On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 04-04-0727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Skillman and LeWinn.
The appeals of these co-defendants have been calendared back-to-back for our consideration. We now consolidate the appeals.
Defendants were indicted on twelve counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1 (counts one through twelve; second-degree burglary, in violation of N.J.S.A. 2C:18-2 (count thirteen); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count fourteen); third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count fifteen); and second-degree possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7(b) (count sixteen). Following a three-day trial, defendants were convicted on all counts.
Both defendants were sentenced as follows: count one*fn1, an extended term of life, 85% without parole; counts two through thirteen, consecutive terms of twenty years, with ten-year parole ineligibility periods; and count sixteen, a concurrent ten-year term, with a four-year parole ineligibility period. Defendants' aggregate custodial sentences are life plus 220 years subject to an 85% period of parole ineligibility.
On appeal, defendant Lawrence Gay raises numerous trial and sentencing errors. Defendant Kenneth Gay raises one claim of trial error and an excessive sentence claim. Because we conclude that the cumulative effect of several trial errors deprived defendants of a fair trial, we reverse both defendants' convictions and remand for a new trial.
A review of the trial evidence is essential to our discussion of the issues raised.
For more than twenty years, William Hine had hosted a Monday-night poker game in the converted garage of his Brick Township home, located in an out-of-the-way wooded area. These games usually ran from seven or eight o'clock in the evening until the early morning hours of the following day.
On the evening of February 25, 2002, Hine hosted one of his games. Players were required to put in a minimum of $200 to participate. Twelve people attended that night, and Hine held the money from all players, totaling $2400. Sometime between 12:15 and 12:30 a.m., on February 26, 2002, two men wearing Halloween-type masks and armed with guns raised the garage door, entered and announced a robbery. The men wore dark clothing and gloves; one mask depicted a bald man with a moustache, and the other a large smiling face.
When Hine approached one of the men and tried to remove his mask, the man shoved him onto a couch. The men instructed everyone, except a female player, to lie on the floor; anyone who did not comply was forcibly lowered to the floor. The men searched each player, taking cash, jewelry and cell phones, along with the $2400 held by Hine. They then bound each player's hands behind his/her back with duct tape and fled. The entire incident lasted between twenty and thirty minutes.
Several players had freed their hands by the time the two men left. William George, one of the first to break free, ran to his car and followed the men until he lost them. Another player, Frank Lettieri, called 911.
Sergeant Keith Reinhard of the Brick Township police department arrived and interviewed some of the players. George told Reinhard the men drove a dark Datsun with a license plate containing the letters "SL" or "ST." Hine and George told Reinhard that they heard one man call the other "Paul." No fingerprint evidence was found at the scene.
On March 21, 2002, Reinhard interviewed Donald Tranberg about the poker game robbery. Tranberg is a convicted criminal known to the Brick Township police; he had previously participated in Hine's poker games. Tranberg denied any knowledge of the robbery. The police investigation subsequently became inactive.
In October 2002, Freehold Police Officer Mark Denham stopped a car in which Kenneth Gay was a passenger. As a result of the stop, Denham searched both defendants' rooms at the Village Inn where they were staying at the time. This search was in connection with a narcotics investigation unrelated to the poker game robberies. In Kenneth Gay's room, Denham found a rubber Stone Cold Steve Austin mask that he took as evidence. In Lawrence Gay's room, Denham found a silver gun, a bulletproof vest and another rubber mask; the officer took the vest and gun, but not the mask, as evidence.
Unaware of the Brick Township robbery case, the Freehold police subsequently destroyed that gun and vest during a routine cleaning of their evidence room.*fn2 As a result of the Freehold narcotics investigation, defendants were convicted of conspiracy to possess cocaine with intent to distribute and sentenced to ten-year jail terms on September 23, 2003.*fn3
On cross-examination, Denham was asked why he did not inventory the mask along with the vest and gun found in Lawrence Gay's room. Denham responded:
If it is in the context of what we are investigating at that time, we would seize it and log it as evidence.
At that time we were not investigating whatever took place here in Ocean County. We were investigating our own investigation, which was narcotics.
Defense counsel immediately objected, and the trial judge told the jury to "disregard" Denham's "last remark."
Reinhard testified that, in November 2003, more than oneand-a-half years after the poker game robberies, Tranberg contacted him because Tranberg had heard rumors that he was about to be charged with those robberies and he wanted to clear his name. Tranberg told Reinhard that he had been present at the robbery and gave the officer the "specifics" of the events on that night.
During Reinhard's testimony, the prosecutor twice questioned him as to why Tranberg was not charged in connection with the robberies. Reinhard first responded: "We pretty much believed his story that he was forced to go there." He later stated: "We believed that he was telling us the truth about what happened. And that he was not involved in the planning or the actual execution of this incident."
Tranberg testified that he told Reinhard that defendants had committed the robberies. He said that word of Hine's high-stakes poker game had spread around the Freehold Racetrack which was frequented by Tranberg, defendants and some of the players in Hine's poker games. Lawrence Gay told Tranberg he and his brother planned to rob the poker game and they wanted Tranberg to help them. Because defendants threatened harm to Tranberg and his mother, he agreed to help.
A few nights prior to February 25, 2002, upon payment of $100 from defendants, Tranberg rode with them to show them the location of Hine's house. On the night of the robberies, Kenneth Gay rented a silver Pontiac Grand Prix, license plate ZM117R. Defendants picked up Tranberg at the racetrack in the rental car and drove to Hine's house, parking on a side road out of view of the garage. Tranberg testified that defendants were wearing all-black jumpsuits with towels around their necks. One defendant wore a Stone Cold Steve Austin mask, and the other wore an Abraham Lincoln mask. Tranberg also stated that he saw defendants carrying three guns and that Kenneth Gay had a black gun and a silver gun with a brown handle.
Tranberg testified that he had lied when initially contacted by the police in March 2002 because defendants had threatened to retaliate against him if they came under investigation for the poker game robberies. At that point, the trial judge interjected the following query: "What changed between that time when [you were] in fear of your life because they knew you were going to talk to the cops in February and March of 2002 and November 2003 ...