STATE OF NEW JERSEY v. KENNETH BECHEAM

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1376-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH BECHEAM,

Defendant-Appellant.

_____________________________________

Text Box
 
July 19, 2006

Submitted October 26, 2005 Decided

Before Judges Conley, Weissbard and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 00-9-2613.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In a fourteen count indictment, defendant was charged with conspiracy to commit a robbery, first-degree robbery, felony murder, and knowing and purposeful murder. The robbery count specified the use of a "handgun." These charges were set forth in counts I through IV. Counts V through VIII contained weapons charges with count V charging possession of an "assault firearm" without a permit, count VI charging possession of the "assault firearm" for an unlawful purpose, count VII charging possession of the "handgun" without a permit and count VIII charging possession of the "handgun" for an unlawful purpose. All of these offenses were alleged to have occurred on June 15, 2000. The remaining counts of the indictment contained drug and "assault firearm" offenses on another date. They were severed.
Following a jury trial on counts I through VIII, defendant was acquitted of the conspiracy, knowing and purposeful murder, and possession of the "handgun" for an unlawful purpose. He was convicted of robbery, felony murder, the weapons offenses concerning the "assault firearm," and the possession of the "handgun" without a permit. The robbery conviction was merged with the felony murder conviction and a life term with a thirty-year disqualifier was imposed. The conviction of possession of the "assault firearm" for an unlawful purpose was merged into the felony murder conviction and two concurrent five-year terms were imposed upon the other weapons convictions.
On appeal, defendant's counsel contends:
POINT I: THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION DURING DELIBERATIONS REGARDING COUNT II WAS FATALLY DEFECTIVE, THEREBY NECESSARILY TAINTING NOT ONLY THE RESULTING GUILTY VERDICT FOR ROBBERY BUT ALSO THE JURY'S VERDICT FOR FELONY MURDER ARISING OUT OF COUNT IV.

POINT II: THE TRIAL COURT'S CHARGE TO THE JURY REGARDING TESTIMONY ELICITED AT TRIAL PURSUANT TO N.J.R.E. 404(b) WAS INADEQUATE, INACCURATE AND INSUFFICIENT IN NATURE (Not Raised Below).

POINT III: THE JURY'S VERDICTS FINDING THE DEFENDANT GUILTY OF COUNT II CHARGING ROBBERY AND COUNT IV CHARGING FELONY MURDER WERE AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).

POINT IV: THE TRIAL COURT ERRED IN ITS RULING REGARDING THE ADMISSIBILITY OF THE DEFENDANT'S PRIOR CONVICITONS TO ATTACK CREDIBILTY.

POINT V: THE LIFE IMPRISONMENT TERM IMPOSED ON COUNT IV WAS UNCONSTITUTIONAL SINCE IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In a pro se brief, defendant contends:
POINT I: THE INDICTMENT MUST BE DISMISSED DUE TO FUNDAMENTAL TAINT.

POINT II: DENIAL OF DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF STATE'S EVIDENCE WAS AN ABUSE OF LEGAL DISCRETION.

POINT III: THE FAILURE OF THE TRIAL COURT TO DEFINE "ATTEMPT" RELIEVED THE STATE OF ITS BURDEN TO PROVE EACH ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT. U.S. CONST. AMEND. XIV.

POINT IV: THE AMBIGUOUS, MISLEADING, DEFECTIVE JURY CHARGE ON ROBBERY RELIEVED THE STATE OF ITS BURDEN TO PROVE EACH ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT. U.S. CONST. AMEND. XIV.

POINT V: MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL IN VIOLATION OF U.S. CONST. AMEND. XIV.

A. MISCONDUCT BEFORE THE GRAND JURY REQUIRES DISMISSAL OF THE INDICTMENT.

B. THE PROSECUTOR'S MISREPRE- SENTATION THAT THE WEAPON ALLEGEDLY RECOVERED FROM DEFENDANT ON JULY 8, 2000, WAS THE WEAPON DEFENDANT ALLEGEDLY POSSESSED ON JUNE 15, 2000 DENIED DEFENDANT A FUNDAMENTALLY FAIR TRIAL. U.S. CONST. AMEND. XIV.

