State v. JacksonState v. Jackson
Defendant Jerry Jackson and his co-defendant Kеnneth Hardison were charged in the same indictment with conspiracy to commit robbery, armed robbery of three individuals in a tavern on November 19, 1980, possession of a handgun for an unlawful purpose, and aggravated assault and armed robbery of a motel manager in his office later the same night. Hardison was also chаrged with possession of brass knuckles for an unlawful purpose.
Both defendants were found not guilty of the tavern robberies1 but were convicted of all other charges. Prison terms were imposed on Jackson as follows: on the conspiracy charge, a five year term; on the charge for possession of a gun for an unlawful purpose, a five year term consecutive to the conspiracy sentence; on the aggravated assault charge, a ten year term consecutive to the conspiracy sentence; on the charge for armed robbery of the motel manager, a fifteen year term conseсutive to the conspiracy sentence. All of the sentences were imposed to run concurrently except for the conspiracy sentence to which all others were made consecutive. Thus, an aggregate term of twenty years in prison was imposed together with parole ineligibility for five years and a $100 penalty payable to the Violent Crimes Compensation Board.
On this appeal, defendant Jackson challenges the trial judge‘s refusal to grant separate trials to each of the two defendants, the refusal to sever the counts of the indictment for trial, admissibility of identification evidence, failure to merge various counts of the indictment, certain jury instructions and the weight of the evidence. He also attacks the sentence imposed as manifestly excessive. Codefendant Hardison has filed a separate appeal which we will resolve in a separate opinion.
At approximately midnight Jackson and his three companions arrived at the Edison Motor Lodge. Two of them entered the registration office. They inquired about accommodations and then told the manager that they would go outside to confer with their girlfriends. They soon returned and robbed the manager at gun point. The victim, who identified Jackson as the gunman and Hardison as his companion, was fоrced to his hands and knees in the rear office where he was robbed. One of the robbers, identified as Jackson said, “Let‘s shoot him” but the other identified as Hardison replied “Let‘s knock him cold because he won‘t go any place.” With that, Hardison, using brass knuckles, punched the manager in the mouth. The two robbers were then obsеrved fleeing toward a red and white Cadillac.
When the red and white Cadillac left the Edison Motor Lodge, it was observed within a few blocks by police officers in an unmarked car. When they were advised that a red and white Cadillac had been involved in a motel robbery, they gave chase. The Cadillac stopped suddеnly when it straddled a cement divider and the four men fled on foot. Jackson was
Jackson and Hardison both gave a number of oral statements to the police. Both admitted their presence in the tavern and the occurrence of the robbery. Thеy variously accused their other two companions and denied any intention to participate. In any event, both were acquitted of the tavern robbery charges.
Their statements also conceded that they stopped at the Edison Motor Lodge. Jackson variously claimed that only Brown and Porter went in. In another statement he admitted being “involved with” the motel robbery. Hardison admitted that he went into the motel office “to inquire about a room.” He claimed that Brown and Porter committed the armed robbery. In another statement, however, Hardison admitted involvement in the robbery.
We have considered the argument offerеd by both co-defendants challenging the denial of their motions for separate trials. Our review of the record including the various inculpatory statements made by each of them fully satisfies us that those statements were “interlocking confessions” which could be admitted in a joint trial within the doctrine of Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), a nontestifying codefеndant‘s confession implicating Bruton was admitted into their joint trial with a cautionary instruction. Id. at 124-125, 88 S.Ct. at 1621-1622. The United States Supreme Court held that admission of such a confession violated Bruton‘s “right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.”
However, in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), Justice Rehnquist, writing for a plurality of the United States Supreme Court, held that when a defendant has confessed and his confession interlocks with that of his codefendant, admission of the interlocking confessions in a joint trial with proper limiting instructions “conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” Id. at 75, 99 S.Ct. at 2140. Examining the еffect of this new rule upon the right of cross-examination, a key factor in Bruton, Justice Rehnquist stated
... the incriminating statements of a codefendant will seldom, if ever, be of the `devastating’ character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton — the `constitutional right of cross-examination,’ id. [391 U.S.]. at 137 [88 S.Ct. at 1628], has far less practical value to a defendant who has confessed to a crime than to one who has consistently maintained his innocence. [at 73, 99 S.Ct. at 2139].
* * * * * * * *
But when the defendant‘s own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court‘s instructions is not so `devastating’ or `vital’ to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting instructions. [at 75, 99 S.Ct. at 2140].
