On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-0799-05T4) December 2, 2008
Submitted (A-2318-05T4) December 2, 2008
Before Judges Fuentes, Gilroy and Chambers.
In these back to back appeals, defendants Dwayne Gillispie and Gregory Buttler, appeal their convictions for offenses arising out of a double homicide that occurred in Barnegat, New Jersey. Both defendants were indicted for two capital murders, among other charges. Their cases were severed for trial. The jury found Gillispie guilty of all charges, but in the penalty phase, the jury did not impose the death penalty. The capital counts against Buttler were dismissed, and he was convicted by a jury of the remaining charges, including two counts of purposeful murder.
On appeal, defendants raise numerous issues, including the claim that the trial court erred in admitting into evidence certain other-crimes evidence regarding an earlier armed robbery involving defendants in a barbershop in the Bronx. Since ballistic evidence established that the same gun was used in both the Bronx barbershop robbery and the Barnegat killings, evidence of defendants' involvement in the Bronx barbershop robbery was properly admitted on the issue of identity. However because the evidence was not properly sanitized pursuant to State v. Barden, 195 N.J. 375, 390 (2008), and State v. Collier, 316 N.J. Super. 181 (App. Div. 1998), aff'd, 162 N.J. 27 (1999), unnecessary and highly prejudicial evidence was presented to the jury. Accordingly, we reverse and remand.
On November 29, 2000, when Christine Staton did not appear for work, three co-workers went to her home in Barnegat and found the front door ajar, her condominium unit ransacked, and in an upstairs bedroom the bodies of Staton and her son, Lonell Michael. The bodies were bound and tied to each other, each with a bullet hole in the back of the head, and Staton's throat slashed.
The main narrative testimony at the trials tying defendants to these events was provided by their accomplice, Keith Mercer, who testified against them pursuant to a plea arrangement. According to Mercer, Buttler had contacted him a number of times with a plan to rob drug dealers. Mercer first participated with Gillispie and Buttler in a robbery of the barbershop in the Bronx. That robbery resulted in the shooting of three people and is the controversial other-crimes evidence in this case.
Mercer went on to explain that a few weeks later, on November 28, 2000, Gillispie, Buttler, and he drove to Barnegat, New Jersey in Buttler's black Lexus which had Virginia license plates. They had arranged to sell some guns to a drug dealer there known to Gillispie, and planned to later rob the dealer of the money. The drug dealer was Lonell Michael, who met the three at a Country Farms store in Barnegat. After seeing the guns, Michael directed the defendants and Mercer to his mother's home to pick up the money.
When Michael went inside to obtain the money, defendants decided that there was no reason to wait to rob him later because he had brought them to the location where he kept his money. When Michael exited the house, the three forced him back into the house where they encountered Michael's mother, Staton. Defendants tied up Michael and his mother and searched the house for money. Believing that more money was hidden in the house, Gillispie began to slice Staton's throat while Buttler forced Michael to watch in an attempt to induce Michael to divulge the whereabouts of more cash. When this proved unsuccessful and after further searches of the house, they were about to leave when, according to Mercer, Gillispie indicated that the two had to be killed. Buttler handed Gillispie pillows, and Gillispie shot Michael and then Staton in the head.
Michael's girlfriend testified that on the evening of the killings, November 28, 2000, Michael spoke to someone on his cell phone. He then requested her to drive him to the Country Farms in Barnegat. She did so and saw Michael meet a black man standing by a dark colored car with Virginia license plates. She left and never saw Michael alive again.
The police traced the last call on Michael's cell phone to a phone owned by Shawnta Watkins in the Bronx, who in turn indicated that she had purchased the phone for her sister Janyce Watkins. As a result, Janyce Watkins was requested to come to the police station in the Bronx to be interviewed by the New Jersey detectives. She arrived there in a black Lexus with Virginia license plates driven by defendant Buttler. She was wearing one of Staton's rings.
