State v. Nelson

723 A.2d 627, 318 N.J. Super. 242
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 11, 1999
StatusPublished
Cited by15 cases

This text of 723 A.2d 627 (State v. Nelson) 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. Nelson, 723 A.2d 627, 318 N.J. Super. 242 (N.J. Ct. App. 1999).

Opinion

723 A.2d 627 (1999)
318 N.J. Super. 242

STATE of New Jersey, Plaintiff-Respondent,
v.
Anthony NELSON, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted January 26, 1999.
Decided February 11, 1999.

*628 Ivelisse Torres, Public Defender, for defendant-appellant (Abby Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Peter Verniero, Attorney General, for plaintiff-respondent (Linda A. Rinaldi, Deputy Attorney General, of counsel and on the brief).

Before Judges MUIR, Jr., KEEFE, and COBURN.

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

Defendant Anthony Nelson appeals from a judgment of conviction, following a jury verdict, for second-degree robbery, N.J.S.A. 2C:15-1, and third-degree conspiracy to commit theft from the person, N.J.S.A. 2C:5-2; 2C:20-2b(2)(d); and 2C:20-3a. Based on defendant's status as a persistent offender, the judge sentenced him to an aggregate term of sixteen years imprisonment, five years to be served without parole, consecutive to a 1995, fifteen-year sentence defendant was then serving in the State of Georgia. Although the crime occurred in 1990, for reasons unexplained in the record the trial of Nelson did not occur until 1997. We affirm.

Defendant's primary point concerns the admission of a prior inconsistent statement made by his accomplice, William Stallworth, a witness called by the State. The unrecorded statement was given orally to a prosecutor's investigator, in the prosecutor's presence, in 1997 on the day before the witness testified. It was offered by the prosecutor when Stallworth recanted before the jury, claiming that he could not remember whether anyone, including the defendant, participated with him in the robbery. This oral statement, implicating defendant, was essentially the same as a recorded statement, which also came before the jury, made by Stallworth under oath when he pled guilty to the crime in 1991. Although defendant contends that the admission of the 1997 unrecorded oral statement violated N.J.R.E. 803(a)(1) and denied him a fair trial, he does not question the admission in evidence, of Stallworth's 1991 sworn statement.

Defendant also argues that he is entitled to a new trial for the following reasons: the judge wrongly admitted into evidence, as bearing on defendant's credibility, an out-of-state conviction then, but no longer, pending *629 appeal; and the judge erred in denying a mistrial based on a claim of jury misconduct. Last, defendant argues that his sentence was excessive. The sentencing argument is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

I.

At approximately 9:45 a.m., on September 14, 1990, Robert Ferretti, a Teamsters Union member, was in the parking lot of Local 676 walking toward the union hall, which is located at the Route 130 Collingswood Circle in Collingswood. He had just returned from the bank, where he had cashed paychecks for co-workers, and was carrying a leather bank bag containing $8,000. Standing near the door was another union member, Marian Harris.

As Ferretti approached the union hall's door, a person, later identified as William Stallworth, the defendant's cousin and accomplice, approached and began to wrestle with Ferretti for possession of the bank bag. They fell to the ground during the struggle and Ferretti suffered cuts, bruises, and a concussion. Another union member came out of the union hall and separated the men. Stallworth, having failed to get control of the bank bag, walked toward the side of the union hall, where he stopped to speak briefly to another man, later identified as defendant Anthony Nelson. They got into a black, four-door Volvo and drove out of the parking lot toward Camden with Nelson in the driver's seat. Marian Harris, who had observed the struggle and the discussion between Stallworth and Nelson from a distance of approximately four feet, noted the first three letters of the license plate tag: "GBU." The police were called immediately.

At 9:51 a.m., Sergeant Robert Rideski received a dispatch reporting the robbery. Within thirty seconds, he arrived at the union hall parking lot and interviewed Harris, obtaining within about a minute her description of the defendants and their car. He immediately broadcast this information over the police radio. About a minute later, Rideski received a radio call from Lieutenant Spoulick, who had spotted the vehicle and was following it in an unmarked car. The defendants were stopped less than a mile from the union hall in the black Volvo, bearing license tag "GBU-98S." Stallworth was in the driver's seat and Nelson was beside him. By 10 a.m., the defendants were under arrest.

About an hour later at police headquarters, Harris positively and unequivocally identified both Stallworth and Nelson. Ferretti was only able to identify Stallworth.

On August 15, 1991, Stallworth entered a guilty plea to the robbery in return for a sentence limitation of imprisonment for five years. He implicated Nelson under oath, and his statement, concededly admissible in this trial, included the following pertinent remarks:

Me and my cousin [Anthony Nelson] were riding past the Teamsters Union and we noticed a truck with a bank bag and that's when my cousin was saying, "Come out." "Let's try to get it." And then we parked. We tried to get it. It was, first he walked over there, trying to get it. He couldn't, so I walked over there to help him and then there was a struggle and the man had fell down. He hit his head on his truck and that's when we left. We had left the scene and we was picked up a few minutes later.

By the time of trial, Harris was no longer able to identify Nelson in court, but she was still positive about her out-of-court identification of him. In addition to Harris, the State's primary witnesses, other than Stallworth, were Ferretti and Sergeant Rideski.

Stallworth admitted his guilt before the jury. His description of his role in the robbery was consistent with the accounts given by Harris and Ferretti, except for his refusal to implicate the defendant. He did not testify that the defendant was not involved. Instead, he claimed he could not recall whether anyone was with him. He also said he could not recall who drove the car away from the robbery. He did say that within a brief time he somehow arrived home. Then, after spending between ten and fifteen minutes inside with Nelson, the two left in the Volvo to visit Stallworth's mother. He acknowledged being followed by the police for "some *630 distance," and he admitted that Nelson was in the car when they were arrested at the Collingswood Circle.

The prosecutor initially responded to Stallworth's claimed memory loss by asking him to refresh his memory by reviewing the 1991 sworn statement. After reading the statement to himself, Stallworth said, "I don't remember saying all that." He indicated that his lack of memory was due to the passage of almost seven years since the robbery occurred. At that point, the prosecutor began to question Stallworth about the 1997 interview. He admitted that the interview occurred but claimed that the statements he made during the interview were the same as his testimony before the jury.

The prosecutor finally reacted to Stallworth's testimony by asking to approach the bench and saying, "Judge, we have an investigator in the office who sat in on the interview who's prepared—even though I haven't spoken to him, he's prepared to testify." (Emphasis added.)

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Cite This Page — Counsel Stack

Bluebook (online)
723 A.2d 627, 318 N.J. Super. 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-njsuperctappdiv-1999.