NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2922.
McPherson Law Offices, LLC, attorneys for appellant (Shevelle McPherson, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves, Espinosa and Guadagno.
Defendant Corey Manderville was indicted along with Lawrence "Reds" Willis and Michael Jay Coombs (a/k/a "Rico") on multiple charges arising from the robbery and shooting death of Dewey Marshall on August 29, 2005. Following a jury trial, defendant was convicted of first-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7 (count nine). The jury acquitted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one), and was unable to reach a verdict on the remaining counts, which charged defendant with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count seven).
In January 2009, after jury selection for the trial on the remaining charges began, defendant entered an "open plea" of guilty to first-degree robbery (count three). The State agreed to dismiss the remaining counts and to recommend that defendant's sentence run concurrent to the sentences imposed for his convictions at trial. Defendant wrote letters to the court and to his attorney in January and February 2010, stating he wished to withdraw his guilty plea, but no motion was filed. On the day of his sentencing, defendant told the court that he wanted to withdraw his guilty plea. His request was denied.
Defendant now appeals from his convictions and sentence and presents the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING.
DEFENDANT WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE COURT ERRED IN DENYING A MISTRIAL (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT AT TRIAL BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHTS PURSUANT TO MIRANDA V. ARIZONA, 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966).
THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE (NOT RAISED BELOW).
THE ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS MADE BY DECLARANTS UNAVAILABLE FOR CROSS-EXAMINATION WERE PLAIN-ERROR VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, AND HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL GUARANTEED BY THE FOURTEENTH AMENDMENT. U.S. CONST. AMEND. VI AND XIV.; N.J. CONST. ART. 1, PARA. 10 (NOT RAISED BELOW).
THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DENIED [DEFENDANT] A FAIR TRIAL (PARTIALLY RAISED BELOW).
DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUITTAL OR A NEW TRIAL, AS HIS CONVICTIONS WERE NOT SUPPORTED BY THE EVIDENCE (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING OTHER CRIMES EVIDENCE PURSUANT TO N.J.R.E. 404(b) THEREBY DENYING THE DEFENDANT A FAIR TRIAL.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE LEGAL PROCEEDINGS, DURING THE NEGOTIATION OF HIS GUILTY PLEA AND AT SENTENCING.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have any merit.
We summarize the facts relevant to the issues raised based upon the evidence at trial, which included the testimony of co-defendant Coombs and defendant's statement to police.
Neville E. Molyneaux (a/k/a "Jamaic"), an admitted drug dealer, testified that Dewey made his living by selling drugs on Lakeshore Drive in Camden. At approximately 4:00 p.m. on August 29, 2005, he was standing on a sidewalk with Dewey, when a red Grand Prix automobile pulled up. Molyneaux stated that the driver, whom he knew as "Reds" (Willis), gave Dewey "a look like . . . 'I'm going to get you.'" Molyneaux also knew defendant, identified him in court, and testified that he was also in the car. Molyneaux testified that Dewey looked nervous and left the area. The two went to Dewey's apartment in the Ferry Station apartment complex.
In his statement to police, defendant said that, earlier that day, he accompanied Willis to a rental car agency, where Willis rented a burgundy Pontiac Grand Prix. Defendant stated he had previously worked with Willis at the "MRA." After leaving Dewey and Molyneaux, Willis and defendant drove to pick up Coombs and Earl Moore (a/k/a "BG"),  and drove around.
Coombs testified he had become an "official" member of the "9-3" set of the Bloods gang about two months earlier and that Moore was a lieutenant in the Bloods. He stated that, on the day of the shooting, Moore called him and said, "yo, I need you to do something with me." Coombs understood that he was supposed to "[p]ut in some work, " or to do a job or mission for Moore, who as a lieutenant in the gang had "high stain" or "rank."
Willis drove and Moore sat in the front passenger seat. Coombs sat in the back seat, next to defendant, whom he identified in court.
Defendant knew that Willis and Moore were members of the Bloods gang, but denied being a member in any gang. His denial was corroborated by Coombs, who testified defendant was not a Blood and that it was "unusual" for defendant to be included in the mission because you are not "supposed to handle Blood business in front of neutrals, civilians." However, he said that "backups" are always used during a Bloods mission.
After they drove around for a while, one of the men said "yo, we need to get money" and then Moore and Willis discussed who they were "gonna get." Coombs understood they were planning to rob someone, but said he sat in the back, not saying too much. Coombs testified that defendant asked him if he "had anybody to rob, " and that he replied, "No." Willis suggested they rob Dewey, who Coombs understood had been targeted because he was a drug dealer. Willis drove home, changed his clothes, and retrieved his gun and a rope, which he said he planned to use to "tie somebody up."
