Opinion
DOCKET NO. A-2515-12T2
04-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JARRAD MONK, a/k/a JARRAD CHAZZ MONK, a/k/a JARRED MONK, a/k/a JARROD MONK, a/k/a JARRID MONK, a/k/a JARRAD SMITH, a/k/a JARRED SMITH, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Derrick Diaz, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-1315. John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Derrick Diaz, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jarrad Monk was indicted with a co-defendant, Ameen Williams, on charges of first-degree attempted murder (count one), N.J.S.A. 2C:5-1 and 2C:11-3(a)(1)(2); second-degree conspiracy to commit armed robbery (count two), N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; first-degree robbery (counts three, four, and five), N.J.S.A. 2C:15-1; second-degree aggravated assault (count six), N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault (count seven), N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for unlawful purposes (count eight), N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon (count nine), N.J.S.A. 2C:39-5(b); and fourth-degree possession of a defaced firearm (count ten), N.J.S.A. 2C:39-3(d). Williams pleaded guilty to conspiracy to commit robbery and was sentenced to a custodial term of seven years.
Williams was not included in the attempted murder count.
Defendant was convicted by the jury of first and second-degree robbery (counts three, four, and five), second-degree aggravated assault (count six), and third-degree aggravated assault (count seven). The jury was unable to reach a verdict on attempted murder and the weapons offenses. The judge sentenced him to concurrent fourteen-year custodial terms on each of the robbery counts, to a concurrent seven-year term on the second-degree aggravated assault count, and a concurrent four-year term on the third-degree aggravated assault count, each subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, along with all applicable fines and penalties. The remaining charges were dismissed.
He raises the following issues for our consideration on appeal.
POINT I
AN IMPERMISSIBLY SUGGESTIVE PHOTO IDENTIFICATION BY AIRES, ALTHOUGH SUPPRESSED AFTER A WADE HEARING, NEVERTHELESS TAINTED AIRES' IN-COURT IDENTIFICATION OF [DEFENDANT], AND, INEXPLICABLY, NO TAINT HEARING WAS HELD.
POINT II
THE JUDGE ERRED IN PERMITTING THE PROSECUTOR TO ARGUE THAT THE JURY COULD FIND [DEFENDANT] GUILTY OF PARTICIPATING IN A CONSPIRACY, DESPITE THE JUDGE'S DISMISSAL OF THE CONSPIRACY CHARGE OF THE INDICTMENT. MOREOVER, THE JUDGE INSTRUCTED THE JURY ON CONSPIRACY, THEREBY SUGGESTING, INCORRECTLY, THAT CONSPIRACY COULD BE THE PREDICATE FOR ACCOMPLICE LIABILITY.
POINT III
THE JUDGE COMMITTED REVERSIBLE ERROR BY RULING INADMISSIBLE TESTIMONY BY A POLICE DETECTIVE AND A DEFENSE INVESTIGATOR REGARDING THEIR INTERVIEWS WITH TWO WITNESSES WHO PROVIDED MEDICAL CARE TO AIRES IN THE AMBULANCE.
POINT IV
MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amend. VI, XIV; N.J. CONST., Art. I, para. 1, 9, and 10.
POINT V
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND THE JUDGE FAILED TO ORDER MERGER OF THE ROBBERY COUNTS AND THE AGGRAVATED ASSAULT COUNTS.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
After reviewing the record and the applicable law, we affirm defendant's conviction but remand his sentence to allow for merger of the convictions for sentencing purposes.
The State presented this case to the jury as a drug deal gone awry. Williams testified for the prosecution. He claimed defendant had tried to sell fake cocaine to the victim, Aires, and shot him and stole his money before Aires could test the drugs. Williams claimed he did not know beforehand that defendant was armed, and that defendant never told him he had a plan involving Aires. Defendant contended that Williams was the shooter, and he was merely an unwitting participant in crimes planned and carried out by Williams. Aires, for his part, refused to even acknowledge that there was a drug deal, claiming instead that he was carrying $20,000 in cash in order to buy a truck from defendant and Williams.