In State v. Young, 46 N.J. 152 (1965), the New Jersey Supreme Court anticipated the Bruton holding in its ruling that in joint trials the out-of-court confession of a defendant implicating a codefendant may not be admitted at trial unless there can be effective deletion of all references to the nonconfessor and in the event effective deletion is not feasible, there must be separate trials. Id. at 159. Notably, the Young court reasoned
We are fully satisfied that the trial of both defendants together and use of their confessions with limiting instructions was proper under the “harmless error” approach of State v. Young, or the per se rule adopted by the United States Supreme Court in Parker v. Randolph, supra. All of the statements оf both defendants admitted their presence at the scene of both robberies although both defendants tended to minimize their participation. Neither the refusal of separate trials for each defendant nor use of their statements in the joint trial was reversible error.
Defendants also attack the joinder of offenses as prejudicial. Here, again, our analysis of the record satisfies us that the trial judge did not err in denying the motions for separate trials for the Lincoln Cafe and Edison Motor Lodge offenses.
Appellant contends that the two robbery charges were based upon separate and unrelated evеnts. We find, to the contrary, that the record includes evidence of a “common scheme or plan” rather than separate and unrelated events. Thus, the offenses could properly be joined for trial.
Finally, in view of Jackson‘s and Hardison‘s arguments that evidence of one robbery may have been used to establish guilt in the other robbery, the test of prejudice is “whether a jury could arrive at a determination on each charge irrespective of the evidence concerning guilt on other charges.” State v. Cole, 154 N.J. Super. 138, 143 (App.Div. 1977), certif. den. 78 N.J. 415 (1978). In this case, the jury‘s action in acquitting defendants of the robbery of the Lincoln Cafe victims while convicting them of the Edison Motor Lodge robbery demonstrates that it was able to cоnsider the evidence relating to each of the charges separately. See State v. Hines, 109 N.J. Super. 298, 306 (App.Div. 1970), certif. den. 56 N.J. 248 (1970), cert. den. 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970).
Appellant also argues that he was prejudiced by the joint trial because he objected to the jury instruction concerning a defendant‘s election not to testify. The instruction was requested by Hardison. Appellant points out that this diffiсulty would have been avoided in separate trials. However, we are satisfied that this contention, also, must fail.
The giving of a cautionary instruction regarding the defendant‘s failure to testify does not violate his privilege against self-incrimination under the Fifth and Fourteenth Amendments. Lakeside v. Oregon, 435 U.S. 333, 340-342, 98 S.Ct. 1091, 1095-1096, 55 L.Ed.2d 319 (1978). In a joint trial, where one co-defendant requеsts such an instruction and the other objects, the instruction should be given despite the objection. See State v. McNeil, 164 N.J. Super. 27 (App.Div. 1978), certif. den. 79 N.J. 497 (1979); State v. Lynch, 177 N.J. Super. 107 (App.Div. 1981), certif. den. 87 N.J. 347 (1981). Furthermore, this potential problem is not sufficient in itself to require
We have examined appellant‘s allegations of error with regard to identification procedures. We find them to be without merit. Since both defendants were found not guilty on the tavern robbery charges, the identifications by the tavern victims are academic. Furthermore, they do not deny their presence in the tavern when the robbery occurred. With respect to the photographic identifications by the motel manager, we are fully satisfied that the identification procedures were not unduly suggestive. See State v. Matlack, 49 N.J. 491, 498 (1967). The in-court identifications were properly admitted without a substantial likelihood of irreparable misidentification. See State v. Ford, 165 N.J. Super. 249, 254 (App.Div. 1978) (Michels, J., dissenting), rev‘d on dissent, 79 N.J. 136 (1979).
Appellant argues that the Code of Criminal Justice prohibits conviction for both conspiracy to rob and the substantive robbery offense. We agree.
There is no way to determine whether the jury convicted defendant of conspiracy to commit the tavern robbery or conspiracy to commit the motel robbery or conspiracy to commit both. The еssence of conspiracy is the illegal agreement. The illegal agreement included robbery and the jury found defendant guilty of the motel robbery within the ambit of the conspiracy. The conspiracy conviction and the sentence imposed thereon must be vacated.
Our review of the record satisfies us that appellant‘s argument concerning the weight of evidence and the allegedly duplicitous count of the indictment are clearly without merit.
We have considered the nature of the offenses, the comments of the sentencing judge and the contents of the presentence investigation. We are fully satisfied that the sentences imposed, except as must be vacated consistent with this opinion, are not manifestly excessive. State v. Whitaker, 79 N.J. 503, 512 (1979). However, the mandatory term of parole ineligibility was imposed with no indication of the conviction to which it is applicable. We сonclude that it was intended to apply to the robbery offense and was therefore not inappropriate under the circumstances.
The sentences on the conspiracy and possession of a weapon for an unlawful purpose charges are vacated. In all other respects the convictions and sentences imposed are affirmed.