On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1927.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Simonelli.
A jury convicted defendant Brandon Stokes of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). At sentencing, the trial judge merged count one into count two and count five into counts two and three and imposed the following sentence: a twelve-year term of imprisonment on count two with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent twelve-year term of imprisonment on count three with NERA parole ineligibility; and a concurrent five-year term of imprisonment on count four. The judge also imposed the appropriate assessments and penalty.
On appeal, defendant raises the following contentions:
DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE STATE ELICITED TESTIMONY THAT A NON-TESTIFYING CO-DEFENDANT HAD IMPLICATED DEFENDANT IN THE ROBBERIES.
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING WELLINGTON'S GUILTY PLEA DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
BY MOLDING THE JURY CHARGE ON THE ISSUE OF THE VOLUNTARINESS OF DEFENDANT'S STATEMENT TO THE POLICE TO ONLY INCLUDE THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND ESSENTIALLY DIRECTED THE JURY TO FIND DEFENDANT'S STATEMENT CREDIBLE IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
BECAUSE DEFENDANT WAS SUBJECT TO A DE-FACTO ARREST WITHOUT PROBABLE CAUSE, HIS STATEMENT, OBTAINED BY EXPLOITATION OF THAT ARREST, MUST BE SUPPRESSED.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We reject these contentions and affirm.
We summarize the facts from the record. On February 13, 2006, defendant, Tyquan Wellington (Wellington), Marcus Boone (Boone) and Ibn Baker (Baker) were all at Wellington's cousin's home in Elizabeth, drinking alcohol. At the time, defendant was twenty-one years old, Boone was twenty-three and Wellington and Baker were sixteen.
After several hours, defendant, Wellington, Boone and Baker left the house. Traveling in Boone's car, they made several stops, eventually stopping at another house in Elizabeth. Wellington testified at trial that defendant exited the car, went into the house and returned with a silver, .380 caliber handgun, which he gave to Baker. Wellington also saw defendant put a black gun in his left pocket.
Wellington also testified that defendant said to the group that he knew of people in the area of 18th Avenue in Newark that had money, and suggested that they rob somebody. As Boone drove down 18th Avenue, the group saw two men walking in the same direction as the car, who defendant chose to rob. Defendant told Boone to pull over, and he and Baker exited the car with their guns; however, the two males were armed, and a shoot-out occurred. Baker was shot and seriously wounded. Defendant escaped harm. He pulled Baker into the car, but no one called for help. Instead, the group drove to University Hospital in Newark. As they approached the hospital, defendant and Boone instructed the group that they were "going to say we didn't know [Baker] so we could go home that night." After carrying Baker into the hospital, the trio told the hospital staff that they found him on the side of the road and were just helping him. Baker died from his gunshot wounds.
Detective Michael Chirico of the Newark Police Department Homicide Unit was dispatched to the scene of the shooting, where he learned that three witnesses claimed to have found Baker and took him to the hospital. Chirico went to the hospital and interviewed defendant, Boone, and Wellington. All three informed the detective that they were driving around when they heard gunshots, that they saw an individual lying in the street, who they brought to the hospital, and that they did not know the individual. However, after speaking with the young men for approximately fifteen minutes, Chirico heard someone in the waiting room say that they were Baker's friends. The trio were then transported to police headquarters. During the drive, defendant instructed Wellington and Boone two or three times to "stick to the story."
At police headquarters, Wellington was separated from the others and interviewed in his parents' presence. During the interview, Wellington admitted that the group had attempted to rob the two men, and that they had a gun. After receiving his Miranda*fn1 rights, Wellington gave a recorded statement; however he did not mention the attempted robberies; but said that Baker had a gun when he exited Boone's car and was shot.
After receiving his Miranda rights, Boone gave a recorded statement confessing to the attempted robberies and inculpating defendant. After receiving and waiving his Miranda rights, and after signing a Miranda form, defendant gave a recorded statement confessing to the attempted robberies.
Defendant testified at trial and gave a very different version of what happened. He said that the group went to 18th Avenue to buy marijuana, and that the two men walking down the street said they would sell it to them. Baker exited the car to purchase the drugs. Defendant was exiting the car when he heard gun shots. He dove to the ground until the shooting stopped, at which point he saw Baker laying on the ground. He helped Baker into the car, and the group drove to the hospital. At the hospital, Boone told the police that they did not know Baker.
Defendant also testified that the police forced him, Boone, and Wellington to submit to a gunpowder residue test, which had negative results. Defendant also claimed that he never received any Miranda rights before the police began questioning him, and that Chirico accused him of lying, slapped him in the face, and advised him that Boone gave a taped statement admitting the attempted robberies and inculpating defendant. Defendant further claimed that Chirico slapped him again when defendant said that Boone was lying. At this point, defendant admitted the attempted robberies because he was scared and wanted the detective to stop slapping him.
Defendant first contends that the State violated his constitutional right to confrontation by eliciting testimony from him stating that Boone, a non-testifying co-defendant, gave a recorded statement implicating him in the attempted robberies. We disagree.
The State introduced defendant's taped statement at trial but did not mention Boone's taped statement. It was defendant who introduced Boone's taped statement on his direct examination as follows:
Q: What were [the police] saying to you?
A: They asked me what we were doing out there.
Q: What did you tell them?
Q: And what then occurred?
A: [Chirico] told me I was lying. He told me that he had a tape of me doing the robbery. I told him to play the tape. He told me don't worry ...