Williams told the jury that defendant called him in December 2007 and asked him for a ride to the Deptford Mall where he was to meet a man named Aires to sell him something. Williams picked him up, and defendant threw a package in a tote bag into the backseat. Williams could tell the package contained drugs and realized that defendant was meeting Aires to do a drug deal.
Williams drove defendant to the Deptford Mall, where they waited for Aires to arrive. He came alone and also carried a tote bag. Defendant and Aires "instantly recognized" each other, and judging by the way the two were talking, Williams believed they were not strangers.
Aires did not want to consummate their transaction in the mall "[b]ecause he wanted to test the product." Accordingly, defendant and Williams followed Aires to the home of Aires' longtime friend, Robert, in Buena. Defendant used Williams' cell phone to maintain contact with Aires during the drive.
They arrived around two o'clock in the afternoon, and Aires greeted Robert outside. Although Robert was not expecting Aires, he too soon understood that Aires and his guests were engaged in a drug deal. Aires, Robert, Williams, and defendant entered a trailer adjacent to Robert's house. Someone asked Robert to get a pot, which they would use to test whether the drugs were real. Robert left the trailer to get the pot, and Aires left the trailer to get his tote bag, which contained "about $20,000 in cash."
It is not clear from the testimony whether the "someone" is Williams or Aires. Williams testified that Aires asked for the pot. Robert testified that Williams asked for it.
Williams and Robert both testified that cooking down cocaine in a pot with baking soda and water allows one to ascertain whether the substance is actually cocaine.
When Aires returned to the trailer, defendant took the one-kilo package of drugs out of his bag and put it on the counter. Aires took the cash out of his tote bag and did likewise. According to Williams, defendant then pulled a gun out of his waistband and shot Aires, who fell to the floor.
Williams ran to his car, intending to leave defendant behind. But defendant ran after him, telling him to "hold up." Defendant was carrying the tote bag with Aires' cash, having left the drugs on the counter. Robert, returning to the trailer with the pot, saw Williams and defendant run past his window and get into their car. Robert noted that defendant was wearing green.
Although not positive, Williams believed the drugs were "fake" because the package containing them was "too bulky." Whatever the package contained, it was never recovered.
Defendant got in the passenger seat, and the two drove towards Philadelphia. As Williams drove, defendant counted the cash, and eventually gave some of it to Williams.
Robert testified that he ran to Aires and told his daughter to call 9-1-1. A New Jersey State Police Detective was two to three minutes away and immediately responded to the scene. The detective found Robert and his daughter standing over Aires, who was lying on a patio holding a blood-stained towel over his stomach. Aires told the detective that "[t]he man who was dressed in green shot him." Although Robert's daughter did not see or hear the shooting, she also told the detective that Aires told her the man in green was the shooter.
An ambulance arrived and transported Aires to an open field, where a Medivac helicopter was waiting. The detective rode in the ambulance with Aires and two EMTs (emergency medical technicians). En route, Aires denied knowing who shot him. He underwent emergency trauma surgery at the Atlantic City Medical Center.
Another trooper, monitoring traffic on Route 42 in Gloucester Township, received a BOLO ("be on the lookout") for "two black males between 20 and 30 years of age," one of whom was wearing a black jacket, and the other a green-hooded jacket along with a description of the car in which they fled the shooting. The trooper spotted the car and arrested defendant and Williams without incident. A search incident to arrest found Williams in possession of $2110 in cash and defendant in possession of $17,762. Police obtained a search warrant for the car and found a handgun "underneath the plastic housing on the passenger side."
Later that afternoon, as troopers were escorting Robert's daughter into the barracks in Buena to give a statement, two other troop cars arrived. As troopers removed defendant and Williams from the cars, she spontaneously identified them as the two men she had seen earlier in the day at her father's house. Her father Robert similarly identified defendant, who was being processed in the lobby, as a trooper escorted him from the building following his interview. A week after the shooting, detectives went to the hospital to interview Aires. Presented with a photo array, Aires identified defendant as the man who shot him.
