State v. Nurse, DOCKET NO. A-3528-16T3

Decision Date02 January 2019
Docket NumberDOCKET NO. A-3528-16T3
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAL C. NURSE, Defendant-Appellant.
CourtNew Jersey Superior Court – Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino, Haas and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 15-07-0704.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A Morris County grand jury charged defendant in a seven-count indictment with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one and two); second-degree burglary, N.J.S.A. 2C:18-2(b)(2) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and two counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (counts six and seven).

Prior to trial, the judge1 denied defendant's motion to suppress identification evidence provided by his coworkers, who told the police that defendant was the individual seen in a surveillance video connected to the offenses.

Following a multi-day trial, the jury convicted defendant on counts one through five, and of the lesser-included offense of false imprisonment, a disorderly persons offense under N.J.S.A. 2C:13-3, on counts six and seven. The judge sentenced defendant to concurrent twelve-year terms on counts one and two, subject to the 85% parole ineligibility provisions of the No EarlyRelease Act (NERA), N.J.S.A. 2C:43-7.2; concurrent six-year terms on counts three, four,2 and five, subject to NERA; and concurrent six-month terms on counts six and seven. Accordingly, defendant's aggregate sentence was twelve years, subject to NERA.

On appeal, defendant raises the following contentions:

POINT I
THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS WERE SUGGESTIVE, INADMISSIBLE, AND VIOLATED DUE PROCESS BECAUSE THE WITNESSES AND ADMINISTRATOR ALREADY SUSPECTED [DEFENDANT] OF THE ROBBERY WHEN THE WITNESSES IDENTIFIED HIM AS THE FACELESS MAN ON A GRAINY SURVEILLANCE VIDEO. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
A. Arguments and Testimony at the Pre-Trial Suppression Hearing.
B. The Out-of-Court and In-Court Identifications Were Inadmissible.
C. A New Trial Should Occur Because the Admission of the Identifications Was Harmful Error.
D. Alternatively, a New Suppression Hearing Should Occur.
POINT II
A NEW TRIAL SHOULD OCCUR BECAUSE THE COURT IMPROPERLY REFUSED TO GIVE JURY INSTRUCTIONS APPROPRIATE TO WHEN AN IN-COURT IDENTIFICATION IS PRECEDED BY AN OUT-OF-COURT IDENTIFICATION, EVEN THOUGH THAT WAS THE SITUATION HERE. U.S. CONST., AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
POINT III
AN INVESTIGATING DETECTIVE WHO DID NOT KNOW [DEFENDANT] WAS IMPROPERLY PERMITTED TO OPINE THAT [DEFENDANT'S] APPEARANCE WAS SIMILAR TO THE ROBBER'S. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
POINT IV
THE COURT IMPROPERLY REFUSED TO GIVE A COOPERATING WITNESS INSTRUCTION REGARDING A WITNESS WHO TOLD OFFICERS THAT SHE DROVE [DEFENDANT] TO THE ROBBERY AND WHOM OFFICERS THREATENED WITH CRIMINAL CHARGES. U.S. CONST.AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
POINT V
THE WRITTEN [JOC] SHOULD BE CORRECTED TO MERGE GUN POSSESSION FOR AN UNLAWFUL PURPOSE [UNDER COUNT FOUR OF THE INDICTMENT] WITH THE SUBSTANTIVE OFFENSES [SET FORTH IN COUNTS ONE, TWO, AND THREE] THAT WERE THE PURPOSE OF THE GUN POSSESSION.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and aggregate sentence, but remand to the trial court to correct the JOC to reflect the merger of count four into counts one, two, and three.

I.

At approximately 11:00 p.m. on July 19, 2014, two employees of a children's store, M.D.3 and M.W., left the business after it closed for the night. As they walked away, a man wearing a black stocking over his face rushed toward them, brandishing a handgun. The employees could not see the man's face, but his hands were uncovered. They described him as a very tall, thin man with a light complexion. He was wearing a black hoodie and ripped jeans.

