On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-01-00045, 06-09-00937.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS INDICTMENT 06-09-00937I.
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.
POINT II: THE TRIAL COURT INCORRECTLY APPLIED THE THREE-STEP ANALYSIS MANDATED BY STATE V. GILMORE, 103 N.J. 508 (1986), AFTER DEFENDANT PRODUCED EVIDENCE THAT THE PROSECUTOR USED FIVE OF HIS EIGHT PEREMPTORY CHALLENGES TO EXCLUDE AFRICAN AMERICAN JURORS WHICH REQUIRES VACATING DEFENDANT'S CONVICTION AND REMANDING THE CASE FOR A NEW TRIAL.
POINT III: THE TRIAL COURT ERRED WHEN IT PERMITTED THE PROSECUTION TO PRESENT RES GESTAE EVIDENCE OF CRIMES COMMITTED BY THE FRANKLIN BROTHERS AND JALONN LASSITER.
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO STRIKE FROM QUESTIONING ANY OF DEFENDANT'S PRIOR TESTIMONY AS IT VIOLATED DEFENDANT'S MIRANDA RIGHTS.
POINT V: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT.
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 ...