Defendant moved to suppress all of those out-of-court identifications prior to trial. Following a Wade hearing, the court declined to suppress Robert's and his daughter's identifications of defendant at the police barracks, characterizing them as "spontaneous declarations" made during "completely unplanned," "virtual show-ups." The court did, however, suppress Aires' photographic identification of defendant because the detectives failed to record their administration of the photo array, thus failing to abide the command of State v. Delgado, 188 N.J. 48, 63 (2006), of "preserving the words exchanged" during an identification by making, where feasible, a "verbatim account" of the procedure. Significantly, the court did not prohibit the State from having Aires make an in-court identification of defendant at trial. The court reasoned that as
Mr. Aires clearly knows who the defendant is, having easily recognized him in court on 2/27/12 as a person who was present when he was shot, I see no reason to prohibit the [S]tate from asking Mr. Aires at trial if he can identify the defendant. Bolstering this conclusion is the fact that there is apparently easily accessed investigative material that suggests strongly that Mr. Aires had extensive encounters with the defendant on the day he was shot and that there was cell phone traffic between the two of them even before that.
Robert and his daughter testified and both identified defendant at trial. Aires also testified at trial, although the court found him to be a decidedly reluctant witness. On several occasions, Aires expressed that he "[didn't] want to remember this moment," didn't want to "relive" the shooting, and explained that he was "afraid . . . [t]hat it could happen again." When shown the gun, Aires covered his head with his hand, stating: "I don't want to see no gun."
Aires also vacillated as to whether he could identify his assailant. At times, he claimed he never again saw the two men after they left the mall, could not describe them, and could not remember many details of the shooting. At other times, Aires claimed the man who shot him was one of the people he met at the Deptford Mall. The prosecutor was ultimately able to wrest an in-court identification of defendant from Aires. He was forced, however, to concede on cross-examination that he testified at the Wade hearing that he was unable to identify defendant as the shooter. When asked directly if he remembered who shot him, Aires responded: "I don't remember."
At the close of the State's case, defendant made a motion for judgment of acquittal. The court agreed there was no testimony allowing the jury to conclude defendant conspired with Williams and thus dismissed the charge of conspiracy to commit armed robbery. The court denied the motion with respect to the remaining counts.
In his case, defendant sought to establish reasonable doubt by arguing that Williams, not defendant, was the shooter. While questioning Robert's daughter, defendant introduced her statement to police on the day of the shooting in which she claimed Aires had been shot by the man in the black jacket. The man wearing the black jacket was Williams; defendant was wearing a green jacket. Defendant also called the EMTs who treated Aires in the ambulance. Neither could initially remember whether Aires was asked if he knew who shot him. One of the technicians testified after viewing Aires' patient chart that she recalled that Aires told her he did not know who shot him. The other testified to the same after having her memory refreshed by the report of the detective who interviewed her. The judge denied defendant's attempt to have the detective and a private investigator, who interviewed one of the EMTs for defendant, testify to what the women had told them about Aires' response to the question of who shot him.
At the charge conference, the prosecutor contended he should be allowed to argue conspiracy in closing, despite the fact that the conspiracy count of the indictment had been dismissed, because case law "say[s] that it doesn't have to be charged in the indictment to be charged." Defendant did not object, and the court instructed the jury as follows:
Now, I told you previously that the conspiracy count in the indictment was removed from your consideration. I did, however, indicate that [the prosecutor] would be permitted to make argument concerning it, although you would not have
to make a decision as to whether or not the defendant was guilty of that charge. Because he was allowed to make argument, I'm going to define for you the law of conspiracy so that you have some way of assessing the argument and what use you can make of it, okay?The court proceeded to read to the jury the model charge for conspiracy, immediately followed by the model charge for accomplice liability.
We reject defendant's first argument that the court erred in allowing Aires' in-court identification of defendant without holding a taint hearing. Following extensive testimony at the Wade hearing, the court determined that the State could pursue Aires' in-court identification of defendant because Aires had an independent source for his identification, namely his dealings with defendant both on the day of the shooting and before. See State v. Peterkin, 22 6 N.J. Super. 25 (App. Div.), certif. denied, 114 N.J. 295 (1988).
