STATE OF NEW JERSEY v. SHAKORE A. COLLINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4677-03T44677-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAKORE A. COLLINS,

Defendant-Appellant.

 

Submitted September 20, 2006 - Decided November 2, 2006

Before Judges Cuff, Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-05-0632-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Shakore Collins was convicted of first-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon, a shotgun, without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1) (count five). The jury acquitted him of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(2) (count six).

At sentencing, the court dismissed the charge of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). The judge merged count five into count one, and imposed a nine-year prison term, with an eighty-five percent period of parole ineligibility. On count two, the court imposed a consecutive eight-year prison term, also with an eighty-five percent period of parole ineligibility.

On appeal, in a brief submitted by counsel, defendant raises the following legal arguments:

POINT I - DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE ADMISSION INTO EVIDENCE OF THE CODEFENDANT'S HEARSAY STATEMENTS.

POINT II - THE VERDICTS OF NOT GUILTY OF ARMED ROBBER[Y] AND GUILTY OF RECKLESS MANSLAUGHTER WERE INCONSISTENT AND WARRANT A NEW TRIAL.

POINT III - THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV - THE SENTENCE OF THE DEFENDANT TO A NINE YEAR TERM FOR RECKLESS MANSLAUGHTER, AND AN EIGHT YEAR TERM FOR ROBBERY, BOTH SECOND DEGREE CRIMES, WERE EXCESSIVE.

POINT V - THE SENTENCES OF NINE YEARS AND EIGHT YEARS ON TWO SECOND DEGREE CRIMES RESPECTIVELY, WERE ILLEGAL.

In his pro se brief, defendant raises the following points:

POINT I - DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS AND CONFRONTATION, UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS WHEN THE TRIAL COURT PERMITTED HEARSAY OF THE CODEFENDANTS TO OTHERS TO BE USED AS SUBSTANTIVE EVIDENCE.

POINT II - THE TRIAL COURT GAVE FAULTY INSTRUCTIONS TO THE JURY WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, WHEREFORE THE CONVICTION SHOULD BE REVERSED.

POINT III - THE TRIAL COURT ERRED WHEN IMPOSING THE SENTENCES BY UTILIZING FACTORS THAT WERE NOT "PERSONAL" TO DEFENDANT, BUT BASED ON THE ACTS OF THE TWO CO-DEFENDANTS, IN VIOLATION OF DUE PROCESS.

POINT IV - THE DEFENDANT WAS DENIED HIS RIGHT OF DUE PROCESS BY PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS, WHEN THE PROSECUTOR MISLED THE GRAND JURY AND USURPED ITS FUNCTION OF BEING FACT-FINDERS, WHEREFORE, THE INDICTMENT MUST BE DISMISSED.

We have carefully reviewed the record and the applicable law. We vacate defendant's sentence in light of State v. Natale, 184 N.J. 458 (2005). Otherwise, we affirm defendant's judgment of conviction.

Mary Lou Nolan died from a gunshot wound. The shooting led to the charges against defendant, who is also known as Chubbs, and his two codefendants, Shane Burns and Turi Reddick.

The following facts were developed at trial. On the evening of February 9, 2002, Michael Nolan was asleep upstairs in his home at 220 East Fifth Avenue in Roselle. His wife, Mary Lou Nolan, was downstairs on a couch watching television with the couple's grandsons. Michael Nolan's stepson Michael Dixon, who had previously been convicted of selling marijuana, lived in the house, but was not home. Michael Nolan awoke to the sound of breaking glass and his wife's cry that she had been shot. He found her collapsed on the stairs with a "massive amount" of blood coming from her right shoulder. His grandchildren were on the couch unharmed. He called 911.

Members of the Roselle Police Department responded to the Nolans' home soon after the 911 call. Mary Lou Nolan was transported to the hospital, where she died. At trial, it was stipulated that Turi Reddick shot her with a shotgun and she died as a result of the gunshot wounds. The medical examiner testified that Mary Lou Nolan was shot at close range from a distance of two feet or less.

