NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0410-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTOINE P. JONES,
Defendant-Appellant. __________________________
Submitted September 25, 2019 – Decided October 3, 2019
Before Judges Haas and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-03-0925.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM On March 20, 2013, a Camden County grand jury returned a seventeen-
count indictment charging defendant Antoine P. Jones with second-degree
attempted burglary (armed), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count one);
second-degree conspiracy to commit burglary (armed), N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2 (count two); two counts of second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts three and ten); two
counts of second-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b)
(counts four and eleven); two counts of first-degree murder, N.J.S.A. 2C:11-
3(a)(1) (counts five and six); two counts of first-degree felony murder, N.J.S.A.
2C:11-3(a)(3) (counts seven and eight); first-degree armed robbery, N.J.S.A.
2C:15-1 (count nine); third-degree hindering apprehension or prosecution,
N.J.S.A. 2C:29-3(b)(1) (count twelve); third-degree hindering apprehension,
N.J.S.A. 2C:29-3(a)(3) (count thirteen); first-degree witness tampering, N.J.S.A.
2C:28-5(a)(1) and (2) (count sixteen); and second-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(3) (count seventeen). 1
1 The grand jury also indicted co-defendant Juan Law on counts one, two, seven, eight, and nine. The indictment separately charged Law with two counts of third- degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (counts fourteen and fifteen). Prior to trial, Law pled guilty to first-degree robbery and second-degree burglary. A-0410-17T4 2 At the conclusion of the trial, the jury found defendant guilt y of third-
degree conspiracy to commit burglary, as a lesser-included offense on count two;
third-degree witness tampering, as a lesser-included offense on count sixteen; and
second-degree hindering apprehension or prosecution on count seventeen. The
jury acquitted defendant of all of the remaining counts.
The judge merged count seventeen into count sixteen, and sentenced
defendant to eight years in prison on count seventeen, and to a consecutive four -
year term on count two. Therefore, the judge imposed an aggregate twelve-year
sentence.2 This appeal followed.
On appeal, defendant raises the following contention:
THE TRIAL COURT FAILED TO INSTRUCT JURORS TO EVALUATE WITH CAUTION THE ALLEGATIONS THAT DEFENDANT, IN UNRECORDED ORAL REMARKS, (1) CONSPIRED WITH HIS CO-DEFENDANT TO COMMIT BURGLARY, AND (2) HINDERED HIS GIRLFRIEND'S WILLINGNESS TO INCRIMINATE HIM IN A HOMICIDE-ROBBERY INVESTIGATION. (Not Raised Below).
2 Prior to sentencing, defendant pled guilty to one count of third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(3), as charged in a separate Camden County indictment. The judge sentenced defendant to a concurrent four-year term on this charge. A-0410-17T4 3 After reviewing the record in light of the contentions advanced on appeal,
we affirm.
I.
At trial, the State's theory of the case was that defendant conspired with
Law to rob and kill two people. According to Law, defendant asked him to
accompany defendant to Trenton to burglarize the home of defendant's cousin,
Tarik Ali. Law agreed, and the two men traveled to Trenton by train. When they
arrived at Ali's house, a woman stated that Ali was not at home. She refused to
let defendant and Law inside the house, and defendant then called Ali to arrange
to have him meet the men in Burlington that afternoon.
Defendant and Law took the train to Burlington, where they were met by
Ali and his friend Tara Ryan, who drove the men back to Camden in her car.
Later that night, a resident found Ali and Ryan dead in Ryan's car on a Camden
street. Both victims had been shot in the head.
Law testified that throughout the day, defendant continued to pester Ali for
money that he alleged Ali owed him. Ali refused to pay. While Ryan was driving
the three men in her car, defendant again demanded that Ali give him money.
When Ali failed to do so, defendant shot him in the head, and then shot Ryan.
Law stated he got out of the car and threw up, while defendant began going
A-0410-17T4 4 through Ali's pockets. Defendant then returned to the car and shot Ryan a second
time.
According to Law, he and defendant ran to Law's house where they changed
their clothes. Defendant then called his girlfriend, A.C., and asked her to pick
him up. A.C., who was celebrating her birthday, did so and drove defendant to
her party. A.C. testified that defendant told her at the party that he had killed Ali.
A.C. testified that about a month after the shootings, Camden detectives
reached out to talk to her. Before she met with them, she stated that defendant
threatened to harm her and her children if she told them what she knew about
Ali's murder. A.C. also stated that defendant became physically aggressive with
her. A.C. did what defendant asked, and refused to tell the detectives that
defendant had confessed his involvement to her. About a year later, the detectives
contacted A.C. again and, this time, she told the detectives everything she knew
about the incident.
II.
On appeal, defendant argues that the trial judge erred by failing to give the
jury a sua sponte Hampton 3 and Kociolek4 charge concerning Law's and A.C.'s
3 State v. Hampton, 61 N.J. 250 (1972). 4 State v. Kociolek, 23 N.J. 400 (1957). A-0410-17T4 5 testimony about the oral statements he made to them. We disagree.
