September 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME ROBERTS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-01-0127.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2008
Before Judges Skillman and Graves.
On January 5, 2002, defendant Jerome Roberts was arrested and charged with the murder of Robert Priester, who was shot and killed at approximately 5:30 p.m. on December 31, 2001, at the intersection of Calhoun Street and Ingham Avenue in Trenton. Defendant and co-defendant Stanley Smith were subsequently indicted for first-degree murder, in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6; second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4 and N.J.S.A. 2C:2-6; and third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5 and N.J.S.A. 2C:2-6. The indictment also charged defendant with third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5, and fourth-degree possession of a defaced firearm, in violation of N.J.S.A. 2C:39-3.
On March 19, 2004, after hearing testimony and argument, the trial court granted defendant's motion to suppress evidence, including defendant's cellular telephone toll billing records. The court found that the communications data warrant (CDW) authorizing the seizure of defendant's telephone records was defective, and it rejected the State's argument that the records were admissible under the inevitable discovery exception to the exclusionary rule. The court's ruling was memorialized in an order dated April 7, 2004.
This court granted the State's motion for leave to appeal and found that the State had demonstrated by clear and convincing evidence that it "actually had substantial evidence upon which a judge would have found probable cause to issue a CDW for the [defendant's] phone records before the warrant was issued and before the records were obtained." State v. Roberts, No. A-5209-03 (App. Div. July 22, 2005) (slip op. at 42). This court also found that the State "would have obtained a valid warrant for Roberts's toll billing records through normal investigatory procedures, independent of the improper warrant application." Id. at 2. Accordingly, we determined that defendant's cellular telephone records were admissible under the inevitable discovery exception to the exclusionary rule and reversed the part of the order that suppressed those records.
Defendant filed a motion for leave to appeal to the New Jersey Supreme Court. That application was denied. State v. Roberts, Docket No. 58,444 (November 17, 2005).
On January 26, 2007, pursuant to a negotiated plea agreement, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), for causing the death of Robert Priester on December 31, 2001. In return for defendant's guilty plea, the State agreed to recommend a ten-year sentence under the No Early Release Act, N.J.S.A. 2C:43-7.2, and also agreed to the dismissal of the indictment, which charged defendant with murder and other related offenses. During the plea hearing, defendant explained his participation in the killing of Robert Priester as follows:
Q: Did you, in fact, on December 31st, 2001, meet with Andre Bellinger?
Q: Where did that take place?
A: 931 Martin Luther King Boulevard.
Q: Okay, and during that meeting, what happened that involves your participation in the killing of Robert Priester?
A: I asked him to shoot Mr. Priester.
Q: And what were your specific words that you said to him about that, if you remember, or generally?
A: I just asked him to shoot him.
Q: Was that as a result of your ongoing dispute with him, is that why you wanted it done?
Q: Okay. And was it your understanding at that point that he was going to, in fact, shoot Mr. Priester?
A: Yes. . . . .
Q: Do you know whether or not he was in possession of, or was provided with, a weapon to carry out your request?
A: I believe his friend had a weapon already.
Q: So you knew that he had a weapon?
Q: Based upon your discussions with him, were there any specific . . . terms of an agreement that you worked out between the two of you, was he to be given anything in exchange?
A: No, it wasn't an agreement of money, it was a favor for a favor.
Q: And did you have an expectation that he was going to carry that out?
A: At the time, yes.
Q: What were the arrangements to be made, when and where was it to have been accomplished?
A: Whenever he seen him.
Q: And where were you for the rest of that day?
A: I was planning on going out later on that night, but I stopped in the barber shop to get my hair done.
Q: Were you made aware of the fact that your direction had been carried out and that Mr. Priester had, in fact, been shot?
Q: How were you made aware of that?
A: I received several phone calls from different people.
On February 23, 2007, the court sentenced defendant in accordance with the plea agreement to a ten-year sentence with an eighty-five percent period of parole ineligibility for aggravated manslaughter. In addition, the court dismissed the outstanding indictment and imposed a $1000 Victims of Crime Compensation Board (VCCB) assessment, a $75 Safe Neighborhood Services Fund assessment, and a $30 Law Enforcement Officers Training and Equipment Fund assessment.
On appeal, defendant primarily argues "that the prior ruling of this court is so clearly flawed in its application of the independent-source and inevitable-discovery exceptions that it should be reversed and suppression ordered." In response, the State argues that this court should refuse to "reconsider what it has already decided in the interlocutory appeal" because our prior opinion "established the law of the case, and questions pertaining to the soundness of that judgment cannot be resurrected by defendant at this stage of the proceedings." We agree.
The law of the case doctrine is a non-binding discretionary rule that "sometimes requires a decision of law made in a particular case to be respected by all lower or equal courts during the pendency of that case." State v. Reldan, 100 N.J. 187, 203 (1985); see State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974) ("'Law of the case' most commonly applies to the binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings, or upon a different appellate panel which may be asked to reconsider the same issue in a subsequent appeal."). The doctrine is based on the notion that once an issue has been litigated and correctly decided, relitigation of that issue should be avoided "in the absence of some new or overriding circumstance." State v. Reldan, supra, 100 N.J. at 204 (quoting State v. Hoffler, 389 A.2d 1257 (Conn. 1978)).
In the present matter, defendant does not contend that this court's prior decision should be reconsidered because of new evidence or new controlling authority. Indeed, as the State points out, the record before this court "is exactly the same as on the interlocutory appeal," the controlling authority has not changed, and there has been no showing that this court's prior ruling was clearly erroneous. Under these circumstances, we are satisfied that "our earlier decision is the law of the case and is binding on this court on this appeal." State v. Stewart, 196 N.J. Super. 138, 143 (App. Div.), certif. denied, 99 N.J. 212 (1984); see also State v. Meyers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127 N.J. 323 (1990).
Defendant also claims that his $1000 VCCB assessment is excessive. Whenever a VCCB assessment exceeds the minimum of $100, the court must "consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents." N.J.S.A. 2C:43-3.1(a)(1). See also State v. Premone, 348 N.J. Super. 505, 515-16 (App. Div. 2002) (noting imposition of VCCB assessment in the amount of $1000 must be explained). That did not happen in this case. We therefore conclude that this aspect of defendant's sentence must be reversed and remanded for reconsideration.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
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