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State of New Jersey v. Leon Gandy


March 11, 2011


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-01-00045, 06-09-00937.

Per curiam.


Submitted February 14, 2011

Before Judges Reisner and Sabatino.

Defendant Leon Gandy was convicted by a jury of conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and 2C:35-5b(1), for which he was sentenced to five years in prison. He was acquitted of robbery and felony murder. He appeals from his conviction, raising the following issues:


A. The State Failed To Present To The Grand Jury Evidence Establishing A Prima Facie Case That Defendant Committed The Offense Of Robbery, Felony Murder And Conspiracy To Commit CDS Offenses.

B. The Indictment Must Be Dismissed Because The Prosecutor Interfered With The Decision Making Function Of The Grand Jury In Presenting Evidence In A Misleading Manner.

C. Indictment 08-01-00045I Must Be Dismissed Because The Prosecutor Engaged In Prohibited Selective Prosecution.





Finding no merit in any of these contentions, we affirm.


These are the most pertinent facts. The State's case revolved around evidence of a drug deal gone bad. According to the State's evidence, Boris "Faheem" Franklin and his brother, Jeremy "Raheem" Franklin, were drug dealers from New Brunswick. They had been obtaining large quantities of cocaine from an Elizabeth drug dealer named Tyshon Davis, who sold the drugs through a middle man named Ricardo "Tiko" McCleod. According to McCleod, the third sale he made to the Franklin brothers consisted of cocaine that he believed had been diluted with additives.

The Franklin brothers arranged for a fourth purchase on March 13, 2004, outside a Portuguese restaurant located near Route 1 in Elizabeth. McCleod arrived at the meeting place first with his friend Tyshon Orr. Abelardo "Danny" Astorga and Tyshon Davis brought McCleod the drugs. However, when Boris Franklin arrived, he claimed to be short $1500. He told McCleod that he needed to get the remaining funds from his brother who was waiting in another car. The Franklin brothers then drove to a Burger King restaurant across Route 1, and Boris asked McCleod to bring the drugs over there.

Feeling uneasy, because it was unusual for someone to appear for a drug deal short of cash, McCleod brought Davis with him to the Burger King. They left Astorga in the car outside the Portuguese restaurant, holding the drugs until they were sure the Franklins had all the money. McCleod and Davis met the Franklins at the Burger King and sat in the Franklins' car, arguing with them over the money. At some point, McCleod agreed to call Astorga on his cell phone and direct Astorga to bring the drugs across the street to the Burger King parking lot. As Astorga started walking across the street, the Franklins and Davis got out of the Franklins' car. Suddenly, another vehicle emerged from the Burger King drive-through lane, going the wrong way. That vehicle stopped briefly to discharge a passenger and then sped away. The passenger, later identified as Jalonn Lassiter, shot and killed Davis.

Lassiter then entered the Franklin vehicle, along with the Franklin brothers. He pointed the gun at McCleod, who was still sitting in the back seat, and insisted that McCleod gesture to Astorga to come to the car and give them the drugs. However, Astorga, who had heard the gunshot, ran away, escaping back across Route 1. According to McCleod, inside the Franklins' car, Lassiter was "rambling" about previous drug deals and conferring with the Franklins about whether he should shoot McCleod. Fortunately for McCleod, at the time Lassiter entered the car, McCleod was talking on his cell phone with his live-in girlfriend, Alecia "Mona" Stewart, who was a close friend of the Franklins.*fn1

Stewart testified that she was on the phone with McCleod at the time of the shooting and she heard the gunshot. She next heard, in the background, someone telling McCleod "to get back in the car and [asking] where was the cocaine." She heard McCleod respond that someone else had the drugs. The phone then went dead, and she called Boris Franklin's cell phone to find out what was happening to McCleod. While she was on this phone call, she could hear in the background a voice, which` she later identified as Lassiter's, demanding to know where the drugs were and talking about "what they was going to do with [McCleod]." Boris Franklin told her that Tyshon Davis had to be "put . . . down" (shot) because Davis and McCleod were trying to rob him. Stewart pled with Franklin to spare McCleod's life, and Franklin relented, telling her "this one's for you, Mo."

