This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.
PER CURIAM.
An Essex County grand jury charged defendant Alchane Mayes and his co-defendant, Jeshon Johnson with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1, N.J.S.A. 2C:25-1(b) (count one); four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, seven, eleven, and fourteen); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count four); four counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts five, nine, twelve, and fifteen); four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six, ten, thirteen, and sixteen); and first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count eight).
Johnson confessed to these crimes, implicated defendant, and agreed to testify at defendant's trial. As a result, defendant and Johnson were granted separate trials.
Following a multi-day trial, the jury convicted defendant of counts seven through sixteen involving the robberies of B.E., T.S., and E.M.. The jury acquitted defendant of counts one through six involving the robbery and murder of R.G. After making appropriate mergers, the trial judge sentenced defendant to consecutive fifteen-year terms on the three robbery charges (counts seven, eleven, and fourteen), subject to NERA, with five years of parole supervision upon release. The judge sentenced defendant on count eight to a concurrent ten-year term, subject to NERA and a three-year period of parole supervision; and imposed concurrent eight-year terms subject to four years of parole ineligibility on counts nine, twelve, and fifteen. Thus, defendant's aggregate sentence was forty-five years, subject to NERA. This appeal followed.
On appeal, defendant raises the following contentions:
After reviewing the record in light of these contentions and the applicable law, we affirm.
Shortly before 3:00 p.m. on July 6, 2012, three men stopped B.E. as he walked down the street. One of the men brandished a large gun, and told B.E. it was a "Desert Eagle." Another man went through B.E.'s pockets, and took his cash, cell phone, and debit card. After robbing B.E., the men forced him to accompany them to several ATMS, where they withdrew money. The men then ordered B.E. to run away. B.E. contacted the police and gave a description of the men, stating they were wearing t-shirts, shorts, and fisherman's hats. B.E. later identified two of the men in a photo array as defendant and Johnson, and stated that Johnson was the man who carried the Desert Eagle gun.
About twelve hours later, at 2:50 a.m. on July 7, two men approached E.M. and T.S. as they walked down the street. The two men were carrying handguns and robbed the victims of their cell phones and wallets. One of the men was wearing a fisherman's hat. The men tried to force E.M. and T.S. to walk with them, but E.M. was able to convince them otherwise. The men then told the victims to run away. T.S. later identified defendant and Johnson as the robbers after reviewing a photo array.
Less than an hour later, R.G. picked up two men in his cab. He was later found shot to death in the vehicle. The police obtained surveillance video from the area that showed two men matching defendant and Johnson's descriptions getting into the cab. The police were later able to match finger and palm prints found in the cab to Johnson. The medical examiner testified that R.G. had been shot twice, and that either of the wounds would have been fatal.
Johnson's cousin, V.P., spoke to the police about the shooting. V.P. stated that Johnson and defendant came to his house in a panic and said they had "fucked up" and "caught a body," which V.P. understood to mean they had killed someone. Defendant and Johnson had three guns in a duffel bag, which they showed V.P.. He took a picture of the guns, which he later deleted from his cell phone. However, the police were able to recover the photo pursuant to a search warrant, and it showed the larger Desert Eagle gun, and two smaller handguns.
The police arrested Johnson, who admitted his and defendant's roles in each of the incidents. Johnson said that defendant got into an argument with R.G. over the cost of the fare. Both men then attempted to shoot into the cab, but Johnson claimed his gun jammed and that defendant killed the victim. Johnson told the police he owned the Desert Eagle gun and one of the smaller handguns. He stated the other handgun belonged to defendant. At trial, Johnson testified that he and defendant robbed B.E. during the afternoon on July 6, and robbed "some more people" around 2:40 a.m. on July 7. He reiterated the information he provided to the police with regard to R.G.'s murder.
During a search of Johnson's residence, the police found a fisherman's hat, multiple cell phones, the Desert Eagle gun, and a pair of shorts matching the robbery victims' descriptions. After the police arrested defendant, they were not able to recover any relevant evidence following a search of his home. However, after the police told him of the charges, defendant blurted out, "I was in the cab. I had to take two steps forward in order to shoot . . . the cab driver."
In Point I, defendant contends the trial court erred in denying his motion to sever the counts of the indictment related to the shooting of R.G. (counts one to six) from the counts concerning the three earlier robberies of B.E., E.M., and T.S. (counts seven to sixteen). He alleges the shooting was in no way related to the first three robberies and, therefore, separate trials should have been held. We disagree.
Generally, in deciding a motion for severance, the trial court enjoys "a wide range of discretion[.]"
"[W]here the evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, a court should grant a motion for severance only when [a] defendant has satisfied the court that prejudice would result."
The proper inquiry when deciding a motion for severance is whether, if the crimes were tried separately, evidence of the severed offenses would be admissible at the trial of the remaining charges.
The Supreme Court's opinion in
The party seeking to admit other-crime evidence bears the burden to establish each of the four prongs.
When weighing the probative value of N.J.R.E. 404(b) evidence against its prejudicial nature under the fourth prong of
Here, the motion judge addressed each of the four
For Prong Two, the motion judge found "that the three separate robberies were carried out in a similar manner, with similar weapons, and show a pattern of behavior." The judge was also "persuaded that the method of robbery [was] similar in each individual robbery incident and is arguably similar to what occurred during the murder of [R.G.], the only difference being that the final robbery attempt was unsuccessful, and resulted in [R.G.'s] death." Thus, the judge concluded that the three robberies and R.G.'s shooting were "similar in kind and reasonably close in time" and, therefore the second
Defendant does not challenge the judge's finding that Prong Three was also met. The State's evidence concerning all of the offenses was clear and convincing.
Finally, the judge found under Prong Four that the evidence of each crime was necessary to establish defendant's identity concerning each of the offenses. As the judge noted, the victims' identification of defendant and Johnson in connection with the robberies would "be offered by the State to show that [the two men] were present at the location of each robbery as well as the homicide and that they possessed specific weapons during each incident, using the same modus operandi." The judge further found that judicial economy favored trying the charges together. The judge explained that conducting two separate trials "would be unnecessarily cumbersome on the resources of the State and the [c]ourt" and that defendant failed to show he would be "unduly prejudiced" if all the charges in the indictment were resolved in a single trial. Thus, the judge denied defendant's motion to sever.
We discern no legal error, nor any abuse of discretion in the motion judge's comprehensive analysis of the severance issue. The State established all of the factors militating against severance. The trial judge also instructed the jury to evaluate each offense separately and made clear that defendant was "entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law. . . ."
Turning to Point II, defendant argues that the trial judge erred by denying his motion for a mistrial after the State attempted to introduce a bullet into evidence that was not related to any of the charges in the indictment. Again, we disagree.
While questioning Detective Thomas McEnroe on June 9, 2016 about the search of defendant's home, the prosecutor marked an envelope containing a "9mm Luger Live Round" for identification as Exhibit S226, and asked the detective to identify it. Detective McEnroe stated that Detective Miranda Mathis had recovered the bullet. Defendant's attorney objected to the testimony because Detective McEnroe had not personally recovered the bullet during the search, even though he was also present. After a discussion at sidebar, however, defense counsel stated he would have no objection if Detective McEnroe merely stated that the bullet was the one he saw Detective Mathis recover during the search. Detective McEnroe then identified the bullet as the one found in defendant's home during the search. According to the transcript, the State did not move the bullet into evidence during the detective's testimony.
Prior to the next trial date on June 14, the prosecutor notified defendant's attorney that the State had erred by submitting the bullet for identification at trial because there was no evidence connecting it any of the charges in the indictment. The parties apprised the judge of the issue. Defense counsel filed a motion for a mistrial, and asserted defendant had been unduly prejudiced by the bullet being identified in front of the jury. The judge denied the motion, finding that a mistrial was not necessary "to prevent an obvious failure of justice." Instead, the judge concluded that the prosecutor's mistake could be addressed by applying the "less drastic remedy" of striking the testimony concerning the bullet and giving the jury a strong curative instruction.
The next day, the judge drafted the instruction and reviewed it with both attorneys, who approved it. At the end of the State's case on June 15, the judge instructed the jury as follows:
At the end of the trial, the judge further instructed the jury that "[a]ny testimony that I may have had occasion to strike is not evidence, and shall not enter in your final deliberations. It must be disregarded by you. That means, even though you may remember the testimony, you're not to use it in your discussions or deliberations."
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court[.]"
Applying these principles, we conclude that the judge properly addressed the issue. The bullet was never admitted into evidence, and Detective McEnroe's testimony concerning it was fleeting. Once the prosecutor discovered his mistake, he apprised defense counsel and the court. The judge issued a forceful and comprehensive curative instruction to the jury to disregard the detective's testimony and the bullet. We presume the jury followed the judge's instructions.
Defendant next argues that his sentence was excessive. He asserts that he should have received a lesser sentence because Johnson "only" received an aggregate twenty-year term for his involvement in the robberies for which defendant was also convicted.
Trial judges have broad sentencing discretion as long as the sentence is based on competent, credible evidence and fits within the statutory framework.
A principal goal in reviewing sentences "is the elimination of disparity in order to ensure uniformity and predictability."
Here, Johnson's circumstances were not "identical or substantially similar" to those in defendant's case, primarily because Johnson cooperated with the police, confessed to the crimes, implicated defendant in them, and testified on behalf of the State at trial. Whatever leniency Johnson received was based upon his willingness to cooperate with the State in defendant's prosecution. A sentencing court may and should acknowledge a defendant's cooperation.
We also discern no basis for disturbing the trial judge's decision to impose consecutive fifteen-year sentences for the robberies of all three victims, B.E., E.M., and T.S.. In his comprehensive, oral sentencing opinion, the judge considered each of the factors established by our Supreme Court in
Finally, defendant argues for the first time on appeal that the sentence violated principles articulated by the Supreme Court in
First, we normally "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available `unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'"
Even if we consider defendant's newly minted argument,
Moreover, the judge mentioned defendant's relative youth throughout his sentencing decision, together with his lack of an adult criminal record. We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code, including the imposition of consecutive sentences. Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
