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State v. Kincey


July 9, 2010


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

Per curiam.


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 probative of Defendant's consciousness of guilt as to the charged offenses.

Additionally, the judge noted the prejudice to Kincey as the result of the introduction of evidence that, to be rebutted, would require Kincey's admission of criminal drug activity. The judge then noted the alternative evidence of guilt available to the State, observing: the State has several other forms of evidence to prove the charges against Defendant, including the evidence that Defendant fled to Atlantic City, the testimony of Steven Kim who was in Atlantic City with Defendant, the victim/witness who was shot at the scene of the homicide, and Defendant's own stipulation that he knew he was wanted by police [and] that he was a fugitive from justice. The State's other forms of evidence are much clearer, more direct, and more probative of the issues which, in turn, makes Defendant's obscure conversations that are subject to various interpretations, much less probative, more likely to confuse and/or mislead a jury, waste time, and surely prejudice Defendant by forcing him to introduce evidence of his drug dealing to counter the inference that it was the homicide he was fleeing.

The judge found the conversations between defendant and his mother to be "extremely vague" and observed that they had said "virtually nothing that can be definitively understood by one not privy to the conversation." Although the judge again acknowledged that the conversations were probative, he found that the State had "clearer more probative evidence of Defendant's consciousness of guilt to avoid his apprehension including but not limited to Defendant's act of fleeing to Atlantic City" and his stipulation. Thus, introduction of the conversations would result in the needless presentation of cumulative evidence, which would result in "an undue and unnecessary burden upon the court's time."

The remaining conversations were characterized by the judge as "obscure discussions of the potential outcome of events, the strengths and weaknesses of the case, and some guessing about the prosecutions' strategy." None, the judge found, was clearly probative of Kincey's consciousness of guilt. Accordingly, on January 26, 2010, the judge entered an order barring introduction of the conversations at trial.

We again granted the State's motion for leave to appeal.


On appeal, the State presents arguments favoring admissibility that are similar to those that it offered to the trial judge, and it argues that the judge abused his discretion in barring relevant and incriminating evidence proffered by the State to establish consciousness of guilt. In support of its position, the State claims that consciousness of guilt evidence is inherently prejudicial, but that the judge failed to demonstrate that the prejudicial effect of the evidence "substantially outweighed" its probative value in connection with the murder charge, as the rules of evidence and precedent require. See N.J.R.E. 403; State v. Covell, 157 N.J. 554, 568 (1999)(holding that "evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case") (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

The State additionally makes the argument, premised upon the language of Thompson that we previously quoted, that the prejudicial nature of a statement must be judged by the statement itself, not by the measures required to dispel the statement's incriminatory effect. See State v. Jackson, 182 N.J. Super. 98, 101-02 (App. Div. 1981) (finding admissible defendant's incriminatory statements, made following a polygraph examination and stating, "[i]f he undertakes to explain the statement, the fact that in doing so he might have to disclose the test should not serve as a bar to admission of the statement in evidence"). Thus, according to the State, the statement itself must possess an "inherently inflammatory potential." Thompson, supra, 59 N.J. at 421.

The State also challenges as evidentially unsupported the judge's conclusion that although the conversations regarding Spencer's silence "are somewhat probative of Defendant's guilt, the guilt is not specific to any crime other than Defendant's drug dealing." According to the State, it would introduce evidence at trial that Kincey and Spencer were together after the shooting, and that she rented a room with him in another state. Additionally, the State claims that Spencer was present when Kincey and Kim discussed Kim's intent to turn himself in, and Kincey urged him to deny everything. Finally, the State notes that Spencer was found to possess the keys to the car that Kincey abandoned after the shooting. It argues: "A jury could easily believe she did know about his participation in the shootings. This case is not about drug dealing. It is about murder and efforts to avoid apprehension for it."

As a final matter, the State argues that the trial judge's concern for the time required to introduce the evidence at issue was misplaced, since introduction of the conversations would require only fifteen to twenty minutes. Moreover, the State argues, there should be no concern regarding Kincey's claimed need to introduce explanatory evidence. "The defendant does not have to do or prove anything at trial. What he may choose to do is neither controlling nor persuasive in a Rule 403 analysis." (Emphasis omitted.) Thus, the State urges reversal, arguing on the basis of civil precedent that "[t]he search for truth is ordinarily best served by the fullest disclosure of relevant facts and circumstances, In re Richardson, 31 N.J. 391 (1960), and any evidence which would aid the jury in that search, unless some specific rule forbids it, should ordinarily be admitted." Stoelting v. Hauck, 32 N.J. 87, 103 (1960).


