On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 2, 2008
Before Judges Cuff, C.L. Miniman and Baxter.
A jury found defendant Keith Kenion guilty of two counts of first degree kidnapping, N.J.S.A. 2C:13-1b(1) (Counts One and Three); two counts of third degree criminal restraint, N.J.S.A. 2C:13-2a (Counts Two and Four); two counts of first degree robbery, N.J.S.A. 2C:15-1a(1) (Counts Seven and Nine); one count of first degree conspiracy, N.J.S.A. 2C:5-2 (Count Ten); one count of second degree burglary, N.J.S.A. 2C:18-2 (Count Eleven); one count of second degree conspiracy, N.J.S.A. 2C:5-2 (Count Twelve); one count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Thirteen); and two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Counts Fourteen and Fifteen).*fn1
After merging Count Four with Count Three, defendant was sentenced to an extended term of life in prison with a No Early Release Act (NERA)*fn2 parole disqualifier. Count Two merged with Count One and the judge imposed a thirty-year term of imprisonment subject to a NERA parole disqualifier. On Count Seven, the judge imposed a term of twenty years with a NERA parole disqualifier. The judge merged Count Ten with Count Nine and imposed a similar term as Count Seven. Count Twelve merged with Count Eleven and the judge imposed a ten-year term of imprisonment with a three-year period of parole ineligibility. On Counts Thirteen and Fourteen, the judge imposed ten-year terms of imprisonment with three-year parole disqualifier terms. On Count Fifteen, the judge imposed a five-year prison term. All terms are to be served concurrent with the term of imprisonment imposed on Count Three.
Between 1:30 and 2:00 a.m. on September 8, 2003, Anthony and Carolyn Young, ages 81 and 80, respectively, were awakened in their Vineland home by two intruders who entered their bedroom, bound them and placed masks over their faces. At the time, Mr. Young was confined to a wheelchair as a result of a previous injury. One of the assailants pushed Mr. Young towards the bedroom window and hit him in the head with a ceramic banana, causing the banana to break. The assailant then struck Mr. Young in his left eye with a ceramic apple.*fn3 When asked, Mr. Young informed his assailant that he kept his coin collection in the drawer in a blue bag. The person who assaulted and gagged Mr. Young was later identified as defendant.
Mrs. Young identified one of the assailants as co-defendant Wayne Parker,*fn4 son of Thurman Parker, a recent tenant of a nearby house owned by the Youngs. According to Mrs. Young, Parker repeatedly struck her in the head, placed duct tape over her eyes, ordered her out of the bed, and dragged her downstairs. On the way downstairs, Parker stated that he knew that the Youngs stored coins and money in their safe. Next, Parker led Mrs. Young to the safe and ordered her to open it. Mrs. Young could not see without her eyeglasses so Parker called upstairs to defendant to locate them. When defendant could not find the glasses, Parker brought Mrs. Young upstairs to retrieve her glasses, but she, too, could not locate them. Parker again brought Mrs. Young downstairs to the safe, after which defendant located her glasses upstairs and brought them to her. Mrs. Young struggled with the combination lock, but eventually succeeded in opening the door to the safe. Parker took Mrs. Young into another room to retrieve the key required to open locked drawers in the safe.
Mrs. Young opened the safe and asked Parker for a glass of water. Parker led her to the kitchen, then to a couch, where he placed pillows on top of her head, causing her to feel like she was going to suffocate. Parker refused to allow Mrs. Young to go to the bathroom and forced her to urinate on the floor.
At some point, a third man entered the house. This man, John Palmer, assisted defendant and Parker with gathering and removing items from the house. As the three men assembled the cash and other items, the Youngs' doorbell sounded, causing the men to run from the house. Before leaving, Parker bound Mrs. Young with ripped clothing and left her on the couch. One of the assailants hit Mrs. Young on her rear as they exited the Youngs' home.
After a while, Mrs. Young untied herself and returned upstairs to Mr. Young, who was unresponsive and appeared to be dead. Mrs. Young used scissors to free Mr. Young from his tape restraints. Mrs. Young then helped Mr. Young to the TV room where she instructed her husband to use his nebulizer*fn5 to help him breathe. When she saw that Mr. Young had the nebulizer in place, Mrs. Young called 9-1-1.
At approximately 3:00 a.m. on the night of the home invasion, Dorothy Nelson, a newspaper delivery driver, pulled into the Youngs' driveway to deliver their morning newspaper. She noticed a beige Honda automobile parked in the U-shaped driveway of the residence. Nelson observed the vehicle backing up and then she heard a crash which sounded like breaking glass. Next, she saw an individual jump from the hedges next to the Youngs' home and enter the car on the passenger side before the driver of the vehicle pulled it forward and out of the driveway. As Nelson dropped off the Youngs' newspaper, she observed that the Youngs' porch door was slightly ajar. Based on Palmer's trial testimony, we know that Nelson observed defendant's and Parker's second departure from the scene. They had returned to retrieve Parker's cell phone.
