NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-07-1359.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat,
Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo, Harris, and Guadagno.
Tried by a jury, defendant Dyshon Ragland was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree murder, N.J.S.A. 2C:11-3(a), (b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree conspiracy to commit witness tampering, N.J.S.A. 2C:5-2 and 2C:28-5(a); and third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1). After merger, Ragland was sentenced to an aggregate term of imprisonment of sixty-two years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ragland now appeals from the May 6, 2011 judgment of conviction, arguing that he was unfairly tried due to several mistaken evidentiary rulings made by the trial judge. He also challenges the sentence as being manifestly excessive. We affirm.
We glean the facts from the trial record. On February 27, 2008, certain members of the Bloods street gang —— including Ragland, Niko Rossano, and Anthony Skyers —— decided to get a meal at a Subway restaurant in Toms River. Rossano and Ragland entered the Subway at approximately 5:50 p.m., whereupon Rossano recognized an employee, Quinton Allen, but did not acknowledge him. Rossano also nodded to waiting-in-line customer Eric Berrios, who Rossano knew from living in the same neighborhood and attending the same school.
When Ragland reached the front of the customer line, Rossano observed him pointing a gun at the cashier, stating, "Give me the money." Rossano claimed that he "was in a daze" because he was unaware that Ragland possessed a firearm and intended to rob the restaurant.
Allen recognized both Rossano and Ragland; he went to high school with Rossano and grew up with Ragland in the Winteringham Village neighborhood. When questioned by police, Allen initially said that he did not know the individuals who had entered the Subway because he "didn't want to get involved" and was "afraid of what [Ragland] could do." Allen later pled guilty to hindering apprehension.
Three months later, on June 5, 2008, in the early evening, Lakewood police officers observed Skyers and two other individuals purchasing beer from a liquor store in downtown Lakewood. Skyers appeared to be less than twenty-one years old, and the police officers arrested him for underage possession of alcohol. His comrade, Warren Applegate, who was not a minor, also was arrested and charged with supplying a minor with alcohol, among other offenses. Applegate's charges required him to remain at the police station, while Skyers was immediately released with a summons. During his encounter with the police at that time, Skyers was only questioned about his underage possession of alcohol, and nothing else.
According to Zenobia Jackson, Ragland's live-in girlfriend at the time, at approximately 5:30 or 6:00 p.m., Applegate's sister telephoned Ragland. Although she could hear only one side of the conversation, Jackson heard Ragland say, "I hope he didn't do what I think that he's done" and "if he did what I think he did, I'm just going to have to shut him up." After the telephone conversation ended, Ragland told Jackson that he was referring to Skyers, who had just been "picked up and locked up by the police" along with Applegate. Also according to Jackson, Ragland received other upsetting telephone calls about Skyers in which Ragland stated that he was "just going to take care of the situation and eliminate the problem."
At approximately 7:00 p.m., Ragland left Jackson's apartment, telling her that he was "going around the corner." Before leaving, he telephoned Chris Brown, a fellow Bloods street gang member, but Brown did not answer the call because he was working in Piscataway until approximately 8:00 p.m.
Just before 10:00 p.m., Brown encountered Ragland at Jackson's apartment complex. After spending some time with Ragland in Jackson's apartment, the men left and walked to Brown's car. Along the way, Ragland told Brown "he had to show [him] Baby J, " which was a reference to Skyers. Brown was already aware that Ragland "didn't want [Skyers] . . . around" because Skyers had "snitch[ed] on the Subway robbery."
While Brown and Ragland walked along an unlit wooded trail, Ragland said he hoped "that Baby J's mother . . . finds the body." After walking some distance, Brown saw Skyers lying face down with a bullet hole in his head. Upon seeing Skyers's body, Ragland told Brown that he "pulled the trigger once, . . . nothing came out, and then . . . Baby J . . . turned around and . . . he pulled again and shot." Ragland also said, "this is what happens . . . to snitches."
On June 8, 2008, Ragland surrendered himself to the Lakewood Police Department on an outstanding warrant for the Subway robbery. On the way to the county jail in an unmarked black Crown Victoria, one of the sheriff's officers assigned to the transport detail asked the other sheriff's officer if he knew any facts about a recent Lakewood homicide. When the second sheriff's officer indicated that he "didn't know any particulars about the incident, " Ragland leaned towards the vehicle's partition window, stating that the Lakewood police "had me as the prime suspect in the shooting." Ragland then asked two questions: "[H]ow can I be arrested for this crime when the only witness to the crime is dead?" and "[H]ow can I go on trial for this crime when my codefendant is dead?"
When one of the sheriff's officer asked, "who died, " Ragland said, "just read my shirt, " which contained the words "R.I.P. Baby J" on the front and "Anthony" on the back. Ragland further volunteered that Skyers "was his brother and he was going to have [Skyers's] face tattooed on his arm."
Kevin Allman, an Ocean County sheriff's officer, fingerprinted Ragland that day. In response to Ragland's question regarding whether he could be charged with a crime if the police did not have the weapon, Allman responded affirmatively. Allman testified that Ragland replied that "he did not have the weapon anymore."
After waiving his Miranda rights, Ragland gave an unrecorded statement to Toms River police detective Steven Lomer. According to Detective Lomer, Ragland denied any involvement in the Subway robbery. Ragland also stated, "he was in charge of 200 Bloods" in the Lakewood and Toms River area, and a friend of Skyers.
While incarcerated, Ragland telephoned his mother, Donna Looney, from jail. Four of those calls were recorded and played for the jury. In those calls, Ragland asked his mother to have others talk to the Subway employee, Allen, requesting that he submit a statement to Ragland's lawyer that Ragland was not at the scene of the Subway robbery.
While being held in the county jail on the robbery charge, Ragland befriended Charles Anderson who had been incarcerated since April 2008 for charges related to a separate armed robbery, assault, and multiple weapon offenses. According to Anderson, Ragland spoke about the Subway robbery and Skyers's murder multiple times. Anderson also claimed that Ragland asked him to write a letter to the prosecutor, informing that an individual named D-Bow committed the murder. Instead of informing the prosecutor of that accusation, ...