On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-08-0841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Nugent.
On leave granted, the State appeals from the trial court's September 15, 2011 order that denied the State's pre-trial motion to admit at defendant Robby Willis's trial evidence of certain prior bad acts committed by his co-defendants, Lenroy Laurence and Marcus White. We remand for further proceedings.
On August 17, 2010, a Burlington County grand jury returned a ten-count indictment against defendant Robby Willis and co-defendants Lenroy Laurence*fn1 and Marcus White, charging them with numerous offenses arising out of the kidnapping, carjacking, and murder of Lyudmila Burshteyn on September 2, 2009.*fn2 The State charged a fourth defendant, K.H.*fn3 , with numerous offenses based upon his participation in the events that culminated in the murder. K.H. entered a guilty plea. Laurence's case was severed, but before his trial commenced the court heard the State's motion to introduce at each trial*fn4 evidence that Laurence and White had hidden two guns near Exit 13 of the New Jersey Turnpike on August 30, 2009, and then unsuccessfully attempted to locate and retrieve them the next day. The court's disposition of the State's motion is the subject of this appeal.
We derive the following facts from the testimony presented by the State at the hearing on its motion, and from the facts the parties accepted as true for purposes of the State's motion.*fn5
The events relevant to the State's motion began on Sunday, August 30, 2009, and ended on Wednesday, September 2, 2009, the latter being the day the victim was murdered. On August 30, 2009, at approximately 7:15 a.m., Laurence and White, accompanied by Baquea Thomas and Shaniqua Williams, were traveling in a car southbound on the New Jersey Turnpike near Exit 13, where they became involved in a motor vehicle accident. Laurence and White each had a handgun. Unable to leave the scene because the car had a flat tire, Laurence and White gave the guns and White's cellular phone to Williams to hide. Williams and Thomas left the car and Williams hid the guns and the phone beneath a guardrail along the Turnpike. The women then went to Newark International Airport where Laurence and White met them. A friend drove the four to Philadelphia.
The next evening, August 31, 2009, Laurence, White, and Williams took a bus from Philadelphia to New York City and then had a friend drive them to Exit 13 of the New Jersey Turnpike, where they unsuccessfully searched for the guns. Following their unsuccessful search, they returned to New York where Laurence and White carjacked a vehicle and drove to Philadelphia, arriving during the early morning of September 1, 2009.
In addition to the foregoing facts, which the parties accepted as true for purposes of the motion, the State presented the testimony of K.H. K.H. was defendant's cousin and they both lived in Philadelphia. Defendant lived on Helen Street. In August 2009, K.H. and defendant attempted to set up a "street corner type" drug operation. Defendant knew Laurence, who said that he would send customers to them. Defendant also knew White, who was staying at the Helen Street house with defendant and several women.
During the time that defendant and K.H. were attempting to set up the distribution operation, defendant borrowed $500 from K.H. When defendant delayed repaying K.H., K.H. stole $500 worth of drugs that he thought belonged to defendant. The drugs actually belonged to Laurence. When Laurence attempted to collect the money, K.H. could pay him only $100. In late August 2009, K.H. still owed $400 to Laurence.
During August 2009, defendant, Laurence, and White would often leave K.H. home "to watch the females" while they would go out and rob drug dealers.*fn6 Near the end of August, K.H. stole two guns, a .38 and a .45, from a drug dealer who had hidden the guns beneath the hood of a car. On Sunday night, August 30, 2009, K.H. showed the guns to defendant. K.H. thought defendant was going to keep the .38, but defendant said he wanted his gun back. According to K.H., defendant's gun was the nine-millimeter that Laurence and White had Williams hide the night of the accident on the New Jersey Turnpike. Later, when Laurence and White appeared at defendant's house, defendant showed them the guns, and Laurence kept the .45 because K.H. still owed him $400.
K.H. believed that on the same night that he gave the two guns to defendant, he heard Laurence and White say that they had been involved in an accident on the Turnpike and had to hide their guns. Although K.H. had seen their guns before he heard the conversation, he never saw them afterward. The guns were a nine-millimeter and a .38.
On Monday, August 31, 2009, K.H. participated in a robbery with the others. The robbery occurred in a park in the Frankford section of Philadelphia. K.H. had a .22 but wanted a larger gun, so somebody handed him a .38, which he used to commit the robbery. According to K.H., the three other men had a .38 and a .45.*fn7
During the night of September 1, 2009, defendant, Laurence, White, and K.H. went out to look for someone to rob and thought about robbing a pizza delivery man. They also wanted to steal a car so they could rob more people and get away easier. K.H. admitted that it was his idea to steal the car. He tried to steal a van, but when he punched out the ignition, lights came on in a nearby house, so he got out of the vehicle and ran. The group proceeded to a playground where they discussed robbing people the next day. That night, they slept at the Helen Street house.
The next morning, Wednesday, September 2, Laurence woke K.H. so that they could go out and rob people. Defendant, Laurence, K.H., and White discussed leaving to commit robberies;
White declined to accompany them. The three left, and thereafter robbed and carjacked the victim.
The State did not elicit from K.H. any testimony about the motivation for carjacking the victim on September 2, 2009. Although the prosecutor was prepared to present additional evidence about the events that occurred in New Jersey and New York on August 30 and 31, he did not do so because the court suggested the parties assume that those events occurred, and the parties accepted the court's suggestion. To provide the procedural context for the court's suggestion and the State's response, we will recount in some detail the colloquy between the court and the attorneys.
At the inception of the hearing, the court framed the issues: "We're here for several 404(b) slash intrinsic evidence arguments made by the State." The court then identified the events that were the subject of the motion: the August 30 and 31 events that occurred on the New Jersey Turnpike; the events that occurred during the evening of September 1, 2009, when Laurence, defendant, and K.H. looked for a pizza delivery man to rob, and K.H. attempted to steal a car; and K.H.'s stealing the .38 and .45. The court decided that because K.H. was in custody and present, and because his testimony would "be necessary with . . . newly obtained information with regard to the latter two issues that I've raised as to 404(b) allegations or intrinsic evidence allegations[,] that we will take his testimony first."
When the prosecutor responded that he intended to establish the events that took place on the Turnpike and in New York through proofs other than the testimony of K.H., and that he did not "want anybody to have a preconceived idea that [K.H.] was going to be the source of that information," the court replied that the State could "use other avenues" to establish those facts, and that K.H. was testifying first "for expediency sake and logistics." The prosecutor's plan to produce other testimony changed after K.H. completed his testimony.
Following K.H.'s testimony, the court stated that it would first address the events that occurred on the New Jersey Turnpike on August 30 and 31, and make a decision about whether they would be admissible at the trials. In response, the prosecutor addressed the "factual portion" of the record, and stated his belief that defendants did not contest the events that took place on the Turnpike. Counsel for defendant disagreed, stating that as far as defendant was concerned, the part about the guns was "simply made up." In light of defendant's position, the prosecutor said that he would adduce testimony from a detective who could establish the Turnpike events through statements made by Baquea Thomas and Shaniqua Williams, the women who took the guns from Laurence and White, then hid them. The prosecutor said, "I don't think we have that information in front of the [c]court as part of this ...