The history of the events leading to the shooting is as follows. In January 2002, Kyron Holmes called his friend Chelsea Favor, the godmother of Shane Burns's children. Burns answered the phone and asked Holmes about "Mike" Dixon. He inquired whether Dixon sold marijuana and if he had "a lot of money." Over the following week, Burns continued to call Holmes to ask him to assist in robbing Dixon. Holmes declined to participate.

Defendant's girlfriend, Keisha Hay, testified that on the night of the shooting, defendant returned home around 11:30 p.m. when Hay was about to leave for Pathmark. Defendant appeared "very much panicky." While accompanying her to Pathmark, he told her about the shooting. He said he was in the car with Reddick and Burns, when they "went up to a person's house. The lady came to the door, the gun went off, they got back in the car and . . . drove off, he got out of the car on 9th and Spruce, and from there he walked to [Hay's] house." Defendant asked Hay if there was a time stamp on the receipt from Pathmark so "[i]f he had to he could use it as an alibi."

The day after Mary Lou Nolan was shot, Favor saw Burns, who appeared depressed. When Favor asked him why he was upset, Burns told her, "We fucked up on 5th." He also told her that "[t]hey went to rob Mike," that "Turi had the gun," and that "Chubbs and Turi went to the door," while Burns stayed by the car.

At an N.J.R.E. 104 hearing, the court found Favor's testimony to be admissible because Burns had also asked her to act as an alibi for him on the night of the shooting. Specifically, Burns asked Favor where she was that night. When she asked why he wanted to know, he said "he wanted to say he was with [her]." Favor refused, and Burns said that he would instead "use Dechell," the mother of his child.

Three days after the shooting, Tychic Phipps reported to the police that on the evening of February 9, 2002, she received a phone call from Burns, who asked her to open her door. When she did, Burns and Reddick, both dressed in black, entered her house, which was located nine or ten blocks from the Nolan's house. The men had left their car around the corner with its motor running. In the house, Burns told Reddick, "[i]t wasn't supposed to go down like that." As he tried to take off his jacket, Reddick acted like he had a gun in his hand and said, "I'm a little nigger. The gun was too big for me." He also stated, "Chubbs froze up." Reddick asked Phipps for a jacket to wear. Burns removed his top layer of clothing; he left the clothes with Phipps. After approximately fifteen to twenty minutes, Burns and Reddick left the house.

The same day that Phipps gave her statement to the police, Detective James Loprete and two other officers located defendant at a high school basketball game. Defendant agreed to accompany them to police headquarters, where he was advised of, and waived, his Miranda rights. Detectives told him he had been implicated in a homicide. He provided an oral statement and then a signed sworn statement.

At trial, Detective Loprete read defendant's signed statement to the jury. Defendant said that on the night of the shooting, he received a phone call from Burns at 10:30 p.m. inviting him to join Burns and Reddick for a ride. Defendant agreed. He claimed, "I didn't know what they [were] thinking and then we pulled up, they already had their shit together. They already had the plan, the plot, and everything together." Defendant said he "didn't know what [they] were going to do until [they] got on the street, on 5th Avenue." He stated, "I went along with them not knowing what was going to happen, not knowing that there was [going] be a gun used, not knowing nothing, but I had to get somebody to come to the door."

Prior to their arrival at the Nolan residence, they stopped the car on Bower Street in Linden, where Burns told Reddick to "go get whatever he had to get." Reddick returned to the car with a shotgun, which he placed in the trunk. They proceeded to the Nolan residence and parked in front of the house. Burns and Reddick got out of the car, went to the trunk, and put on black clothes and ski masks. Defendant asked them: "[W]hat the fuck are we doing?" Burns replied: "[T]he person who I was telling you about with the money live[s] here." Defendant said, "all right" and asked, "[w]hat I got to do?" Burns told defendant to knock on the door.

Before doing so, defendant walked off to urinate. When he returned to the car, he saw the shotgun in the front seat. Defendant asked them, "you need a fuckin' shotgun to only go there with a guy and his girlfriend in there?" Burns told defendant, "you ain't got to do nothing, just ring the bell." As defendant approached the front door, he could hear it opening. Reddick was on the right side of the door; Burns was moving slowly along the side of the house.

