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State v. Kemp

June 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYKIM KEMP, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Defendant Tykim Kemp challenges his felony murder, robbery and conspiracy convictions, claiming that the trial court made three erroneous evidentiary determinations.

Starting on Sunday, September 30, 2001, Kemp and an accomplice identified only as "B" or "Black" engaged in a two-day robbery spree that ultimately resulted in the death of their last victim, Manuel Santiago. According to Kemp's typewritten confession, he was with Black all of Sunday and Monday morning, during which time they "robbed a couple of people . . . in the area of Brunswick Street, Parkhurst and Pennsylvania Ave" in the City of Newark.

Kemp admitted to trying to rob Santiago, but explained that he decided not to do so when Santiago produced a knife and resisted, cutting Kemp. According to Kemp, it was Black who stabbed Santiago, albeit with a knife Kemp had taken from a robbery victim on Sunday night and which Kemp had given to Black. Kemp described seeing Santiago fall to the ground before running away. Santiago died later that day from his knife wounds.

That same day, Detective Richard Gregory of the Essex County Prosecutor's Office received information that made him look at Kemp as a possible suspect. The Detective asked Kemp's girlfriend, Laini Tallmadge, to come to the police station to provide a statement. Tallmadge came to the station and, surprisingly, she was accompanied by Kemp. Tallmadge and Kemp were placed in separate interview rooms, and Kemp was advised of his Miranda rights, which he waived. Kemp ultimately confessed to participating in the assault and robbery of Santiago. He claimed, though, that he had not stabbed Santiago, but that Santiago had been stabbed by Black.

Kemp was indicted on charges of murder, felony murder, robbery, conspiracy and other offenses. In June 2003, Kemp was tried before a jury, which acquitted him of the murder and weapons offenses. The jury deadlocked on the robbery, felony murder, and conspiracy charges. Kemp was retried on these charges. It is that retrial that gives rise to this appeal.

The State presented the testimony of Katherine McMiller, who was robbed in the same area and time frame consistent with Kemp's admission that he had robbed others the day before and in the same area as the Santiago robbery and murder. She testified that her pocketbook was taken at knifepoint, although she was not able to identify anyone positively. Three other witnesses testified that they had seen Kemp and Black in the vicinity of Santiago's robbery and murder the night before, and that Kemp had a knife and was using it to carve something into the wall. Det. Gregory and another detective testified and described the process by which Kemp provided his typewritten confession, a confession that was read, in part, to the jury. Kemp testified on his own behalf. He disowned his confession, claiming that he had been tricked into signing it, and he further asserted he had not assaulted or robbed either McMiller or Santiago.

The jury returned guilty verdicts on all the remaining counts: first-degree felony murder, first-degree robbery and second-degree conspiracy. Kemp was sentenced to a term of thirty years, with a thirty-year period of parole ineligibility. Kemp appealed, attacking his convictions on three fronts. First, he asserts that the testimony concerning the McMiller robbery the night before the Santiago murder and the references in Kemp's confession concerning his having engaged in a series of robberies the day before the Santiago murder constituted impermissible "other crimes" evidence. Second, he argues that the police officers' explanation of the reasons they identified Kemp as a suspect were improperly admitted hearsay. Lastly, Kemp urges that the officers' testimony that Kemp had not been truthful before confessing also was admitted improperly. The Appellate Division affirmed, finding that the trial judge charged the jury appropriately on the limited use of Kemp's statement, and also concluding that Kemp's convictions were not based on hearsay evidence or impermissible police opinion testimony to an extent warranting that court's intervention.

The Supreme Court granted Kemp's petition for certification. 191 N.J. 315 (2007).

HELD: The details of Kemp's confession to having engaged in a two-day robbery spree were admissible, but the admission of evidence of a prior uncharged robbery involving Kemp was error requiring a retrial.