Decisions as to the admissibility of the evidence at issue largely lie within the trial judge's discretion. Covell, supra, 157 N.J. at 568-69. "In general, a trial court is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion."*fn2

State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). In this fashion, we recognize that "[t]he trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process." State v. Ramseur, 106 N.J. 123, 266 (1987). "Only where there has been 'a clear error of judgment' should a N.J.R.E. 403 determination be overturned." Covell, supra, 157 N.J. at 569 (quoting State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)). Or, as stated by the Court in State v. Carter: "On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." 91 N.J. 86, 106 (1982).

In considering admissibility pursuant to N.J.R.E. 403, a judge is required to balance the probative value of the proffered evidence against its prejudicial effect. That probative value depends, in part, on the availability of other evidence that proves the same point. State v. Smith, 158 N.J. 376, 391 (1999), Covell, supra, 157 N.J. at 569. "[R]elevant evidence losses some of its probative value if there is other non-inflammatory evidence available to prove that point. Ibid. (citing State v. Johnson, 120 N.J. 263, 298 (1990) and State v. Davis, 116 N.J. 341, 366 (1989)).

Application of these principles to the present matter satisfies us that the trial judge properly exercised his discretion in barring the admission of conversations regarding flight. The fact that purposeful flight occurred has been conceded. Further, evidence of that fact can be conveyed to the jury through police testimony and other proofs that are more compelling in their nature and far clearer than that contained in the telephone calls the State seeks to introduce. We are also satisfied that Kincey's comments with respect to evidence of culpability for the shooting, the strength of the prosecutor's case, and his own defensive tactics are sufficiently cryptic so as to lack substantial probative value and that their introduction would serve only to waste time and confuse the jury.

The parties focus their arguments principally upon conversations in which Kincey expresses his appreciation for Spencer's and Kim's silence. In those conversations, Kincey, focusing on the two individuals, observes that "they could of did me real dirty." Referring to Spencer, Kincey states: "she could have buried me nah mean you know how much shit, that shit we, we bumped and knocked with and she held she shut her mouth, she kept it shut all this time." And then: "This bitch coulda' fuckin' put me under the jail, yo she coulda' told them so much, she coulda did me mad dirty and she kept her mouth closed and she still keepin' it closed and just chillin'." Finally:

I can't let this bitch sit, I, I, I thought about it again, I, I just can't do it, you know how much shit that she could of told when (unintelligible) how much shit that she knows that she could just be fuck that boom, I'mma tell everything she still holdin' in her head, she still ain't talking. That's love, I, I respect that.

We note in analyzing Kincey's comments, that none is specific as to the nature of Spencer's or Kim's knowledge of Kincey's criminal conduct. The State seeks their introduction in order to raise the inference that the comments relate to the shootings at issue. Viewed in that light, their prejudicial effect is substantial. Their probative value is harder to gauge, since Kincey does not concede in any of the statements that Spencer's and Kim's knowledge relates to the shootings themselves and, when viewed in light of Kincey's criminal history, the statements are ambiguous. Moreover, we note in this regard that the State has offered no corroboration of its contention that the statements relate to knowledge of the shootings other than its proffer of evidence that Spencer, Kim and Kincey in fact spent time together after those shootings, and the opportunity to convey information with respect to them existed.

We recognize the likelihood that Kincey will still be facing open drug charges at the time of his trial in this matter. We reject any argument that the fact that defendant can counter the State's evidence only by testifying on his own behalf and admitting to other criminal behavior violates defendant's Fifth Amendment rights. In a notice-of-alibi context, the United States Supreme Court has held:

The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However "testimonial" or "incriminating" the alibi defense proves to be, it cannot be considered "compelled" within the meaning of the Fifth and Fourteenth Amendments.

[Williams v. Florida, 399 U.S. 78, 83-84, 90 S.Ct. 1896, 1897, 26 L.Ed. 2d 446, 451 (1970).]

See also State v. Angeleri, 51 N.J. 382, 385 ("The Constitution does not protect a defendant from the consequences of the defense he makes . . . ."), cert. denied, 393 U.S. 951, 89 S.Ct. 372, 21 L.Ed. 2d 362 (1968).

Nonetheless, we are mindful of the undue consumption of time that will be required in order to complete what will in essence be a mini-trial of Kincey's other criminal conduct and of the potential for confusion of issues that this aspect of the proceedings may engender. Further, we note that, in the circumstances presented, the State may call Kim as its witness regarding his knowledge of Kincey's conduct in connection with the shootings, and it may seek to call Spencer as well. In these circumstances, in which the probative value of the wiretaps is questionable and their prejudicial effect is substantial, we find no clear error of judgment on the trial judge's part in rejecting their admissibility and no manifest denial of justice as the result of the judge's determination.


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