Following an N.J.R.E. 104 hearing, the State next presented testimony from Jeremy Franklin, who admitted that he and his brother Boris were drug dealers. After his direct trial testimony, in which he claimed little or no involvement in, or recollection of, the pertinent events, Jeremy was confronted with his prior inconsistent sworn testimony from another proceeding.*fn2

In that testimony, Jeremy admitted that he and his brother Boris "along with Leon Gandy and . . . Jalonn Lassiter" agreed to go to Elizabeth to "get" more than one-half ounce of cocaine from Tyshon Davis. He also admitted that the four of them intended to "get that cocaine from [Davis]" as "pay back for the bad cocaine that he had sold [the Franklins] or the short cocaine that he had sold [them] on a prior occasion." Jeremy also testified before the Grand Jury that Lassiter had arrived at the shooting scene in a car driven by Gandy, and that during the drug transaction that day, he had been in cell phone contact with Gandy and Lassiter. On cross-examination at the trial, however, he denied that Gandy had any involvement in the events of March 13, 2004.

In his trial testimony, Boris Franklin admitted that he and his brother were drug dealers, and that they knew Leon Gandy and bought drugs from McCleod. He admitted going to Elizabeth on March 13, 2004 to buy $10,000 worth of cocaine from McCleod, and he admitted seeing Lassiter shoot Davis. After Boris gave trial testimony inconsistent with his prior Grand Jury and plea testimony, he was confronted with those transcripts.

In that earlier testimony, Boris admitted having a disagreement with Davis over the quality of some drugs Davis had supplied. He also admitted that he and Jeremy "along with Jalonn Lassiter and Leon Gandy had come to Elizabeth with the idea that [they] were going to get more drugs from Tyshon Davis." He admitted that as part of that plan, Gandy drove Lassiter to the meeting place at the Burger King in Elizabeth. As Gandy and Lassiter were on the way to the meeting place, Boris had several cell phone conversations with them concerning his negotiations with Davis over the drugs. At the trial, Boris claimed that he told Lassiter that he was afraid Davis was about to rob him. At the trial, he also agreed that he had Gandy's cell phone number programmed into his own cell phone, and that the two men used the push-to-talk function on their cell phones to communicate with each other.

Finally, the State presented evidence concerning the cell phone and push-to-talk phone records of defendant, the Franklins, and Lassiter for March 13, 2004. Through Sergeant Dean Marcantonio and a cell phone company employee, the State presented evidence that those records revealed not just the dates and times of cell phone communications, but the locations of the cell phone towers from which the cell phones were picking up signals ("hits") during those communications. Thus, they could trace not only who was talking to whom, but they could trace the routes the callers were taking. The cell phone records reflected numerous calls between Gandy and Jeremy, and between the Franklins and Lassiter. The call location records also documented that Gandy traveled from New Brunswick to Elizabeth, that he was in Elizabeth at the time of the shooting, and that shortly after the time of the shooting he returned to New Brunswick.

In his trial testimony, defendant admitted that he knew the Franklins and knew they were drug dealers, but he denied ever being involved in selling drugs. He testified that he planned to go with the Franklins to a go-go bar in Elizabeth on the evening of March 13, 2004, and that Jeremy Franklin asked him to pick up Lassiter on the way. He testified that he was present at the Burger King in Elizabeth because Jeremy asked him to meet them there, but he denied knowing about any planned drug deal or that Lassiter intended to shoot anyone. Defendant testified that he was surprised when Lassiter jumped out of his car with the gun, and he immediately drove away because he did not want to let the armed Lassiter back in his car. Defendant admitted that on his way back to New Brunswick, he tried to call the Franklins several times but they did not answer. He testified that he did not find out about the drug deal and the shooting until he spoke to Jeremy Franklin the next day.

Based on that evidence, the jury convicted defendant of conspiracy to distribute cocaine but acquitted him of robbery and felony murder.


On this appeal, defendant argues that the trial court should have granted his motions to dismiss the indictments; the prosecutor violated State v. Gilmore, 103 N.J. 508 (1986), during jury selection; the State improperly presented res gestae evidence; defendant's prior testimony should have been excluded under Miranda*fn3 ; and the verdict was against the weight of the evidence.


We begin by addressing the indictments. A grand jury indicted Gandy for first-degree robbery, N.J.S.A. 2C:15-1, and first-degree felony murder, N.J.S.A. 2C-11-3a(3), in September 2006 (First Indictment). Gandy moved to dismiss the First Indictment on June 29, 2007, but the trial court denied the motion on September 28, 2007.

In January 2008, a second grand jury indicted Gandy for second-degree conspiracy to distribute heroin and/or cocaine in a quantity of more than one-half ounce, N.J.S.A. 2C:5-2, :35-5a(1), :35-5b(1) (Second Indictment). The State moved to join the two indictments on June 29, 2007, and the motion was granted on April 18, 2008. Gandy moved to dismiss the Second Indictment on August 20,

Defendant's arguments with respect to the indictments for robbery and felony murder are moot, because he was acquitted of those charges. See State v. Scherzer, 301 N.J. Super. 363, 426 (App. Div. 1997). Defendant's arguments concerning the drug conspiracy indictment are without sufficient merit to warrant discussion, beyond the following comments. R. 2:11-3(e)(2).

A Grand Jury does not adjudicate the merits of the charges against a defendant, but rather determines whether there is a prima facie case so as to justify presentation of the case to a petit jury. State v. Hogan, 144 N.J. 216, 235-36 (1996). Nonetheless, the prosecutor has a very limited obligation to present exculpatory evidence to the Grand Jury:

[T]he standard we adopt is intended to be applied only in the exceptional case in which a prosecutor's file includes not only evidence of guilt but also evidence negating guilt that is genuinely exculpatory.

For those unique cases, we . . . conclude that the competing concerns we have discussed are best reconciled by imposing a limited duty on prosecutors, a duty that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory. [Id. at 237.]

As examples of clearly exculpatory evidence, the Court cited "the credible testimony of a reliable, unbiased alibi witness that demonstrates that the accused could not have committed the crime in question" or "physical evidence of unquestioned reliability demonstrating that the defendant did not commit the alleged crime." Id. at 238. There was no such exculpatory evidence in this case. Further, "the finding of guilty beyond a reasonable doubt by the petit jury would render harmless any failure to present the alleged exculpatory evidence to the grand jury." State v. Cook, 330 N.J. Super. 395, 411 (App. Div. 2000).

Moreover, we agree with Judge Joseph P. Donohue's October 21, 2008 oral opinion, concluding that the State presented the Grand Jury with a prima facie case to support the drug charge. "[V]iewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 12 (2006).


Next we address defendant's argument that the prosecutor improperly used peremptory challenges to exclude African-Americans from the jury. See State v. Gilmore, supra, 103 N.J. at 537-38. We reject this contention, substantially for the reasons stated by Judge Dohohue on the record on October 21, 2008. We add the following comments.

The Court has set forth a three-step process to assess claims that racial bias or other invidious discrimination has infected the process of jury selection:

Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext.

Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias. [State v. Osorio, 199 N.J. 486, 492-93 (2009).]

After the prosecutor used five of his first eight peremptory challenges against African-American jurors, the judge agreed with defense counsel that there was a prima facie basis for the court to infer that race played a part in those choices. Thus, the prosecutor was required to explain the reasons for each of his challenges.

The prosecutor provided a detailed explanation for each of the challenges used, and it became clear that he had challenged both white and African-American jurors on the same bases. Primarily, he challenged jurors who lived at home with their parents, had relatively "non-descript" jobs, or who otherwise seemed unlikely to be accustomed to making important decisions such as those involved in adjudicating "a homicide case." He struck an African-American juror because he appeared uninterested in the case, and struck a white juror who appeared "very nervous" and hesitant to return a verdict in the case. He explained that he struck a "white Hispanic" female juror in part because of her flamboyant personality and the fact that her husband had been arrested on a drug charge. He also struck an African-American juror who served as a youth counselor, based on concerns that he might be overly sympathetic to a young male defendant.