According to Watkins, in mid-November, defendants discussed robbing a drug dealer Gillispie knew in New Jersey, and agreed that the person would have to be killed because the person could identify Gillispie. She testified that when Buttler gave her the ring, he indicated that he and Gillispie had obtained it in a robbery in New Jersey where they had tied up and killed some people.
The telephone number of Michael Kreybig also appeared in Michael's cell phone. In his testimony, Kreybig stated that he sold drugs for Gillispie and that on November 28, 2000, he met Gillispie in the vicinity of Barnegat and paid him $800. At the time, Gillispie was in a black Lexus with two other males.
Sol Cepero testified at Gillispie's trial only. She lived in the same apartment as defendant Gillispie, and testified that around 1:30 a.m. on the night of the murders, Gillispie and two others went into Gillispie's room. After the two left, Gillispie showed her some rings; one of those rings she identified as Staton's ring later recovered from Gillispie's girlfriend. According to Cepero, when Gillispie awoke in the morning, he accused her of stealing the rings, and said to her "I had to put bullet holes in motherfuckers . . . for the rings."
The other-crimes evidence consisted of testimony that defendants, along with Mercer, had decided to rob the Bronx barbershop on November 8, 2000, three weeks before the killings in New Jersey. Believing that a shipment of marijuana was in the basement of the barbershop, Gillispie and Mercer entered the shop with guns, while defendant Buttler and Watkins waited in the black Lexus. Due to the unexpected movement of a man in the barbershop, Gillispie fired his gun a number of times, injuring three people, one seriously. Defendants fled, obtaining no money or drugs from this incident.
When interviewed by Officer Kevin Mojica of the New York City Police Department, Gillispie gave a statement admitting to his role in the Bronx robbery and indicating that he had fired the gun. He did not identify the others involved and hence did not implicate Buttler in this crime. When Mojica finished questioning Gillispie about the Bronx barbershop robbery, he told Gillispie that detectives from New Jersey were there to speak to him. Gillispie then said "probably the same gun was used." When Mojica told him to talk to the detectives from New Jersey, Gillispie said: "Tell Jersey the guy you locked up is the guy who shot the people in New Jersey," pointing at Mojica and himself.
For the Barnegat crimes, defendants were each charged with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count two); two counts of capital murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts three and four for Buttler, counts five and six for Gillispie); two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts seven and eight); two counts of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts nine and ten); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven for Buttler and count twelve for Gillispie); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirteen for Buttler and count fourteen for Gillispie); two counts of second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (counts fifteen and sixteen); and third-degree theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6 (count seventeen).*fn1
After the court conducted certain pretrial proceedings jointly, it severed the cases against defendants. The capital counts against Buttler only were dismissed. Gillispie who was tried first, was found guilty of all charges, but in the penalty phase, the jury could not unanimously agree. Buttler was found guilty of all remaining charges against him, including two counts of purposeful murder.
Gillispie received an aggregate sentence of two consecutive terms of life imprisonment without parole for the capital murders of Staton and Michael (counts five and six). He was sentenced to five years of imprisonment for unlawful possession of a weapon (count fourteen), and ten years on the two burglary counts (counts fifteen and sixteen); the sentences on counts fourteen, fifteen, and sixteen run concurrent with one another, but consecutive to the second life sentence.
Buttler received an aggregate sentence of two consecutive terms of life imprisonment for the murders of Staton and Michael (counts three and four) with thirty years of parole ineligibility on each count. He was sentenced to a term of five years imprisonment for unlawful possession of a weapon (count thirteen), and to a term of ten years on each count for burglary (counts fifteen and sixteen). The sentences on counts thirteen, fifteen, and sixteen run concurrent to each other, but consecutive to counts three and four.
On appeal defendant Gillispie raises the following points:
POINT I ADMITTING EVIDENCE OF THE NOVEMBER 9, 2000, BRONX, NEW YORK BARBERSHOP ARMED ROBBERY CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE STATE FAILED TO PROVE THE FOUR PRONGS OF THE STATE V. COFIELD*fn2 TEST.
POINT II THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO A TRIAL BY AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A ...