STATE OF NEW JERSEY v. KASIB JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6547-05T46547-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KASIB JONES,

Defendant-Appellant.

___________________________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment

No. 98-01-0479.

Cariddi and Garcia, attorneys for appellant (Carol J. Garcia, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted together with codefendant Demetrius Middleton for conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1; armed robbery of Shazam Tahir, in violation of N.J.S.A. 2C:15-1; felony murder of Shazam Tahir, in violation of N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder of Shazam Tahir, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); armed robbery of Hafiz Hosein, in violation of N.J.S.A. 2C:15-1; felony murder of Hafiz Hosein, in violation of N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder of Hafiz Hosein, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b), and possession of a handgun with the purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4(a).

At his first trial, defendant was acquitted of conspiracy to commit robbery, both armed robbery charges, both felony murder charges, and the charge of the purposeful and knowing murder of Shazam Tahir. However, the jury failed to reach a verdict with respect to the charge of the purposeful or knowing murder of Hafiz Hosein and the two weapons offenses. Consequently, the trial court declared a mistrial as to those charges.

The jury acquitted Middleton of the charge of the purposeful or knowing murder of Hafiz Hosein but failed to reach a verdict with respect to the charge of the purposeful or knowing murder of Shazam Tahir and the two weapons offenses. Consequently, the trial court declared a mistrial as to those charges.

At the retrial on the charges with respect to which the first jury had failed to reach a verdict, defendant was found guilty of the purposeful or knowing murder of Hafiz Hosein and the weapons offenses, and Middleton was found guilty of the purposeful or knowing murder of Shazam Tahir and the weapons offenses. The trial court sentenced defendant to life imprisonment, with sixty-three and three-quarters years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for murder, and a concurrent five-year term for possession of a handgun without a permit. The court merged defendant's conviction for possession of a weapon for an unlawful purpose into his conviction for murder.

On appeal, we affirmed defendant's convictions in an unreported opinion. State v. Jones, No. A-6896-99 (Jan. 10, 2003). We also affirmed defendant's sentence, except that we vacated the period of parole ineligibility imposed under NERA and remanded for entry of an amended judgment of conviction that included the thirty-year period of parole ineligibility mandated by N.J.S.A. 2C:11-3b. The Supreme Court denied defendant's petition for certification. 177 N.J. 220 (2003).

We also affirmed Middleton's convictions and sentence, except for the parole ineligibility period imposed under NERA, State v. Middleton, No. A-4239-99 (Nov. 29, 2001), and the Supreme Court also denied his petition for certification. 171 N.J. 337 (2002).

On or about March 15, 2005, defendant filed a petition for post-conviction relief. On June 28, 2006, the trial court (the same judge who tried the case) denied defendant's petition.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I:

CONSTITUTIONAL VIOLATIONS REQUIRING REDRESS PURSUANT TO R. 3:22-2 WERE IGNORED AT PCR. THUS RELIEF IS MANDATED UNDER THE LAW OF POST CONVICTION RELIEF PURSUANT TO BOTH FEDERAL AND STATE CONSTITUTIONS. PCR COUNSEL FAILED TO EFFECTIVELY PUT FORWARD PRO SE ISSUES PRESENTED.

POINT II:

PCR COUNSEL FAILED TO ARGUE ADDITIONAL SIGNIFICANT TRIAL COUNSEL ERROR WHICH WOULD HAVE SATISFIED THE TWO PRONG TEST OF STRICKLAND V. WASHINGTON, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), UNITED STATES V. CRONIC, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) AND STATE V. FRITZ, 105 N.J. 42, 58 (1987).

A. FAILURE TO REQUEST MISTRIAL BASED

ON SEVERANCE.

B. JURY CHARGE WAS NOT MOLDED AS TO THE DEFENSE THEORY.

1. JURY CHARGE WAS NOT MOLDED AS TO THE DEFENSE THEORY THAT PETITIONER RAN AWAY IN FEAR OF HIS LIFE BUT GAVE AN UNFAIR AND IMPROPER INFERENCE OF GUILT TO THE JURY. STATE V. LEAK, 128 N.J. SUPER. 212, 217 (APP. DIV.), CERTIF. DENIED, 65 N.J. 565 (1974). STATE V. MANN, 132 N.J. 410 (1993).

