. However, she did admit to making a statement to the police regarding same.
While Jones was in front of the house, Muhammad drove up to the house. Jones gave her the jewelry and money. Jones asked that they go pick up defendant from a bank, which they did. He told them he was carjacked. The police followed Muhammad from defendant's home to the bank. The vehicle was stopped by Police Officer Kostura and Sergeant Frank D'Errico.
D'Errico testified at trial that Kostura did the initial stop of the vehicle. Once defendant exited the vehicle, he voluntarily and spontaneously submitted to the officers that he had been "jacked." This was the first time defendant reported to the police that he had been carjacked.
In response to defendant's statement, D'Errico asked what he meant by being "jacked." According to D'Errico, defendant elaborated by saying he was carjacked. He stated he was at the gas station on the corner of Whittier and West Grand when he was approached by a black male with a gun who told him get out of the car or I'll kill ya. He claims he turned his car over to that person.
D'Errico asked if he had left his keys in the vehicle when it was carjacked and defendant responded that he had.
The officers informed defendant that he fit the description of a burglary suspect. D'Errico looked into the vehicle and noticed a set of keys in the back seat where defendant had been seated. D'Errico seized the keys and determined that they did not operate Muhammad's vehicle. It was later determined that the keys belonged to defendant's vehicle, which had been the car used in the burglary attempt.
Rahway Detective William White testified to the following:
I went down to the cell block to ask Mr. Strickland if he'd like to speak to me about the incident. When I asked him this question, okay, do you want to talk to me about this, his answer to me was I don't know about any type of burglary. I was carjacked. My reply to him was you were carjacked. How could someone be carjacked if they have the car keys to their ...