Because defendant is raising this contention for the first time on appeal, he
must establish that the error about which he complains rises to the level o f plain
error, that is, it had the capacity to result in the jury reaching a decision it might
otherwise not have made. R. 2:10-2. Defendant has failed to meet this standard.
In Hampton, the Supreme Court held that when a defendant's confession is
admitted in evidence, the judge shall instruct the jurors "that they should decide
whether . . . the defendant's confession is true," and if they conclude that it is "not
true, then they must . . . disregard it for purposes of discharging the ir functions
as fact finders." Hampton, 61 N.J. at 272. Here, defendant did not give a
statement to the police and, therefore, a Hampton charge concerning the
statements he made to Law and A.C. was not required. State v. Baldwin, 296 N.J.
Super. 391, 398 (App. Div. 1997) (holding that "a special cautionary instruction
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0410-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTOINE P. JONES,
Defendant-Appellant. __________________________
Submitted September 25, 2019 – Decided October 3, 2019
Before Judges Haas and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-03-0925.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM On March 20, 2013, a Camden County grand jury returned a seventeen-
count indictment charging defendant Antoine P. Jones with second-degree
attempted burglary (armed), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count one);
second-degree conspiracy to commit burglary (armed), N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2 (count two); two counts of second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts three and ten); two
counts of second-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b)
(counts four and eleven); two counts of first-degree murder, N.J.S.A. 2C:11-
3(a)(1) (counts five and six); two counts of first-degree felony murder, N.J.S.A.
2C:11-3(a)(3) (counts seven and eight); first-degree armed robbery, N.J.S.A.
2C:15-1 (count nine); third-degree hindering apprehension or prosecution,
N.J.S.A. 2C:29-3(b)(1) (count twelve); third-degree hindering apprehension,
N.J.S.A. 2C:29-3(a)(3) (count thirteen); first-degree witness tampering, N.J.S.A.
2C:28-5(a)(1) and (2) (count sixteen); and second-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(3) (count seventeen). 1
1 The grand jury also indicted co-defendant Juan Law on counts one, two, seven, eight, and nine. The indictment separately charged Law with two counts of third- degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (counts fourteen and fifteen). Prior to trial, Law pled guilty to first-degree robbery and second-degree burglary. A-0410-17T4 2 At the conclusion of the trial, the jury found defendant guilt y of third-
degree conspiracy to commit burglary, as a lesser-included offense on count two;
third-degree witness tampering, as a lesser-included offense on count sixteen; and
second-degree hindering apprehension or prosecution on count seventeen. The
jury acquitted defendant of all of the remaining counts.
The judge merged count seventeen into count sixteen, and sentenced
defendant to eight years in prison on count seventeen, and to a consecutive four -
year term on count two. Therefore, the judge imposed an aggregate twelve-year
sentence.2 This appeal followed.
On appeal, defendant raises the following contention:
THE TRIAL COURT FAILED TO INSTRUCT JURORS TO EVALUATE WITH CAUTION THE ALLEGATIONS THAT DEFENDANT, IN UNRECORDED ORAL REMARKS, (1) CONSPIRED WITH HIS CO-DEFENDANT TO COMMIT BURGLARY, AND (2) HINDERED HIS GIRLFRIEND'S WILLINGNESS TO INCRIMINATE HIM IN A HOMICIDE-ROBBERY INVESTIGATION. (Not Raised Below).
2 Prior to sentencing, defendant pled guilty to one count of third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(3), as charged in a separate Camden County indictment. The judge sentenced defendant to a concurrent four-year term on this charge. A-0410-17T4 3 After reviewing the record in light of the contentions advanced on appeal,
we affirm.
I.
At trial, the State's theory of the case was that defendant conspired with
Law to rob and kill two people. According to Law, defendant asked him to
accompany defendant to Trenton to burglarize the home of defendant's cousin,
Tarik Ali. Law agreed, and the two men traveled to Trenton by train. When they
arrived at Ali's house, a woman stated that Ali was not at home. She refused to
let defendant and Law inside the house, and defendant then called Ali to arrange
to have him meet the men in Burlington that afternoon.
Defendant and Law took the train to Burlington, where they were met by
Ali and his friend Tara Ryan, who drove the men back to Camden in her car.
Later that night, a resident found Ali and Ryan dead in Ryan's car on a Camden
street. Both victims had been shot in the head.
Law testified that throughout the day, defendant continued to pester Ali for
money that he alleged Ali owed him. Ali refused to pay. While Ryan was driving
the three men in her car, defendant again demanded that Ali give him money.
When Ali failed to do so, defendant shot him in the head, and then shot Ryan.
