STATE OF NEW JERSEY, In The Interest of A.V. and B.W., minors

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4989-08T44989-08T4

STATE OF NEW JERSEY, In The

Interest Of A.V. and B.W., minors.

_______________________________________

 

Submitted December 7, 2009 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part,

Hudson County, Docket Nos. FJ-09-1244-09 and FJ-09-1142-09.

Edward J. De Fazio, Hudson County Prosecutor, attorney for appellant State of New Jersey (Joel S. Silberman, Assistant Prosecutor, on the brief).

Martha Royster, Public Defender Hudson County, attorney for juvenile respondent A.V. (John Moehring, Designated Counsel, on the brief).

Martha Royster, Public Defender Hudson County, attorney for juvenile respondent B.W. (Andrew J. Naideck, Designated Counsel, on the brief).

PER CURIAM

A.V. was charged in FJ-09-1224-09 with delinquent acts that, if committed by an adult, would constitute conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, and murder, contrary N.J.S.A. 2C:11-3. B.W. was charged in FJ-09-1142-09 with delinquent acts that, if committed by an adult, would constitute conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3.

The State filed a motion pursuant to N.J.S.A. 2A:4A-26(a)(2) for waiver of the juveniles to the Law Division for trial as adults. Following an evidentiary hearing, the trial court found that the State failed to establish probable cause to believe that the juveniles committed the charged offenses and entered orders on May 11, 2009, denying the State's motion. We granted the State's motion for leave to appeal. For the reasons that follow, we vacate the May 11, 2009 orders and remand the matter to the trial court for further proceedings.

I.

At the probable cause hearing, the State presented testimony from Lieutenant Keith Lamont Stith (Stith) of the Hudson County Prosecutor's Office (HCPO). Stith stated that he was involved in the investigation of the fatal shooting of Michael Williams (Williams) in the early morning hours of March 30, 2008, at the Montgomery Gardens Housing Complex in Jersey City. Stith reviewed the statements that Jamonee Gantt (Gantt) gave to the investigators concerning Williams' murder.

According to Stith, Gantt had been identified as the individual who entered the first floor hallway of a building in the Montgomery housing complex and began shooting at the persons present there. Detectives from the HCPO brought Gantt in for questioning on August 28, 2008. Gantt stated that after midnight on March 30, 2008, he was at home at his mother's residence in the Booker T. Washington Housing Complex. Gantt also said that he was inside his mother's apartment all night. Gantt told the investigators that he was not involved in Williams' death and had no knowledge of the shooting.

Gantt later contacted the HCPO and said that he wanted to return to the HCPO to discuss Williams' shooting again. Gantt met with the investigators on September 2, 2008. Gantt was informed of his Miranda rights and signed the waiver of rights form. Gantt said that between 12:30 a.m. and 1:00 a.m., he was near his mother's residence, taking out the garbage. Several individuals approached him but Gantt did not know several of them. Gantt said that one of the unknown individuals placed a shotgun against his back.

Gantt asked for a break in the interview so that he could speak with his mother. The investigators contacted Gantt's mother. She arrived later and, after Gantt and his mother spoke privately, Gantt said that he wanted to continue the interview. Gantt was again advised of his constitutional rights, which he again waived. Gantt then said that after midnight on March 30, 2008, he was confronted by several individuals outside of his mother's apartment. Those individuals included Courtney Hemmingway (Courtney) and Chajuan Hemmingway (Chajuan). Gantt stated that another person who he did not know, pointed a shotgun at him.

Gantt returned to his mother's apartment and called a friend named Camron and told him what had happened. Gantt said that Camron later picked him up in a dark-colored vehicle. They drove to the Brunswick Estates Apartment Complex and sat in the car talking for about forty-five minutes. At around 2:00 a.m., Camron drove Gantt back to his mother's residence.

Gantt stated that, as Camron was driving him home, a vehicle came to a stop at the intersection of Florence Street and Bright Street. Gantt observed three males running east on Bright Street from a silver-colored Nissan Altima, which had been parked near the basketball courts of the Montgomery housing complex. Gantt identified the three men as Courtney, Chajuan and Quadir Wallace (Wallace), who is also known as Derrick. Gantt said that he went home and did not learn about the shooting until the following morning.

On September 15, 2008, Gantt again spoke to the investigators. In this third statement, Gantt asserted that he was exiting a Honda Accord when Courtney and Chajuan approached him and said that they wanted him to take them "somewhere." Gantt declined but Chajuan pulled out a gun and said that he had done "nothing for the hood[.]" Chajuan told Gantt, "you take us." Courtney and Chajuan got into the Honda and Gantt drove them around "the Projects[.]"