Defendant erroneously argues that the court erred in failing to apply the Biggers reliability factors to Aires' in-court identification to determine its admissibility. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972). The court need only apply the Biggers factors upon a showing that an identification resulted from "impermissibly suggestive" conduct, a claim defendant does not make about Aires' in-court identification. Id. at 197, 199-200; State v. Madison, 109 N.J. 223, 232 (1988). Rather, defendant's argument rests on his contention that Aires' identification at the hospital was elicited through suggestive means. Even assuming that were true, Aires in-court identification is nonetheless admissible because the court determined that a sufficient independent source existed to remove any taint from Aires' earlier identification. Madison, supra, 109 N.J. at 254.
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Aires' equivocations on the stand as to his ability to identify defendant as the shooter do not go to admissibility, but credibility. It is the jury's function to decide such issues and give whatever weight it deems proper to such testimony. See State v. Cook, 330 N.J. Super. 395, 417 (App. Div.) ("Credibility of the identification is not the issue on the question of admissibility but rather is a matter of weight for the jury."), certif. denied, 165 N.J. 486 (2000).
We agree with defendant's contention in his second point that it was error for the court to have instructed the jury on conspiracy after having dismissed the charge. Defendant, however, failed to object to either the prosecutor's request to address conspiracy or the court's charge, meaning we review only for plain error. State v. Singleton, 211 N.J. 157, 182 (2012). Although the trial court's instruction on conspiracy, viewed in isolation, was error because it should not have been included, the entirety of the jury charge, including the instruction on accomplice liability, clearly stated the relevant and guiding principles. Moreover, the court specifically told the jury it had dismissed the conspiracy charge, the jury would not have to come to a decision on conspiracy, and the conspiracy charge was excluded from the verdict sheet.
Defendant's contention that the jury found him guilty of accomplice liability based on a conspiracy theory is nothing but sheer speculation, no more reasonable or likely than the State's theory that the jury found defendant guilty as a principal but concluded the State had not proved attempted murder or the weapons offenses beyond a reasonable doubt. Because the charge, considered as a whole, adequately conveyed the law and was unlikely to have confused or misled the jury, even with the inclusion of the conspiracy charge, it is not grounds to reverse the verdict. See Wade v. Kessler Inst., 172 N.J. 327, 341 (2002).
Defendant's third and fourth points are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). His contention that the judge erred by refusing to allow the police detective and a defense investigator to testify to their interviews of the two EMTs is meritless because the jury heard the testimony he claims the court wrongly excluded. Both technicians testified, consistent with their prior statements, that Aires said in the ambulance he could not identify the shooter. The testimony of the detective and defense investigator would have been no more than cumulative. See State v. Swint, 328 N.J. Super. 236, 256 (App. Div.) (finding harmless a ruling regarding identification because the evidence was merely cumulative, and any inconsistencies were thoroughly challenged on cross-examination and presented to the jury), certif. denied, 165 N.J. 492 (2000).
We likewise reject defendant's claims that the prosecutor's direct examination of Aires and remarks in summation deprived him of a fair trial. The prosecutor's comments did not exceed the scope of the evidence and the court's strong curative instruction in response to defendant's objection cured any potential prejudice. See State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
The State concedes that defendant must be resentenced to allow the court to merge defendant's three separate robbery convictions (counts three, four and five) and two aggravated assault convictions (counts six and seven). See State v. Davis, 68 N.J. 69, 77 (1975) ("If an accused has committed only one offense, he cannot be punished as if for two."). The judge should have merged these convictions for sentencing purposes and the sentence he imposed may have been influenced by that misconception. We, thus, vacate the sentence and remand for resentencing as a result.
We affirm defendant's conviction but vacate his sentence and remand for merger of his three robbery convictions and his two convictions for aggravated assault.
Affirmed in part; reversed in part and remanded for resentencing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION