STATE OF NEW JERSEY v. JALONN LASSITER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4618-06T44618-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JALONN LASSITER a/k/a

JALOON LASSITER,

Defendant-Appellant.

 

Submitted May 27, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-10-1210-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In October 2004, a Union County grand jury indicted Jeremy Franklin, Boris Franklin, and defendant, Jalonn Lassiter, charging them as follows: first-degree robbery, N.J.S.A. 2C:15-1 (counts one and four); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); and second-degree kidnapping, N.J.S.A. 2C:13-1b (count five); the grand jury indicted defendant individually on a charge of first-degree murder, N.J.S.A. 2C:11-2a(1) and/or (2) (count three).

After the trial judge denied defendant's motion to suppress a statement defendant gave to the police, he was tried to a jury from September 26, 2006 through October 6, 2006. The jury convicted him of first-degree robbery (count one); first-degree felony murder (count two); and first-degree aggravated manslaughter, amended from murder (count three); and acquitted him of counts four and five. After merging counts one and three with count two, the court sentenced defendant to life without parole.

On appeal, defendant raises three legal arguments:

POINT I

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN REFUSING TO CHARGE THE JURY AS TO DEFENSE OF OTHERS.

POINT II

THE RECORD STRONGLY INDICATES THAT DEFENSE WITNESS LEON GANDY WAS INTIMIDATED BY THE STATE, AND CONSEQUENTLY REFUSED TO TESTIFY SUBSTANTIVELY, AND THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY REFUSING TO TAKE ANY REMEDIAL ACTION. U.S. CONST., AMENDS. V, VI, XIX; N.J. CONST., ART. I, PARS. 1, 10.

POINT III

THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE DEFENDANT'S PURPORTED UNCOUNSELED STATEMENTS, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

We reject defendant's arguments in points one and three and affirm his judgment of conviction. We conclude that the issue defendant raised in point two, that the State intimidated one of his witnesses into not testifying, is not suitable for direct appeal as it will require evidence that lies outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). Accordingly, our affirmance of defendant's conviction is without prejudice to him to file a post-conviction relief petition raising the intimidation argument.

We begin with the trial evidence. Ricardo McLeod testified that Alicia Stewart introduced him to Boris and Jeremy Franklin so he could sell them drugs. Prior to March 13, 2004, McLeod met with the Franklins three times and sold them cocaine. McLeod provided the drugs for the first transaction, but because he did not have the drugs when the brothers requested the next two exchanges, he obtained them from Tyshon Davis. Boris Franklin subsequently contacted McLeod to purchase additional cocaine and the two agreed to meet on March 13, 2004, at the Burger King on Route 1 and 9 in Elizabeth.

At approximately 9:00 p.m. or 10:00 p.m. on that day, McLeod and Tyshon Orr met the Franklins in the Burger King parking lot. The brothers arrived in one car and McLeod and Orr arrived in another. They then left the parking lot in their respective cars and drove to Van Buren Street, approximately one block from the Burger King. There, Boris Franklin moved from his car into the back seat of McLeod's car. The men had agreed on a sale price of $10,000, but Franklin told McLeod that he did not have the money.

According to McLeod, at that point, Franklin returned to his car and asked McLeod to meet him at the Burger King parking lot. McLeod told him that he did not have the drugs with him. Consequently, McLeod remained on Van Buren Street and waited for Davis to arrive with the drugs. When Davis arrived, he was accompanied by Abelardo Astorga. Astorga remained on Van Buren Street while McLeod and Davis walked to the Burger King parking lot and got into the back seat of the Franklins' car.

Jeremy Franklin got out of the car to go into the Burger King restaurant. As the remaining three men were getting out of the car, defendant arrived in a car, got out of the passenger side, and pointed a gun in Davis's direction. McLeod heard one gunshot. Then, as defendant pointed a gun at McLeod, the men stole his jacket, $80, and a phone.

Boris Franklin testified that he was not comfortable with the drug transaction of March 13, 2004. He remained with McLeod, however, because Stewart had assured him that McLeod was not trying to harm him and that the transaction would go smoothly. Franklin spoke to defendant several times during the night and informed him that he would be at the Burger King parking lot. He did not remember whether he told defendant that he was in trouble or felt nervous about the drug transaction. He also indicated that Davis "did not pull a gun on" him; nor were the two fighting. According to Boris Franklin, he was outside of the car having a conversation with Davis when defendant arrived at the parking lot, got out of his car with a gun in his hand, and shot Davis as Davis began to run.

McLeod denied that he or Davis had intended to rob the Franklin brothers that night; neither he nor Orr were armed, nor were Astorga or Davis.

