STATE OF NEW JERSEY v. JAKE BRADY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5832-05T45832-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAKE BRADY,

Defendant-Appellant.

_____________________________________

 

Submitted December 17, 2007 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2083.

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

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The sole issue raised in this criminal appeal is whether the trial judge's multiple instructions to the jury concerning the guilty plea of a co-defendant, who had recanted at defendant's trial when he was called as a prosecution witness, were confusing and unduly prejudicial. Because we are satisfied that the judge's instructions were comprehensible, fair and consistent with the law and the model criminal jury charges, we affirm defendant's convictions.

The State's proofs at trial showed the following. On the evening of February 27, 2005, defendant Jake Brady was in the company of his brother Mike and his brother's close friend, Raheem Pearsall. The three men drove to an apartment complex in Gloucester Township, where Mike Brady had arranged to purchase drugs from a seventeen-year-old male, R.C. Upon arriving at the apartment complex, Mike Brady left and went looking for "blunts," cigars emptied of tobacco and refilled with marijuana.

R.C. then approached the apartment complex on a bicycle. He encountered a short white male, who he identified at trial as defendant, and a tall black male, who he identified at trial as Pearsall. Defendant said to R.C., "What's up?," or "Sup?" R.C. responded, "What's up?" According to R.C., defendant then began to strike him, knocking him off his bicycle. After R.C. fell to the ground, defendant jumped on him, forced him into a headlock and started going through his pockets. Pearsall joined in and kicked R.C. in the head, while defendant yelled, "Give me everything. Give me everything now."

Fearing for his life, R.C. managed to pull out a snub-nosed handgun that he had been carrying. While still in defendant's headlock, R.C. fired at Pearsall. The shot hit Pearsall in the stomach. Defendant tried to wrest the gun away. R.C. then fired a second shot, which went through defendant's hands. The shots enabled R.C. to break free. He rode his bicycle back to his apartment. His attackers did not succeed in taking the drugs or cash that were in his pockets.

Following this violent encounter, defendant and Pearsall found Mike Brady and drove to a friend's house nearby. Police and first aid personnel then arrived at the house, in response to an emergency call. Defendant and Pearsall, who was badly injured, were taken to a local hospital.

In a tape-recorded statement he provided to the police before he was considered a suspect, defendant admitted that he had gone to the apartment complex with Pearsall and his brother Mike, knowing that Mike was planning to buy drugs there from another young man. He asserted that, after Mike had dropped him and Pearsall off to make the purchase and driven away, the young man approached on a bicycle and, without provocation, shot Pearsall. To protect his friend, defendant then allegedly lunged at the bicyclist, and got him into a headlock. This caused the bicyclist to shoot defendant in the hands.

Defendant altered his story, however, in another tape-recorded statement he gave to the police two weeks later, after being issued Miranda warnings. In that second recorded statement, defendant acknowledged that when he drove to the apartments, he knew that Pearsall was planning to rob the young drug dealer. Defendant stated that when he and Pearsall encountered the youth, the youth stopped his bicycle. Pearsall then grabbed the youth by the shirt, and the youth, in response, pulled out a gun and shot Pearsall. Defendant then admittedly "jumped on" the youth, because he knew the youth "was going to try to shoot me next."

The attack on R.C. and the ensuing gunfire was observed by another minor, G.P., who resided at the same apartment complex. G.P. testified at trial that he had seen "this guy riding up pretty slowly on a bike to these two other guys." He then saw the rider knocked off his bike, and heard words exchanged. According to G.P., who was approximately seventy-five feet away at the time, "it looked like [the two men] were trying to beat [the bicyclist] up or rob him or something." G.P. then saw "a couple [of] gunshot flashes." G.P. then ran off in the opposite direction. G.P. reported the incident to the police, telling them that he "saw the whole thing." He could not, however, identify the participants, because he had been too far way to see their faces.

Defendant and Pearsall were subsequently arrested. They were indicted together in a two-count indictment charging them with second-degree robbery, contrary to N.J.S.A. 2C:15-1, and second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

Meanwhile, R.C. also was taken into police custody and charged as a juvenile with possession of a weapon without a permit. R.C. pleaded guilty to the weapons charge and served a term at the New Jersey Training School juvenile facility at Jamesburg. When he testified at defendant's trial, R.C. verified that he had planned to sell drugs to Mike Brady near the apartment complex. He then recounted how defendant had knocked him off his bike and had physically attacked him with Pearsall's assistance. R.C. perceived that defendant and Pearsall had attacked him because they wanted his "drugs and stuff." He fired the two shots at them in self-protection.

Prior to trial, Pearsall pled guilty to the conspiracy count. As part of his plea agreement with the State, Pearsall agreed to testify against defendant at his trial. During the course of Pearsall's plea hearing, he supplied under oath a factual basis for the conspiracy offense. In particular, Pearsall acknowledged that he and defendant had agreed to steal "weed" from the "kid" who had arranged to sell drugs to Mike Brady. Pearsall told the judge that when he and defendant thereafter confronted the "kid," defendant pulled him off a bicycle and started hitting him, which caused the youth to shoot back. In recognition of his cooperation, Pearsall received a sentence of 364 days in the county jail, with three years of probation.