The man ordered the employees to go back into the store and stated, "get me to the safe, hurry up, be quiet." Once they reached the safe in the manager'soffice, the man directed the employees to take the money out of the safe and put it in a black bag the man was carrying. The man also helped load the money into the bag. Some of the money was stacked and wrapped in blue, paper bands. Once the employees were done, the man ordered them to get under a desk while he fled the scene. The employees then called the police. The entire event was captured on the store's security cameras.

Detective Frank Franco was the lead detective on the investigation that followed. In addition to the store's security video, Detective Franco obtained surveillance video from several nearby businesses. The first of two important pieces of evidence came from the video taken from outside a car wash. On this video, the detective could see a white Honda parked in the car wash's parking lot before the robbery. There were two people in the car. The car remained in the lot for about thirty minutes, until it moved outside the children's store. Shortly before the robbery occurred, a man could be seen running toward the store. The car then left the scene.

The police later determined that the car belonged to Nicole Biggs. She testified at trial that she met defendant on "social media" in the weeks prior to July 19, and the two sometimes hung out together. On the night of the robbery, defendant called Biggs and asked her to help him pick up something from afriend. Biggs agreed, and arrived at defendant's house around 9:00 p.m. Once he got into Biggs's car, defendant asked her to drive him to a hotel parking lot, where he called someone from a cellphone. He then told her to go to a department store. Biggs stated that defendant told her buy him some gloves at the store, but she refused to do so. However, she did go into the store to use the bathroom. When she got back into her car, she saw that defendant had changed his clothes and was now wearing a black, hooded sweatshirt and jeans. Defendant also had a piece of duct tape on his face.

After making another phone call, defendant told Biggs to take him to the car wash, where they parked for about thirty minutes. Defendant placed another phone call, and directed Biggs to drive around the children's store, and then to the parking lot of a plumbing company nearby. Defendant got out of the car and told Biggs to wait for him. Biggs testified that she did not see defendant after that. She called and texted him to say that she was going to leave if he did not come back. When defendant failed to reply, Biggs drove away. As discussed above, many of the movements of her car outside the children's store that she described at trial were captured by surveillance cameras.

Later that night, defendant called Biggs and told her it was "messed up" that she had left him, but he had gotten home anyway. Two days later, defendantasked Biggs when he could get his "stuff back."4 After some back and forth between them, Biggs took defendant's things to his house and left them in a bag near his front door.

The two then began to argue with each other in a series of text messages. During this exchange, defendant boasted of how much money he had, and sent Biggs a photograph of himself holding six stacks of money on his lap that were wrapped together with blue, paper bands.5 Defendant was wearing red, Polo-brand boxer shorts in the photograph.

The next important item of evidence was a surveillance video Detective Franco obtained from the plumbing company. In this video, the detective saw several views of a very tall, thin man moving around the area near the time of the robbery. The man's face was not visible. However, the detective could see that the man was wearing a Cincinnati Reds baseball cap, and his hair was styled in short braids that stuck out of the hat. The man wore a light t-shirt and ripped blue jeans, and carried a black bag. Detective Franco believed that theappearance of the man seen in the video was consistent with the descriptions M.D. and M.W. provided of the robber.

The day after the robbery, Detective Franco spoke to M.F., an investigator who worked for the children's store. Suspecting that the robbery was an "inside job," the detective asked M.F. if the store had any "problem employees." M.F. had spoken to M.D., M.W., and other employees at the store about this issue earlier in the day. M.F. identified defendant as an employee who had recently stopped showing up for work.6 Defendant had worked part-time on the sales floor and in the "back of the house" for different shifts, including closing. Defendant was 6'6" tall, and weighed only 180 pounds. He had a light complexion, styled his hair in short braids, and frequently wore a baseball cap and jeans while working.

Several days after the robbery, Detective Franco called M.D. and M.W. and asked them to come to the police station because he wanted to show them a video. The detective testified that he did not tell the two employees that the video was taken from the plumbing company's surveillance system, or that hesuspected that the person depicted in the video was the robber or defendant. Instead, he simply instructed them to look at the video and tell him what they saw.7

At trial, the prosecutor played the surveillance video and...

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