At approximately 3:15 a.m., the Vineland Police Department dispatched Officer Steven Triantos to the Youngs' residence. He and Sergeant John Lauria were the first persons to arrive at the scene and were greeted at the kitchen door by Mrs. Young. Triantos observed that the door was broken off the frame and hinges. Mrs. Young was very upset and visibly shaken. Triantos noticed that the elderly woman had a laceration to her lip and a bloody nose. Mrs. Young told the officers that her husband had been beaten and he was upstairs in the bedroom.
On the way upstairs to the bedroom, Officer Triantos noticed that the house had been ransacked. He spoke briefly with Mr. Young, who was having difficulty speaking; the elderly gentleman's face was swollen and he appeared to be in pain.
Subsequently, police recovered evidence outside the Youngs' home. EMS personnel gave Triantos the duct tape which had been used by the perpetrators to cover Mrs. Young's face.
Detective Christopher Brunetta interviewed Mrs. Young at the hospital for approximately one and one-half hours while she was treated for her injuries. Brunetta observed that the woman had suffered multiple injuries and that she appeared shaken and scared.*fn6 Mrs. Young provided Brunetta with physical descriptions of three individuals*fn7 who committed the crimes against her and her husband. In addition, she informed the officer that she thought her neighbor and former tenant, Thurman Parker, was involved in the break-in and that Parker had a son, Wayne, whose residence was unknown.
By September 12, 2003, police suspected that Wayne Parker and John Palmer were involved in the Young robbery. Detectives Scott Collins and Steve O'Neill of the Vineland Police Department conducted an interview with Lena Bricker, grandmother of Wayne Parker's girlfriend, Lena Wilson. Thereafter, Collins and O'Neill traveled to Cumberland County College to locate Wilson, and transport her to police headquarters for an interview.
After meeting with Wilson, the police executed a search warrant of Wilson's automobile which was still located at the college. Inside the vehicle, police discovered a glass serving tray which belonged to the Youngs. A search warrant executed at Wilson's home recovered coins belonging to the Youngs.
The police then executed a search warrant at Thurman Parker's home and recovered proceeds from the burglary in the bedroom used by Wayne Parker. During the search of the Parker residence, Sergeant Vincent Solazzo observed a blue Honda Civic automobile driven by John Palmer pass the Parker residence. Solazzo noticed two other individuals riding with Palmer in the vehicle. After the car drove by a second time, Solazzo and Detective Francine Webb followed the vehicle in Webb's unmarked car and instructed a marked patrol vehicle to perform a motor vehicle stop of Palmer's car.
Solazzo approached the front passenger-side door, ordered Parker to exit the vehicle, and noticed defendant in the backseat. Initially, Parker was uncooperative, and appeared ready to flee. Solazzo observed Parker throw a coin book to the ground upon exiting the vehicle. In addition, the officer recovered a fabric bag containing coins from Parker's pocket.
Webb removed the driver, Palmer, from the vehicle, handcuffed him and performed a pat-down search, and ordered him to the ground. In Palmer's back pocket, she discovered a coin enclosed in a glass case.
Once Palmer was secured and searched, Webb proceeded to remove defendant from the vehicle. The detective performed a visual inspection of the back seat for weapons and noticed a bag on the floor from which several two-dollar bills and coins had spilled. In addition, Webb observed a paper money guide and a coin book on the seat next to the one occupied by defendant. The detective asked defendant, "[A]re you Keith[?]" to which defendant answered, "[Y]es. I'm from North Carolina. I'm Keith Kenion."
Webb removed defendant from the vehicle, handcuffed him and turned him over to Patrolman Kirchner who performed a pat-down search. Kirchner recovered a roll of money containing two-dollar bills from defendant's right front pants pocket. Thereafter, he transported defendant to police headquarters. Palmer and Parker were also arrested.
At the station, Palmer signed a consent form to search his vehicle. Numerous coins, jewelry and books on coin values were recovered from the vehicle, as was a woman's vanity with the initials "CGM," a cell phone, a pack of Newport cigarettes, and various clothing items.
Detectives Collins and Webb interviewed Palmer, after which he provided a handwritten statement of the events which occurred at the Youngs' home. Next, Palmer took the police to Parker's aunt's house, where they recovered a plastic storage container which held various items stolen from the Youngs' home. In addition, Palmer accompanied the police to a dumpster where he claimed defendant discarded sneakers worn during the burglary. Police recovered a pair of sneakers which contained carpet fibers matching uncommon carpet fibers found at the Youngs' home.
Two months after his initial interview and handwritten statement, Palmer submitted to a second interview with Collins and provided two additional recorded statements. Following their interview with Palmer, Detectives Collins and Shane Harris interviewed Parker, who provided a recorded statement to the detectives.
