September 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESSICA LANDRIO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1109-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Stern, Collester and C.L. Miniman.
Tried to a jury, defendant Jessica Landrio was convicted of first-degree robbery, kidnapping, carjacking, theft of movable property valued at $1,000 or less, and acquitted of conspiracy. Following merger, she was sentenced to an aggregate term of fifteen years with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA). She makes the following arguments on appeal:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED THE "OPENING THE DOOR DOCTRINE" BY ADMITTING THE SHOTGUN (S-2) INTO EVIDENCE AND BY PERMITTING JOHN KELDER TO TESTIFY THAT THE DEFENDANT WANTED TO DESTROY THE SHOTGUN.
POINT II - THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE AND INCOMPLETE AND CONSTITUTES PLAIN ERROR. (Not Raised Below.)
A. BY FAILING TO INCORPORATE THE FACTS OF THE CASE INTO ITS ACCOMPLICE LIABILITY CHARGE, THE TRIAL COURT COMMITTED PLAIN ERROR BECAUSE IT IMPROPERLY LINKED THE CRIMINAL CULPABILITY OF THE DEFENDANT WITH THE CRIMINAL CULPABILITY OF HER CO-DEFENDANTS. (Not Raised Below.)
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO PROVIDE ADEQUATE GUIDANCE TO THE JURY ON HOW TO ASSESS THE CREDIBILITY OF CO-DEFENDANT KELDER IN LIGHT OF THE FACT THAT HE WAS TESTIFYING FOR THE STATE PURSUANT TO A FAVORABLE PLEA AGREEMENT. (Not Raised Below.)
C. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO PROPERLY INSTRUCT THE JURY ON OTHER CRIMES EVIDENCE. (Not Raised Below.)
POINT III - THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTION WAS ADMISSIBLE TO IMPEACH CREDIBILITY.
POINT IV - THE AGGREGATE 15 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
In the summer of 2003, John Competiello, a self-employed automobile mechanic in his late forties, lived alone in an apartment on the second floor of a house in Clifton. Living across the street was the mother of co-defendant John Kelder and her boyfriend, Alan Darvus, with whom Competiello was quite friendly although he did not get along with her son John Kelder.
Around May 2003, defendant Jessica Landrio was living in Pennsylvania with her husband and son when she reunited with her ex-husband, co-defendant Kelder. In June she moved to Clifton with Kelder. Soon after she arrived she met Competiello at a barbeque given by Darvus and Kelder's mother. She told Competiello she worked as a stripper at various clubs and private parties. Later, Landrio rented and moved into her own apartment in Clifton, but the check for the security deposit and first month's rent could not clear because her husband withdrew the money from their joint account. Landrio told Competiello that the real estate agent threatened to call the police if she did not make good on the check, and he loaned her the money. Landrio promised Competiello that she would repay the loan at $100 a month, but no payment was ever made.
At the end of July 2003, co-defendant Michael Grimaldi was discharged from the Army and asked Landrio whether he could stay at her apartment for a few days. Since Grimaldi was the father of Landrio's daughter, she agreed. At about 7:30 p.m. on August 5, 2003, Landrio, Grimaldi and Kelder hatched a scheme to rob Competiello. Landrio testified at her trial that Kelder and Grimaldi pressured her into calling Competiello and telling him that she would stop by later that evening to discuss the money she still owed him. She said Competiello was enthusiastic about seeing her and told her to come alone. Kelder then told Landrio that Competiello had a large amount of cash in his apartment, and it was decided that he and Grimaldi would rob Competiello with Landrio's help. Landrio claimed Kelder told her the money was "mafia money, so Competiello would never report the theft to the police." Landrio testified she did not want to go through with the plan, but did so because Kelder "guilt tripped" her by bringing up the fact that she aborted his baby.
Testifying for the State pursuant to a plea bargain, Kelder's version of the events of the early evening were different. He said that during the phone conversation, Competiello told Landrio that his uncle died and left him $300,000 which he had in cash at the house. Kelder said that after the phone call, Landrio suggested that they commit the robbery.