The judge found that the prosecutor's detailed explanations were legitimate and credible, and that he had been even-handed in striking white and African-American jurors for similar reasons. See Osorio, supra, 199 N.J. at 506. The judge also considered that the jury, as finally selected, included seven African-Americans - a factor that "may be highly probative of the ultimate question whether the prosecution's proffered nondiscriminatory reasons for exercising peremptory challenges are genuine and reasonable." State v. Clark, 316 N.J. Super. 462, 474 (App Div. 1998). He concluded that the defense had not carried its burden of showing that the State exercised peremptory challenges in a discriminatory manner.

We owe "substantial deference" to the trial judge's decision. State v. Chevalier, 340 N.J. Super. 339, 351 (App. Div. 2001). In his appellate brief, defendant offers little more than a conclusory assertion that "the State's use of peremptory challenges appeared to be based on class exclusion." However, the record does not support that assertion, and we find no basis to disturb the trial judge's determination. Cf. Osorio, supra, 199 N.J. at 509.


Defendant next contends that the trial court erred in allowing the prosecution to present evidence of the events that took place in the Franklins' car immediately after the shooting. We review the judge's evidentiary ruling for abuse of discretion or a "clear error in judgment," and we find none. See State v. Barden, 195 N.J. 375, 391 (2008); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). The evidence was properly admitted, as part of the State's proof of the conspiracy to obtain the cocaine and kill Davis, and to demonstrate Lassiter's, and inferentially Gandy's, participation in the conspiracy. Moreover, during the jury charge, Judge Donohue gave a detailed, clear, and focused limiting instruction, explaining the purposes for which the State had presented the evidence and the prohibited purposes for which the jury could not consider it. Cf. Barden, supra, 195 N.J. at 394.*fn4

Addressing the attempt to obtain the drugs from Astorga, the abduction of McLeod, and Stewart's negotiation with Franklin to save McCleod's life, the judge instructed the jury that there was "absolutely no allegation by the State that Leon Gandy is responsible for any crimes that may have taken place after the shooting of Tyshon Davis." Rather, the evidence was admitted because it was part of the State's proof of the alleged conspiracy between the Franklins and Lassiter to kill Davis and steal the cocaine, a conspiracy in which the State contended defendant had participated.

The judge explained that the "words and actions" of Lassiter and the Franklins were introduced to support the State's theory that "there was an agreement to distribute CDS" and "an agreement or intention" to kill Davis. He also explained that their words and actions were introduced as evidence of their intent to steal and then further distribute the cocaine. The judge also explained that the evidence was relevant to Gandy's intent:

What is more important the State contends is that when these matters are considered in conjunction with what Leon Gandy is alleged to have done himself prior to the shooting, they are reflective of Leon Gandy's intentions and agreements. However, before you may use the words and actions of those individuals as evidence of Leon Gandy's intentions or the scope of any agreement that Leon Gandy may have entered into you must first be satisfied that Leon Gandy agreed to commit or acted as an accomplice in the commission of the crimes charges in the Indictment. You cannot use the events after the shooting to establish that Leon Gandy was involved in the events prior to the shooting. There must be independent proof of his involvement.

If you are satisfied that such proof exists, it is for you to decide whether this evidence does in fact demonstrate Leon Gandy's intentions and the scope of any agreement he may have made. . . .

Finally, pursuant to N.J.R.E. 404(b), the judge clearly instructed the jury as to the uses for which they could not consider the evidence:

However, you may not use this evidence to decide that the defendant is responsible for any crimes that may have been committed in the car . . . or that Leon Gandy has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because other defendants, other individuals, committed other crimes, wrongs or acts that Leon Gandy must be guilty of the crime[s] set forth in the Indictment.

There were no objections to this charge.

We agree that the evidence of events after the shooting was admissible to prove that the shooting and the attempts to obtain the cocaine were part of a conspiracy, and not separate, fortuitous events. What Lassiter said and did in the Franklins' car helped to establish that all of the alleged co-conspirators present at the Burger King, including Lassiter and by inference Gandy, were there to further the plan to get the drugs. That evidence was also relevant to show that the shooting of Davis was related to the drug deal rather than to some unrelated dispute between Lassiter and Davis.

N.J.R.E. 404(b) prohibits the introduction of "evidence of other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." However, where relevant, such evidence is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Ibid. Further, "the Rule does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial." State v. Martini, 131 N.J. 176, 241 (1993).

