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State v. Frost

June 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALAN C. FROST, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-01613.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 26, 2010

Before Judges Graves, Sabatino, and J. N. Harris.

Defendant Alan C. Frost--nicknamed "Freeze"--was found guilty by a jury of all charges contained in a Monmouth County indictment that had been lodged against him: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery with a deadly weapon, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count four). He was sentenced to an aggregate term of imprisonment of fifty-five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1

Defendant appeals, and raises several putative errors including prejudicial evidentiary rulings, prosecutorial misconduct, inadequate supervision over jurors during the trial, denial of the right to a speedy trial, and impropriety of the sentence. After a thorough review, none of defendant's arguments persuades us that he was deprived of a fair trial, denied due process of law, suffered an improper sentence, or is otherwise entitled to relief. We affirm.

I.

The following facts are gleaned from the trial record as the State's version, which evidently convinced the jury of defendant's guilt. In 2005, co-defendant Sharif Bass was a seller of controlled dangerous substances in Asbury Park. He peddled his illicit wares from the front porch of a partially vacant four-unit apartment building at 320 Asbury Avenue, where Bass once resided.*fn2 Bass operated out of a vacant office on the first floor, and rented the two upstairs apartments to prostitutes and drug users. The building had one legitimate tenant, Carol Schindewolf, who lived with her husband and daughter in a first-floor apartment across from the office.

Co-defendant Benny Matthews served as a bodyguard for Bass, who, in exchange, was given permission to sleep nights in the office. Co-defendant Tasha Canada was Bass's girlfriend. Defendant is Bass's uncle.

On September 22, 2005, Bass called Canada and asked her to come to 320 Asbury Avenue to plan a robbery. Later that evening, Bass, Canada, and Matthews were together on the porch when Schindewolf overheard them discussing plans for an upcoming robbery. Schindewolf was aware--from speaking with Bass and Canada--that a few days earlier they had already committed a similar crime.

Around that time defendant, who had been playing with Schindewolf's daughter on the grass, went onto the porch with the co-defendants. Bass told Matthews he needed money, explaining "[h]e owed money to somebody from buying drugs that he didn't pay... back." According to Matthews, defendant--who was working odd jobs at the time--said, "I need money, too."

The plan that was hatched involved luring a patron from a local bar into the company of defendant and the other co-defendants. Matthews described it as the following:

A: So we all agreed, me, Freeze, Tasha [Canada], we all agreed to rob somebody.

Q: When you say 'we all agreed,' how did you know that everyone else agreed?

A: Because we all agreed. Tasha [Canada], Freeze, like, Y'all down? He asked, Y'all down? He was like, Yeah, we're down. We're down. Everyone said they was down.

Q: What was the plan?

A: The plan was just to grab somebody, take his money and that was it.

Q: And how would you find somebody?

A: Tasha [Canada] was supposed to go to [Golddiggers Bar and Grill], bring somebody back. Me and Freeze would rob him and take the money, and then come back to the house.

After initiating the plan, Canada did not find anyone at the bar that she could lure back to the apartment building. Upon leaving Golddiggers and walking along Bergh Avenue, however, she heard footsteps behind her and someone called out, "[c]an you help me?" It was Phonarith Chhieng, whom Canada believed was stealthily asking her for illicit drugs.

She agreed to help, and led him to 316 Asbury Avenue where Matthews "grabbed him in a choke hold," lifted him off the ground, and dragged him to the side of the house. Canada then fled to the 320 Asbury Avenue apartment building.

Matthews testified about what happened next:

I got to the side of the house. Freeze was there. He punched [Chhieng] in his face [a] couple of times. Punched him in the chest. I asked [Chhieng] where the money was at. He [was] mumbling, 'I ain't got no money,' like that. Then Freeze hit him in the head with the brick. He fell out of my hands, fell onto the ground. He is screaming, "I ain't got no money.' [Defendant] kicked [Chhieng] on the side. You know.

Freeze continued to punch him [a] couple [of] more times. Kicked him a couple [of] times. I kicked him a couple [of] times. Then he put -- at that time -- yeah, he kicked him. Then Sharif [Bass] came back. He started kicking [Chhieng], like, 'Where's the money at? Where's the money at?'

And the guy was like, 'No, I'm a good guy. I'm a good guy. Don't hurt me. I don't have any money. I don't have any money.'

Sharif [Bass] took one of [Chhieng's] shoes off, checked his shoe. Then Freeze put a rope around his neck and then that's when we were starting to leave.

According to Matthews, the entire incident took about thirty minutes, during which time Chhieng never attempted to fight back.