Defendant also provided a recorded statement to Detectives Webb and Ed Ramos. In his statement, defendant admitted participating in the home invasion, binding Mr. and Mrs. Young, and stealing items from the residence. Defendant, however, denied ever striking either of the victims.
When the three suspects were transported to the Cumberland County jail, they were placed in the same holding cell. While there, defendant attempted to attack Palmer, but was restrained by Parker.
Subsequently, Palmer negotiated a plea agreement with the State whereby he pled guilty to two counts of first degree robbery with concurrent ten- to twenty-year periods of incarceration on each count, subject to a NERA parole ineligibility term. All other charges against Palmer were dismissed pursuant to the plea agreement.
On January 31, 2006, Palmer testified on behalf of the State at defendant's trial. He explained his friendship with Parker and Parker's girlfriend, Wilson. He stated he met defendant the night of the home invasion. Palmer knew that defendant was Parker's cousin.
Palmer testified that on the evening of September 7, 2003, he drove his girlfriend's "goldish" 2002 Honda Civic to Vineland. Palmer was under the impression that he was traveling to Vineland to purchase marijuana and assist Parker in moving things out of his parent's home. Palmer picked up Parker and defendant at a Wawa convenience store in Vineland.
After picking up Parker and defendant, Palmer drove to an apartment complex to purchase marijuana. Next, the three men traveled to a 7-11 convenience store where Parker went into the store while Palmer and defendant remained in the car and purchased gasoline. Parker exited the 7-11 with gray duct tape and blunt cigars to smoke the marijuana. Palmer drove the trio around while they smoked the marijuana before he dropped Parker and defendant off at the home Parker's father formerly rented from the Youngs. Palmer testified that Parker and defendant took the duct tape with them.
Palmer left and went to a fast food restaurant for something to eat, but the restaurant was closed. He then drove to Wawa to use the bathroom, smoked another marijuana cigar and used his girlfriend's cell phone to talk to her for approximately one hour. While Palmer was talking to his girlfriend, Parker called. Palmer observed that Parker sounded rushed and hurried. Following their brief conversation, Palmer returned to the rental home next to the Youngs' home. When he turned into the driveway, he noticed someone waving him to the driveway of the Youngs' residence. He exited his car and Parker started handing bags to him. Palmer entered the Youngs' home and Parker handed him more bags. On Palmer's second trip into the house, he noticed defendant at the safe and Mrs. Young facedown on the couch. He observed the broken door frame and Parker grabbing more items from the home. At the time, both Parker and defendant were wearing masks.
At some point, Palmer heard what he thought was an alarm sounding, after which the three men rushed to the car. Palmer left the Youngs' driveway and made a right, when Parker realized he had left his cell phone in the Youngs' home. Palmer returned to the Youngs' home, after which he and Parker got out of the car. Palmer grabbed some other bags by the door while Parker retrieved his cell phone. Parker handed Palmer some glassware at the same time Dorothy Nelson arrived to deliver the morning newspaper. Thinking it was the police, Palmer dropped the glassware, causing it to shatter, and ran to the car. Parker ran out the door and towards his parents' former home. Palmer began to back his car out of the driveway. When Nelson's car did not move, he drove forward and Parker jumped back into the car. Defendant never left the car during the second trip to the Youngs' residence.
Palmer drove to Parker's girlfriend's home. During the ride, Parker and defendant discarded their masks and gloves. After they arrived at Parker's girlfriend's home, the three men and Parker's girlfriend carried bags of stolen property into the residence. Once inside, Parker and Wilson began to argue. Thereafter, Palmer and the girlfriend left to get something to eat at Wawa, before returning to her home. Parker and defendant remained at the girlfriend's home. Palmer then noticed that Parker and defendant discarded their clothing in a trash bag. Later they tossed it into a dumpster. In the home, Palmer noticed many of the stolen items from the Youngs' home, including old coins, coins wrapped in plastic, two-dollar bills, liquor and jewelry. In addition, he observed an old wooden record player with a large horn on top.
Palmer testified that he went along with the robbery because he was afraid he would end up tied up on the couch like Mrs. Young, if he did not. In addition, he thought he would be rewarded if he kept quiet.
The next morning, Palmer drove himself, Parker, and defendant to the Cumberland Mall to purchase a book about coins to determine the value of those stolen from the Youngs. Palmer purchased two coin books at the mall and defendant bought a new pair of sneakers. One of the coin books, in addition to a book given to the three men by a South Street vendor in Philadelphia, was recovered by police inside Palmer's vehicle on the day of their arrest. Palmer then dropped off Parker and defendant at Wilson's home and went to his girlfriend's apartment. Subsequently, Palmer purchased two additional coin and currency books at the Deptford Mall.
At some point, Palmer returned to Vineland to drive Parker and defendant to a store in Richland to sell some of the stolen jewelry. Once in Richland, Parker and defendant went into a store called Antique Depot and "got rid of a couple of stop watches and . . . old watches," ...