Onappeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-04-0545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-1055-07) and Submitted (A-3147-07) September 28, 2010 -- Decided March 2, 2011
Before Judges Carchman, Messano and Waugh.
Following a jury trial, defendants Kevin Barnes and Dewan Dennis were convicted of conspiracy, N.J.S.A. 2C:5-2; three counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:2-6; five counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and N.J.S.A. 2C:2-6; second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) and N.J.S.A. 2C:2-6; three counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:2-6; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(c) and N.J.S.A. 2C:2-6. Following appropriate mergers, defendants were sentenced to two consecutive life sentences, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Three other co-defendants, Andre Thomas, Kareem Singleton and Tyhir Dennis*fn1 entered guilty pleas prior to trial.
Defendants appeal,*fn2 and we affirm.
These are the facts adduced at trial. Rasheen Glover lived with his wife, Latonya Glover, as well as Latonya's son and her two daughters, Jyasia Watson, age seven, and Janaya Glover, age six, at 22 East Ingham Avenue, Trenton. At approximately 3:00 a.m. on May 5, 2005, Latonya woke up coughing and discovered that her house was on fire. The flames and smoke were so thick that she could not see down the hallway to her children's bedrooms. She broke a window in her bedroom overlooking Ingham Street, rolled off a roof and fell to the ground below. Looking up, she could see Rasheen still on the roof and then saw him run back into house. Her son escaped from the burning house, but Rasheen, Jyasia and Janaya died in the fire.
Richard Farletta, a fire investigator with the State of New Jersey, Division of Fire Safety and an expert in arson investigation, conducted an investigation as to the cause of the fire. After finding that "the lowest[,] most severe damage wasthe living room floor where the holes had burned through and . there was . . . severe damage on the front porch window area[,]" Farletta determined that the fire had two points of origin. He also could not find any "ignition source," such as an "electrical, mechanical, [or] an accidental" source of the fire, and concluded that the fire "was of suspicious nature." Based on his observations and an interview with Latonya, Farletta contacted the Division of Fire Safety to have a K-9 dog explore the house to confirm whether accelerants were introduced to cause the fire. Ultimately, he concluded that the burn evidence - including that the fire had "two points of origin" -was "consistent with the delivery of an ignitable substance into the house by firebombing[.]"
Rodman Meyer, a fire investigator and an expert in the area of K-9 handling and arson investigations inspected the house with his K-9, Taz. Taz "indicated" the presence of ignitable substance on the floor of the burnt-out house. Meyer concluded that "there is the presence of an ignitable liquid." He did not offer an opinion as to the cause of the fire. The Central Regional Laboratory for the State police took seven samples of debris from the burnt-out house, and none of the test results detected a known, ignitable liquid.
An autopsy was performed on the three victims by Mercer County Medical Examiner Raafat Ahmad on May 5, 2005. After examining the three bodies she found that they all demonstrated indicia of extensive burning, excessive soot in various organs, and other indications of death by fire, smoke inhalation or carbon monoxide poisoning.
At the time Dr. Ahmad conducted the autopsies, the investigation as to the cause of the fire "was still going on[,]" and the doctor labeled the death certificates as "under investigation." After speaking with the police, obtaining the results of the toxicology reports and incorporating medical and investigative information, Dr. Ahmad determined that the cause of death for Rasheen, Jyasia and Janaya was homicide and indicated that on the death certificates.
Ultimately, the police investigation turned to Barnes, who was a friend of Glover's cousin. Barnes was a foot soldier in the Bounty Hunter Bloods (BHB) street gang in Trenton. Dewan was the O.G. - "Original Gangster" - or "head person" in the BHB at this time. Another BHB member, Thomas, started at the rank of B.G. - "Baby Gangster - and then achieved the rank of Y.G. -"Young Gangster." Thomas brought Barnes into the BHB. The BHB were "supposed to be militant, no playing around, and . . . [were] supposed to keep the label as the most infamous Blood set."
