State v. Branch

• Decision Date: 04 June 1997
• Citation: State v. Branch, 693 A.2d 1272, 301 N.J.Super. 307 (N.J. Super. App. Div. 1997)
• Parties: STATE of New Jersey, Plaintiff-Respondent Cross-Appellant, v. Horace BRANCH, Defendant-Appellant Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 307

301 N.J.Super. 307

693 A.2d 1272

STATE of New Jersey, Plaintiff-Respondent Cross-Appellant, v. Horace BRANCH, Defendant-Appellant Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted May 14, 1997.

Decided June 4, 1997.

Susan L. Reisner, Public Defender, for appellant (Thomas J. Largey, Quincy, MA, designated counsel, and on the briefs).

Clifford J. Minor, Essex County Prosecutor, for respondent (Raymond W. Hoffman, Assistant Prosecutor, of counsel, and on the briefs).

Before Judges SHEBELL, BAIME and BRAITHWAITE.

SHEBELL, P.J.A.D.

In December 1993, defendant, Horace Branch, was charged in thirteen counts of a fifteen count indictment as follows: first degree armed robbery of Randolph Moseley ( N.J.S.A. 2C:15-1) (Count One); first degree felony murder of Randolph Moseley ( N.J.S.A. 2C:11-3a(3)) (Count Two); first degree murder of Randolph Moseley ( N.J.S.A. 2C:11-3a(1) & (2)) (Count Three); first degree armed robbery of Philip Murphy ( N.J.S.A. 2C:15-1) (Count Four); first degree armed robbery of Kenneth Dortch ( N.J.S.A. 2C:15-1) (Count Five); fourth degree pointing of a firearm at Eddie Ratchford ( N.J.S.A. 2C:12-1b(4)) (Count Six); third degree unlawful possession of a weapon ( N.J.S.A. 2C:39-5b) (Count Seven); second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a) (Count Eight); fourth degree possession of hollow point bullets ( N.J.S.A. 2C:39-3f) (Count Nine); fourth degree resisting arrest ( N.J.S.A. 2C:29-2) (Count Ten); third degree unlawful possession of a weapon ( N.J.S.A. 2C:39-5b) (Count Thirteen); second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a) (Count Fourteen); and fourth degree unlawful possession of hollow point bullets ( N.J.S.A. 2C:39-3f) (Count Fifteen).

In the same indictment, Patricia Lee was charged with third degree unlawful possession of a weapon ( N.J.S.A. 2C:39-5b) (Count Eleven) and second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a) (Count Twelve). Lee did not stand trial, but was instead given use-immunity to testify against defendant.

On November 14, 1994, following a six-day trial, defendant was found guilty of first degree felony murder ( N.J.S.A. 2C:11-3a(3)) Count Two); first degree aggravated manslaughter ( N.J.S.A. 2C:11-4.a) (Count Three); fourth degree pointing of a firearm ( N.J.S.A. 2C:12-1b(4)) (Count Six); third degree unlawful possession of a weapon ( N.J.S.A. 2C:39-5b) (Count Seven); second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a) (Count Eight); fourth degree possession of hollow point bullets ( N.J.S.A. 2C:39-3f) (Count Nine); fourth degree resisting arrest ( N.J.S.A. 2C:29-2a) (Count Ten); third degree possession of a semi-automatic handgun without a permit ( N.J.S.A. 2C:39-5b) (Count Thirteen); second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a) (Count Fourteen); and fourth degree possession of hollow point bullets ( N.J.S.A. 2C:39-3f) (Count Fifteen).

On December 13, 1994, the trial judge set aside the conviction for felony murder returned by the jury on Count Two. On Count Three, aggravated manslaughter, defendant was sentenced to an extended term of life imprisonment with twenty-five years parole ineligibility. The judge imposed the remaining sentences as follows: on Count Six, defendant was sentenced to a consecutive term of eighteen months; on Count Seven, a consecutive term of ten years, with five years parole ineligibility; on Count Nine, an eighteen month consecutive sentence; on Count Ten, an eighteen month consecutive sentence; Counts Eight and Fourteen were merged with Count Three; Count Thirteen was merged with Count Seven, and Count Fifteen was merged with Count Nine. The court imposed a total of $500 V.C.C.B. penalties and credited the defendant with 405 days of jail credit.

Defendant filed a Notice of Appeal, and the State filed a Cross-Appeal Nunc Pro Tunc.

On appeal, the defendant argues:

Point One

A Plainclothes Detective Tackled The Defendant And Thereby Subjected Him To An Unreasonable Seizure.

Subpoint (a) Defendant Had A Reasonable Expectation Of Privacy.

Subpoint (b) The Defendant Was Subjected To An Unconstitutional Seizure & All Evidence Discovered As A Result Of That Illegal Seizure Must Be Suppressed.

Point Two

Count Ten Of The Indictment Did Not Provide Sufficient Notice To Allow The Defendant To Prepare A Defense. (Not Raised Below)

Point Three

The Court Erred When It Did Not Grant Its Sua Sponte R. 3:18-1 Motion For Judgment Of Acquittal On Count Ten Of The Indictment.