It was decided that Landrio would go to Competiello's apartment pretending that she was there to repay him the $3,000 she owed, and once she was inside, Grimaldi would knock on the door and pretend to inquire about a motorcycle for sale. When Competiello would say he knew nothing about a motorcycle, Grimaldi would ask to use Competiello's phone to call the number on the advertisement. Once inside, he would hold Competiello at gunpoint, and Kelder would enter the apartment to search for the money. All three agreed that they would wear rubber gloves when they were inside Competiello's apartment so as to not leave fingerprints. They then drove in Landrio's car to Competiello's address, stopping along the way at a convenience store to buy latex gloves.
Competiello testified that at about 8:15 Landrio rang his doorbell and came up to his second floor apartment. He said that after a few minutes, the doorbell rang. Competiello went downstairs and spoke with Grimaldi, whom he had never met. Proceeding with the cover story, Grimaldi inquired about a motorcycle for sale. Thinking that Grimaldi had the wrong address, Competiello agreed to allow Grimaldi to use his telephone. While Grimaldi pretended to use the kitchen telephone, Landrio excused herself so she could step outside to smoke a cigarette. Moments later she reentered with Kelder. Grimaldi then placed a gun at the back of Competiello's head and directed him to sit on the sofa. Competiello then saw that all three were wearing clear rubber gloves. Kelder repeatedly asked him where he kept his money and told him that he was going to die that night. Meanwhile, Landrio searched through the apartment for the stash of hidden money.
After one half hour, Landrio told the others that she could not find the money. Fearing for his life, Competiello said that he kept his money in a safe at his repair shop and would take them there in his truck to get the money. He said his keys were inside the truck, and Landrio then went downstairs to retrieve them. Landrio, Kelder and Grimaldi agreed that Kelder and Grimaldi would drive to the shop in the truck with Competiello, and Landrio would follow in her car. Before they left, Landrio took a sock from Competiello's bedroom, handed it to Competiello and told him to put it in his mouth. Once outside, Landrio started toward her car while Grimaldi and Kelder walked with Competiello toward his truck. Kelder climbed into the driver's seat while Grimaldi, still holding the gun, opened the passenger door and told Competiello to get in. Competiello grabbed some clothes that were lying on the passenger seat, threw them in Grimaldi's face and ran down the driveway to his backyard. Grimaldi fired two shots at Competiello but missed both times. Competiello ran to the house of a neighbor who, hearing the gunshots and Competiello's cries for help, called the Clifton police.
Landrio's version of the robbery was very different. She said that after Kelder entered the apartment, she left the apartment and waited in her car. When she heard the first shot, she got out of her car and ran toward the apartment when she heard the second shot. She met Kelder and Grimaldi, and the three of them ran back to her car and drove away. Landrio insisted that she did not know Grimaldi had a gun or that Kelder and Grimaldi were taking Competiello's truck to drive him to his shop.
Grimaldi, who also received a plea agreement, testified as a defense witness. He said that when all three defendants were in the apartment, it would have been impossible for Landrio to have ever seen that he had a gun because of how he was standing. He added that he did not see Landrio after he and Kelder moved Competiello into the living room until they met with her outside the apartment to drive to Competiello's repair shop.
After their planned robbery failed, Landrio, Grimaldi, and Kelder drove back to Landrio's apartment. They changed their clothes, and drove to upstate New York where they intended to stay with Landrio's friend. After finding out that Landrio's friend was not home, they rented a motel room for the night. At some point that night, Darvus called Landrio's cell phone and left a voicemail message that the police were looking for her and Kelder in connection with an attempted robbery. Landrio played the message the next morning and Landrio called Darvus back. She told him to tell police that all three would turn themselves in for questioning later that day. They then went to a McDonalds and threw the gun, holster, ammunition and the clothes they wore at the time of the robbery into a dumpster. After Landrio worked at three pre-arranged private parties, they drove back to Clifton. When they arrived, Landrio gave Grimaldi the key to her apartment, and according to Kelder gave instructions to disassemble a shotgun that Kelder kept at her apartment and throw it in the apartment dumpster. Landrio and Kelder then drove to the police station, and a short time later the police apprehended Grimaldi inside Landrio's apartment.
