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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically May 24, 2010
Before Judges Cuff, Payne and Miniman.
On December 10, 2005, Corrections Officer Samuel Broughton was shot and killed while leaving a Jersey City bar, and his companion, Corrections Officer Brandon Holmes, was wounded in the leg. Holmes identified Franklin Kincey as the shooter. Kincey fled, evading police capture for approximately one month. During that period, the police obtained a wiretap authorization, and as a result, intercepted approximately one hundred telephone calls between Kincey and others. Additionally, the police obtained a warrant authorizing a search of the residence shared by Kincey and his girlfriend, Felicia Spencer. Their search of that residence revealed a substantial quantity of drugs and led to the eventual indictment of Kincey and Spencer for second-degree drug crimes. Prior to Kincey's capture, Spencer was arrested and jailed for her alleged drug-related activities.
After Kincey was apprehended, an indictment was handed down charging Kincey with murder, N.J.S.A. 2C:11-3a(1) or (2); attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The indictment additionally charged Kincey with the second-degree crime of possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, and charged Kincey, his friend Steven Kim, his girlfriend Felicia Spencer, and his mother, Beverly Oliphant with conspiracy to hinder Kincey's apprehension, N.J.S.A. 2C:29- 3a and/or -3b, and other enumerated crimes related to Kincey's flight and prosecution. Kim has pled guilty to charges against him and has agreed to testify against Kincey at trial. The charges against Spencer and Oliphant have been severed for trial.
The indictment also charged defendant Nicole Johnson-Ali with possession of a broken-off beer bottle and possession of the bottle with the purpose to use it unlawfully against another.*fn1 Kincey has claimed that Johnson-Ali's husband, Murad Ali, was the person who shot Broughton and Holmes, and that he did so after Broughton threatened Ali's wife. Mug shots suggest a marked resemblance between Kincey and Ali.
During the pretrial period, on July 24, 2009, the State moved for authorization to introduce at trial multiple conversations between Kincey and others that had been intercepted by wiretap. The trial judge denied the State's motion in an order dated August 21, 2009, and we granted the State leave to appeal both the judge's evidentiary ruling and his decision to sever the State's claims against Spencer and Oliphant for trial.
On appeal, the State further refined its arguments and its selection of conversations, narrowing their number to eleven conversations between Kincey and his mother, his step-father, a person named Tom, and an unidentified male. A number of those conversations concerned efforts by Kincey and his friends and family to avoid apprehension. Additional conversations focused on Kincey's intention to turn himself in, so as to secure the release of Kim and Kincey's girlfriend Spencer who, in Kincey's view, estimably had not disclosed their knowledge of Kincey's criminal activities to the police. The remaining conversations analyzed the strengths and weaknesses of the State's case against Kincey and proposed defense strategies. None of the conversations contained an overt admission of guilt on the part of Kincey.
In an opinion issued on November 4, 2009, we affirmed the order severing claims against Oliphant and Spencer. State v. Kincey, No. A-0058-09 (App. Div. November 4, 2009) (slip op. at 9). We remanded the evidentiary issue to the trial judge for his further consideration in light of the State's refined arguments. Id. at 8-9.
On remand, the State argued that the conversations at issue were directly relevant to defendant's consciousness of guilt in connection with the charges of murder and hindering apprehension, in that defendant discussed the possibility of permanent flight, gratitude to Spencer for not providing evidence of his crimes to the police, a continued effort to evade police capture, a knowledge of little-known facts regarding the shootings, and efforts to skew the evidence so as to formulate a successful defense strategy.
The defense claimed that Spencer's knowledge of defendant's criminal activities was limited to his drug dealing, and that to establish that fact, defendant would be required to take the stand in his own behalf and admit to substantial criminal drug activity. The defense claimed further that it would be speculative for the judge to assume that Spencer had inculpatory information regarding the shootings. Turning to conversations between Kincey and his mother, the defense argued that they conveyed the false impression that it was Kincey's intent to continue to evade arrest, when in fact he contemplated turning himself in. Moreover, the defense agreed to stipulate to the fact that Kincey knew that a warrant had been issued for his arrest, and that he purposely hindered apprehension. In connection with the conversations regarding defense strategy, the defense argued that no inculpatory statements were presented, and thus that the conversations lacked relevance. As a final matter, the defense argued that the prejudicial effect of the evidence in a case in which innocence was credibly asserted by the defendant far outweighed its probative value and that the admission of the statements would result in a confusion of issues and a waste of time, resulting from the need to explain the cryptic references and street slang contained within the conversations.
In a detailed written opinion, the judge again denied the State's motion, determining pursuant to N.J.R.E. 403 that the limited probative value of the evidence was offset by the danger of undue prejudice, unfair surprise, undue consumption of trial time, and the possible confusion of issues attendant upon the introduction of collateral matters. In reaching this conclusion, the judge separately discussed the three topics contained in the conversations, commencing with those in which Kincey expressed gratitude that Kim and Spencer had not disclosed to the police evidence that could have "buried" him and put him "under the jail." In that regard, the judge acknowledged that the conversations were "somewhat probative of defendant's guilt" but that the guilt was not specific to any particular crime other than the drug dealing of which Spencer, at least, clearly had knowledge. The judge found:
There is no direct evidence from the conversations or otherwise showing defendant Spencer knew of Defendant's participation in the shootings which makes it less likely Defendant was concerned about her silence as to the shootings. Therefore, these particular conversations are less ...