Bass and Matthews returned to 320 Asbury Avenue and defendant arrived shortly thereafter; all of the men were covered in blood. Matthews noticed that defendant was wearing a ring with a moon and star pattern. Bass ordered the men to change their clothes and wash their hands. Bass put the clothes in a black plastic bag, and gave them other clothes that he kept in the office. Soon afterwards, everyone left the premises and scattered in different directions.

On September 23, 2005, the Asbury Park Police Department received an anonymous telephone call about a dead body in the vicinity of 320 Asbury Avenue. A thirty-minute search conducted by the police was unsuccessful. A second telephone call resulted in a further search that ended with the police finding the victim's body behind a building at 316 Asbury Avenue. Police Officer Joseph Spallina, the initial responding officer, testified that the scene appeared as follows:

There was a lot of debris around. It was a body, obviously deceased. The pockets were turned out. The green shirt on, dark-colored pants. Appeared to be a cord wrapped around his neck. One shoe was off, the left one as well as the sock which was about five or six feet away from the body on the left side.

And there was numerous blood spatter patterns like that on the wall of the house.

Monmouth County medical examiner and forensic pathologist Dr. Frederick DiCarlo subsequently performed an autopsy on the victim, which revealed that Chhieng had died from blunt force trauma to his head, left chest, back, and abdomen, and also from strangulation. DiCarlo found multiple impact sites on the victim's face, suggesting at least a dozen strikes to the head were made, determining that the blunt trauma resulted in serious injury to the brain. Chhieng also had broken ribs and hemorrhages on his back and left kidney.

Schindewolf soon learned that a man had died during the nearby robbery. On September 25, 2005, police investigators went to speak with her. She did not want to talk to them on the porch or her foyer, so instead, she asked them to take her to police headquarters. She was upset during the ensuing interview, and too scared to give a written statement. Eventually, however, Schindewolf provided the names of "B" (later identified as Matthews), "Uncle Alan" (later identified as defendant), and Bass as persons of interest.

On September 28, 2005, the police obtained a warrant to search the 320 Asbury Avenue building, except for Schindewolf's individual apartment. They recovered two handguns and a substance believed to be crack cocaine behind ceiling tiles in the building's office. During the search, Matthews coincidentally arrived by bicycle at the apartment house. Matthews was asked to accompany the investigating officers to a satellite office of the Monmouth County Prosecutor, where Matthews was interviewed and then arrested on charges of conspiracy to commit robbery, robbery, and felony murder. Matthews admitted that he grabbed the victim, but said he left when defendant struck Chhieng with the brick. He did not implicate Bass or Canada at that time.

The same day, Canada was located and taken to the Neptune Township Police Department to be interviewed. There, she informed the investigators that Bass and Matthews had been involved in other robberies, but said she did not know anything about the murder under investigation.

Also on September 28, 2005, Bass went on his own to the prosecutor's satellite office in Monmouth County where he gave a statement to detectives. Although he expressed worry about implicating his uncle, and said that Matthews had grabbed Chhieng and dragged the victim into an alleyway, he claimed that Matthews and defendant were the ones to then beat the victim.

Later that day, defendant was spotted by detectives in front of the Metropolitan Motel across from 316 Asbury Avenue. He was taken into custody and arrested. At the time, a "silver- colored moon and star ring" was recovered from defendant. According to a prosecutor's detective, the ring's design matched or was similar to the pattern injuries that had ultimately developed on Chhieng's face.

Several months later, on February 14, 2006, Canada spoke again with investigators. It was then that she mentioned defendant's name for the first time, and drew a diagram indicating that he was in the area when the assault on Chhieng began.

On April 20, 2007, Matthews gave another statement to the police, which he later testified was more truthful than the first one he had provided. At the same time, he entered into a plea agreement in exchange for his trial testimony, if such testimony was necessary. As part of that plea agreement, the State promised to recommend a maximum sentence for several admitted crimes--including aggravated manslaughter instead of murder--of twenty-three years, subject to the NERA.

On June 21, 2007, Canada provided another statement to the police and agreed to testify against all other co-defendants in exchange for a maximum sentence of fifteen years, subject to the NERA. On September 6, 2007, she pleaded guilty to conspiracy and the armed robbery involving Chhieng, as well as to an earlier unrelated crime.

At trial, Matthews admitted his role in the prior unrelated robberies, but claimed defendant was not a participant in those events. Unlike the earlier crimes, Matthews said defendant just happened to be around when he, Bass, and Canada planned the September 22, 2005 robbery. He explained that defendant wanted "to ...


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