Landrio, Kelder and Grimaldi were indicted on charges of first-degree robbery, first-degree kidnapping, carjacking, second-degree burglary, third-degree theft and conspiracy to commit murder. Grimaldi alone was indicted on charges of attempted murder, theft of a handgun, possession of a weapon for an unlawful purpose and unlawful possession of a handgun. Prior to Landrio's trial Kelder and Grimaldi entered pleas of guilty in accordance with a plea bargain requiring them to testify at trial. Subsequently, Kelder was sentenced to a term of fourteen years and Grimaldi to eighteen years.
Landrio's first argument on appeal is that the trial judge abused his discretion by permitting Kelder to testify she told Grimaldi to get rid of the shotgun and by admitting the shotgun into evidence. While the shotgun was not used in the commission of the crime, the State argues that the post-crime conduct in instructing Grimaldi to dispose of the shotgun was admissible pursuant to N.J.R.E. 404(b) and the four-pronged test of State v. Cofield, 127 N.J. 328 (1992). The proffer by the prosecutor was as follows:
The State would introduce that action of Ms. Landrio. Mr. Kelder overheard Ms. Landrio instructing Mr. Grimaldi to get rid of the shotgun. This shotgun was not used in the absolute crimes, but it does go to show her state of mind regarding her involvement in the robbery, in the theft, in the burglary, in the conspiracy to commit murder. Here we have a defendant who is looking down the road and saying I'm going to destroy this evidence even though it wasn't involved in it. It's a gun, I know a gun was used in this case. It shows her state of mind regarding purposeful, knowing actions on her part regarding the crimes that she's charged with . . . . This statement and this action of hers shows (sic) that she was very much involved in the planning and subsequent destruction and flight from a very serious crime, the robbery.
The trial judge initially ruled that the prosecutor failed to show that the evidence was relevant to the defendant's state of mind. However, based on testimony during the cross-examination of John Kelder, the trial judge found that the defense "opened the door" and permitted the testimony. The pertinent exchange between defense counsel and Kelder is as follows:
Q: And you also know from being there that when Jessica was on the phone that she spoke to Clifton and made arrangements to turn herself in, true?
Q. And she also told you that you should turn yourself in, true?
Q: And she also told Grimaldi that he should turn himself in, true?
Q: She never said that?
Q: Isn't it a fact that she said to both you and Grimaldi we're in enough trouble, let's turn ourselves in, call the police, make the arrangements, yes or no?
When the prosecutor renewed the proffer as to Landrio's instructions to Grimaldi to get rid of the shotgun, the judge decided to admit the evidence, explaining:
You chose to go into detail about her post-indictment behavior . . . the good things that she did after this incident which would lead the jury to draw an inference that she was not involved in this. That's fair.
That's good trial strategy, but then you have to accept the shotgun. I'm satisfied, that's my stated reason. I'm going to let him introduce the shotgun now.
As a result, the following testimony was elicited from Kelder on redirect:
Q: Do you recall another weapon being present in the Landrio apartment?
Q: Whose weapon was that?
Q: What type of weapon was that?
A: A 12-gauge pump shotgun.
Q: Do you recall hearing Ms. Landrio give any instructions to Mr. Grimaldi?
A: He was to destroy it and throw it in the dumpster.
Evidence of testimony otherwise inadmissible may be admitted when the opposing party has made unfair or prejudicial use of related evidence. State v. Vandeweaghe, 177 N.J. 229, 238 (2003); State v. James, 144 N.J. 538, 554 (1996). See also State v. Rucki, 367 N.J. Super. 200, 208 (App. Div. 2004). We find that the trial court was correct in determining that the evidence of Landrio's post-crime orders to dispose of the shotgun were relevant to put in context the post-crime evidence selectively admitted by the defense, namely, Landrio's suggestion that they turn themselves into the police. Evidence that she sought to dispose of evidence she felt would be incriminating could raise an inference that she fully participated in the planning and execution of the crimes in contrast to her testimony that she was pressured into participating, was unaware of the existence or use of a gun, and was waiting in the car during the events constituting the armed robbery, burglary, kidnapping, and carjacking.