1. Kemp contends that the evidence concerning the McMiller robbery, as well as the references in his confession in respect of that robbery should not have been admitted in his trial for the Santiago robbery and murder. The trial court admitted the evidence of the McMiller robbery as permissible "other crimes" evidence under Evidence Rule 404(b). State v. Cofield, 127 N.J. 328, 338 (1992), supplies a four-part test governing the admissibility of such evidence under Evidence Rule 404(b): 1. the evidence must be admissible as relevant to a material issue; 2. it must be similar in kind and close in time to the offense charged; 3. the evidence must be clear and convincing; and 4. its probative value must not be outweighed by its apparent prejudice. The trial court found all four Cofield prongs were satisfied. This Court concludes that the trial court abused its discretion when it determined that the McMiller robbery met Cofield's first prong. The McMiller robbery -- a purse snatching by only one actor -- was factually dissimilar to the Santiago robbery and murder. Other than demonstrating that Kemp committed a robbery the night before, the McMiller robbery evidence does not speak to whether Kemp and his accomplice agreed together to rob Santiago or whether Santiago was murdered in the course of that robbery. Moreover, the Court cannot conclude that this error was harmless. The evidence arrayed against Kemp was largely limited to his confession; there were no eyewitnesses or independent forensic proofs that directly tied Kemp to the Santiago robbery or murder. The McMiller robbery evidence was offered solely for the purpose of claiming that, having committed the McMiller robbery, there could be no doubt that Kemp also committed the Santiago robbery and, hence, was liable for Santiago's death. This is a rationale Evidence Rule 404(b) specifically is designed to interdict. On the present record, the admission of the McMiller robbery evidence may have been a significant contributing factor leading to Kemp's convictions. (pp. 11-17)

2. Kemp also claims that the trial court's failure to further redact his confession implicated Evidence Rule 404(b) concerns, as that confession covers other crimes that should have been withheld from the jury. These statements include references that Kemp had possession of a knife, that he was "roaming around trying to find someone to rob" in the area where Santiago was robbed and murdered, and that he had robbed at least three people. The trial court held Kemp's confession admissible under Evidence Rule 803(b)(1) as a party-opponent's own statement, reasoning that it was clearly relevant because it addressed issues of motive, intent, participation, and conspiracy. This Court concludes there was no abuse of discretion in the trial court's determination to admit Kemp's confession. All of the statements in the confession challenged by Kemp directly relate to the charges of robbery, conspiracy, and felony murder: where Kemp procured the knife; Kemp's intent to rob; the location chosen by Kemp to engage in the robberies; and the aggregate number of people robbed. Therefore, to the extent Kemp challenges the admission of his confession at trial, that challenge is rejected. (pp. 18-20)

3. Kemp also claims the trial court improperly allowed Det. Gregory to testify as to information he received in the course of his investigation that led him to focus on Kemp as a suspect. In State v. Bankston, 63 N.J. 263, 268 (1973), this Court explained that the hearsay rule is not violated when a police officer explains the reason he approached a suspect stating that he did so "upon information received." Subsequently, the Court clarified that a police officer may not imply that he possesses superior knowledge, outside the record, that incriminates a defendant. Here, Kemp's counsel specifically stated that the State could inquire as to the bases for Det. Gregory's knowledge, thus invoking application of the invited error doctrine. Further, all of the sources who led Det. Gregory to focus on Kemp testified and were cross-examined at trial, thereby obviating Kemp's Confrontation Clause claim. (pp. 20-25)

4. Kemp's final claim also is grounded in Det. Gregory's testimony. Det. Gregory testified on cross-examination that he disbelieved Kemp's explanation that he had received the cuts he displayed when he himself purportedly had been robbed. Kemp asserts for the first time on appeal that Det. Gregory's repeated indications that police believed Kemp lied about his injuries deprived Kemp of his rights to due process of law and an impartial jury. The Court concludes that Det. Gregory's testimony in this respect does not rise to the level of plain error. At trial, Kemp's sole concern was the basis for Det. Gregory's belief, and not the statement that Kemp's explanation was not the truth. The quandary was one of Kemp's own making, and Det. Gregory's challenged testimony was elicited on cross-examination. Det. Gregory did not express an opinion as to Kemp's guilt and he did not otherwise impermissibly impinge on the jury's exclusive province in respect of credibility determinations. (pp. 25-27)

The judgment of the Appellate division is REVERSED, and the cause is REMANDED to the Law Division for further proceedings.

JUSTICE ALBIN filed a separate, CONCURRING opinion, to express his belief that the time has come for the Court to abandon its reliance on the discredited doctrine of res gestae, which had its place as part of the common law and has come to encompass a number of exceptions to the hearsay rule.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE ALBIN filed a separate, concurring opinion in which JUSTICE LONG joins.