The investigation revealed that in May 2005, when Barnes was a member of BHB, Barnes told Thomas that Barnes had an altercation with Glover about some money. According to Barnes, Glover "disrespect[ed]" him by "putting his hands in his face." Barnes told Thomas that he planned to shoot Glover. While Barnes was with him, Thomas called Dewan to tell him about the incident, but Dewan had already heard about it. Because Barnes had been disrespected and did not do anything about it, Thomas disciplined Barnes and put him "on violation," meaning that he was restricted from gang privileges.
While on the phone with Dewan, Thomas related Barnes' plan to shoot Glover. Dewan replied that killing Glover would be the "only way" Barnes would get off violation, and that Barnes had to burn down Glover's house. Barnes had been to Glover's house on two occasions, and Thomas told Barnes, while on the phone with Dewan, to use a Molotov cocktail to burn the house. Barnes responded, "all right," and did not question the order. Thomas chose fellow gang member Tyhir to be Barnes' driver, because Tyhir was on "probation" and was "ready for anything[.]"
At approximately 3:00 a.m. on May 5, 2005, Barnes and Tyhir parked near Glover's house, and they each threw a Molotov cocktail through the front window of the house. Later, between three and four that same morning, Barnes telephoned Thomas and stated that "he finished his mission." As a result, Thomas "took [Barnes] off of violation." Dewan appeared "satisfied" when reading in the newspaper that Glover and his two daughters died in the fire.
At trial, Thomas confirmed Barnes' involvement in the triple murder, and Tyhir reiterated a statement he had made to the police admitting his involvement in the triple murder.
The State also proffered another witness, Tremayne Johnson, a "foot soldier" in the BHB. Barnes had approached Johnson and told him that he was on violation because "this guy got in [his] face . . . and [said] he was gonna F. . . [him] up, and [Barnes] just stood there and . . . didn't do anything." Barnes planned "[t]o kill the guy[,]" and asked Johnson to be the driver. Johnson refused, and after the firebombing, Johnson talked with Thomas, who stated that Barnes and Tyhir were responsible for the murders. In August 2005, Johnson was arrested on unrelated gun charges and provided statements to the police about the murders. While incarcerated, Tyhir, who was similarly incarcerated, also told Johnson of his role in the firebombing and stated that he and Barnes "earned our flags," meaning that they killed somebody.
Kareem Singleton, another member of the BHB, met Barnes and Dewan through the gang. According to Singleton, loyalty and trustworthiness were very significant in the gang. To this end, Singleton committed a robbery to impress Dewan and to demonstrate that he was "worthy of being part of the gang[.]"
Singleton corroborated that Dewan learned that Barnes had been disrespected without doing anything about it, and Dewan said that Barnes would be placed on violation. After Thomas placed Barnes on violation, Barnes told Singleton that he wanted to get off violation by killing "the guy." Singleton lent his car to Tyhir so that he could go with Barnes to "[g]o kill the guy[.]" Dewan called a meeting shortly after the murders, when he determined that Barnes "was hot" and had to get out of town.
As previously noted, the jury found both Barnes and Dewan guilty of multiple charges related to the homicides. At defendant's sentencing hearing, the judge determined that the following aggravating factors were present: the risk that defendants will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendants' prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge further determined that Barnes' youth was the only pertinent mitigating factor. N.J.S.A. 2C:44-1(b)(13). As a result, the aggravating factors "clearly and substantially" outweighed the mitigating factors. Both defendants were sentenced to aggregate consecutive life sentences. These appeals followed.
On appeal, Barnes raises the following issues:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE OTHER CRIMES OR BAD ACTS EVIDENCE WERE ADMISSIBLE AGAINST THE DEFENDANT (RAISED IN PART AND NOT RAISED IN PART BELOW)
(A)AS IT PERTAINED TO THE DEFENDANT THE EVIDENCE WAS NOT "ADMISSIBLE AS RELEVANT" OR "CLEAR AND CONVINCING UNDER STATE V. COFIELD CRITERIA.
