On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-07-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Miniman.
The State of New Jersey has appealed, by leave granted, from the order of Judge Callahan denying its right to introduce into evidence multiple statements by defendant Franklin Kincey and intercepted by a judicially-authorized wiretap. The State appeals additionally from the judge's order severing for trial the charges against defendants Beverly Oliphant and Felisha Spencer. On appeal, it raises the following arguments:
THE TRIAL COURT ERRED IN DENYING THE STATE THE USE OF THE DEFENDANT'S STATEMENTS.
THE TRIAL COURT ERRED IN SEVERING DEFENDANTS FELISHA SPENCER AND BEVERLY OLIPHANT.
We affirm the severance order and remand the remainder for further consideration on the record as presented on appeal.
On December 10, 2005, Brandon Holmes and Samuel Broughton were shot outside the Blue Ribbon restaurant and bar in Jersey City. Holmes died; Broughton survived and identified defendant Kincey as the shooter. Following an investigation, an arrest warrant was issued for Kincey, but he could not be found for approximately one month. During this period, the State searched the residence of Kincey and his girlfriend, Spencer, in an attempt to locate Kincey. Although he was not found, the police discovered a substantial stash of drugs that gave rise to Kincey's indictment for second-degree drug crimes. The State also obtained judicial authorization for a wiretap, and subsequently recorded approximately one hundred telephone calls between defendant and others, including his mother, Beverly Oliphant, his step-father, a person named Tom, and an unidentified male. Some of those conversations reveal efforts on the part of Kincey's friends and relatives to hinder his apprehension. Others of the conversations disclose defendant's intention to turn himself in to the authorities with the purpose of securing the release from custody of Spencer who, laudably in Kincey's view, had not disclosed incriminating evidence about him to the police. Additional conversations contained information regarding the shootings and proposed defense strategies. None of the conversations contained an overt confession of guilt on Kincey's part.
Kincey was eventually located in Atlantic City and taken into custody. He was indicted on charges of murder, N.J.S.A. 2C:11-3a(1) or 2C:11-3a(2); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; attempted aggravated assault, N.J.S.A. 2C:12-1b(1); assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); unlawful possession of a weapon, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; conspiracy to hinder apprehension, N.J.S.A. 2C:20-3a and/or N.J.S.A. 2C:29-3b; two counts of witness tampering, N.J.S.A. 2C:28-5a; two counts of hindering apprehension, N.J.S.A. 2C:29-3b(3); and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. Defendants Steven Kim, Felisha Spencer and Beverly Oliphant were charged with hindering Kincey's apprehension in violation of various criminal statutes. Steven Kim has pled guilty to charges against him and has agreed to testify for the State at Kincey's trial.
Additionally, defendant Nicole Johnson-Ali was charged in the indictment with possession of a broken-off beer bottle and with possession of the bottle with the purpose to use it unlawfully against the person of another. In his opposition to the present appeal, defense counsel has asserted that Murad Ali was the person who shot Broughton and Holmes, and that the shooting occurred after Broughton threatened Ali's wife, ...