With the door ajar, Reddick rushed into the house carrying the shotgun. Defendant started to walk back to the car when he heard a "boom." He turned and saw Reddick coming out the door. He heard Burns say, "what the fuck happened?" Defendant then jumped into the back seat of the car; Burns and Reddick jumped into the front. Reddick drove the car from the scene. He turned onto Spruce Street where he stopped the car at an intersection. The men jumped out of the car. Reddick and Burns told defendant they were going to Phipps's house. Reddick took the shotgun with him. Defendant asked them what happened and Reddick said, "I think I shot her."

Defendant saw a man with a bicycle, paid him $20 for it and rode home. There, he told his girlfriend, Hay, that he thought Reddick had "killed somebody." The couple went to Pathmark to obtain a receipt to serve as an alibi for defendant.

According to defendant's statement, Burns selected the house because he knew that someone who resided there sold marijuana and ecstasy and he believed it would be an "easy hit." On two occasions after the incident, Burns told defendant to "keep [his] mouth shut." He also asked defendant to help him look for Phipps because he feared she would talk about the crime. On February 12, 2002, Reddick told defendant, "if you get slick you're gone you get got," which defendant interpreted to mean that he would be killed if he spoke to the police.

Defendant also testified at trial as follows. He claimed he did not know that the purpose of going to the Nolans' house was to commit a robbery. He testified that he was told that they were at the Nolans' residence to buy marijuana and that only after the crime occurred did he learn the information contained in his sworn statement that the purpose of the visit was to commit a robbery. Defendant observed what he assumed to be the barrel of a gun on the front seat of the car after they had arrived at the Nolan residence and he had returned to the car after urinating. When defendant inquired about the gun, Reddick told him not to worry about it; defendant assumed Reddick put the gun in the trunk. Defendant testified that when he asked what he had to do, he was referring only to his role in the drug transaction. Burns told him to "knock on the door." As the three men approached the door, Reddick, the first man on the porch, entered the house and pulled out the gun. Defendant did not knock on the door; rather, Mary Lou Nolan came to the door on her own. When Reddick pulled out a gun, defendant ran back to the car. As he did, he heard the gun go off.

Against this factual background, we first address defendant's arguments that the court improperly admitted his coconspirators' statements through the testimony of Favor and Phipps. The record does not support defendant's arguments. We conclude that the statements were properly admitted under the coconspirator exception to the hearsay rule. N.J.R.E. 803(b)(5).

"A statement, made other than by a witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions." State v. Phelps, 96 N.J. 500, 508 (1984); see also N.J.R.E. 801(c); N.J.R.E. 802. A trial court's evidentiary rulings are accorded substantial deference on appeal, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and may be reversed only if the trial judge committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

To be admissible under N.J.R.E. 803(b)(5), the statement must have been made in furtherance of the conspiracy; it must have been made during the course of the conspiracy; and "there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it." Phelps, supra, 96 N.J. at 509-10; see also State v. Savage, 172 N.J. 374, 402 (2002). Courts use a preponderance standard to determine whether to admit a coconspirator's hearsay declarations. Phelps, supra, 96 N.J. at 519.

Generally, though a statement made after the conspiratorial objective is complete is not admissible under this exception, State v. Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991), a conspiracy may continue beyond the actual commission of any crimes to include enlistment of false alibi witnesses, concealment of weapons, or flight to avoid apprehension. Savage, supra, 172 N.J. at 403; see e.g., State v. Baluch, 341 N.J. Super. 141, 184 (App. Div.) (statements about disposal of body made as part of attempt to avoid apprehension are in furtherance of conspiracy), certif. denied, 170 N.J. 89 (2001); State v. Soto, 340 N.J. Super. 47, 63, 65 (App. Div.) (statements about past events admissible as in furtherance of conspiracy if made as part of attempt to avoid apprehension), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005); State v. Cherry, 289 N.J. Super. 503, 522-24 (App. Div. 1995) (attempt to establish alibi is in furtherance of conspiracy). Statements relating to past events that "serve some current purpose, such as to promote cohesiveness, provide reassurance to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy" may be deemed to be in furtherance of a conspiracy. State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 187 (1997).

Applying this legal framework, we first examine the challenge to Favor's trial testimony. She testified that the day after the incident, she attended Burns's daughter's birthday party. He told her, "we fucked up." Burns appeared depressed at the party. He stated that he and his coconspirators went to the Nolan house to rob Michael Dixon. Burns told Favor that Chubbs and Turi went to the door, and he stayed by the car; and that Turi had a gun.

