State v. Kelly

504 A.2d 37, 207 N.J. Super. 114
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 10, 1986
StatusPublished
Cited by16 cases

This text of 504 A.2d 37 (State v. Kelly) 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. Kelly, 504 A.2d 37, 207 N.J. Super. 114 (N.J. Ct. App. 1986).

Opinion

207 N.J. Super. 114 (1986)
504 A.2d 37

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGERS KELLY, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Submitted November 13, 1985.
Decided January 10, 1986.

*116 Before Judges MICHELS, DEIGHAN and STERN.

Thomas S. Smith, Acting Public Defender, attorney for appellant (Dennis J. Quinn, Designated Counsel, of counsel and on the brief).

Irwin I. Kimmelman, Attorney General of New Jersey, attorney for respondent (Mary Ellen Halloran, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by MICHELS, P.J.A.D.

Tried to a jury, defendant Rogers Kelly was convicted of (1) the murder of Carl Grossman, a crime of the first degree, in violation of N.J.S.A. 2C:11-3; (2) unlawful possession of a handgun without having first obtained the requisite permit to carry the same, a crime of the third degree, in violation of N.J.S.A. 2C:39-5b; and (3) possession of a handgun for an unlawful purpose, a crime of the second degree, in violation of N.J.S.A. 2C:39-4a. Defendant's motions for a new trial following *117 the jury verdict were denied. The trial court thereupon merged the conviction for possession of a handgun for an unlawful purpose with the conviction for murder and committed defendant to the custody of the Commissioner of the Department of Corrections for 70 years, with a parole ineligibility term of 35 years, and assessed a penalty of $1,000.00, payable to the Violent Crimes Compensation Board. In addition, defendant was committed to a concurrent term of 5 years, with a 2 1/2 year period of parole ineligibility, and assessed a penalty of $25.00 for possession of a handgun without having first obtained the requisite permit to carry the same. Both custodial sentences were to be served consecutively to any sentence defendant was then serving for a prior parole violation. Defendant appeals.

Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:

I. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S POST-ARREST VERBAL STATEMENTS TO THE POLICE WERE NOT OBTAINED IN VIOLATION OF EDWARDS v. ARIZONA, AND WERE, THEREFORE, ADMISSIBLE IN EVIDENCE AT THE DEFENDANT'S TRIAL.
II. THE TRIAL COURT ERRED IN PERMITTING USE AT TRIAL OF THE DEFENDANT'S INCRIMINATORY STATEMENTS WITHOUT CONSIDERATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL WHICH WAS ASSERTED IMMEDIATELY AFTER ARREST BY WARRANT.
III. THE TRIAL COURT ERRED IN NOT PERMITTING CROSS-EXAMINATION OF THE STATE'S WITNESS, KATHLEEN CAREY, TO SHOW POSSIBLE BIAS RESULTING FROM HER PERSONAL RELATIONSHIP WITH THE DECEDENT.
IV. THE TRIAL COURT COMMITTED ERROR IN REFUSING THE DEFENSE MOTION TO STRIKE THE TESTIMONY OF KATHLEEN CAREY THAT SHE HAD RECEIVED NUMEROUS PHONE CALLS FOR THE DECEDENT, CARL GROSSMAN, ALLEGEDLY MADE BY AN INDIVIDUAL IDENTIFYING HIMSELF AS ROGERS KELLY, THE DEFENDANT.
V. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING INTO EVIDENCE TESTIMONY AS TO BLOOD ANALYSIS.
VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION AT THE CLOSE OF THE STATE'S CASE PURSUANT TO R. 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL *118 ON COUNT 3 OF THE INDICTMENT SINCE THE EVIDENCE WAS INSUFFICIENT TO WARRANT CONVICTION.
VII. THE TRIAL COURT COMMITTED ERROR IN SENTENCING DEFENDANT KELLY ON COUNT I TO INCARCERATION FOR A PERIOD OF 70 YEARS WITH A PAROLE INELIGIBILITY PERIOD OF 35 YEARS.
VIII. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR MISTRIAL UPON DETECTIVE HALLIDAY'S ADDED USE OF THE WORD "EXTORTION" DURING TRIAL BEFORE THE JURY.
IX. THE NUMEROUS ERRORS AT TRIAL CONSIDERED IN THE AGGREGATE AND CUMULATIVELY BROUGHT ABOUT AN UNJUST RESULT REQUIRING A NEW TRIAL.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the exception of the challenge to the legality of the sentence (Point VII), they are clearly without merit. R. 2:11-3(e)(2). Further comment is appropriate, however, with respect to several of these points before we turn to a consideration of the challenge of the legality of the sentence.

A.

The trial court did not err in refusing to permit cross-examination of the State's witness, Kathleen Carey, concerning her relationship with the murder victim, Carl Grossman. It is fundamental that trial courts have been accorded broad discretion in determining the proper limitations of cross-examination of witnesses on issues of credibility. State v. Pontery, 19 N.J. 457, 473 (1955); State v. Zwillman, 112 N.J. Super. 6, 17-18 (App.Div. 1970), certif. den., 57 N.J. 603 (1971). See also State v. Smith, 101 N.J. Super. 10, 14 (App.Div. 1968), certif. den., 53 N.J. 577 (1969) (trial court has "discretion to determine how far details [of bias] may be allowed to be brought out").

Statutory law in New Jersey provides that "[f]or the purpose of affecting the credibility of any witness, his interest in the result of the action ... may be shown by examination or otherwise." N.J.S.A. 2A:81-12. Similarly, the New Jersey Rules of Evidence provide that "for the purpose of impairing or *119 supporting the credibility of a witness, any party ... may examine him and introduce extrinsic evidence relevant upon the issue of credibility." Evid.R. 20. However, these rules limit the admissibility of evidence affecting credibility by further providing that evidence of traits of character, other than honesty or veracity or their opposites, is inadmissible. Evid.R. 22(c). In addition, the New Jersey Rules of Evidence provide, with respect to all evidence, that:

A judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will ... create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. [Evid.R. 4].

See State v. Vaccaro, 142 N.J. Super. 167, 177 (App.Div. 1976), certif. den., 71 N.J. 518 (1976) (cross-examination on issue of bias or prejudice may be limited by court in appropriate case because of remoteness or other grounds within the ambit of Evid.R. 4); State v. Thompson, 59 N.J. 396, 421 (1971) (where the probative value of evidence "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" the evidence is inadmissible).

Therefore, the right of the defense to show the interest of a witness "does not mean ... that the cross-examiner has a license to roam at will under the guise of impeaching the witness." State v. Pontery, supra, 19 N.J. at 473. In State v. Arbus, 54 N.J. Super. 76, 83 (App.Div. 1959), we noted that "more sins of admission have been committed during cross-examination in the name of `credibility' than because of any other misconception in the law of evidence." See 3A Wigmore, Evidence § 878 at 648 (Chadbourn rev. 1970) (cross-examination is not universal solvent for reducing everything to admissibility).

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Bluebook (online)
504 A.2d 37, 207 N.J. Super. 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-njsuperctappdiv-1986.