The opinion of the court was delivered by: Justice Rivera-soto

Argued November 13, 2007

Defendant Tykim Kemp challenges his felony murder, robbery and conspiracy convictions, claiming that the trial court made three erroneous evidentiary determinations.

We conclude that, while the details of defendant's confession to having engaged in a two-day robbery spree properly were admissible against him at his trial as evidence of "motive, opportunity, intent, preparation, [and] plan[,]" as provided in Evidence Rule 404(b), the admission of evidence concerning a prior uncharged robbery purportedly also involving defendant was error requiring a retrial. We further conclude that, although the admission of hearsay statements in respect of the manner and reasons the police focused on defendant as a suspect may have been error, any error was harmless. Finally, we also conclude that, under the circumstances presented, it was not reversible error to admit a police officer's testimony concerning defendant's truthfulness in his confession.

I.

Starting on Sunday, September 30, 2001, defendant and an accomplice identified only as "B" or "Black"*fn1 engaged in a twoday robbery spree that ultimately resulted in the death of their last victim, Manuel Santiago. According to defendant's typewritten confession, he was with Black "all of Sunday and Monday morning[,]" during which time they "robbed a couple of people . . . in the area of Brunswick Street, Parkhurst and Pennsylvania Ave" in the City of Newark.

Focusing on the period starting at approximately 6:30 a.m. on Monday, October 1, 2001, defendant explained that he and Black had been "roaming around trying to find someone to rob." They approached Santiago, who was sitting in a parked minivan at the entrance to 37 Brunswick Street. Defendant claimed that Black threw a beer bottle at the minivan "to make [Santiago] get out of the van . . . so [defendant and Black] could rob him and get his money."*fn2 As Santiago exited the minivan, Black "tried to grab him but [Santiago] got out of the van swinging [a] knife." Defendant fought with Santiago, suffering cuts to his "right middle finger and [his] left leg under the knee cap[,]" while Black "tried to go into [Santiago's] pockets." According to defendant, he did not rob Santiago "because he put up a fight, he cut me and I wasn't feeling it." Asserting that it was Black who had stabbed Santiago "because he had the knife" -- albeit a knife defendant had taken from "a dude that I robbed Sunday night" and had given to Black for his use "after we came out of the building early Monday morning" -- defendant described that Santiago "fell to the ground by the building[,] then I ran." Santiago died later that day from his knife wounds.

That same day, Detective Richard Gregory of the Homicide Squad of the Essex County Prosecutor's Office "receive[d] information that made [him] look at [defendant] as a possible suspect[.]" In conjunction with detectives from the Newark Police Department, Det. Gregory investigated Santiago's murder. That investigation led to defendant's girlfriend, Laini Tallmadge, who was asked to come to the police station and provide a statement. The following day, October 2, 2001, Tallmadge -- and, surprisingly, accompanied by defendant --arrived at the police station to give her statement to Det. Gregory. They were placed in separate interview rooms. Defendant was advised of his Miranda*fn3 rights, which he waived. He first claimed that he had been the victim of a robbery the prior day at a bus stop in Hillside, and that his wounds were the result of that robbery. However, once Det. Gregory expressed his belief that defendant was not being truthful, defendant confessed to participating in the assault and robbery of Santiago a day earlier. He claimed, though, that he had not stabbed Santiago, but that Santiago had been stabbed by Black. He also claimed that he had been unaware that Santiago had died as a result of the stabbing until he was so informed by the police.

The Essex County Grand Jury returned a seven count indictment charging defendant with first-degree knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, in violation of N.J.S.A. 2C:11-3(a)(3);*fn4 first-degree robbery, in violation of N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon (a knife), in violation of N.J.S.A. 2C:39-5(d); third-degree possession of a weapon (a knife) for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); and second degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

In June 2003, defendant was tried before a jury on that indictment. The jury acquitted defendant of the murder and weapons offenses, but deadlocked on the robbery, felony murder and conspiracy charges. In December 2003, defendant was retried on the remaining charges. It is that retrial that gives rise to this appeal.

