State v. Amos

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROLAND E. AMOS, Defendant-Appellant.

DOCKET NO. A-4777-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted April 2, 2019

May 13, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Yannotti, Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictments Nos. 15-01-0110, and 15-01-0115.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was tried before a jury and found guilty of first-degree murder and other offenses, as charged in two Middlesex County indictments. Defendant appeals from the judgments of conviction entered by the trial court. We affirm.

I.

In Indictment No. 15-01-0110, defendant was charged with first-degree murder of Brian Hoey, N.J.S.A. 2C:11-3(a)(1) or (2), with the aggravating factor of committing murder to escape detection, in violation of N.J.S.A. 2C:11-3(b)(4)(f) (count one). Defendant also was charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); two counts of third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1) and (a)(2) (counts four and five); two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) and (b)(4) (counts six and eight); and second-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(3) (count seven). Furthermore, in Indictment No. 15-01-0115, defendant was charged with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).

Prior to defendant's first trial, the judge granted the State's motion for permission to introduce evidence that Hoey had implicated defendant in the use of counterfeit currency to purchase money orders. Following the first trial, the jury found defendant guilty on counts four, five and six, which charged defendant with witness tampering and third-degree hindering apprehension by concealing evidence, but not guilty of hindering apprehension by giving false information to a law enforcement officer (count eight). The jury was unable to reach a verdict on the murder charge (count one), the weapons charges (counts two and three), and second-degree hindering apprehension (count seven).

Before the second trial, defendant filed a motion for reconsideration of the court's prior order allowing the State to introduce evidence that Hoey implicated defendant in the use of counterfeit money. The judge for the second trial denied the motion. At the second trial, the State presented evidence, which established that in the early morning hours of September 1, 2014, Hoey was shot multiple times while he was standing outside his townhouse on Schmidt Lane in North Brunswick, where he was smoking a cigarette. P.P., Hoey's girlfriend, called9-1-1.¹ An officer from the North Brunswick Police Department (NBPD) responded to the scene. Efforts to save Hoey's life were unsuccessful. He died less than half an hour later at a hospital.

Detective Bree Curran of the Middlesex County Prosecutor's Office (MCPO) arrived at Hoey's townhouse and canvassed the scene. In addition to seven .45 caliber shell casings and six .45 caliber projectiles or projectile fragments, Curran photographed and collected three cigarette butts. It was later determined that all of the bullets were fired from the same gun.

One of the cigarette butts, which was the brand that Hoey smoked, was still burning on the sidewalk outside his townhouse when the police arrived. That cigarette was sent for DNA testing, but the results did not match Hoey or defendant.

Around 3:50 a.m., defendant, who was known as "Universal," attempted to enter defendant's townhouse where he lived with Z.R., which was next door to Hoey's residence. Detective Robert Powell of the NBPD and Detective Gregory Morris of the MCPO asked defendant where he was coming from. Defendant said he had been with his girlfriend, S.S., and later at a barbecue in Newark.

Defendant had a cell phone in his hand, and when Morris asked for his phone number, defendant gave the detectives a number. Powell called the number from his own cell phone, but defendant's phone did not ring. When Powell asked why the phone was not ringing, defendant responded that he gave the detective the number for another phone, which he pulled out of his pocket.

Powell then asked for the number to that phone, and defendant provided another number. The detectives also asked defendant for S.S.'s number, which he provided. The investigators later obtained call records for one of the numbers defendant had provided. The records suggested that defendant was in the area of Hoey's residence at 12:42 a.m. and at 3:42 a.m. The records also showed that at 1:53 a.m., defendant was in Clark, New Jersey.

On September 4, 2014, Powell interviewed S.S., and she told Powell she was with defendant the day before Hoey was killed. S.S. said that she and defendant had gone to dinner and thereafter, they went shopping for a car. Afterwards, S.S. and defendant stopped at a liquor store and at approximately 8:30 p.m., he left to go to a barbecue. At 10:50 p.m. defendant called S.S. and said he needed a ride home from Newark.

S.S. stated that she drove to Newark and picked up defendant. They went to her apartment in Rahway, arriving there shortly after midnight. According toS.S., between 12:30 a.m. and 1:00 a.m., defendant walked to a donut shop to get a coffee and called S.S. on his way to see if she wanted anything. At 3:00 a.m., S.S. drove defendant to the townhouse in North Brunswick, which took twenty-five to thirty minutes. On September 11, 2014, the investigators again spoke with S.S., but she did not provide them with any additional information.

On October 2, 2014, the detectives confronted S.S. with information they had obtained from defendant's cell phone records, and told her she had not been telling the truth. S.S. initially repeated substantially the same story that she told the detectives previously, but later admitted that the story was false. She told the detectives that after she and defendant went to dinner, defendant left around 8:00 p.m. to go to the barbecue, and she did not see him again until approximately 1:53 a.m., when he called and said, "Open the door, I'm coming."

According to S.S., defendant entered her apartment and removed his shirt, which he put in a plastic bag. He also asked her for a shoebox, and she gave him a grey Nike shoebox. S.S. stated that defendant told her, "I want you to come with me to my mother's. I have to drop off my car in Newark." They drove to Newark in separate cars.

As they were driving through Irvington, defendant flashed his high beams, signaling that S.S. should pull over. They stopped behind a strip mall. S.S. didnot see what defendant did when he got out of his car. She believed he threw a garbage bag and shoebox into a dumpster. They proceeded to Newark, and defendant parked his car at his mother's house. S.S. then drove defendant to his townhouse in North Brunswick. S.S. said she never saw a gun.

S.S. told the detectives that defendant had a "run in" with his neighbor, and as a result, the police had come to defendant's house. Defendant told S.S. this incident had been "bothering him," but he had "taken care of" the problem. Defendant also told S.S. that the police "ha[d] nothing on [him]" and would never find the gun. He urged her "to be strong" and "go with the story." S.S. said that previously she had lied to the police because she was scared of defendant and he had threatened her, saying, "if I felt like you were telling on me or doing anything to get me jammed up, I would have been killed you."

S.S. accompanied the detectives on the route she had driven with defendant during the early morning hours of September 1, 2014. She directed the detectives to the rear of the strip mall, which had four dumpsters, three of which were locked. The unlocked dumpster was empty. S.S. and the detectives then drove to defendant's mother's house and back to NBPD headquarters, where S.S. continued her recorded statement. She swore that she had been truthful in her statement.

At trial, the State called S.S. as a witness. She initially testified that she did not recall providing a statement to the detectives, and later stated that she could not remember what she told them. After further questioning, oral argument by counsel, and conducting a Rule 104 hearing, the judge allowed the State to play S.S.'s recorded statement for the jury.

In addition, P.P. testified that approximately eleven months before Hoey was killed, defendant gave Hoey currency and asked him to purchase money orders. According to P.P., defendant sent Hoey a text message, which stated, "[L]isten, I have to rush and go to the movies with my lady. Can you get out and go to Walmart and get two $500 money orders, and I'll give you a gift when I get back[?]"

Officer James Karas of the NBPD testified that on October 3, 2013, he arrested Hoey at a Walmart store and charged him with attempting to use ten counterfeit one hundred dollar bills to buy money orders. Hoey told Karas that "Universal" gave him the money and asked him to buy the money orders as a favor.

Detective Michael Braun of the NBPD interviewed Hoey after Karas arrested him. Braun testified that Hoey identified defendant as the person who gave him the counterfeit money. Hoey showed Braun the text message in which...