State v. Jackmon

702 A.2d 489, 305 N.J. Super. 274, 1997 N.J. Super. LEXIS 429
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 31, 1997
StatusPublished
Cited by60 cases

This text of 702 A.2d 489 (State v. Jackmon) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jackmon, 702 A.2d 489, 305 N.J. Super. 274, 1997 N.J. Super. LEXIS 429 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

CONLEY, J.A.D.

This appeal from murder and other related convictions arises from an armed drug robbery involving three perpetrators that either went according to plan, as the State contends, or went awry, according to defendant. At issue are errors in the jury instructions on the accomplice liability and attempted murder charges under State v. Bielkiewicz, 267 N.J.Super. 520, 632 A.2d 277 (App.Div.1993), and State v. Rhett, 127 N.J. 3, 601 A.2d 689 (1992). The errors were not objected to below and thus must be viewed under the rubric of plain error. We conclude that the “possibility of injustice [arising from the errors] is ‘sufficient to raise reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached.’ ” State v. Hogan, 297 N.J.Super. 7, 21, 687 A.2d 751 (App.Div.1997). See State v. Cook, 300 N.J.Super. 476, 488-89, 693 A.2d 483 (App.Div.1996). Errone[278]*278ous jury instructions on matters material to a jury’s deliberations are ordinarily presumed to be reversible error. Ibid. We conclude the errors here are not harmless and that defendant’s murder, attempted murder, and aggravated assault convictions must be reversed.

Either as an accomplice or principal, we cannot be sure which from the jury verdict, defendant was convicted of the first-degree murder of Jamal Scott, N.J.S.A 2C:ll-3(a)(l) and (2) (count one); first-degree attempted murder of Lizabeth Rivas, N.J.S.A 2C:5-1, N.J.SA. 2C:ll-3a(l) (count four); second-degree aggravated assault upon Johanna Rivera, N.J.SA. 2C:12-lb(l) (lesser included offense of count five); third-degree aggravated assault upon Carmen Rivera, N.J.S.A. 2C:12-lb(2) (lesser included offense of count six). Defendant was also convicted of the felony-murder of Jamal Scott, N.J.SA 2C:ll-3a(3) (count two); first-degree armed robbery, N.J.SA 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.SA 2C:39-4a (count seven); and third-degree possession of a firearm without a permit, N.J.SA 2C:39-5(b) (count eight). At sentencing, counts two (attempted murder of Jamal Scott) and seven (possession of a weapon for an unlawful purpose) were merged into count one (murder of Jamal Scott). An aggregate term of life plus thirty-five years of imprisonment, forty-five years to be served without parole eligibility, was imposed. The court sentenced defendant on each count as follows: on count one, first-degree murder, life imprisonment, thirty years without parole; on count three, first-degree robbery, twenty years imprisonment, ten years without parole, concurrent to the sentence imposed on count one; on count four, attempted murder, twenty years imprisonment, ten years without parole, consecutive to the sentence imposed on count one; on count five, second-degree aggravated assault of Lizabeth Rivera, ten years imprisonment, five years without parole, consecutive with the sentences imposed on counts one and four; on count six, third-degree aggravated assault of Carmen Rivera, five years imprisonment, consecutive to the sentences imposed on counts one, four and five; on count eight, unlawful possession of a [279]*279weapon, five years imprisonment concurrent with the other sentences. The necessary fines and penalties were also imposed.

After defendant’s notice of appeal was filed, we remanded the matter to the trial court for resentencing on the armed robbery conviction (count three) to a mandatory extended term pursuant to State v. Haliski, 140 N.J. 1, 656 A.2d 1246 (1995). Pursuant to that remand, the trial court imposed a mandatory extended term on count three of forty years imprisonment, twenty years without parole, to run concurrent with the sentences previously imposed.

I

The State’s evidence was the following. During the evening of July 20, 1991, Johanna Rivera, Jamal Scott, his girlfriend Carmen Rivera (Johanna’s sister), eleven year old Lizabeth Rivas and Lizabeth’s younger sister, were at Santa Diaz’ house at 572 Raritan Street in Camden. Jamal was a local drug dealer for whom Johanna would sometimes sell drugs. Johanna and Jamal were sitting at the dining room table “capping up”1 cocaine when Lance Phillips (Poppa Lance) came into the house around 4:30 a.m. Carmen testified that Jamal showed Poppa Lance the supply of cocaine, almost one kilogram. After about twenty minutes, Poppa Lance left and Johanna went to sleep in the living room.

A few minutes after Poppa Lance left, Jamal and Carmen went outside to sit on the porch. They were outside for less than one hour when a car they had never seen before, a blue-green Honda Accord, drove past with one person inside. Moments later, when the car came back again, three men dressed in black with ski masks over their heads jumped out of the car and ran toward the house. Jamal grabbed the bag of drugs next to him, ran into the house and attempted to close the door.

The three men ran to the house, one of them grabbed Carmen by the shirt, pushed her and unsuccessfully shot her with a “silver [280]*280gun.” She escaped unharmed into the bushes. She described the shooter as tall and “brown-skinned.” When asked by police if any of her friends fit the description of the man, she replied Poppa Lance, but added “I wouldn’t think it was him because we were friends, you know?”

Inside the house Johanna Rivera, seventeen years old at the time, awoke to a “very loud noise.” She saw Jamal “struggling against the door” as people were trying to push their way inside. Johanna saw a gun come through the crack of the door and someone shot Jamal in the back. Struggling with one man, Jamal pushed his mask up and eleven year old Lizabeth recognized Poppa Lance. According to Johanna, two of the men shot Jamal “about five times.”

One of the men asked Johanna where “the stuff’ was and she told him that Jamal had it. Then Johanna ran from the living room and laid on the floor in between the dining room and the kitchen. She testified that a “tall dark-skinned” man came into the kitchen and attempted to shoot her with a black gun, but missed. A second man, whom she described as tall, stocky and “light-skinned” with a chrome .45 caliber handgun, shot her in the right arm. She did not see the third man with a gun. Johanna saw the “tall dark-skinned guy” walk upstairs and he stayed there for three to five minutes. While she heard him come downstairs and heard a gun go off, she did not look up again until she heard the door slam as the men left.

Santa Diaz was in the front upstairs bedroom with her seven year old son, Samuel, when she heard a noise that sounded like “firecrackers.” Santa testified that a man came up the stairs, pointed a gun at her and asked if she had any drugs. The man was thin, black, approximately six feet tall and dressed in black with a mask. At the side of the bed, he grabbed a plate covered by a towel and went downstairs. Eleven year old Lizabeth testified that when the man came back downstairs, he picked her up by her hair, kicked her and shot her in the chest.

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Cite This Page — Counsel Stack

Bluebook (online)
702 A.2d 489, 305 N.J. Super. 274, 1997 N.J. Super. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackmon-njsuperctappdiv-1997.