C. FAILURE TO PROVIDE DISCOVERY OF LAKESHA LEWIS-DIXON'S PRIOR CONVICTION AND DETECTIVE PALERMO'S POLICE REPORT DEPRIVED DEFENDANT OF THE OPPORTUNITY TO EFFECTIVELY CROSS-EXAMINE AND IMPEACH THESE WITNESSES' CREDIBILTY IN FRONT OF THE JURY.

D. THE PROSECUTOR COMMITTED MULTIPLE ACTS OF MISCONDUCT DURING SUMMATION.

POINT VI: DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I, 10.

POINT VII: THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED DEFENDANT OF A FUNDAMENTALLY FAIR TRIAL.

The pro se contentions are of insufficient merit to require further consideration, as are counsel's points III and IV. R. 2:11-3(e)(2). However, we are convinced defense counsel's point I is meritorious and requires reversal of the robbery and felony murder convictions. As to point II, regardless of whether the N.J.R.E. 404(b) jury charge concerning evidence of defendant's drug use was "inadequate, inaccurate and insufficient in nature," we are convinced that that evidence had no real relevancy, was highly prejudicial and should not be produced on retrial. As a result of these conclusions we need not, and do not, discuss the sentence contentions as they concern solely the robbery and felony murder sentence. Of course, our decision does not implicate the weapons convictions and the sentences imposed thereon.
We need not set forth in great detail the evidence that was presented during the trial. Suffice it to say the charges arose from the murder of Quadin Hawes on June 15, 2000. The State's theory was that on that day, defendant and another man, referred to as Youngin, conspired to kill Hawes for money he owed defendant. According to the State's primary witness, Lakesha Lewis, who was with the two at the time, two weapons were involved, the "handgun" and the "assault firearm," both referenced in the indictment. The evidence presented by the State placed the "handgun" in the hands of Youngin, See footnote 1 and the "assault firearm" in the hands of defendant. No forensic evidence tied the "assault firearm" to the shots that killed Hawes. Rather, it was undisputed that the "handgun" killed Hawes and, thus, Youngin was the killer.
In both his police statement and his trial testimony, defendant admitted to being with Lewis and Youngin that night, but denied having any participation in the shooting, or possession of a weapon. According to defendant, just prior to the shooting, he and Lewis, who was driving his girlfriend's car for him, had picked up Youngin, who was taking them to someone who owed Youngin money. Youngin directed Lewis where to go. When they arrived at their destination, defendant got out and went to a store on the corner to get himself some cigarettes and a soda for Lewis. Returning a few minutes later, he passed Youngin, who was standing near a phone booth talking to someone, and re-entered the car. Defendant then "heard a series of shots." He told Lewis to start the car and, as the car began driving off, Youngin jumped back in. Youngin kept repeating "I got him" and threw a gun onto the backseat or floor of the car.
According to Lewis, however, after arriving at their destination which she claimed defendant directed her to, defendant exited the car and approached the victim. She heard defendant ask "[w]here is the money?" Youngin then got out of the car. Lewis heard gunshots. Defendant re-entered the car, and Lewis heard more shots, after which Youngin returned to the car. She contended defendant had a .9 mm gun (the "assault firearm") and Youngin had a .357 caliber, silver-handled gun (the "handgun").
Based upon Lewis' reporting of the events to the police, defendant was arrested on July 8, 2000. At the time, he was in possession of a .38 caliber Colt pistol with a magazine containing fifteen .9 mm ammunition cartridges inserted into the grip. It was considered to be a semi-automatic assault-type weapon and stipulated during trial as meeting the statutory definition for "assault firearm." It was this weapon that the State claimed defendant possessed at the time of the robbery on June 15, 2000.
We pause here to comment that although Lewis' version would have provided a basis for conviction on all of the counts relating to both the "handgun" and the "assault firearm," the jury apparently did not believe her story entirely, as it acquitted defendant of the charge of possession of the "handgun" for an unlawful purpose. Its conviction of possession of the "handgun" without a permit was obviously premised upon constructive possession and defendant's presence with Youngin. To be sure, the jury must have, contrariwise, disbelieved defendant's denial of knowing about or possessing any weapon, not to mention any involvement with Hawes, in light of the conviction of possession of the "assault firearm" for an unlawful purpose. But its acquittal on the second-degree handgun charge, along with the evidence establishing the "handgun" as the weapon which killed Hawes, reflects its conclusion that while it was the "handgun" that was the deadly weapon involved in the killing, defendant was not part of its use, though he did have possession of the "assault firearm."