At approximately 11:00 p.m., Willis drove slowly past Dewey's apartment to "case it out, " and then parked by a dumpster, where Willis and Moore continued to discuss the plan to rob Dewey. According to Coombs, defendant said, "we can't do that. That's Dewey's house. We can't do that. He know us." Willis and Moore responded, "fuck that. We strapped." Coombs testified this meant that they were armed. Willis passed his .25 caliber automatic gun over the front seat back to Coombs, who was seated next to defendant. Coombs claimed he attempted to give the gun back to Willis, but was forced to take it because Moore, a higher-ranking member of the Bloods, told him he had to.
Shortly thereafter, Molyneaux left Dewey's apartment and saw the Grand Prix parked by the dumpster, but could not see the occupants of the car because they had leaned back in their seats. Molyneaux called Dewey and warned him that "[t]he same red Grand Prix is out here." Dewey responded, "[h]e just . . . Blood dude, I know he cool." Nonetheless, at Dewey's request, Neidtikka Morris, Marshall's girlfriend, went to the dumpster, ostensibly to throw out some trash. When she returned to the apartment, she told Dewey she saw Willis and three men she did not recognize, who had pulled their hats down low, seated in a red Pontiac parked by the dumpster.
Willis drove to the parking lot of the apartment complex office, where they could observe Dewey's apartment. Willis and Moore continued to discuss the robbery plan. Coombs testified that defendant said he "didn't want to do it to Dewey because he said he knew him." When they had decided on a final plan, Moore told Coombs he would run up to Dewey's apartment and knock on the door; Coombs would wait by the tree next to the house and then come to help Moore. Moore was armed with a .380 caliber gun and Coombs had Willis's .25 caliber automatic gun. They got out of the car and proceeded to the apartment. Defendant remained in the car with Willis.
Moore knocked on Dewey's door, Dewey opened the door, and the two spoke for "a couple of minutes." Coombs could not hear what was said. Moore then pulled a gun and Dewey attempted to shut the door, but the door broke off the hinges during the ensuing struggle. Dewey ran, unarmed, from the apartment. Moore fired his gun at him, but missed. Dewey jumped off the steps leading to his apartment and when he landed on a platform below, Moore shot him in the back of the head. Coombs and Moore then ran back to the car. As Moore jumped into the car, he said he "hit him, " and then threw the gun in Coombs's lap.
Morris ran out of the apartment to see Dewey lying on the sidewalk, and called 9-1-1. Dewey was taken to the hospital, where he died on August 31, 2005 from the gunshot wound to the back of his head.
On the evening of the shooting, Dewey's family members gathered at the hospital. Both defendant and Molyneaux joined them. Molyneaux told the family he had seen Willis and defendant in the red car earlier that day. Molyneaux testified that defendant said he was with Willis earlier that day, but that Willis had dropped him off and he "wasn't there when that happened." Defendant also said Willis had "nothing to do with" the shooting. In his statement to police, defendant admitted he called Willis from the hospital and warned him that "somebody said you had something to do wit Dewey gettin shot."
Shell casings were recovered from the gurney that carried Dewey to the hospital and from the doorway to his apartment. The State Police later determined that the shell casings had been fired from the same .380 caliber automatic gun. The gun, which Coombs claimed was later sold, was not recovered.
On September 1, 2005, Ronald Moten, then an investigator with the Camden County Prosecutor's Office, spoke with defendant by telephone and asked to meet with him. Defendant agreed and met with Moten and his partner, Detective Jose Torres, in a supermarket parking lot. The detectives spoke to defendant, who was not searched, handcuffed, or arrested, in their unmarked vehicle for about ten to fifteen minutes. Defendant, who was described as calm, relaxed, and cooperative, admitted he had been with Willis early on the date of the shooting, but claimed that at approximately 9:00 p.m., Willis dropped him off on 19th Street and River Road. At the conclusion of the interview, defendant got into his vehicle and drove away.
On January 30, 2006, Moten and Torres drove to defendant's home, told defendant they were still conducting an investigation into Dewey's murder, and asked to speak to him at the Prosecutor's Office. Defendant agreed, and drove to the office. Upon arrival, the detectives escorted defendant to an interview room. He was not handcuffed or under arrest. Moten read defendant his Miranda warnings. In his audiotaped statement, defendant initially denied any involvement in the robbery or shooting, although he admitted he had been in the car during the incident; knew that the other men were members of the Bloods; and had heard Willis and a man named "B" talking in Blood "language" about wanting to "stick" or rob someone because they "gotta eat."
