On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-08-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Grall, Messano and LeWinn.
A jury found defendant Darnell O'Neal not guilty of carjacking, N.J.S.A. 2C:15-2a(1), but guilty of a lesser-included offense, unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c, a crime of the third degree. The judge denied the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to a four-year term of incarceration. The appropriate fines, penalties and assessments were imposed.
The evidence presented at trial supports the jury's verdict. On May 21, 2005, Melliodaire Larose was working as a taxi cab driver in Asbury Park. At about 11:00 p.m., Larose saw his friend and co-worker, Eddy Devalcin, walking along Main Street. Larose offered Devalcin a ride. Devalcin accepted and sat in the front seat with Larose.
Larose was dispatched to the American Legion. When he and Devalcin arrived, defendant and another man approached the cab from behind a car parked in the street near the American Legion. Although the men asked to be taken to Elizabeth Avenue, when they reached that destination defendant asked to be taken to Mattison Avenue. Because there were a lot of people outside on Elizabeth Avenue, Larose became concerned that defendant and his companion were looking for a "dark spot." Larose's concern grew when they reached a dark area of Mattison Avenue and defendant then gave Larose a third address, Boston Way.
Larose and Devalcin had heard of other cab drivers being robbed in that area and talked about the problem. Before reaching Boston Way, Larose stopped the cab, told defendant and his companion to get out and said there would be no charge. Defendant did not comply, but his companion left.
Larose left the cab, Devalcin and defendant behind. He ran away and did not take the keys with him. Defendant jumped into the driver's seat and started to leave. He gestured to Devalcin, who was still seated in the front. Interpreting defendant's gesture as a direction for him to get out of the cab, Devalcin opened the door and started to exit; before he was out, defendant drove away. Devalcin was dragged for a distance of about four feet before he fell, struck his head and injured his elbow. Devalcin required sutures to close his head wound and surgery on his elbow.
At about 2:00 a.m., a police officer, who took note of a cab because of the manner in which it was being driven, checked the license plate number and learned that the cab had been reported stolen. He followed and called for assistance. Defendant was arrested and taken to the police station.
At the police station, defendant was given the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), waived his rights and spoke with Detective Randall Hill for about fifteen to twenty minutes. Defendant admitted that he was in the cab with a man known as "Burglar," but that "Burglar" had jumped from the cab and run away.
Larose later selected defendant's photograph from among those in an array prepared by Detective Hill. Devalcin did not identify defendant.
Defendant testified at trial about events that led him to be concerned for his safety on the night of May 21, 2005. He had recently returned to the Asbury Park area after living in Florida. His younger brother was having trouble with members of a gang and there had been a surge of gang violence in the community; that violence included a drive-by shooting in defendant's neighborhood. In March defendant had been assaulted by a man with a weapon in a liquor store, and he was later assaulted at a local hospital. In May he saw drawings on his garage door; a neighbor explained that the symbols indicated that defendant's life would be taken in a shooting that would occur while he was either getting into or out of a vehicle. Defendant had been hospitalized and diagnosed with psychosis triggered by use of cannabis or alcohol.
On May 21, defendant, Victoria Banks and their two children went to visit defendant's mother at her home on Boston Way. Defendant, feeling that he needed someone to confide in, left there to visit "Burglar," Gershon Clark, who was living across the street from the American Legion. Clark shared his marijuana and cognac with defendant. During their conversation, defendant was "testing [Clark's] demeanor and his person" - seeing whether Clark was "the same person [he] had known like the majority of [his] life." Defendant noticed "a slight twist and change" and "no longer felt comfortable in [Clark's] house." When defendant asked about sneakers that were on the floor, Clark said he did not live alone and that there were "other people [t]here" that defendant "just [did not] see." After receiving that response, defendant "became paranoid." He told Clark he did not feel comfortable, and Clark, who wanted to get something to eat, called a cab. As they waited for the cab, defendant received a call from his brother who told him that "seven guys came to . . . Boston Way with guns, screaming DOA or something like that to that effect."
When the cab arrived, Clark gave the driver an Elizabeth Avenue address, which was the address at which defendant and Banks had lived in the past. Defendant speculated that Clark must not have known that they had moved. During the ride, defendant overheard the cab driver and Devalcin speaking in Haitian; he was able to understand some of what they were saying because of his prior dealings with people who spoke the language. Defendant believed they were talking about a murder by shooting that was about to occur.
When the cab reached Elizabeth Avenue, defendant saw someone he "had a prior altercation with in the month of April." As defendant did not live on Elizabeth Avenue anymore, he asked the driver to take him to Boston Way. Clark, who had offered to pay defendant's fare, criticized defendant for not knowing where he lived but offered to pay the extra fare to take him to Boston Way.
As the cab driver headed toward Boston Way, defendant was "zoning" - "trying to compute everything that's going on at one time. And at the same time [he was] not going to allow [himself] to be placed in harm's way." He saw "a mirror on the wall that said rest in peace to a friend of [his] that passed away, [who] was murdered in Asbury Park, [in] 2003." Then a woman appeared on the corner, looked in the car and saw Clark and told the driver to stop. The driver stopped; at that point, a white SUV with tinted windows passed them and turned back.
Defendant told the cab driver he was holding traffic up and asked him to proceed to Boston Way. The driver would not move; Clark told defendant to get out because it was apparent that the driver was not going to take him to Boston Way. Defendant then saw a "suspicious" man look at the driver. The man dropped some bags and then "dipped off on the side of [a] store." When defendant looked back at Clark, Clark was staring at him. Clark then jumped out of the cab and ran toward the SUV.
When Clark ran in that direction, the cab driver also got out and ran, but he left the keys in the ignition. Defendant's cousin had been murdered where the suspicious man had dropped the bags. Defendant explained what was "going on through [his] mind":
[T]he fix is in, something's destined to happen and I need to get out of here. The driver left. I felt as though he abandoned the vehicle. He left the keys in the car. So when I looked back to see where [Clark] went, the next thing I know the white SUV was coming in fast.
So I jumped from my back seat - that was my instinct. I went from the back seat to the front seat, took control of the vehicle and pulled off.
Defendant explained that he had no intention to do anything illegal that night, that neither he nor Clark had a weapon or had done anything to threaten Larose or Devalcin. He further explained that he did not want to hurt Devalcin and had no intention of keeping the cab. Clark did not testify, but Banks and a friend who came to defendant's assistance while he was still in possession of the cab testified on behalf of defendant.
As noted above, the jury acquitted defendant of carjacking but convicted him of the lesser-included offense of unlawful taking of a means of conveyance in the third degree.
On appeal defendant argues:
I. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO COMPULSORY PROCESS BY PERMITTING DEFENSE WITNESS GERSHON CLARK TO INVOKE A SPECIOUS AND UNREALISTIC FIFTH AMENDMENT CLAIM (NOT RAISED BELOW).
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ABROGATING DEFENDANT'S ASSERTION OF HIS SIXTH AMENDMENT RIGHT OF SELF-REPRESENTATION.
a. BASED ON THE STANDARDS FOR DENYING PRO SE REPRESENTATION ARTICULATED IN INDIANA V. EDWARDS AND STATE V. MCNEIL, THE TRIAL COURT'S RULING DENYING THE DEFENDANT'S MOTION FOR SELF-REPRESENTATION VIOLATED THE DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (RAISED IN SUPPLEMENTAL BRIEF).
III. THE TRIAL COURT'S RULING ADMITTING THE DEFENDANT'S ORAL STATEMENT INTO EVIDENCE SHOULD BE REVERSED BECAUSE DETECTIVE HILL FAILED TO DETERMINE THE EXTENT OF THE ...