Gantt said that, as they were driving around, Chajuan got a call from A.V., B.W. and two males, who he identified as Rashein Chandler (Chandler) and Wallace. They told Chajuan that they had been driving around in a Nissan and had been shot at earlier that evening. Chajuan, Courtney and Gantt met A.V., B.W., Chandler and Wallace for a discussion. According to Gantt, Courtney became concerned because the police might see them talking in that location. They moved the discussion to the Lafayette Village housing complex.

Gantt stated that he then learned that there were guns in the Nissan. He said that A.V., B.W. and the others in the Nissan wanted to go to an area called "the hill, to shoot at people," whereas Courtney and Chajuan wanted to go to the Montgomery housing complex "to shoot at people[.]" Gantt asserted that ultimately a decision was made to go to the Montgomery and "to shoot it up."

According to Gantt, prior to departing for the Montgomery, it was agreed that the Nissan would be the lead car and the Honda would follow. Gantt stated that it was also agreed that the guns would be placed in the Nissan after the shooting because Wallace had a legal driver's license. Gantt said that Wallace drove the Nissan to the Montgomery with Chandler and B.W. as passengers. Gantt also said that A.V. drove the Honda, with Courtney, Chajuan and Gantt as passengers.

Gantt stated that the cars stopped near the Montgomery's basketball courts on Bright Street. Courtney and Chajuan got out of the Honda and approached the building. Gantt observed Chajuan open the door to the building and start firing his gun. Gantt ran back to the Honda. Chajuan and Courtney later returned to the cars and placed their guns in the Nissan. Chajuan, Courtney and Gantt got into the Honda with A.V. and drove away. Courtney drove the Honda as they left the scene. Courtney told the others in the Honda that he shot someone in the face, and Chajuan said that he shot someone in the back.

At the waiver hearing, Stith additionally testified that the investigators interviewed B.W., who told them that he had no knowledge of who was involved in Williams' murder. The investigators also questioned A.V., who stated that on the night Williams was shot, he was driving in a Nissan Altima with B.W., Wallace and Chandler. A.V. said that they ran into Chajuan, Courtney and Gantt and agreed to accompany them to the Montgomery. A.V. said that Chajuan, Courtney and Gantt told them "to pop the trunk" of the Nissan when they saw them running.

According to A.V., when they arrived at the Montgomery, Chajuan, Courtney and Gantt looked around the courtyard and went inside the building. A.V. heard gunshots. Later, Chajuan, Courtney and Gantt ran back toward the cars and put the guns into the trunk of the Nissan. A.V. said that he was not under the impression that they were going to the Montgomery to look for anyone in particular, or any people at all. A.V. stated that there had been no discussion along those lines.

The State also presented a sworn statement by Patricia Jackson (Jackson), who was Williams' girlfriend. Jackson said that on the night of the shooting, she was in her apartment in the Montgomery. She heard gunfire and went to open the door to the apartment. She ran to the door and opened it a bit, expecting Williams to "barge in." Jackson then heard more gunfire.

Jackson opened the door wider and saw Williams on the ground with an individual standing over him. According to Jackson, Williams tried to defend himself by raising his arm and saying "no." The individual standing over Williams shot him and ran away. Jackson approached Williams. He tried to move but was unable to do so. Williams apparently died at that point.

II.

The trial court rendered its decision on the State's waiver motion from the bench. The court noted that Gantt had given the investigators three statements with differing versions of the events of March 30, 2008. The court said that Gantt's last statement was not entirely true because Gantt did not mention that he entered the building and fired a gun, while the State had a witness to the shooting who said that Gantt was there and fired a weapon.

The court found that Gantt's statement that A.V. had driven the Honda to the Montgomery was not credible. According to the court, Gantt's assertion was "typical of the kind of bobbing and weaving that" Gantt "was doing all along." The court stated that Gantt appeared to be minimizing his liability for Williams' death "whenever he thought he could get away with it." The court also stated that Gantt did not want to admit that he drove the shooters to the scene of the shooting so he put A.V. "in the driver's seat."

The court additionally noted that A.V. and B.W. remained in the cars at the Montgomery. They did not touch a gun and did not shoot anyone. The court stated that there was "nothing to suggest that either [B.W.] or [A.V.] were in the driver's seat of the Nissan." They did not drive the Nissan away after the shooting, and "they probably were not in [a] position to pop the trunk."