At trial, Detective Dean Marcantonio of the Union County Prosecutor's office read into evidence a statement that defendant gave to the police after he was taken into custody. In his statement, defendant admitted that Boris Franklin contacted him on the night in question because he wanted defendant to accompany him to the drug purchase to ensure that "nothing went wrong." Defendant said that he arrived at the Burger King with Leon Gandy. Defendant described what occurred:

Fah [Boris Franklin] told us to come over, and Buck [Leon Gandy] drove on the opposite way of the drive-thru behind the Burger King. We pulled up and Fah was outside the car talking to the dude that got shot. All I remember was the guy saying to Fah, "What do you mean you don't know me," and then Buck reached for the gun that was in the middle. I told him give it to me, I'm closer. Buck said, "No, that's my man. I got him." We were struggling with the gun, it was pointed towards the building, and before you know it by me pulling it forward and him bullying it back the gun went off. Buck pulled out leaving me out in the parking lot with the gun. So I got in the car with Fah, and Rah [Jeremy Franklin], and the other kid that was in the back seat. We were pulling out and I seen the Spanish guy that was coming across the highway with a white bag in his hand. The kid sitting next to me said, "That's the guy that was with the other guy and he's got the drugs." . . . Faheem tried telling the guy to come over to the car. The guy got scared and took off. . . . I saw the guy on the ground. We then took off and jumped on the Turnpike.

Defendant's videotaped statement was also shown to the jury.

After the State rested, defense counsel indicated that she had spoken to Leon Gandy's mother, who told her that an audio recording existed in which an investigator from the prosecutor's office "was making coercive statements" in an attempt to keep Gandy from testifying. Defense counsel nevertheless advised the court that Gandy would testify, and the court recessed to wait for him to arrive. The defense attorney gave the following account of events that occurred during the recess:

[P]rior to me having that conversation or having most of that conversation [with Gandy] [the prosecutor] walked into the hallway while I was talking to him. I originally had no problem with [the prosecutor] standing there. However, once [Gandy] started indicating that the person who threatened him was Dean Marcantonio, [the prosecutor] called Dean Marcantonio down the stairs. When Mr. Marcantonio came down the stairs Mr. Gandy's face turned a completely different color, his facial expression changed, [and] you could, clearly, see he was intimidated by this, and I asked to speak to him alone. I said he is a defense witness and I have a right to speak to him prior to the Prosecutor having any conversation with him. The Prosecutor tells me I absolutely do not, and as I'm walking out of the hallway I told Mr. Gandy, you don't have to speak to him. Do you want to speak to him? I said you don't have to speak to him, and [the prosecutor] got angry and said, "You are not his attorney. You can't advise him as to the law, and we have an absolute right to speak to him" . . . .

After this interaction, defendant's attorney spoke to Gandy in private, but he refused to discuss the matter any further or to confirm the existence of the audio tape. On the witness stand, out of the presence of the jury, Gandy refused to answer questions. As a result, the trial judge did not permit the defense to call him as a witness.

Because defendant challenges the legality of his statement to the police, we summarize the testimony from the suppression hearing. Detective Marcantonio testified that he initially interviewed defendant at the New Brunswick Police Department, but defendant refused to provide a statement at that time. He did not request an attorney. Marcantonio and Detective Olivero then had defendant transported to the Elizabeth Police Department to interview him, serve him with a warrant, and explain the charges against him. There, Olivero, in the presence of Marcantonio, advised defendant of his constitutional rights and had him sign a form entitled "Elizabeth Police Advisement of Constitutional Rights." Olivero "read the rights, each right out loud one at a time, then asked [defendant] if he understood each right and asked him to indicate his answer on the line and put his initials." The form listed his Miranda rights. Defendant initialed next to the numbered paragraphs and signed the form. He also signed a waiver indicating: "I have read this statement of my rights and I understand what my rights are. I'm willing to make statement[s] and answer questions. No promises or threats have been made to make me and no pressure or coercion of any kind has been used against me."

Marcantonio interviewed defendant for approximately three hours. About an hour and a half into the interview, defendant admitted that he was involved in the shooting. After the interview, Marcantonio took a formal typed statement from defendant. The statement reflects that defendant answered "yes" to questions regarding whether he was advised of his rights, given a copy of the warrant, read a copy of the warrant, advised of his Miranda rights, and was willing to waive his rights and give a statement. A "video review" of defendant's Miranda rights and statement were then taken. Marcantonio testified that during the entire process, defendant had the opportunity to go to the bathroom and smoke cigarettes, and was given food and drink. Marcantonio said that defendant did not ask to speak to a lawyer or invoke his constitutional rights.

Defendant testified that when Marcantonio first interviewed him at the New Brunswick Police Department, defendant asked to speak to his lawyer, but the detective responded: "Why do you need your lawyer if you ain't do nothing wrong?" The detectives continued to ask him questions that he refused to answer, partly because he was drunk and high on marijuana. The questioning continued for approximately twenty to thirty minutes, but the interview stopped when defendant refused to answer questions.

According to defendant, the second time police interviewed him, he asked to speak to an attorney, but his request was denied. Defendant testified that he was afraid the police would beat or shoot him and that Marcantonio asked him about the wellbeing of his son if he were to go to prison.

Defendant explained that he again asked for a lawyer after signing the form indicating his rights; he was not given an opportunity to review the statement or make changes prior to reading it for the recording. He also said that the wording of the statement was not the way that he usually spoke, that is with "mad slang," and Marcantonio coached him as to what he should say.