The State's first witness was Katherine McMiller,*fn5 who had been identified as one of the robbery victims in the same geographic area and time frame consistent with defendant's admission that he had robbed others the day before and in the same area as the Santiago robbery and murder. McMiller testified that, at approximately 9:00 p.m. on September 30, 2001, she was walking along Brunswick Street, near the intersection of Pennsylvania Avenue, when someone "came on [her] right side, put a sharp object to [her] neck, grabbed [her] hair, pulled [her] head back and told [her] to give them [her] pocketbook[,]" which she did. Although McMiller was able to describe who robbed her, she was not "able to identify any one positively who robbed [her]" and she was not "able to recognize the person who robbed [her]." She also explained that, when she was attacked, she screamed, and that her attacker ran after taking her pocketbook.*fn6

Det. Gregory testified next. In addition to describing the crime scene he witnessed when he responded to the homicide call, he identified numerous photographs of the murder scene. Det. Gregory also explained that, based on the information developed in the investigation, the investigative focus came to rest on defendant and, for that reason, a request was made of Tallmadge, defendant's girlfriend, that she come to the police station and provide a statement. He further explained that when defendant's girlfriend arrived at the police station accompanied by defendant, they were separated and placed in different interview rooms. Det. Gregory then described the process by which defendant provided his typewritten confession, a confession that was read, in part, to the jury.*fn7

State set forth the following as foundational proofs. Bethsaida Flores, a resident of 37 Brunswick Street, testified that she was the granddaughter of the murder victim, that the night before her grandfather's murder she was in front of the building where she lived, she heard a woman scream, and then saw defendant run into her building and someone she identified as "OG" run by. Once she entered the building, she saw defendant in the hallway, where defendant "pulled out a knife and he was playing with the knife and he carved something in the wall, and he was singing some song." Flores's testimony was corroborated by Florinez Lopez, who was with Flores that evening and who was the girlfriend of the victim's son; Lopez, however, testified that OG also entered the building. Applying Evidence Rule 404(b) through the prism of State v. Cofield, 127 N.J. 328 (1992), the trial court admitted the evidence of the McMiller robbery as proof of motive or intent.

The victim's son, Wilson Santiago, testified that he saw defendant at his building -- 37 Brunswick Street -- the night before his father was murdered and that defendant had a knife he was using to carve something into a hallway wall. He also testified that the following morning, in response to shouts from the street, he ran downstairs where he found his father stabbed and bleeding. He held his dying father in his arms until an ambulance arrived and his father was taken away. Bethsaida Flores and Florinez Lopez then testified consistent with their testimony at the Evidence Rule 104 hearing.*fn8

Detective James Wright of the Homicide Unit of the Newark Police Department also testified. He explained how, on the day of Santiago's murder, he had asked Tallmadge to come down to the police station to provide a statement and that the next day, while he was out looking for defendant, he received a call that Tallmadge was at the station and that defendant was with her. Det. Wright then corroborated Det. Gregory's testimony concerning defendant's confession. The State also presented the testimony of Lieutenant Steven Bright of the Crime Scene Unit of the Essex County Prosecutor's Office, who was qualified as an expert and opined that no usable fingerprints were recovered from the crime scene, but that DNA evidence*fn9 had been recovered from the victim's knife; the parties stipulated that the blood on the knife recovered at the crime scene belonged to the victim, while defendant's blood appeared on a jacket taken from defendant and identified by witnesses as the jacket defendant was wearing the night before Santiago's murder.

Dr. Lyla Perez, an Assistant State Medical Examiner serving as the Regional Medical Examiner in Newark, was then qualified, without objection, as an expert in forensic pathology. She testified that she performed the autopsy on the victim. Based on the autopsy results, she opined that Santiago died of multiple stab wounds and that the manner of death was a homicide. Following Dr. Perez's testimony the State rested, and the trial court denied defendant's motion for judgment of acquittal pursuant to Rule 3:18-1.

Defendant testified on his own behalf. He disowned his confession, claiming that he had been tricked into signing it, and he further asserted he had not assaulted or robbed either McMiller or Santiago.

The jury returned guilty verdicts on all the remaining counts: first-degree felony murder, first-degree robbery, and second-degree conspiracy to commit robbery. Defendant was sentenced to a term of imprisonment of thirty years, with a thirty-year period of parole ineligibility, together with the appropriate penalties, fees and assessments.

Defendant appealed, raising the same issues that he has presented to us. In an unpublished decision, the Appellate Division determined that defendant's contentions lacked "sufficient merit to warrant extended discussion in a written opinion" and affirmed ...


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