Thus, because the first-degree aspect of the robbery count, as specified in the indictment, was predicated upon the "handgun," the jury asked whether the "assault firearm" could be considered as part of that count. The prosecutor asserted that the count encompassed both weapons. Defense counsel disagreed. He maintained, given the distinct and separate references to the "handgun" and "assault firearm" in the separate counts of the indictment, that the grand jury determined the "assault firearm" had not been used as part of the robbery. The trial judge accepted the prosecutor's contention and instructed the jury that it could consider either weapon to be the deadly weapon referenced in the robbery count. That, of course, leads us to counsel's point I.
The purpose of an indictment is to afford sufficient notice of what a defendant has been charged with. State v. Lopez, 276 N.J. Super. 296, 302 (App. Div.), certif. denied, 139 N.J. 289 (1994). Thus, the indictment must charge all the essential elements of the crime to prevent a defendant from being "prosecut[ed] for an offense the grand jury did not find." Ibid. Of course, "[a]n indictment is merely a pleading device and never an end in itself." Id. at 303 (quoting State v. LeFurge, 101 N.J. 404, 419 (1986)). But the indictment must be specific enough to preclude a trial judge from changing the offense that the grand jury actually considered and charged. State v. LeFurge, supra, 101 N.J. at 415. We have, thus, declined to view an indictment's language narrowly where it does not appear that a case was "presented to a trial jury on a different basis . . . ." State v. Lopez, supra, 276 N.J. Super. at 303.
Lopez, supra, while helpful, is not determinative. There, the defendant was indicted for first degree robbery and the indictment specifically stated that the deadly weapon involved was a machine gun. The jury convicted defendant of first degree robbery based on a finding, through a special interrogatory, that he used a knife while committing the crime. During jury selection, the prosecutor requested that the indictment be amended, pursuant to Rule 3:7-4, to include both a pistol and a knife in the description of the possible "deadly weapons" to be considered. Defense counsel unsuccessfully objected at this point. But during trial, not only did counsel not object to evidence relating to the existence of a pistol and knife or to the jury charge which included those as within the robbery count, he comprehensively cross-examined witnesses on these other weapons and presented direct testimony through the defendant's girlfriend regarding the existence of two six-inch butter knives as part of his trial strategy to get the defendant a lesser sentence under the Graves Act, N.J.S.A. 2C:43-6g. The defendant, then, could not claim that he lacked fair notice of other weapons being encompassed in the robbery count. Id. at 304. We concluded, given the particular circumstances, that "[a] defendant cannot request the trial court to take a certain course of action, take his chance on the outcome of the trial and then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Id. at 309 (quoting State v. Battle, 256 N.J. Super. 268, 282 (App. Div.), certif. denied, 130 N.J. 393 (1992)) (internal quotations and citations omitted).
Those are not the circumstances here. The State did not move to amend the indictment to encompass the "assault firearm" within the robbery count and most certainly defendant took no action during trial that would preclude a claim of fair notice. Moreover, all of the forensic evidence pointed to the "handgun" as the weapon which was used during the robbery. Importantly, we are convinced this particular grand jury intentionally limited the armed aspect of the robbery to the "handgun" possessed by Youngin. The grand jury minutes reveal that the members were aware of which weapons Youngin and defendant possessed and which weapon killed Hawes, charging defendant according to that knowledge. For example, one juror asked: "Oh, Mr. Becheam. Was that the same gun used on [Hawes], do you know of?" Not directly answering the question, the prosecutor pointed to the evidence of the existence of both the "assault firearm" found on defendant at the time of his arrest and the "handgun" possessed by Youngin. But in an answer to a follow-up question regarding ballistics, the prosecutor advised that no forensic evidence tied the "assault firearm" to the shooting. The grand jury was thus aware that the "handgun" was possessed by Youngin and was the weapon used during the commission of the robbery to kill Hawes. Based on this knowledge, the grand jury chose to specifically phrase the robbery count to cover only, "a deadly weapon, a handgun." For whatever reason, it did not find the "assault firearm" was involved in the robbery, as was its decision to make. Ergo, the separate counts pertaining to the "handgun" and "assault firearm."
