On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-06-0567.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 29, 2010
Before Judges Fisher, Sapp-Peterson and Simonelli.
Following a jury trial, defendant Jerrell Palamer was convicted of, among other things, the first-degree robbery, N.J.S.A. 2C:15-1, of a pizza delivery person. The judge imposed an aggregate fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial because the trial judge erroneously instructed the jury that it could draw an adverse inference against defendant for his failure to call his brother to testify.
The following facts are derived from the evidence produced at trial.
Defendant lived at his mother's residence in Union at the time of the robbery that occurred in this case. He and his brother, Shmar, shared a bedroom located in the basement, which was divided into two separate areas by a curtain. Defendant and Shmar had their own beds and televisions. Defendant's mother, stepfather, and sister lived upstairs.
At 9:54 p.m. on March 17, 2004, as a light snow fell, someone placed an order with Papa John's Pizzeria in Maplewood and requested a pizza delivery to 104 Waldorf Place in Vauxhall; however, no one at that residence had ordered a pizza delivery.
The pizza was placed in a thermal delivery bag along with a second pizza that was to be delivered to another residence in Maplewood. Shortly after 10:00 p.m., Livien Moise, the pizza delivery person, arrived at 104 Waldorf Place to deliver the first pizza, parked his vehicle in the driveway, and walked to the front door carrying the thermal delivery bag, "2 liter Cokes" and a promotional basketball. Moise rang the doorbell and waited approximately fifteen seconds for a response. After receiving no response, he rang again and waited. When no one responded, he looked through a window and saw Velma Brown, the home's owner, shrug her shoulders.
Realizing that Brown had not ordered the pizza, Moise walked back to his vehicle. He was approached by an African-American male, approximately 6'4" tall, weighing approximately 260 to 270 lbs. and dressed in dark clothes and a ski mask, who pointed a shotgun in his face and demanded money. Moise dropped the delivery bag, basketball, and bottle and immediately emptied his pockets, which contained a total of $225. The assailant ordered Moise to "[r]un before you get shot."
Moise ran to his vehicle and drove toward Burkley Place. He looked into his rearview mirror and saw his assailant walk across the street to a parked car and place the shotgun, delivery bag, and basketball in the trunk.
Meanwhile, Brown telephoned her sister-in-law, who lived across the street from 104 Waldorf Place, and told her to look out of the window to see what was happening. The sister-in-law observed a man walk toward a parked car, place something in the trunk, and enter the vehicle's passenger side. The vehicle then drove in reverse and entered Tebe Place.
As Moise approached the end of Waldorf Place, at its intersection with Burkley Place, he saw his assailant's vehicle proceed to Tebe Place. Because of his familiarity with the neighborhood, Moise knew that Tebe Place is a one-way street and that the assailant's vehicle would wind up on Burkley Place, ahead of him. When that vehicle turned onto Burkley Place, Moise followed it, getting close enough to read the license plate. He called Papa John's and reported the robbery and the plate number
Police officers from the Union Township Police Department were dispatched to the scene of the crime, where they photographed boot prints in the snow leading to the driveway of 104 Waldorf Place. At approximately 11:25 p.m., Moise gave a statement to Detective Kevin Kalendek, which included the assailant's license plate number, which included the number 8. Because that plate number did not match any vehicle on record, as per police departmental procedure, the 8 was replaced with a B and produced a match to the plate of a silver 2002 Lexus registered to an individual living in Roselle Park.
Kalendek and several other police officers drove to the Roselle address and set up surveillance. At approximately 3:00 a.m. on March 18, 2004, co-defendant Vincent Price arrived driving the silver Lexus. The officers stopped the vehicle and told Price they were investigating a robbery from earlier that evening. Price told the officers he was at the home of his girlfriend, Priscilla Foster, having his hair braided and that no one had the used his car that night.
The police transported Moise to the Roselle address, where he identified the silver Lexus as the vehicle his assailant had entered after the robbery. Because Price refused to consent to a search of the vehicle, the police secured it, impounded it at police headquarters, and later searched it. The search of the trunk revealed a red bag containing a sawed-off shotgun, a pair of black Nike sneakers, a black jumpsuit, a black fatigue jacket, a black ...