The trial judge found no Miranda violation. The judge reasoned as follows:

The issue in this case is whether the defendant knew and understood his rights and, then, voluntarily waived his rights to give a statement. Also whether the statement, itself, was voluntarily given, whether his will was overborne, that caused him to give the statement up. . . . I find that the testimony of Detective Marcantonio is the more credible and believable version.

. . . I'm satisfied that [defendant] is well versed in the requirements of giving a statement. He, probably, knows . . . the Miranda Rights better than most lawyers. I am satisfied he knew those rights, understood those rights. Those are buttress[ed] . . . by the exhibits that he signed.

. . . I looked at the videotape. While he appeared to be reading his statement, himself, there [were] certainly questions, during the course of that videotape, that required a direct response from him and was not so-called, as he wants to say it, scripted. I think that someone of his knowledge, who knew he was going to be on videotape, understood the import of that, how that would look in a courtroom. I think he was well aware, and that further buttresses the voluntariness of the statement.

The court admitted the statement and the videotape into evidence at trial.

We turn next to defendant's claim in point one of his brief that the court erred in refusing to charge the jury as to the defense of others. Defendant asserts that the defense should have been charged because he was present at the scene of the shooting only to ensure that "nothing went wrong"; thus, he claims his intention was to protect Boris Franklin during the drug transaction. We reject defendant's argument.

The use of force:

upon or toward the person of another is justifiable to protect a third person when:

(1) The actor would be justified under section [N.J.S.A.] 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

[N.J.S.A. 2C:3-5a.]

The defense of others "requires an actual, honest, and reasonable belief by the defendant of the necessity of using force." State v. Josephs, 174 N.J. 44, 101 (2002). Thus, the defense "is applicable if the defendant reasonably believed that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect the person from the attack." Id. at 102 (internal quotation omitted). The jury must use an objective standard to determine "what a reasonable person in the defendant's position would have done at the time the force was used." Id. at 101. "[T]he trial court is required to instruct on defense of another if there is a rational basis in the record to support it . . . ." Id. at 102; see also State v. Colon, 298 N.J. Super. 569, 576 (App. Div.), certif. denied, 150 N.J. 27 (1997).

Here, although Boris Franklin testified that he was not comfortable with the situation, he also testified that he did not remember expressing his discomfort to defendant. Franklin and the victim were not engaging in a fight prior to the shooting, and aside from defendant, no one was armed. Put simply, under an objective standard, the record did not provide a rational basis upon which the jury could find that a reasonable person in defendant's position would have been justified in shooting the victim. Thus, the court did not err by failing to charge the jury on the defense of others defense.

We next address defendant's challenge to the motion judge's refusal to suppress defendant's statements to the police. He asserts that he requested a lawyer prior to speaking to the police, but his requests were "brushed aside" by the officers. Defendant's arguments are without merit, in that the motion judge found that Detective Marcantonio was credible when he testified that defendant did not request a lawyer. No doubt, if an accused requests the presence of an attorney, the interrogation must cease until the attorney is present. Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1180, 1183, 68 L. Ed. 2d 378, 384 (1981). Here, however, because the trial judge found that defendant never made such a request, and because the trial judge's determinations of credibility are accorded deference by this court, we reject defendant's argument. See State v. Elders, 192 N.J. 224, 244 (2007) (so long as sufficient credible evidence supports trial court's findings, we defer to the trial court's factual determinations). Consequently, we affirm the order denying defendant's suppression motion.

Finally, we briefly address point two of defendant's brief, in which he claims that the State intimidated Leon Gandy from testifying. Defendant asserts that Gandy's testimony could have supported his theory that while he and Gandy were struggling over a gun in the car, the gun accidentally went off, killing the victim.

It is well-settled that an accused in a criminal case has a constitutional right to present witnesses in his defense. State v. Feaster, 184 N.J. 235, 250 (2005). A defendant's due process rights are violated when either the court or the prosecutor interferes "with a defense witness'[s] free and unhampered choice to testify." Id. at 251 (internal quotation omitted). As we have noted, however, the record is not sufficient for us to determine whether Detective Marcantonio did, in fact, intimidate Gandy from testifying. Although the trial court held a short N.J.R.E. 104 hearing where Gandy briefly testified, additional testimony is necessary from Gandy, as well as from those present when he was allegedly intimidated.

Accordingly, although we affirm defendant's conviction, we do so without prejudice to defendant to raise this issue in a post-conviction relief petition. The court must decide whether the State did, in fact, intimidate Gandy from testifying. If the court determines that the State intimidated Gandy, the court must then determine whether Gandy's testimony warrants a new trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Carter, 91 N.J. 86, 112 (1982).

In sum, we affirm defendant's conviction subject to his right to file a post-conviction relief petition raising the intimidation issue.

 

Codefendants Jeremy and Boris Franklin were not tried with defendant.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-4618-06T4

June 19, 2009