On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1978.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 5, 2011 -
Before Judges Cuff, Lihotz and St. John.
Defendants David Callaway, Ronald Callaway, and Floyd Tally were linked to Craig Callaway, an Atlantic City politician. When Craig Callaway's mayoral ambitions ended due to a guilty plea to federal extortion charges, many of his supporters left him, including Eugene Robinson, a member of the City Council. To discredit Robinson, Craig Callaway and defendants procured a prostitute and a motel room, then filmed Robinson and the prostitute engaging in sex. They threatened Robinson with disclosure of the tape and then subsequently disclosed it to the media.
Following a trial, a jury found defendants Ronald Callaway, David Callaway and Floyd Tally guilty of these third degree offenses: conspiracy, N.J.S.A. 2C:5-2 (Counts One and Five); criminal coercion, N.J.S.A. 2C:13-5 (Count Two); and invasion of privacy, N.J.S.A. 2C:14-9c (Count Seven). In addition, Ronald Callaway and Floyd Tally were found guilty of another third degree offense: invasion of privacy offense, N.J.S.A. 2C:14-9b.
David Callaway was sentenced to an aggregate term of four years imprisonment. The trial judge merged Count One with Count Two and imposed a four-year term of imprisonment. The trial judge also imposed concurrent terms of four years imprisonment on Counts Five and Seven.
Ronald Callaway was sentenced to an aggregate term of nine years imprisonment with a four-year parole disqualifier. The trial judge merged Count One with Count Two and Count Five with Count Six. Then the judge imposed a five-year term of imprisonment with a two-year parole disqualifier on Count Two, and a concurrent four-year term of imprisonment on Count Six. The trial judge also imposed a consecutive term of four years imprisonment with two years parole ineligibility on Count Seven.
Floyd Tally was sentenced to an aggregate term of twelve years imprisonment with a six-year parole disqualifier. The trial judge merged Count One with Count Two and Count Five with Count Six, and imposed an eight-year term of imprisonment with four years parole ineligibility on Count Two and a concurrent four-year term on Count Six. The trial judge also imposed a consecutive four-year prison term with two years parole ineligibility on Count Seven.
We have consolidated these appeals for purpose of issuing an opinion due to the common facts and the number of identical issues raised by all defendants. First, we will address the common issues raised by David and Ronald Callaway, then address the common issues raised by David and Ronald Callaway and Floyd Tally, and finally address the remaining issues raised by each defendant.
We affirm the convictions but remand for entry of an amended Judgment of Conviction for each defendant reflecting merger of the conspiracy convictions with the substantive offenses due to the improper "fracturing" of a single conspiracy by the State. We also remand for entry of an amended Judgment of Conviction for Ronald Callaway and Floyd Tally to reflect the vacation of the consecutive terms imposed on each for Count Seven. We also hold that the mid-trial decision to permit defendant Tally to proceed with hybrid representation should have been preceded with a more penetrating inquiry of Tally but conclude the error does not rise to the level of plain error.
Prior to 2006, Craig Callaway served as President of the Atlantic City Council. In 2005, Craig Callaway ran for the Democratic mayoral nomination; his rival for the nomination was Lorenzo Langford.
Craig Callaway's designs on the mayoral election were derailed, however, due to a federal criminal charge. He dropped out of the primary in 2005, and in August 2006, he pleaded guilty to attempted extortion under color of official right in the United States District Court for the District of New Jersey. In his place, Callaway's political organization ran Bob Levy for the Democratic nomination. Levy won the election and became Mayor of Atlantic City in 2005.
As part of his guilty plea, Craig Callaway was required to resign as President of the City Council. He nevertheless remained determined to stay active in Atlantic City politics. Despite his desire to continue to wield influence and control his political organization, Craig Callaway's support began to erode.
One supporter, Eugene Robinson, a member of the City Council, deserted. Robinson had been a major supporter of Craig Callaway and had intended to support Craig Callaway in his mayoral bid. When Robinson learned of Craig Callaway's guilty plea, he changed allegiances and supported Langford. Robinson announced his support for Langford at a public prayer service attended by Langford. Around this time, Robinson assumed the role of Vice President of the Atlantic City Council.