We conclude, as did the trial judge, that Favor's testimony was admissible. At the N.J.R.E. 104 hearing, Favor testified that Burns attempted to secure her as an alibi. As is noted in Savage, supra, "a conspiracy may continue beyond the actual commission of its objective if it is shown that a conspirator enlisted false alibi witnesses . . . ." 172 N.J. at 405. Here, the statements regarding the events of the shooting that Burns made to Favor prior to his attempt to enlist her as a false alibi witness served his conspiratorial purpose by explaining what occurred and the need for an alibi. See State v. James, 346 N.J. Super. 441, 457-58 (App. Div. 2001) (coconspirator's statement that the defendant had shot the victim was made to enlist aid to dispose of the weapon, and was thus in furtherance of conspiracy), certif. denied, 174 N.J. 193 (2002); see also Taccetta, supra, 301 N.J. Super. at 253. The potential alibi also served the purpose of the other coconspirators, including defendant; if Burns had an alibi witness, his coconspirators, including defendant, could not be linked to Burns on that night, and thus the proofs against the remaining coconspirators would have been affected. See Cherry, supra, 289 N.J. Super. at 523 (alibi protecting one coconspirator would directly impact the case against the remaining coconspirator).

Evidence independent of the hearsay also showed the existence of the conspiracy and defendant's relationship to it. Defendant told the police that he was aware of the plan to rob the Nolan house when the parties arrived there; he had watched Reddick put the shotgun in the car; he had observed his codefendants putting on black clothes and ski masks; and he was told by Burns that the man with the money lived in the house and defendant's job was to knock on the door. At trial, he admitted he went to the Nolan house to obtain marijuana. The evidence thus implicated him in the conspiracy he knew that Burns and Reddick were going to the house, with a shotgun, either to make an illegal drug transaction or to commit a robbery. He assisted them by agreeing to knock on the door. The record fully supports the judge's decision to permit Favor to testify to what Burns told her.

The same holds true for Phipps's testimony. Burns and Reddick went to her home immediately following the shooting. Reddick had removed the shotgun from the car while the men were in the process of fleeing from the crime scene. Reddick also left the car's engine running. At her home, Phipps saw both Reddick and Burns dressed in black. Reddick asked her for a jacket that was not black and he started to remove his clothing. Burns removed the top layer of his clothing and left his clothes with Phipps. Thus, while in Phipps's presence, Burns and Reddick took steps to avoid detection.

At about that time, defendant was also fleeing from the crime scene. He purchased a bicycle from a man on the street and rode it home. He and his girlfriend went to Pathmark to obtain a receipt so he would have evidence to support an alibi. Thus defendant, too, continued to actively engage in conspiratorial conduct. Accordingly, the record is more than adequate to permit Phipps's testimony.

Next, we address defendant's claim that the reckless manslaughter conviction was inconsistent with his first-degree felony murder acquittal. We are not convinced.

"Inconsistent verdicts are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004). A jury may render inconsistent verdicts "so long as the evidence was sufficient to establish guilt on the substantive offense[s] beyond a reasonable doubt." Id. at 55 (internal quotations omitted). As the Court recently said,

"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room. In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty. Instead, we determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty."

[State v. Lopez, 187 N.J. 91, 102 (2006) (quoting State v. Muhammad, 182 N.J. 551, 578 (2005) (quotations and citations omitted)).]

Here, the record contains adequate evidence to support the guilty verdict of reckless manslaughter.

"Criminal homicide constitutes manslaughter when . . . [i]t is committed recklessly . . . ." N.J.S.A. 2C:11-4b(1). The culpable mental state of the offense is recklessness.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2b(3).]

For a defendant to have recklessly caused a particular result, the defendant either must have been aware that he risked such a result or the "result must involve the same kind of injury or harm as the probable result and must not be too . . . accidental in its occurrence . . . ." N.J.S.A. 2C:2-3c.

The evidence here meets this test. In his sworn statement, defendant admitted he went to the house knowing they were going to commit an illegal act; he knew of the presence of the gun and what they were "going to do" when they arrived at the house on 5th Avenue; and Burns told Phipps and Favor that defendant was involved in the robbery.