2. FAILURE TO REQUEST FALSE IN ONE CHARGE.

3. FAILURE TO GIVE JURY INSTRUCTION TO CLARIFY STATE'S OBLIGATION TO PROVE REASONABLE DOUBT CONSTITUTED TRIAL ERROR AND INEFFECTIVE ASSISTANCE OF COUNSEL. IT IS AN AXIUM OF OUR LAW THAT THE JURY IS THE FINDER OF FACTS. THE JURY IN ITS WISDOM CONSIDERED THAT THE QUESTION OF WHETHER THE PETITIONER HAD BLOOD ON HIS COAT WAS A "FUNDAMENTAL" ISSUE.

4. FAILURE TO PROVIDE A MEANINGFUL ASSESSMENT OF CREDIBILITY TO JURY WAS DENIED WHICH ENTAILED A VIOLATION OF RIGHT TO CONFRONT WITNESS.

C. FAILURE TO CROSS-EXAMINE MEDICAL EXAMINER AND PRESENT DEFENSE TO THE JURY CONSISTENT WITH THE MEDICAL EVIDENCE.

D. FAILURE TO REQUEST ACCOMPLICE LIABILITY CHARGE "ALL OR NOTHING" STRATEGY IS NOT PERMITTED UNDER NEW JERSEY VIEW OF A FAIR TRIAL OR REQUEST SPECIAL INTERROGATORY.

E. JURY CHARGE OF CONSTRUCTIVE POSSESSION OF THE WEAPONS CONSTITUTED A DIRECTED VERDICT.

F. FAILURE TO MAKE MOTION AGAINST THE WEIGHT OF THE EVIDENCE BASED ON MEDICAL EXAMINER'S TESTIMONY WHICH CONTRADICTED PLACEMENT OF KILLER AND THE UNCONTRADICTED FACT THAT PETITIONER JONES WAS IN HIS VEHICLE WELL BEFORE ANY OF THE OTHER WITNESSES WERE ABLE TO REACH A POINT OF SAFETY OUTSIDE THE HOUSE ALONG WITH INTRODUCTION OF IRRELEVANT AND QUESTIONABLE BLACK TALON BULLET CONSTITUTED RECOGNIZABLE ERROR ON PCR.

G. TESTIMONY OF STATE'S HOSTILE WITNESS APPEARING IN PRISON GARB AND SHACKLES WAS TECHNICALLY A SYMPATHETIC WITNESS FOR THE DEFENSE AND MUST BE CONSIDERED BY THE PRINCIPLES ARTICULATED IN STATE V. ARTWELL, 177 N.J. 526 (2003).

H. ADMISSION OF PREJUDICIAL AND INFLAMMATORY PHOTOGRAPHS WERE NOT RELEVANT. A PHOTOGRAPH OF A LITTLE GIRL'S HAND IN HER FATHER'S BLOOD WAS PURPOSEFULLY AND CLEARLY ADMITTED INTO EVIDENCE TO INFLAME THE PASSIONS OF THE JURY AND IMPROPERLY REFERENCED BY THE PROSECUTOR CONSTITUTING MISCONDUCT.

POINT III:

SENTENCE REMAINS UNCORRECTED AND REQUEST IS MADE THAT THIS COURT REMAND FOR ENTRY OF AMENDED JUDGMENT OF CONVICTION IN COMPLIANCE WITH ITS DECISION OF DIRECT APPEAL.

POINT IV:

APPELLATE COUNSEL FAILED TO ABIDE BY HER DUTY TO RAISE MERITORIOUS ISSUES.

We reject these arguments and affirm the denial of defendant's petition. The only argument that warrants discussion, which is presented under Points I and IV of defendant's brief, is that his trial and appellate counsel were ineffective in failing to argue that evidence that his motive in committing the murder was the theft of drugs should have been excluded at the retrial under the Double Jeopardy Clauses of the United States and New Jersey Constitutions and principles of collateral estoppel because defendant was acquitted of both armed robbery and felony murder charges at his first trial.