Robinson noted he began to be followed by City vehicles throughout the day. Twice, he saw defendant David Callaway, the Atlantic City Director of Public Works, following him in a City vehicle.
In Fall 2006, Craig Callaway approached Jayson Adams, a political supporter, at a Democratic Committee event. Adams was a member of the Board of Education, who had been elected to that position with the help of Craig Callaway and Callaway's family and associates. Craig Callaway asked Adams if he could find Callaway a room in a hotel or one of the casinos, where he could catch Robinson with a girl or prostitute. Adams recounted that Craig Callaway wanted to "teach Gene Robinson a lesson because [Robinson] crossed him." Adams testified Craig Callaway was angry at Robinson because Robinson had "started to vote against his policies on . . . City Council." Adams tried to fulfill Craig Callaway's request but was unsuccessful.
A week later, Adams received a phone call from David Callaway to meet with them. Adams met the Callaways (David and Craig). Craig Callaway indicated he wanted to get back at Robinson. According to Adams, Craig Callaway disclosed he wanted to take advantage of Robinson's proclivities for prostitutes, and tape him in the act. Craig Callaway intended to use the tape to force Robinson's resignation.
Craig Callaway again asked Adams if he could help. David Callaway pressured Adams and encouraged him to get a girl. Adams initially dithered because he was scared. He later admitted he had no intention of helping, and informed the Callaways he would not participate.
Craig Callaway was not deterred. He had another associate, defendant Floyd Tally, work on finding a prostitute. In October 2006, Howard Bailey, a friend of Tally's, introduced Tally to a girl named Kristyn Haino.
Haino, twenty-four years old, lived in the same apartment building as Bailey, was addicted to heroin and cocaine, and lived with an older man who supplied her with drugs. Haino also engaged in prostitution to pay for her drug habit.
When Bailey brought Tally to meet Haino in October 2006, Tally asked her if she would perform a sexual act on a man who had turned against Tally and his friends. Haino said she would and agreed on a price. Tally informed Haino he would need her in a few days between six and seven o'clock.
Two weeks before Tally's agreement with Haino, Craig Callaway met with Mosharaf Hossain, the owner of the Bayview Motel in Absecon. Craig Callaway inspected the motel, spoke to Hossain's brother two week's later, and then went to the motel to request rooms. Craig Callaway argued with Hossain's brother over whether he had to sign a registration card. Callaway booked two rooms for the nights of November 12, 13, and 14, 2006.
On November 13, 2006, Tally and Bailey arrived at Haino's apartment. Tally told her to get dressed provocatively, and gave her a key to the motel room. She entered a car with Ronald Callaway, and, accompanied by another car driven by Tally, drove to where they believed they would find Robinson. While in the car, Ronald Callaway told Haino to approach Robinson, get him to the motel, and perform oral sex on him. Haino was also instructed to make sure Robinson gave her some money.
When Robinson was spotted, Haino was told to leave the car. She approached Robinson, and convinced him to give her a ride to the motel. At the motel, Robinson accompanied Haino into her room, and she asked for money to get a soda. He gave her some dollar bills, and she went to the motel office to get a soda. Haino returned to the room and performed oral sex on Robinson.
Robinson left the room. Immediately, Ronald Callaway and Floyd Tally entered the room and brought Haino to the adjacent room, where other men were celebrating. She saw a small television and equipment. Haino watched the tape of her encounter with Robinson. Tally paid Haino and warned her to say nothing about the events of the evening.
Later in November, Craig and defendant David Callaway drove to the office of Atlantic City Councilman John Schultz. They asked Schultz if he could help them remove a face from a video. Schultz directed them to a former employee.
A few days later, David and Craig came back to Schultz and showed him the video. They gloated over how they "got" Robinson. Schultz instructed them to leave a copy for editing. Craig and David also showed the video to Hossain.
On November 24, 2006, Robinson was approached after church by a man he did not recognize, who told Robinson he had a video of Robinson with a prostitute and proceeded to play the video for him. The man informed Robinson he had seventy-five minutes to resign from City Council, or the recording would be disseminated.