Once they arrived at the Nolan residence, Burns and Reddick put on black clothing and ski masks. When defendant asked what they were doing, Burns told him that "[T]he person who I was telling you about with the money live[s] here." Defendant responded, "all right." When he asked what he had to do, Burns told him to knock on the door. After defendant went to the corner to urinate, he returned to the car and saw a shotgun in the front seat. When defendant asked why they needed a gun, Burns told him to ring the bell. Knowing all this, defendant nevertheless approached the door with the other two men; Reddick then shot and killed Mary Lou Nolan.

According to Hay, defendant told her that "Turi went to rush the lady . . . [with] a shotgun" and then "they all panicked and ran back to the car." In his own statement, defendant admitted telling Hay that "Shane had somebody set up to rob and . . . [w]hen we got there Turi shot the lady once he got in the house."

The evidence of defendant's participation in the series of events that led to Mary Lou Nolan's death satisfies the requisite element of recklessness beyond a reasonable doubt. A jury could reasonably conclude the defendant consciously disregarded a substantial and unjustifiable risk that could have resulted, and in fact did result, from his conduct.

Next, we address defendant's argument that the trial court erred by denying his motion for a new trial. Defendant contends the evidence was insufficient to prove his knowledge of the plan to commit a robbery, his intent to commit a robbery, or his commission of reckless manslaughter. Based on substantially the same evidence we have just examined, we conclude defendant's arguments are without merit.

A trial court is not permitted to set aside the verdict of the jury as against the weight of the evidence "unless it clearly and convincingly appears that there was a manifest denial of justice under the law." See State v. Sims, 65 N.J. 359, 373-74 (1974); R. 3:20-1. We apply the same standard that controls the trial court's decision, giving deference to the trial court's ability to observe witnesses' demeanor and judge their credibility. R. 2:10-1; Sims, supra, 65 N.J. at 373-74; Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). The trial court's ruling on the motion will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Here, the trial judge, after summarizing the applicable law and outlining the testimony presented to the jury, found, in part,

Obviously the jury felt that [defendant] was aware that the weapons were present, that he was in constructive possession of the weapon and that . . . Ms. Nolan died as result of the shot gun blast and that that was the reckless manslaughter.

. . . .

. . . [T]here's ample evidence to show that this defendant shared in a purpose to possess the gun, that in fact he was in constructive possession, knowing the gun was there, and that in fact that gun was used in the course of recklessly killing Ms. Nolan. And there's also no question based on the testimony of the various other people that this defendant put in defendant's own statement that they knew they were going there . . . to commit a robbery.

The record contains sufficient evidence to support the court's conclusions. Defendant's formal statement to the police acknowledged his awareness of the plan to commit a robbery and his participation in the events leading to Mary Lou Nolan's death. The jury heard evidence that though defendant was aware that Reddick had a gun, he still agreed to participate. He also knew that "the person . . . with the money" lived at the house. The testimony of Hay, Favor, and Phipps corroborated much of defendant's statement to the police. As noted by the trial judge, "[t]his was not heard in a vacuum in terms of the defendant's statement." We have no reason to disturb the trial court's denial of defendant's motion for a new trial.

With the exception of defendant's arguments with regard to his sentence, the remaining points raised in counsel's brief as well as those raised by defendant in his pro se brief are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The judge imposed a nine-year term on the reckless manslaughter conviction and a consecutive eight-year term on the robbery conviction. As the prison terms imposed were greater than the then extant presumptive terms, the sentencing procedures were in violation of Natale, supra, 184 N.J. 458. We thus vacate the sentences and remand for resentencing.

We affirm defendant's conviction and remand for resentencing.

 

Defendant and his codefendants were each tried and convicted in separate trials in 2003; Reddick in June, Burns in July, and defendant in September. The same judge presided at each trial. Each of their appeals is addressed in a separate opinion. See State v. Burns, No. A-4696-03 (App. Div. Nov. 2, 2006); State v. Reddick, No. A-4073-03 (App. Div. Nov. 2, 2006).

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

(continued)

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A-4677-03T4

November 2, 2006