The court also commented that it was not clear from Gantt's third statement what B.W. or A.V. said at the meeting that took place before the cars drove to the Montgomery. The court additionally pointed out that in his third interview, Gantt had been asked "what made the other car go" to the Montgomery after the two groups argued. Gantt replied, "[c]ause they [were] scared of" Chajuan and Courtney.

The court concluded that the State failed to meet "even the low standard of probable cause, either for conspiracy or participation" in Williams' shooting. The court accordingly entered orders on May 11, 2009, denying the State's motion to waive the juveniles for trial as adults in the Law Division.

The trial court thereafter issued a written decision amplifying the reasons for its decision. The court wrote that Gantt was "palpably untrustworthy" and "[r]easonable minds could not differ on this point." The court noted, however, that it had accepted as credible most of Gantt's September 15, 2008, statement. The court wrote that Gantt said B.W. had objected to going to the Montgomery but went along only after Chajuan became angry and began to lose control.

The court also wrote that Gantt's statement negated "any possible criminal intent" on the part of B.W. and A.V. because it indicated that the juveniles went to the scene of the shooting and remained there "under duress." The court added that, while Gantt's statement was "vague, at best, as to any agreement by [A.V. and B.W.] to participate in the Montgomery shootings. Gantt was not vague as to the coercion."

III.

In this appeal, the State argues that the trial court erred by denying its motion to waive the juveniles for trial as adults in the Law Division because it established probable cause to believe that A.V. and B.W. committed the charged offenses. The State maintains that Gantt's third statement provided a well-grounded suspicion that A.V. and B.W. participated in the conspiracy to murder Williams and A.V. was an accomplice to the murder as well.

A juvenile who is sixteen years of age or older at the time he allegedly committed certain offenses, including homicide, will be waived to the Law Division for trial as an adult if there is probable cause to believe the juvenile committed the offense. State v. J.M., 182 N.J. 402, 411-12 (2005) (citing N.J.S.A. 2A:4A-26(a)(2) and (e)). "Probable cause is a well-grounded suspicion or belief that the juvenile committed the alleged crime." Id. at 417 (citing State v. Moore, 181 N.J. 40, 45 (2004)).

In determining whether probable cause exists, the trial court should not engage in "'the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.'" Ibid. (quoting Gerstein v. Pugh, 420 U.S. 103, 122, 95 S. Ct. 854, 867, 43 L. Ed. 2d 54, 69 (1975)). Moreover, "'credibility determinations [will] seldom [be] crucial in deciding whether the evidence supports a reasonable belief in guilt.'" Ibid.

In its decision, the trial court found that the State had not established probable cause to believe that A.V. and B.W. committed the charged offenses. The court reached that decision in part because it found that portions of Gantt's third statement were not credible. The court determined that Gantt was "palpably untrustworthy" and based that finding primarily on the fact that Gantt provided the investigators with inconsistent statements. In our judgment, the court erred in doing so.

We recognize that Gantt gave differing statements to the investigators, but the fact that Gantt provided inconsistent statements is not a valid reason to discount the key assertions in Gantt's third statement regarding A.V.'s and B.W.'s involvement in the events that led to Williams' shooting. Gantt did not testify at the waiver hearing and the court was not able to assess his demeanor. Moreover, Gantt did not have the opportunity to clarify the assertions in the third statement or explain why he provided differing accounts to the investigators.

The trial court also erred by finding that A.V. and B.W. acted under duress. N.J.S.A. 2C:2-9 provides that it is an affirmative defense to a crime when the actor engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or that of another. To establish this defense, there must be a showing that the threat was present, imminent and impending. State v. B.H., 183 N.J. 171, 192-93 (2005). In a prosecution for murder, duress will only serve to reduce the crime to manslaughter, not absolve the defendant of all criminal responsibility. N.J.S.A. 2C:2-9(b).

Here, there was some evidence indicating that A.V. and B.W. acted in fear of Chajuan when they went to the Montgomery housing complex on March 30, 2008, but there also was evidence indicating that they did not. In our view, the trial court should not have decided that A.V. and B.W. acted under duress based on the limited record presented at the waiver hearing.