The tape was provided to a radio show host, who broke the news of the tape. The radio show host had received a telephone call from Craig Callaway, who laughingly asked her "who's in the video[?]" The radio host testified she told him "it's Councilman Robinson[,] and he turned away from the phone and said to other people . . . it's Brother Gene."
On appeal, defendant Ronald Callaway raises the following arguments:
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE ADMISSION OF THE FEDERAL CONVICTION OF CRAIG CALLAWAY.
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON ACCOMPLICE LIABILITY. (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE STATE'S FRACTIONALIZATION OF THE CONSPIRACY OFFENSES. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO REFER TO CRAIG CALLAWAY'S SUPPORTERS AS "THE CALLAWAY ORGANIZATION" AND STATE WITNESS JAYSON ADAMS TO CHARACTERIZE THEM AS A "MOB." (RAISED IN PART AND NOT RAISED IN PART BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On appeal, defendant David Callaway raises the following arguments:
POINT ONE: DEFENDANT WAS DENIED A FAIR TRIAL
BY THE ADMISSION OF THE FEDERAL CONVICTION OF CRAIG CALLAWAY. POINT TWO: THE TRIAL COURT'S REFUSAL TO AID DEFENDANT IN THE PRODUCTION OF CRAIG CALLAWAY AS A WITNESS FOR THE DEFENSE DENIED DEFENDANT DUE PROCESS OF LAW.
POINT THREE: DEFENDANT WAS PREJUDICED BY THE STATE'S DECISION TO CARVE INTO FOUR SEPARATE CONSPIRACIES WHAT WAS ACTUALLY ONE CONSPIRACY WITH MULTIPLE OBJECTS.
POINT FOUR: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW TRIAL MOTIONS.
POINT FIVE: THE JURY INSTRUCTION ON CONSPIRACY WAS DEFICIENT.
POINT SIX: JAYSON ADAMS CHARACTERIZATION OF CRAIG CALLAWAY'S SUPPORTERS AS A "MOB" WAS UNDULY PREJUDICIAL. POINT SEVEN: DEFENDANT RECEIVED AN ILLEGAL SENTENCE.
On appeal, defendant Floyd Tally raises the following arguments through his counsel:
POINT I: THE TRIAL COURT ERRED IN GRANTING
THE DEFENDANT'S REQUEST TO PROCEED TO TRIAL WITH HYBRID REPRESENTATION. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN DENYING
DEFENSE COUNSEL'S REQUEST TO INSTRUCT THE JURY REGARDING THE DEFENSES OF EXECUTION OF PUBLIC DUTY PURSUANT TO N.J.S.A. 2C:3-3 AND MISTAKE OF FACT OR LAW PURSUANT TO N.J.S.A. 2C:2-4.
POINT III: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY. (NOT RAISED BELOW).
POINT IV: THE DEFENDANT WAS DENIED HIS RIGHT
TO A FAIR TRIAL ARISING OUT OF THE PROSECUTOR'S OPENING STATEMENT IN WHICH HE INFORMED THE JURY HOWARD BAILEY WOULD TESTIFY REGARDING THE DEFENDANT'S CRIMINAL CULPABILITY FOR WITNESS TAMPERING EMBODIED IN COUNT X, BUT SUBSEQUENTLY AGREED TO DISMISS THE COUNT WHEN HE DID NOT PRODUCE BAILEY AS A WITNESS. (NOT RAISED BELOW).
POINT V: THE TRIAL COURT ERRED IN RULING
THAT THE DEFENDANT'S MOST RECENT CONVICTION, OCCURRING 13 YEARS PRIOR TO TRIAL, WOULD BE ADMISSIBLE TO IMPEACH HIS CREDIBILITY IN THE EVENT HE TESTIFIED.
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant Tally raises the following arguments:
POINT I: APPELLANT'S SIXTH AMENDMENT RIGHT
UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION WERE VIOLATED WHERE THE TRIAL COURT PRECLUDED ...