N.J.R.E. 404(b) provides as follows:
Except as otherwise provided by Rule 608(b) [relating to a witness's prior false accusation], evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In Cofield, the court set forth a four-pronged test under N.J.R.E. 55, the predecessor to N.J.R.E. 404(b), for determining what evidence of "other acts" is admissible for purposes other than to show propensity. Such evidence is admissible if (1) it is relevant to a material issue; (2) it is similar in kind and reasonably close in time to the offense charged; (3) it is clear and convincing; and (4) its probative value is not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.
In State v. Williams, 190 N.J. 114 (2007), the Supreme Court held that evidence of the defendant's post-crime actions was admissible to prove the crime of reckless manslaughter. There the defendant discharged a shotgun into the victim's chest, killing him, and then wiped down the gun to remove his fingerprints, imprinted the victim's fingerprints on the gun, and told a roomful of witnesses to tell the authorities that the death was suicide. The Court held that the post-crime attempts by the defendant to cover up the killing were relevant to show consciousness of guilt and were therefore admissible under N.J.R.E. 404(b). Id. at 130.
The evidence that Landrio told Grimaldi to dispose of Kelder's shotgun was therefore admissible under N.J.R.E. 404(b) if (1) it was relevant to a material issue; (2) it is clear and convincing; and (3) its probative value is not outweighed by its apparent prejudice. Here evidence of the post-crime conduct of Landrio is admissible to prove her consciousness of guilt and her efforts to destroy what she believed to be evidence that could be used against her and the other defendants. Furthermore, the evidence was relevant on the disputed issue of the extent of her culpability. Therefore, we find no abuse of discretion in the admission of the testimony. See State v. Erazo, 126 N.J. 112, 131 (1991).
Defendant next raises three alleged errors with the jury instructions, none of which were raised below. Accordingly, our review is under the plain error standard, requiring the defendant to show the error was of sufficient magnitude to lead the jury to a result it would otherwise not have reached. State v. Brown, 190 N.J. 144, 160 (2007); State v. Torres, 183 N.J. 554, 564 (2005). None of the claims of error by defendant are of such magnitude. First, defendant contends that the trial judge improperly linked her culpability to the criminal culpability of the co-defendants. However, a review of the jury charge reveals that the judge specifically instructed that when two or more persons participate in the crime, each may have a different state of mind, and the culpability of this defendant was dependent upon her own state of mind and not that of anyone else. See State v. Ingram, 196 N.J. 23, 40-41 (2008); State v. Norman, 151 N.J. 5, 32 (1997); State v. Bielkiewicz, 267 N.J. Super. 520, 529 (App. Div. 1993). Moreover, the court reiterated the charge when the jury returned with a question on accomplice liability. Therefore, there is no merit in defendant's argument.
Defendant next asserts that while the trial judge gave the model jury charge on credibility, the charge was inadequate because it failed to further instruct the jury regarding the credibility of Kelder that he was testifying for the State pursuant to a plea agreement. However, the jury instruction on credibility encompassed the issue of potential bias from the plea bargain even if it was not specifically mentioned. Moreover, the defense attorney thoroughly addressed the plea agreement on Kelder's cross-examination and highlighted what he termed a favorable plea bargain in his summation to the jury.
Finally, the court's instructions as to defendant's conduct immediately after the crime were adequate. The testimony was not offered as evidence of prior bad acts but rather evidence of a consciousness of guilt, which does not raise the specter of a conviction based on a predisposition to commit a crime of this nature.
Next, defendant contends that the trial judge abused his discretion in admitting evidence of defendant's prior conviction of terroristic threats. The conviction was nine years prior to the trial, which is at the outer limit in terms of time, but we find no abuse of discretion in permitting its use as sanitized to impeach defendant. See State v. Hamilton, 193 N.J. 255 (2008); State v. Sands, 76 N.J. 127 (1978).
Finally, defendant contends that her sentence was manifestly excessive. In fact, defendant received concurrent terms at the mid-point for robbery and below the mid-point for carjacking. Accordingly, we see no basis for disturbing the sentence.
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