Law stated he got out of the car and threw up, while defendant began going
A-0410-17T4 4 through Ali's pockets. Defendant then returned to the car and shot Ryan a second
time.
According to Law, he and defendant ran to Law's house where they changed
their clothes. Defendant then called his girlfriend, A.C., and asked her to pick
him up. A.C., who was celebrating her birthday, did so and drove defendant to
her party. A.C. testified that defendant told her at the party that he had killed Ali.
A.C. testified that about a month after the shootings, Camden detectives
reached out to talk to her. Before she met with them, she stated that defendant
threatened to harm her and her children if she told them what she knew about
Ali's murder. A.C. also stated that defendant became physically aggressive with
her. A.C. did what defendant asked, and refused to tell the detectives that
defendant had confessed his involvement to her. About a year later, the detectives
contacted A.C. again and, this time, she told the detectives everything she knew
about the incident.
II.
On appeal, defendant argues that the trial judge erred by failing to give the
jury a sua sponte Hampton 3 and Kociolek4 charge concerning Law's and A.C.'s
3 State v. Hampton, 61 N.J. 250 (1972). 4 State v. Kociolek, 23 N.J. 400 (1957). A-0410-17T4 5 testimony about the oral statements he made to them. We disagree.
Because defendant is raising this contention for the first time on appeal, he
must establish that the error about which he complains rises to the level o f plain
error, that is, it had the capacity to result in the jury reaching a decision it might
otherwise not have made. R. 2:10-2. Defendant has failed to meet this standard.
In Hampton, the Supreme Court held that when a defendant's confession is
admitted in evidence, the judge shall instruct the jurors "that they should decide
whether . . . the defendant's confession is true," and if they conclude that it is "not
true, then they must . . . disregard it for purposes of discharging the ir functions
as fact finders." Hampton, 61 N.J. at 272. Here, defendant did not give a
statement to the police and, therefore, a Hampton charge concerning the
statements he made to Law and A.C. was not required. State v. Baldwin, 296 N.J.
Super. 391, 398 (App. Div. 1997) (holding that "a special cautionary instruction
is not required when a defendant has allegedly made a voluntary inculpatory
statement to a non-police witness without being subjected to any form of physical
or psychological pressure").
The trial judge also did not err by failing to give the jury a sua sponte
Kociolek charge. The Kociolek charge pertains to the reliability of an inculpatory
statement made by a defendant to any witness. Kociolek, 23 N.J. at 421-23. As
A-0410-17T4 6 explained in Kociolek, the jury should be instructed to "'receive, weigh and
consider such evidence with caution,' in view of the generally recognized risk of
inaccuracy and error in communication and recollection of verbal utterances and
misconstruction by the hearer." Id. at 421. However, a Kociolek charge need not
be provided to the jury where "an alleged oral inculpatory statement was not made
in response to police questioning, and there is no genuine issue regarding its
contents, . . . because the only question the jury must determine is whether the
defendant actually made the alleged inculpatory statement." Baldwin, 296 N.J.
Super. at 401-02.
Although our Supreme Court has directed the Kociolek charge to be given
whether or not specifically requested by a defendant, it has also determined that
the failure to give this charge is not plain error per se. State v. Jordan, 147 N.J.
409, 428 (1997) (noting it would be "a rare case where failure to give a Kociolek
charge alone is sufficient to constitute reversible error"). We have held that
"[w]here such a charge has not been given, its absence must be viewed within the
factual context of the case and the charge as a whole to determine whether its
omission was capable of producing an unjust result." State v. Crumb, 307 N.J.
Super. 204, 251 (App. Div. 1997) (finding "no reported case in which a failure to
include a Kociolek charge has been regarded as plain error").
A-0410-17T4 7 Here, defendant did not make the statements in response to police
questioning and there was no dispute as to the content of the statements at trial.
In addition, defense counsel thoroughly cross-examined both Law and A.C.
concerning their allegations,5 and the trial judge carefully instructed the jurors
regarding how to assess the credibility of the witnesses. In addition, the judge
gave a prior inconsistent statement instruction to the jury and, in doing so,
specifically told the jury to scrutinize Law and A.C.'s testimony in light of the
"inconsistencies [that] were shown between the[ir] prior statements and those
given on the stand."
Given the trial judge's extensive credibility instructions, we conclude that
the issue of the reliability of defendant's statements to Law and A.C. was
"thoroughly and sufficiently placed before the jury." State v. Feaster, 156 N.J. 1,
73 (1998). Thus, the judge's failure to give a Kociolek instruction was not plain
error. Id. at 72-73 (finding no plain error even though the defendant's
incriminating oral statements were "at the heart of the State's case against
defendant").
5 During cross-examination, defense counsel was also able to bring out that the county prosecutor gave A.C. approximately $10,000 for relocation assistance, and Law received a favorable sentencing recommendation in return for his cooperation during defendant's prosecution.
A-0410-17T4 8 Affirmed.
A-0410-17T4 9