Defendant later admitted it was not true that he had been dropped off at 19th Street and River Road on the night of the shooting. He admitted hearing Willis suggest they "stick" or rob Dewey, and that, when he objected to the plan, Willis responded, "we strapped." He also admitted: they picked up "Reek" (Coombs) and "B" (Moore); Willis drove home and changed into a black shirt and black jeans; they drove to Dewey's apartment complex and parked by a dumpster and then by the office; and he saw "Jamake" (Molyneaux) and Dewey's girlfriend on the night of the incident. Defendant said that "Reek" and "B, " who he knew had guns, exited the car, and about two minutes later, they ran back and Reek shouted, "he hit 'em, " or "he hit, " meaning that Dewey had been shot. He claimed that the robbery was not "premeditated, " that he did not think the men would rob Dewey because they were just "joken type dudes, " and that he had not known that they were planning on robbing Dewey until Moore and Coombs exited the car.
In addition to providing testimony regarding the events on the night of the shooting and information about the Bloods, Coombs also testified about his expulsion from the Bloods a few days after the shooting. He stated that Moore and a few other members of the 9-3 Bloods, grabbed him off the street, threw him in a van, and branded a "fourth paw" on his shoulder with a lit cigarette, signifying that he was no longer in the gang. Moore then told Coombs, "you know what you did. You ain't follow protocol. . . . You lucky we don't kill you." Coombs displayed his "dog paw" marks to the jury.
Detective Sergeant Ronald Hampton of the New Jersey State Police testified on behalf of the State as an expert in "identification and intelligence regarding the symbols, jargon, hierarchy and code of conduct of the Bloods street organization." He described the process by which a prospect is initiated into the Bloods, noting that upon initiation, a member receives three burn marks, called a "dog paw, " identifying them as a member, and receives a fourth burn, or paw, when they are no longer in the gang. He described the hierarchy or structure of the gang, which is run by a leader, generally known as an "OG" or "Original Gangsta, " followed by members holding the rank of captain, lieutenant, sergeant, and soldiers. Lower-ranking members are required to take orders from higher-ranking members. He also defined several terms used by Blood members, including: "putting in work, " which means to commit a crime to benefit the gang and gain rank or "stain"; and "to eat, " which means to kill someone or commit an assault.
In Point I, defendant argues that the trial court erred in denying his pre-sentence motion to withdraw his guilty plea to robbery. We disagree.
Before the 2008 trial, the State offered to let defendant plead guilty to reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), with no specific sentencing recommendation, within the range of a five-to-ten-year term. He rejected that offer, proceeded to trial, and the jury returned a mixed verdict.
Defendant entered a guilty plea on January 7, 2009, after the jury had been empanelled for the trial on the unresolved charges. The time within which a negotiated plea must be submitted had expired pursuant to Rule 3:9-3(g). As a result, defendant entered into an "open plea" agreement with the State, in which he agreed to plead guilty to first-degree robbery and the State agreed to dismiss the remaining counts and recommend concurrent sentences.
The court's colloquy with defendant prior to accepting his guilty plea included the following:
THE COURT: And you understand it's a crime of the first-degree, which means it would expose you to going to jail for up to a period of 20 years?
THE COURT: Additionally, I would ask if you're fully satisfied with the legal advice and services your attorney has provided to you?
THE COURT: Are you pleading guilty voluntarily, of your own free will?
THE COURT: Has anyone threatened or forced you to enter into this plea?
THE COURT: [Y]ou understand . . . that . . . no promises or representations . . . have been made to me by the Prosecutor or anybody else that would require me to impose anything less than the possibility of 20 years in . . . prison. I . . . would have the opportunity to do that, but I would certainly consider the representations made by the State at . . . sentencing. . . .
THE COURT: [Y]ou would understand clearly, sir, that the possibilities are that the maximum that you would expose yourself to by this plea is going to jail for twenty years.
[Y]ou have to understand that this is what . . . the maximum could possibly be.
[I]t could be anything from ten to twenty years as a first-degree offense or I could treat this as a second-degree crime. I have the opportunity to do that, and if I do that then the top number would be ten years. But, all that being said, as we sit here today, the top number that you would expose yourself to would be the 20 years.
[Y]ou just have to understand . . . to plead to this charge as a crime of the first-degree, that's what the possible exposure would be. Do you understand that, sir?
[DEFENDANT]: Yes, I understand.
The judge then confirmed that defendant understood that, because the offense was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, he would have to serve eighty-five percent of the term imposed and be subject to five years parole supervision if sentenced as a first-degree offender. The judge went on to review the State's agreement to dismiss counts one, five, and seven and to recommend that the sentence be concurrent:
THE COURT: Have I accurately set forth the terms of the agreement as you understand it to be, sir?
THE COURT: Has anyone made any other promises to you to get you to plead guilty?
Defendant gave the following factual basis to support his plea:
[DEFENSE COUNSEL]: [W]ith regard to the charge of . . . first-degree robbery, . . . . [d]o you recall the events of . . . [August 29th, 2005]?
[DEFENSE COUNSEL]: [W]ere you in . . ...