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State v. Kincey


November 4, 2009


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-07-1151.

Per curiam.


Argued October 21, 2009

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:





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, Johnson-Ali. Mug shots included in the record suggest a strong physical resemblance between Kincey and Ali.

On July 24, 2009, the State moved before Judge Callahan to admit the taped conversations between defendant, co-defendant Oliphant, and others. Additionally, it moved to sever the charges against defendant Oliphant, who is not represented by counsel. The State argued that

Ms. Oliphant's proceeding pro se would be prejudicial to her in light of the other co-defendants having highly competent and experienced counsel. She would not be able to participate fully in what promises to be a fairly complex trial with a myriad of issues. If she were to proceed pro se in perhaps a bench trial should the need arise, the court would have more latitude with which to handle her case.

The motion was submitted on the papers, without oral argument. It appears that a computer disk containing all of the intercepted conversations was provided to the judge for his consideration, along with informal transcriptions of some of the conversations, with various portions roughly indicated as matters the State sought to introduce.

In a written opinion, Judge Callahan denied the State's motion to introduce the taped conversations at trial as evidence of Kincey's consciousness of guilt. In doing so, the judge found that the "voluminous record of taped phone conversations between the defendant and co-defendants, as well as the defendant with others" did not display a consciousness of guilt, and thus the conversations had little probative value. Additionally, the judge found that the prejudicial effect of the conversations outweighed their probative value. He stated:

The defendant in the instant case is charged with murder and hindering apprehension along with numerous other offenses. The State asserts that the taped conversations are relevant as to the murder and hindering charges. Although the evidence may be relevant to the hindering charge it is far too prejudicial to the defendant concerning the murder charge. No curative instruction will absolutely ensure that the jury solely consider this evidence for the hindering offense and not overlap into their judgment of the murder charge. These offenses are being tried together, as they should be and to admit such evidence would undoubtedly prejudice the defendant while not carrying much weight in the State's case.

The defense has agreed to stipulate that prior to Kincey being ultimately apprehended he was aware that he was wanted by the police or was a fugitive from justice. Furthermore, the State has alternate avenues for proving its case in chief without the need for the taped conversations. The State may use the officers' testimony as to the manhunt and defendant's failure to turn himself in [in] a timely fashion. This would cure the prejudice and allow for the State to prove its flight charge in its case in chief.

In a separate opinion, the judge granted severance of the charges against both Felisha Spencer and Beverly Oliphant pursuant to Rule 3:15-2(b). The judge found:

The defendants' right to a fair trial could be impeded by being forced to be tried together with . . . Kincey in a murder trial instead of having a separate hindering apprehension trial. The jurors may be inflamed when hearing the facts surrounding the shooting death of a law enforcement officer and in turn their judgment concerning Spencer and Oliphant could be clouded. As a pragmatic concern, it is also unfair for Spencer and Oliphant to have to sit through a multi-week murder trial and pay an attorney to do the same, when their case as tried separately would only be a matter of days.


On appeal, the State limits its arguments on admissibility to eleven conversations among the many that were initially offered to Judge Callahan. It then argues that the judge abused his discretion in barring their introduction at trial. The State asserts that the conversations directly bear on consciousness of guilt in connection with the murder itself, form the foundation for a flight charge to the jury, and provide evidence in connection with Kincey's indictment for hindering apprehension. In particular, the State notes Kincey's admission that Spencer and Kim know incriminating evidence regarding him that they did not disclose to the police, his knowledge of facts regarding the murder, and his efforts to develop a successful defense against potential murder and attempted murder charges, as well as his active participation in efforts to hinder apprehension.

In contrast, defense counsel argues that Spencer was not a witness to the murder, and that her knowledge of defendant's illegal acts was limited to his drug dealings. Counsel argues further that facts regarding the murder were reported in the media, and thus were not known solely to the shooter. Counsel asserts that the tapes omit crucial conversations in which defendant discussed his voluntary surrender, and that the redacted versions presented by the State create a confusing and misleading picture of what was occurring. Evidentiary objections to introduction of the wiretaps are also presented.

As a final matter, counsel argues that the prejudicial effect of the tapes far outweighs their probative value. Counsel claims that, in order to counter the impression that Spencer had knowledge of defendant's participation in the shootings, it will be necessary to introduce evidence of his drug dealings and that, in order to counter the effect of other selections made by the State, the defense will be forced to introduce a majority of the otherwise inadmissible recordings.

As the State has recognized, as a general rule, a trial court's determination whether to admit evidence will be reversed only if it constitutes an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). However, to apply that standard in the present case is difficult, because the State's reasons for admission of the proffered evidence have been crystallized on appeal, and the identity of the wiretaps that the State considers evidential has been refined. We disapprove of the procedures thus employed by the State. Nonetheless, we regard the evidentiary issues presented on appeal to be of substantial significance to both the State and the defendant. As a consequence, we decline to determine this matter on the basis of the trial court record as it presently exists, finding it preferable to remand the issue of the admissibility of the eleven conversations upon which the State now focuses to Judge Callahan for his further review in light of the arguments raised on both the State's and Kincey's behalf on appeal. We express no opinion with respect to the proper resolution of the issues raised.


We find no abuse of discretion in the judge's determination to sever the trial of charges against Spencer and Oliphant from Kincey. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). In this regard, we note that the State moved for severance of the charges against Oliphant. Although Spencer is represented by counsel, whereas Oliphant is not, the two defendants are otherwise similarly situated. We find no cogent basis for requiring their participation in an extended trial of the murder charges against Kincey, and like Judge Callahan, can foresee significant potential for prejudice flowing from the joinder of the charges against the three defendants.

Affirmed in part, remanded in part. Jurisdiction is not retained.


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