State v. Olbert
| Decision Date | 07 February 2018 |
| Docket Number | DOCKET NO. A-0496-15T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES C. OLBERT, Defendant-Appellant. |
| Court | New 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-08-2165.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, of counsel and on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the briefs; Camila A. Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).
Appellant filed a pro se supplemental brief.
After a 2015 jury trial, defendant James Olbert was found guilty of committing numerous crimes, including the murder and robbery of a store owner, the robbery and felony murder of a pedestrian, the robberies of two other persons, a carjacking, the theft of another victim's credit and debit cards, weapons offenses, and other crimes. The trial court imposed on defendant an aggregate custodial sentence of 123 years, subject to an eighty-five percent period of parole ineligibility.
Through his counsel on appeal, defendant argues that the trial court erred by denying his motion to sever the charges related to the store owner's murder and robbery from the other charged crimes. He asserts that even if joinder of the offenses was proper, the court should have issued an unrequested limiting instruction on other-crimes evidence to ensure that the jury would not assume his guilt on all counts from the evidence concerning the store owner's death.
Defendant also contends that the court erred by declining to instruct jurors that a spectator who spoke briefly to a juror during a break in deliberations was not affiliated with him. In addition, he challenges his sentence as excessive, arguing that the court misapplied an aggravating factor and failed to givesufficient weight to the fact that he was sixteen when the crimes were committed. Lastly, in a pro se supplemental brief, defendant argues that the court erred in admitting incriminating statements he made when he and his mother were questioned by investigating police.
For the reasons that follow, we affirm defendant's convictions but remand for resentencing in light of recent developments in the law concerning the constitutional limitations on imposing lengthy sentences on juvenile offenders that have the practical effect of comprising life without parole.
The twenty-four-count indictment charged defendant1 with offenses related to six incidents with six different victims that occurred between December 15, 2011 and January 17, 2012. We present relevant details of each incident in chronological sequence.2
On December 15, 2011, A.S. reported the theft of a debit card and two credit cards. She learned that the cards had been usedto buy prepaid cell phones for $179.70, and to make purchases totaling $164.37 at Cooper's Liquors & Deli in Newark ("Cooper's") and a purchase of $86.95 at a nearby McDonald's fast-food restaurant. A.S. had not made those purchases herself, and did not give anyone else permission to use her cards.
Defendant's girlfriend, Nadirah Johnson, testified that she received credit cards from defendant on December 15, 2011. He told her he found them outside. Johnson admitted that she used one of the cards to buy phones. She recounted that she, defendant, and some friends then went in a taxi to McDonald's and purchased food there. Later that night, Johnson and two friends bought alcohol at Cooper's.
At around 10:00 p.m. on December 23, 2011, B.C. went to New York Fried Chicken in Newark to buy a pizza. She was driving a light blue Honda CRV. B.C. noticed two young men standing outside the restaurant. While she was waiting for her food, one of them came inside, reportedly said, "This is taking too long," and left.
B.C. left the restaurant and started to get into her car, when both men approached and stood on either side of the vehicle. The man on the driver's side of the car pointed a gun at B.C. and told her to give him her keys and wallet. He patted her down andput his hands in her coat pockets to find her wallet. The two men then got into her car and drove away.
B.C. went back into the restaurant to call the police. She told officers the man with the gun was "thin" and had "dreads." However, B.C. said that she could not see the men's faces clearly because a streetlight behind them was shining into her eyes. She was asked by police to identify the carjackers in photo arrays, but was unable to do so.
At around 11:30 a.m. on December 26, 2011, Jennifer R.3 was walking her dog on South 12th Street in Newark. A Honda stopped in the middle of the road near her. A young man jumped out of the car and told her to give him her purse. Jennifer R. refused, and she and the man "scuffl[ed]." The man pulled out a gun and struck Jennifer R. in the elbow with it, and she handed over her purse. The man then got back in the Honda and drove away.
On January 10, 2012, Jennifer R. identified defendant as the robber to police during a photo array. At trial, Jennifer R. described the Honda the robber got out of as a silver SUV. She said that her attacker had "dreads" and a tattoo next to his eye.
At 6:47 p.m. on December 28, 2011, paramedics responded to a call outside Cooper's, where they found a man, later identified as Wilfredo Campos, lying face down in the street and surrounded by blood. One of the paramedics testified that Campos had suffered a gunshot injury to the left side of the back of his neck. The paramedic and her partner dressed the wound and loaded Campos into an ambulance.
Meanwhile, Officer Jacquenetta Moton of the Newark Police Department investigated the crime scene. Moton took photographs and found a shell casing and cell phone on the street.
On December 29, 2011, police obtained surveillance videos from cameras outside Cooper's. The videos showed Campos walking down the street on December 28 in front of Cooper's carrying a white bag. A light blue Honda CRV double-parked near him, and a man holding a gun got out of the passenger side and approached Campos. According to Detective Joseph Hadley Jr., Campos and the gunman "tussl[ed]," and the gunman reached into Campos' pocket. Campos dropped his bag and turned to walk away. The gunman then shot Campos once from behind and ran back to the car.
Campos died less than a week later on January 3, 2012. An autopsy confirmed that he had died of a gunshot to the back of the neck, which severed the left carotid artery and cut off blood flow to his brain. Dr. Abraham Philip, who peer reviewed the autopsyreport, testified that in his opinion the manner of death was homicide. The State's theory at trial was that defendant was the driver of the SUV and his companion was the gunman.
On December 29, 2011, Juan R. was working behind the counter at Rosario Supermarket, a bodega on Springfield Avenue in Newark. At around 12:30 p.m., a man wearing a scarf covering his face came into the store. The man pointed a gun at Juan R. and demanded money and cigarettes. Juan R. took the drawer out of the cash register and handed him all of the bills inside. The man then grabbed coins out of the register drawer and threw the drawer on the floor. He also demanded a laptop computer and charger Juan R. had on the counter. The man left the store and got into a blue Honda CRV parked outside.
Juan R. called the police. When officers asked if he could identify the robber, he said this would be "impossible, because [the man was] covered up." The police did obtain surveillance videos showing the inside and outside of the building during the robbery.
At around 6:15 p.m. on January 17, 2012, Newark police officers responded to a call from a "holdup alarm" system at JNCMini Market ("JNC"), a bodega on the corner of 14th Avenue and South 18th Street. They found the victim, Miguel Torres, lying behind the counter, shot. Paramedics loaded Torres into an ambulance and began resuscitation procedures.
An EMT testified that Torres had sustained four gunshots wounds, two in the chest and two in the abdomen, and that he had no pulse and was not breathing. Torres was pronounced dead upon arrival at the hospital. Dr. Philip, who performed an autopsy, testified that the gunshot wounds had collapsed both of Torres' lungs and caused extensive internal and external bleeding that led to death. Dr. Philip opined that the manner of death was homicide.
Back at the JNC bodega, Officer Frank Ricci retrieved bullets and shell casings. Ricci also observed that the cash register drawer was open and had some change in it, but no paper money. Ricci and other officers obtained consent to view surveillance videos taken by the store's cameras.
Detective Paul Ranges of the Essex County Prosecutor's Office, the lead detective investigating the Torres homicide, testified about a surveillance video taken at the scene. The video showed that a car pulled over next to JNC and two individuals got out. One went inside and the other stayed outside and blocked others...
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