Although we conclude that the trial court erred by completely discounting key portions of Gantt's third statement and by finding that A.V. and B.W. acted under duress, we are nevertheless convinced that the evidence presented by the State at the hearing did not establish grounds to waive the juveniles to the Law Division for trial as adults. The State's evidence did not establish probable cause to believe that A.V. and B.W. conspired with Chajuan, Courtney and Gantt to shoot people at the Montgomery housing complex or that A.V. was an accomplice to Williams' murder.

The Code of Criminal Justice provides in pertinent part that:

[a] person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

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

"As the language of the statute reveals, the agreement to commit a specific crime is at the heart of a conspiracy charge. Such an agreement is central to the purposes underlying the criminalization of the inchoate offense of conspiracy." State v. Samuels, 189 N.J. 236, 245 (2007).

Furthermore, "mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.), certif. denied, 130 N.J. 395 (1992) (citing 15A C.J.S. Conspiracy, 39 at 733 (1967)). "There must be an intentional participation in the activity with a goal of furthering the common purpose; mere association is inadequate." Ibid. (citing 15A C.J.S. Conspiracy, 39 at 733-34).

In his third statement, Gantt asserted that, on the night in question, he was with Chajuan and Courtney when they ran into B.W., A.V., Chandler and Wallace. Gantt said that "they was telling" Chajuan and Courtney "that they got shot at[.]" Gantt stated, however, that he was sitting in the car at the time those statements were allegedly made. It is unclear from Gantt's statement whether he actually heard B.W., A.V., Chandler or Wallace say that they had been shot at earlier, or whether Gannt was merely recounting what someone told him. There also was no explanation as to how Gantt knew what B.W. and A.V. allegedly told Chajuan in the cell phone call to Chajuan, the conversation that Gantt claimed set off the chain of events leading to the shooting.

Gantt also said that the two groups went to the Lafayette Village housing complex, where B.W. and Chandler started arguing with Courtney and Chajuan. Gantt stated that B.W. and Chandler wanted to "go [to] the Hill" and Courtney and Chajuan wanted to "go to [the] Montgomery." Gantt was asked, "[w]hat did they want to go down there [to] do?" He replied, "[s]hoot it up[.]" However, Gantt did not say that A.V. and B.W. agreed to go to the Montgomery with Courtney and Chajuan to participate in or facilitate the shootings at the Montgomery.

Gantt also was asked whether anyone present at the relevant time had weapons. He said that Courtney and Chajuan had guns and they gave him one when they arrived at the Montgomery. Gantt stated that Chajuan already had a gun and the other weapons were taken out of the Nissan, which was Wallace's car. However, Gantt did not say that A.V. and B.W. provided Courtney and Gantt with the weapons. Therefore, Gantt's statement does not establish that A.V. and B.W. provided weapons to Courtney or Gantt in furtherance of a plan to shoot persons at the Montgomery.

In addition, Gantt told the police that A.V. drove the Honda with Courtney, Chajuan and Gantt as passengers, and Wallace drove the Nissan with B.W. and Chandler as passengers. However, it is unclear from Gantt's statement whether A.V. was merely transporting Courtney, Chajuan and Gantt to the Montgomery or whether he drove the Honda in furtherance of an agreement to shoot people at the Montgomery or to facilitate the shootings.

Gantt also did not say that A.V. and B.W. saw and were aware that Courtney and Chajuan were armed and planned to shoot people at the Montgomery. Furthermore, Gantt stated that "[t]hey all said" "they could throw the guns in" the Nissan because Wallace had a valid driver's license. It is unclear to whom Gantt was referring when he stated that "they all said" the guns could be placed in the Nissan. Gantt's statement also does not indicate whether A.V. or B.W. were in a position to "pop" the trunk of the Nissan so that the guns could be placed there.

We therefore conclude that Gantt's third statement does not provide sufficient facts concerning the events of March 30, 2008, to establish a reasonable suspicion that A.V. and B.W. conspired with Courtney, Chajuan and Gantt to go to the Montgomery and shoot people. Gantt's statement may show that A.V. and B.W. knew about the shootings and perhaps acquiesced in them, but it did not establish reasonable suspicion of an agreement on their part to cooperate in or facilitate the shootings.

However, the record does not disclose whether the State has additional evidence regarding the incident that was not presented at the waiver hearing. In the unusual circumstances of this case, we are convinced that the State should be afforded an opportunity to present additional evidence, including Gantt's in-person testimony, to establish reasonable suspicion to believe that A.V. and B.W. committed the charged offenses.

The orders of May 11, 2009, are therefore vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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

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A-4989-08T4

RECORD IMPOUNDED

February 1, 2010