Point Four

The Defendant Was Denied A Fair Trial When The Court:

Subpoint (a) Failed To Provide Adequate Guidance On The Law Regarding Aggravated & Reckless Manslaughter. (Not Raised Below)

Subpoint (b) Failed To Properly Charge The Jury On Self-Defense (Not Raised Below)

Subpoint (c) Failed To Explain The Law In The Context Of The Material Facts. (Not Raised Below)

Subpoint (d) Failed To Answer The Jury's Questions Concerning A Witness.

Point Five

The Court's Failure To Sua Sponte Charge The Jury With Passion-Provocation Manslaughter, N.J.S.A. 2C:11-4(b)(2) And Assault, N.J.S.A. 2C:12-1(a)(2) Denied The Defendant A Fair Trial. (Not Raised Below)

Point Six

The Court Erred When It Denied Defendant's R. 3:18-2 Motion Since The Jury's Verdict Was Against The Weight Of The Evidence On Counts Three, Six, Seven, Eight, Nine, Ten, Fourteen & Fifteen.

Point Seven

The Court's Admission Of Three Autopsy Photos Of The Victim Was Prejudicial And Inflammatory And Served To Deny The Defendant A Fair Trial.

Point Eight

The Court Imposed Sentences That Did Not Comply With The Guidelines And Was Both Excessive & Shocking To The Judicial Conscience.

Subpoint (a) Before Imposing An Extended Term Pursuant To N.J.S.A. 2C:43-6(c), The Court Did Not Hold A Hearing Under N.J.S.A. 2C:43-6(d) To Determine If The Defendant Was A Second Offender Under The Graves Act.

Subpoint (b) Before Imposing The Maximum Extended Term & Period Of Parole Ineligibility, The Court Failed To Balance Sentencing Factors To Determine The Base Term And Period Of Parole Ineligibility.

Subpoint (c) The Court Failed To Follow The Sentencing Guidelines When It Imposed Terms Of Imprisonment On Counts Six, Seven, Nine & Ten.

Subpoint (d) The Court Imposed An Illegal Sentence On Count Seven.

Subpoint (e) The Court Did Not Explain Its Reasons For Imposing Four Consecutive Sentences.

Subpoint (f) The Court's Sentence Was Excessive And Shocking To The Judicial Conscience.

Point Nine

It Was Plain Error To Omit Self-Defense From The Verdict Sheet. (Not Raised Below)

The defendant filed a pro se supplemental brief urging:

POINT I THE PROSECUTOR AMENDMENT OF COUNT 10 TO THE INDICTMENT WITHOUT THE GRAND JURY CONSENT VIOLATES DEFENDANT SUBSTANTIAL RIGHTS TO DUE PROCESS OF LAW. CONST. AMEND. 5, 14. (NOT RAISE BELOW)

POINT II THE STATE FAILED TO SUSTAIN ITS BURDEN THAT DEFENDANT SHOT ANYONE BY FAILING TO ESTABLISH A CHAIN OF CUSTODY OF THE BULLETS (NOT RAISE BELOW)

POINT III THE TRIAL COURT FAILED TO GIVE AN INSTRUCTION ON UNANIMITY OF THE JURY'S VERDICT, TO NOT COMPROMISE OR DO VIOLENCE TO ONE'S INDIVIDUAL JUDGMENT OR CONSIDERATION (NOT RAISE BELOW)

The State's cross-appeal argues that defendant's conviction on Count Two for felony murder should be reinstated.

Detective Moraes of the Newark Police Department testified at trial and at the suppression hearing as to the events leading up to the defendant's arrest. On November 5, 1993, Moraes responded to 262 Shepard Avenue in Newark after receiving information from a confidential informant about a person armed with a concealed weapon. Upon arriving at the scene, the detective, accompanied by other officers, saw two males standing on the corner of Shepard and Goodwin. Moraes separated himself from the other officers and entered the courtyard of 268/262 Shepard. He then observed defendant who fit exactly the description of the reportedly armed individual.

Moraes testified that defendant, who was walking towards him, changed his direction upon observing him and began walking away. The detective called out to defendant, identified himself as a police officer, and asked defendant to stop. Instead, defendant fled to 262 Shepard Avenue with Moraes in pursuit and entered an apartment building. The detective testified that as the defendant was running he was holding something in place at the small of his back, in his waistband. Based on the information that the suspect was armed and his own observations, Moraes pursued defendant and eventually tackled him on the first landing of the stairs. He stated that his "purpose was so that I would not lose sight of him if he turned the corner and ran up an additional landing and possibly reached for supposedly what was a weapon, what I believed was a weapon."

After tackling defendant to one knee, Moraes radioed his partners, at which point defendant reached around to his back, removed a handgun, and cocked it. The detective grabbed defendant's arms, forcing him to drop the gun, and the two fell down the stairs as they scrambled for the weapon. The other officers arrived as they landed at the bottom of the stairs, and together they secured the suspect. The weapon was retrieved from the first landing.

After receiving the above testimony at the suppression hearing, the trial court concluded that the State demonstrated probable cause existed to apprehend the defendant based on the matching description of the defendant from the informant and from the detective's own observations of the defendant's actions.

At trial, Philip Murphy testified for the prosecution that on November 4, 1993, at approximately 6:30 a.m., he was at 260 Prince Street in Newark acting as a look-out for an individual who was selling drugs. According to Murphy, at this time defendant and Ken Dortch A/K/A "Hassan" approached him and inquired about purchasing cocaine. When Murphy...