(B)THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN FINDING THAT THE RISK OF PREJUDICE DID NOT "SUBSTANTIALLY OUTWEIGH" PROBATIVE VALUE
(C)THE TRIAL COURT'S LIMITING INSTRUCTIONS WITH REGARD TO THE DEFENDANT CONCERNING THE ISSUE OF THE DEFENDANT'S MOTIVE WAS NONEXISTENT AND THE LIMITING INSTRUCTIONS GIVEN WITH REGARD TO CO-DEFENDANT DEWAN DENNIS WAS INADEQUATE TO PROTECT THE DEFENDANT FROM A FINDING BY THE JURY THAT HE WAS PREDISPOSED TO COMMIT CRIME (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).
TESTIMONY THAT THE FIRE AT 22 EAST INGHAM AVENUE WAS CAUSED BY AN IGNITABLE LIQUID ACCELERANT WAS INADMISSIBLE AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
DR. AHMAD'S TESTIMONY THAT THE "MANNER OF DEATH WAS HOMICIDE" WAS INADMISSIBLE AS A NET OPINION BECAUSE IT WAS BASED ON THE SPECULATIVE CONCLUSIONS OF THE INVESTIGATING POLICE OFFICERS (NOT RAISED BELOW)
THE AGGREGATE BASE CUSTODIAL TERM OF TWO CONSECUTIVE LIFE SENTENCES WAS MANIFESTLY EXCESSIVE.
(A)THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS TWO, THREE, AND FOUR THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS.
(B) THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS TWO, THREE, AND FOUR SHOULD HAVE BEEN MERGED.
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS THREE AND FOUR CONSECUTIVE TO EACH OTHER. POINT VTHE FAMILY COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO WAIVE THE CHARGES TO THE LAW DIVISION BECAUSE IT FAILED TOCONSIDER THE ISSUE OF REHABILITATION (NOT RAISED BELOW).
Defendant Dewan Dennis raises the following issues:
THE STATE HAVING TRIED THIS CASE ON THE THEORY THAT DEFENDANT WAS GUILTY OF MURDER AS A CONSPIRATOR, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ONLY CHARGING THE JURY ON LIABILITY AS A PRINCIPAL OR AN ACCOMPLICE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO ENTER JUDGMENTS OF ACQUITTAL ON THE FELONY MURDER COUNTS BECAUSE ONE CANNOT BE GUILTY OF FELONY MURDER BASED ON THE THEORY THAT HE CONSPIRED TO COMMIT THE UNDERLYING OFFENSE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT N.J.R.E. 404(B) EVIDENCE ABOUT UNRELATED BAD ACTS SUPPOSEDLY ORDERED BY DEFENDANT BECAUSE THE DEFENDANT'S CONTROL OVER THE MEMBERS OF THE BOUNTY HUNTER BLOODS WAS NEVER AN ISSUE IN THE CASE AND BECAUSE "CLEAR AND CONVINCING EVIDENCE" DID NOT EXIST TO SUPPORT THOSE ALLEGATIONS.
A. There were no real issues in the case about the defendant's control over the Bounty Hunter Bloods, or whether the bombing had been ordered by mistake; the issue in the case was whether it was Andre Thomas or defendant who ordered the firebombing.
B. The State failed to establish by clear and convincing evidence that defendant ordered the acts in question.
C. Even assuming that the testimony had some relevance, its probative value was greatly outweighed by its prejudicial effect.
HAVING DISMISSED THE COUNTS CHARGING DEFENDANT WITH POSSESSION OF THE MOLOTOV COCKTAILS FOR LACK OF EVIDENCE, THE TRIAL COURT ERRED IN CHARGING THE JURY THAT A KILLING DONE WITH A DEADLY WEAPON SUCH AS A MOLOTOV COCKTAIL WOULD ALLOW THEM TO INFER THAT DEFENDANT'S PURPOSE WAS TO TAKE A LIFE OR CAUSE SERIOUS BODILY INJURY RESULTING IN DEATH (NOT RAISED BELOW).
In his pro se supplemental brief, Dewan raises the ...