Of course "'erroneous instructions on material issues are presumed to be reversible error.'" State v. Lopez, ___ N.J. ___, ___ (2006) (slip op. at 15) (quoting State v. Marshall, 173 N.J. 343, 359 (2002)). Here, the error in instructing the jury that it could consider the "assault firearm" as a deadly weapon within the scope of the robbery count may well have led to a verdict the jury otherwise would not have returned. That is to say, if the trial judge had answered the inquiry based on the actual language in the indictment, the verdict might have been different. This is so because the jury was initially instructed that the elevating factor in the robbery charge was the use or threatened use of the "handgun" and was not given an accomplice liability charge as to Youngin's handgun. See footnote 2 Had the jury's inquiry been answered differently, it may well have acquitted defendant of the first-degree robbery. In this respect, recall that the jury exonerated defendant on Count I for engaging in a conspiracy with Youngin to commit the robbery and on Count VIII of possessing the "handgun" for an unlawful purpose, suggesting that the jury did not think that defendant had any connection to the "handgun" during the confrontation.
We briefly address point II concerning Lewis' testimony of the use of cocaine by defendant prior to the murder and subsequent thereto. The evidence was admitted, with limiting instructions, as relevant to defendant's "ability to perceive, observe, recollect, or relate the events of June 15, 2000 . . . ."
Of course, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that [he] acted in conformity therewith." N.J.R.E. 404(b). See also State v. Covell, 157 N.J. 554, 563-64 (1999). Such evidence invariably is extremely prejudicial. State v. G.V., 162 N.J. 252, 262-63 (2000); State v. G.S., 145 N.J. 460, 468 (1996); State v. Stevens, 115 N.J. 289, 300 (1989). Propensity evidence is the danger N.J.R.E. 404(b) serves to protect against. State v. Hernandez, 170 N.J. 106, 118-19 (2001). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant." State v. Stevens, supra, 115 N.J. at 302. See State v. Jenkins, 178 N.J. 347, 365-69 (2004).
Nonetheless, under N.J.R.E. 404(b), such evidence may be admissible to prove motive, intent, plan, knowledge, identity, absence of mistake, accident or some other material issue. If so admitted, it must then be accompanied by limiting instructions, carefully tailored to the factual context of the evidence so that jurors can understand and apply the limitation. State v. G.V., supra, 162 N.J. at 262-63; State v. G.S., supra, 145 N.J. at 471-72; State v. Cofield, 127 N.J. 328, 340-41 (1992); State v. Stevens, supra, 115 N.J. at 304. See State v. Jenkins, 356 N.J. Super. 413, 430-31 (App. Div. 2003), aff'd on other grounds, supra, 178 N.J. at 364-69.
A four-prong test must be applied to determine whether the evidence is admissible:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, supra, 127 N.J. at 338.]

 
The inquiry as to its admissibility must be "searching," State v. Reddish, 181 N.J. 553, 608 (2004), as N.J.R.E. 404(b) is "a rule of exclusion rather than a rule of inclusion", State v. Darby, 174 N.J. 509, 520 (2002).
Applying the Cofield test to the present facts, we focus on the first and fourth prongs as they clearly are not met. Here defendant's "ability to recall" was never at issue. He outright denied the knowledge or use of a weapon, not to mention solely Youngin's handgun. Moreover, there was no evidence, lay or expert, that would establish any factual basis that drug use played any role in either defendant's police statement a few weeks later or his trial testimony long after the event. In contrast, the potential for such evidence prejudicing the jury's perception of defendant's credibility, despite the limiting instructions, was substantial. Although itself not enough for a reversal, upon retrial, the references to drugs should be redacted.
The convictions on counts II and IV are reversed and remanded for a new trial consistent with this opinion. We do not retain jurisdiction.
Text Box
 
 

Footnote: 1 Several days after the shooting, Youngin was killed. Defendant was not implicated in that crime.
Footnote: 2 In the event of a retrial on the robbery and felony murder counts, accomplice liability should be charged. State v. Savage, 172 N.J. 374, 389 (2002); State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993).

A-