State v. Kemp

948 A.2d 636, 195 N.J. 136, 2008 N.J. LEXIS 794
CourtSupreme Court of New Jersey
DecidedJune 16, 2008
DocketA-124 September Term 2006
StatusPublished
Cited by44 cases

This text of 948 A.2d 636 (State v. Kemp) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kemp, 948 A.2d 636, 195 N.J. 136, 2008 N.J. LEXIS 794 (N.J. 2008).

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

Defendant Tykim Kemp challenges his felony murder, robbery and conspiracy convictions, claiming that the trial court made three erroneous evidentiary determinations.

We conclude that, while the details of defendant’s confession to having engaged in a two-day robbery spree properly were admissible against him at his trial as evidence of “motive, opportunity, intent, preparation, [and] plant,]” as provided in Evidence Rule 404(b), the admission of evidence concerning a prior uncharged robbery purportedly also involving defendant was error requiring a retrial. We further conclude that, although the admission of hearsay statements in respect of the manner and reasons the police focused on defendant as a suspect may have been error, any error was harmless. Finally, we also conclude that, under the circumstances presented, it was not reversible error to admit a police officér’s testimony concerning defendant’s truthfulness in his confession.

I.

Starting on Sunday, September 30, 2001, defendant and an accomplice identified only as “B” or “Black”1 engaged in a two-day robbery spree that ultimately resulted in the death of their last victim, Manuel Santiago. According to defendant’s typewritten confession, he was with Black “all of Sunday and Monday moming[,]” during which time they “robbed a couple of people ... in the area of Brunswick Street, Parkhurst and Pennsylvania Ave” in the City of Newark.

[140]*140Focusing on the period starting at approximately 6:30 a.m. on Monday, October 1, 2001, defendant explained that he and Black had been “roaming around trying to find someone to rob.” approached Santiago, who was sitting in a parked minivan at the entrance to 37 Brunswick Street. Defendant claimed that Black threw a beer bottle at the minivan “to make [Santiago] get out of the van ... so [defendant and Black] could rob him and get his money.”2 As Santiago exited the minivan, Black “tried to grab him but [Santiago] got out of the van swinging [a] knife.” Defendant fought with Santiago, suffering cuts to his “right middle finger and [his] left leg under the knee cap[,]” while Black “tried to go into [Santiago’s] pockets.” According to defendant, he did not rob Santiago “because he put up a fight, he cut me and I wasn’t feeling it.” Asserting that it was Black who had stabbed Santiago “because he had the a knife defendant had taken from “a dude that I robbed Sunday night” and had given to Black for his use “after we came out of the building early Monday described that Santiago “fell to the ground by the building[,] then I ran.” Santiago died later that day from his knife wounds.

That same day, Detective Richard Gregory of the Homicide Squad of the Essex County Prosecutor’s Office “receive[d] information that made [him] look at [defendant] as a possible suspect[.]” In conjunction with detectives from the Newark Police Department, Det. Gregory investigated Santiago’s murder. That investigation led to defendant’s girlfriend, Laini Tallmadge, who was asked to come to the police station and provide a statement. The following day, October 2, 2001, surprisingly, accompanied by at the police station to give her statement to Det. Gregory. They were placed in separate interview rooms. Defendant was advised of his Miranda3 rights, [141]*141which he waived. He first claimed that he had been the victim of a robbery the prior day at a bus stop in Hillside, and that his wounds were the result of that robbery. However, once Det. Gregory expressed his belief that defendant was not being truthful, defendant confessed to participating in the assault and robbery of Santiago a day earlier. He claimed, though, that he had not stabbed Santiago, but that Santiago had been stabbed by Black. He also claimed that he had been unaware that Santiago had died as a result of the stabbing until he was so informed by the police.

The Essex County Grand Jury returned a seven count indictment charging defendant with first-degree knowing and purposeful murder, in violation of N.J.S.A. 2C:11-8(a)(1) and (2); first-degree felony murder, in violation of N.J.S.A. 2C:11-3(a)(3);4 first-degree robbery, in violation of N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon (a knife), in violation of N.J.S.A. 2C:39-5(d); third-degree possession of a weapon (a knife) for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); and second-degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

In June 2003, defendant was tried before a jury on that indictment. The jury acquitted defendant of the murder and weapons offenses, but deadlocked on the robbery, felony murder and conspiracy charges. In December 2003, defendant was retried on the remaining charges. It is that retrial that gives rise to this appeal.

The State’s first witness was Katherine McMiller,5 who had been identified as one of the robbery victims in the same geographic area and time frame consistent with defendant’s admission [142]*142that he had robbed others the day before and in the same area as the Santiago robbery and murder. MeMiller testified that, at approximately 9:00 p.m. on September 30, 2001, she was walking along Brunswick Street, near the intersection of Pennsylvania Avenue, when someone “came on [her] right side, put a sharp object to [her] neck, grabbed [her] hair, pulled [her] head back and told [her] to give them [her] pocketbook[,]” which she did. Although MeMiller was able to describe who robbed her, she was not “able to identify any one positively who robbed [her]” and she was not “able to recognize the person who robbed [her].” She also explained that, when she was attacked, she screamed, and that her attacker ran after taking her pocketbook.6

Det. Gregory testified next. In addition to describing the crime scene he witnessed when he responded to the homicide call, he identified numerous photographs of the murder scene. Det. Gregory also explained that, based on the information developed in the investigation, the investigative focus came to rest on defendant and, for that reason, a request was made of Tallmadge, defendant’s girlfriend, that she come to the police station and provide a statement. He further explained that when defendant’s girlfriend arrived at the police station accompanied by defendant, they were separated and placed in different interview rooms. Det. Gregory then described the process by which defendant provided his [143]*143typewritten confession, a confession that was read, in part, to the

The victim’s son, Wilson Santiago, testified that he saw defendant at his Brunswick night before his father was murdered and that defendant had a knife he was using to carve something into a hallway wall. He also testified that the following morning, in response to shouts from the street, he ran downstairs where he found his father stabbed and bleeding. He held his dying father in his arms until an ambulance arrived and his father was taken away. Bethsaida Flores and Florinez Lopez then testified consistent with their testimony at the Evidence Rule 104 hearing.8

Detective James Wright of the Homicide Unit of the Newark Police Department also testified.

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Bluebook (online)
948 A.2d 636, 195 N.J. 136, 2008 N.J. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kemp-nj-2008.