Defendant's argument is similar to the argument rejected by the Supreme Court of the United States in Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). In Dowling, the defendant was charged with attempted robbery and other offenses for a home invasion during which the victim ripped off the mask of the intruder, who she identified as the defendant. Id. at 344-45, 110 S. Ct. at 670, 107 L. Ed. 2d at 715. However, the defendant was acquitted of the charges based on the home invasion. Id. at 345, 110 S. Ct. at 670, 107

L. Ed. 2d at 715. Despite this acquittal, the government introduced evidence of defendant's commission of this home invasion in his subsequent trial for a bank robbery. Id. at 344-45, 110 S. Ct. at 670, 107 L. Ed. 2d at 715. This evidence was elicited for two purposes: first, to strengthen the government's identification of the defendant as the bank robber, because the perpetrator of that offense wore a mask and carried a gun that were similar to the mask and gun used by the perpetrator of the home invasion; and second, to link the defendant with another person who the victim identified as the second perpetrator of the home invasion, who the police found in a car parked in front of the bank that the government theorized the defendant had intended to use as a getaway car. Id. at 345, 110 S. Ct. at 670, 107 L. Ed. 2d at 715-16.

On appeal from his conviction for the bank robbery, the defendant argued that the admission of evidence of his alleged commission of the home invasion attempted robbery violated the doctrine of collateral estoppel incorporated in the Double Jeopardy Clause of the Fifth Amendment because he was acquitted of the charges based on that crime. Id. at 347-48, 110 S. Ct. at 671-72, 107 L. Ed. 2d at 717. In rejecting this argument, the Court stated:

[W]e decline to extend . . . the collateral- estoppel component of the Double Jeopardy Clause to exclude in all circumstances

. . . relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.

For present purposes, we assume for the sake of argument that Dowling's acquittal established that there was a reasonable doubt as to whether Dowling was the masked man who entered Vena Henry's home with Delroy Christian two weeks after the First Pennsylvania Bank robbery. But to introduce evidence on this point at the bank robbery trial, the Government did not have to demonstrate that Dowling was the man who entered the home beyond a reasonable doubt: the Government sought to introduce Henry's testimony under Rule 404(b), and, . . .

"[i]n the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Because a jury might reasonably conclude that Dowling was the masked man who entered Henry's home, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the first trial, the collateral-estoppel component of the Double Jeopardy Clause is inapposite.

[Id. at 348-49, 110 S. Ct. at 672, 107 L. Ed. 2d at 717-18 (citation omitted) (footnote omitted).]

The same reasoning as in Dowling compels rejection of defendant's argument that evidence that his intent in entering the Tahir apartment was to steal drugs should have been excluded because he was acquitted of the conspiracy to commit robbery, armed robbery and felony murder charges in his first trial. The jury's verdict in the first trial only showed that there was reasonable doubt whether the State had proven all of the elements of the offenses of which defendant was acquitted. That verdict did not establish that defendant was not one of the persons who entered the Tahir apartment and shot Shazam Tahir and Hafiz Hosein. In fact, the jury's failure to reach a verdict on the charges that defendant purposefully or knowingly murdered Hafiz Hosein and that Middleton purposefully or knowingly murdered Shazam Tahir shows that the first jury was unable to decide that issue. Therefore, as in Dowling, the jury in the second trial could still reasonably conclude that defendant had entered the Tahir apartment and that his motive for murdering Hafiz Hosein was to steal drugs.

Moreover, evidence that Shazam Tahir and his brother Ashmeer Tahir were engaged in the sale of cocaine from Shazam Tahir's apartment and that the killers gained entry to the Tahir apartment by posing as prospective purchasers was essential in proving the murder charges against defendant and Middleton. Consequently, if the State had been required to sanitize its proofs in a manner that excluded all evidence that defendant and Middleton came to the Tahir apartment in order to steal drugs, the State's presentation of its proofs would have been severely circumscribed. We conclude for the reasons previously stated that the Double Jeopardy Clauses of the United States and State Constitutions and principles of collateral estoppel did not compel such a restriction on the State's proofs. Therefore, defendant's counsel at his retrial and on the direct appeal were not ineffective in failing to raise this argument.

 
Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2).

Affirmed.

The jury also acquitted Middleton of the charges of conspiracy to commit robbery and of the armed robbery and felony murder of Hafiz Hosein. Although the jury at the first trial failed to reach a verdict with respect to the charges of the armed robbery and felony murder of Shazam Tahir, the State dismissed those charges before the second trial.

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A-6547-05T4

October 6, 2009