The matter was tried before a jury, solely against defendant, over the course of four days. The State presented testimony from the robbery victim, R.C., and the eyewitness, G.C., as well as testimony from police officers who had taken part in the investigation. The State also played the tape recorded statements that defendant had given to the police.

The prosecution also called Pearsall to the stand. In his trial testimony, Pearsall recanted several aspects of the factual account he had subscribed to at his earlier plea hearing. Among other things, Pearsall initially told the jury that he had not intended to take anything from R.C. This recantation prompted the assistant prosecutor to play for the jury relevant portions of Pearsall's statements from his plea hearing.

The playback was accompanied by a detailed instruction from the judge. The judge explained that the jurors were to consider Pearsall's earlier statements at his plea hearing only for the limited purpose of their potential bearing on the credibility of Pearsall's present denial of entering into a conspiracy. The judge admonished the jurors several times that they were not to consider Pearsall's guilty plea as proof of defendant's own guilt. Following that playback, Pearsall conceded to the jury that he and defendant had planned in advance to rob the youth.

Defendant chose not to testify at trial and he presented no witnesses. The jury convicted him of both counts of the indictment. He was thereafter sentenced to an eight-year prison term on the robbery count, which merged with the conviction on the conspiracy count. The court imposed an 85% period of parole ineligibility, in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2, plus various fines and penalties. At the same time, the court also imposed concurrent sentences on another indictment, which are not relevant here.

The only issue raised on this appeal is defendant's claim that the trial judge's instructions as to how the jury should consider Pearsall's guilty plea were "ambiguous and inadequate." He criticizes the limiting instructions that the judge gave to the jurors at the time the excerpts from Pearsall's plea hearing were played. He also criticizes the manner in which the trial judge repeated those instructions within the final jury charge. His maintains that the instructions were repetitive and confusing, asserting in his brief that "the instruction[s]' main difficulty was that [they] turned on a diaphanous distinction between the plea as a conceptual entity and the factual basis that underlay it." Additionally, defendant claims that the trial judge should not have told the jurors that she happened to be the judge who took Pearsall's plea. He argues that the gratuitous disclosure somehow intimated to the jury that the judge possessed special insight into Pearsall's credibility or defendant's guilt.

We have fully considered these arguments and the record as a whole. As an initial matter, we note that defendant's trial counsel did not object to the instructions, either during the trial when Pearsall's grand jury statements were played, or later in the final charge. We also note that the trial judge reviewed with counsel during the charge conference her plan to repeat that guidance in the final charge. Defendant's repeated failure to interpose a timely objection warrants the application of a "plain error" standard of review. See R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

In any event, there was no error, much less plain error, in the manner in which the judge explained these legal concepts to the jury. The judge's instructions substantially and appropriately tracked the applicable Model Criminal Jury Charge, entitled "Testimony of a Cooperating Co-Defendant or Witness" (Revised February 2, 2006). Her charge was also generally in conformity with the standards of State v. Stefanelli, 78 N.J. 418, 430 (1979), and State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005), which prescribe that a jury must be cautioned not to use a co-defendant's guilty plea as substantive proof of the guilt of the defendant who is on trial, but that the plea may be used to impeach the credibility of the testifying co-defendant who has recanted.

The limiting instructions were repetitive only because one of the jurors, Juror No. 11, had initially requested clarification after they were read the first time. The judge conscientiously responded to the juror's concern by repeating the instruction, with minor paraphrasing. All jurors eventually indicated that they understood. The final charge was likewise clear and was consistent with the model charge and the case law.

Although we recognize the well-settled principle that "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Green, 86 N.J. 281, 287 (1981), we are satisfied that the judge's instructions to the jury concerning Pearsall's plea proceeding here were reasonably understandable, legally sound, and caused no unfair prejudice.

Likewise, we are not troubled by the judge's revelation that she happened to be the judge who presided over Pearsall's plea hearing. The judge injected no extra-record facts in her innocuous passing comment, and did not intimate to the jury any special knowledge of defendant's guilt. She made no evaluative comment about whether Pearsall had been more truthful at his plea proceeding than he was at trial. The judge most certainly did not vouch for Pearsall's veracity.

For these reasons, the appeal lacks merit, and defendant's conviction is affirmed.

 

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

Defendant does not contest his sentence on appeal.

Although it is not dispositive because the appeal is based upon an alleged flaw in the jury instructions, we must note that the evidence of defendant's guilt, independent of Pearsall's testimony, is very substantial. Those proofs include the statements of the robbery victim R.C., the eyewitness, G.P., and defendant's own incriminating statements to the police.

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A-5832-05T4

December 27, 2007