Cases such as State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995), have distinguished "res gestae" evidence as separate from N.J.R.E. 404(b) evidence: "Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury."

The Court has recently expressed doubts as to the continued viability of the res gestae doctrine, as opposed to the more focused analysis required by N.J.R.E. 404(b). Barden, supra, 195 N.J. at 395. In Barden, for example, the Court disapproved the admission, as res gestae, of evidence that the defendant sold drugs six months before the crime with which he was charged. Id. at 396. The Court also cited Justice Stein's earlier expressions of doubt as to the continued viability of the doctrine:

[T]he res gestae concept has been superseded by four separate hearsay exceptions: present sense impressions, excited utterances, present bodily conditions, and present mental states and emotions Because those principles have been codified by specific exceptions, the Court would be better served by abandoning continued reference to the phrase res gestae and replacing it with the precise analysis contemplated by our Rules of Evidence. [Id. at 395 (quoting State v. Long, 173 N.J. 138, 169-70 (2002) (Stein, J., concurring)).]

See also State v. Kemp, 195 N.J. 136, 163 (2008) (Albin, J., concurring). There may be a meaningful distinction between uncharged acts that "are components of the crime" as described in Martini, supra, 131 N.J. 240-42, and the more general res gestae concepts described in Cherry and Barden. However, we need not pursue that possible distinction in this case. Whether the conduct and conversations in the Franklins' car are described as acts in furtherance of the conspiracy*fn5 , or as evidence admissible under N.J.R.E. 404(b) as proof of plan, intent or motive, we conclude the evidence was relevant and properly admitted. State v. Muhammad, 359 N.J. Super. 361, 390-91 (App. Div.), certif. denied, 178 N.J. 36 (2003); see State v. Savage, 172 N.J. 374, 403 (2002) ("A conspiracy continues until its object is fulfilled.").


Defendant next contends that the trial judge should have granted his motion to preclude the prosecutor from cross-examining him about prior testimony, because defendant did not receive Miranda warnings before giving that testimony. During Lassiter's trial, Lassiter's defense attorney subpoenaed defendant to testify. In an N.J.R.E. 104 hearing, defendant was asked what he knew about the events of March 13, 2004, and he claimed he could not remember anything. Based on that testimony the judge would not allow Lassiter's attorney to call him as a witness at Lassiter's trial.

In denying defendant's Miranda motion, Judge Dohohue (who also presided over Lassiter's trial) held that the State had not infringed on defendant's Fifth Amendment rights, because the State did not subpoena him. Further, he reasoned that had the court advised defendant of his Fifth Amendment rights, such action might have chilled Lassiter's right to defend himself. See State v. Jamison, 64 N.J. 363, 377 (1974); State v. Johnson, 223 N.J. Super. 122, 130-33 (App. Div. 1988). After the judge denied the motion, defendant nonetheless decided to testify at his trial. At no point during that testimony was he asked about his earlier testimony at the N.J.R.E. 104 hearing prior to Lassiter's trial. His arguments concerning the court's ruling on those earlier statements are moot, as well as without merit, and require no further discussion here. R. 2:11-e(e)(2).


Finally, defendant argues that the verdict is against the weight of the evidence and therefore the trial judge should have granted his motion for acquittal notwithstanding the verdict. R. 3:18-2. We cannot agree.

To prevail on such a motion, defendant must satisfy a very high standard:

[T]he trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State. [State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975) (citations omitted).]

In this case, in addition to circumstantial evidence, the State presented direct evidence of defendant's guilt. In prior sworn testimony, the Franklin brothers stated that defendant knowingly participated in a conspiracy to come to Elizabeth to obtain more than one-half ounce of cocaine from Davis. Those statements were properly admitted at defendant's trial as substantive evidence, under the hearsay exception for prior inconsistent statements. N.J.R.E. 803(a)(1). See State v. Brown, 138 N.J. 481, 542 (1994). At the trial, Gandy admitted knowing that the Franklin brothers were drug dealers. There was evidence that they were planning to obtain about $10,000 worth of cocaine. Further, a police witness testified that more than one-half ounce of cocaine would be an amount intended for distribution rather than personal use. The jury could readily infer that drug distribution was an integral part of the conspiracy in which defendant agreed to participate.


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