State v. Scurry
| Docket Number | A-5102-18,A-2666-20 |
| Decision Date | 28 December 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD SCURRY, a/k/a DONALD SCURRY, JR., and TANK SCURRY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES B. CLARK, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
1
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DONALD SCURRY, a/k/a DONALD SCURRY, JR., and TANK SCURRY, Defendant-Appellant.
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
CHARLES B. CLARK, Defendant-Appellant.
Nos. A-5102-18, A-2666-20
Superior Court of New Jersey, Appellate Division
December 28, 2023
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.
Argued December 18, 2023
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-121084.
Richard Sparaco, Designated Counsel, argued the cause for appellant Donald Scurry (Joseph E. Krakora, Public Defender, attorney; Richard Sparaco, on the brief).
Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant Charles B. Clark (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).
Kaili Elizabeth Matthews, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Kaili Elizabeth Matthews, of counsel and on the briefs).
Before Judges Mawla, Marczyk, and Chase.
PER CURIAM
These are back-to-back appeals. In A-5102-18, defendant Donald Scurry appeals from his convictions and sentence for: first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count three); third-degree tampering with evidence, N.J.S.A. 2C:29-3(b)(1) (count four); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1) (count eight). In A-2666-20, defendant Charles B. Clark appeals from his convictions and sentence for: second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)(1) (count three); third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (count five); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count six); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1(a) (count seven).
Defendants were tried together before a jury, over the course of eleven days. The same judge heard pre-trial motions, presided at trial, and sentenced defendants.
The victim, Celeste Cannon, lived in Millville with her three children. She had a two-year-old son with Scurry, and three- and four-year-old daughters with Titus Ramsey. At the time of her murder, she was sixteen weeks pregnant with a fourth child, fathered by Andrew Thompson.
Scurry visited Cannon's home late in the morning of September 20, 2017, with his paramour Rachel Green, whom he had asked for a ride. Not long after entering the house, he exited with Cannon's children and told Green he found Cannon lying dead on the floor. Green helped the children into the car and called 9-1-1. Meanwhile Scurry tried to flag down a passing police vehicle for help, but the officer was transporting a prisoner and could not stop. Instead, the officer contacted police dispatch, and Officer William Stadnick responded.
The officer spoke with Scurry, who explained he had spotted Cannon's car still parked in front of the home while he was driving by that morning and thought it odd, so he decided to stop and check on her. Scurry said the two-year-old opened the door for him, and he found Cannon's body inside the house.
Officer Jason Vinzinski arrived next, and Scurry told him the last time he had spoken to Cannon was at 8:24 p.m. the prior evening, when he sent her a text message about taking their son for a haircut. He tried calling her at 6:52 a.m. the following morning and, when she did not answer, Scurry asked Green to take him to Cannon's house. Scurry then reiterated much of what he told Officer Stadnick, except he stated he did not enter Cannon's home, claiming he "wouldn't go inside someone's house without permission."
Officers transported Scurry to the police station for a video-recorded interview with Detectives Miguel Martinez and Nelson Ferrer. Scurry recounted the events in a similar fashion, and at the end of the interview consented to a search of his phone. The phone contained a video showing him together with Cannon the morning prior to her murder. At trial, the State introduced a still image from the video depicting Scurry lying down with a nine-millimeter handgun sitting just behind his right shoulder. Scurry's phone also yielded several text messages between him and Cannon the day before the murder.
Police also collected surveillance footage from several nearby residences and businesses, including a Wawa.
The State's evidence showed Cannon sent her final text to Scurry at 8:21 p.m. the night before the murder. Scurry responded at 8:24 p.m. as follows: "IDC, bitch, you lying." Later that night, Scurry asked Clark's girlfriend, Quashay Brown, for a ride to Cannon's house. She and Clark drove him there in Brown's car and returned to Clark's home after dropping him off. Location data from Scurry's phone placed him outside Cannon's residence as of 12:17 a.m.
Scurry texted Cannon "Bitch, wake TF up" at 12:25 a.m. and two minutes later texted "pick up the fucking phone, you dumb lying bitch," and "I'm about to come over so you know what it is." Security camera footage from a neighbor's residence showed an individual, similar in size and build to Scurry wearing a light-colored sweatshirt and jeans, hurrying away from Cannon's residence.
Scurry eventually called Brown and Clark for a ride and asked to be picked up on a side street. They picked him up, and Wawa security camera footage showed they stopped at the Wawa at 3:22 a.m., on their way back to Green's house. Scurry and Clark went into the store together while Brown was outside getting gas. Both men then returned to Brown's car, and Brown went into the store.
Brown testified that when they arrived at Green's house, Scurry and Clark got out of the car and had a short conversation in the driveway. Scurry then entered Green's home and went to bed. Clark returned to the car and asked Brown to drive him to another nearby Wawa beyond a bridge, which spanned the Maurice River. When they were nearly halfway over the bridge, Clark told Brown he had changed his mind and wanted to turn back. As Brown made a U-turn, she observed Clark reach out of the passenger window and "chuck[]" something with enough force to reach the water.
Police recovered a spent nine-millimeter shell casing melded to a couch's vinyl, next to Cannon's body. A passerby found a gun, a nine millimeter gun, in the Maurice River a few days after the murder. Police also interviewed Thompson and Ramsey. Ramsey arrived at the scene the morning Cannon's body was discovered and was extremely distraught and difficult to calm down.
Following their convictions, the trial judge sentenced Scurry to a fifty-five-year term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one, and merged counts two and three into count one. Defendant received a five-year concurrent term of incarceration on count four, and a ten-year consecutive term on count eight with a five-year period of parole ineligibility
under the Graves Act, N.J.S.A. 2C:43-6(c). Under a separate indictment, Scurry received a concurrent five-year flat term for violating probation.
Clark was sentenced to eight years with four years of parole ineligibility on count three and a concurrent four-year flat term on count five. Counts six and seven were merged with count five.
Scurry raises the following arguments on appeal:
POINT I THE DENIAL OF THE DEFENDANT'S MOTIONS TO SUPPRESS DENIED HIM THE RIGHT TO A FAIR TRIAL.
(a) THE DEFENDANT'S FORMAL STATEMENTS TO DETECTIVES SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT WAS IN CUSTODY AND WAS NOT ADVISED OF HIS MIRANDA[1] RIGHTS.
(b) THE DEFENDANT'S MOTION TO SUPPRESS THE RESULTS OF THE SEIZURE AND EXAMINATION OF HIS CELL PHONE SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE POISONOUS TREE.
POINT II DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE WAS PERMITTED TO IMPEACH ITS OWN WITNESS: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE STATE TO PLAY THE PRIOR STATEMENT OF WITNESS . . . BROWN TO THE JURY; THE STATE IMPROPERLY IMPEACHED ITS OWN WITNESS WITH HER
PRIOR INCONSISTENT STATEMENT THAT SHE OBSERVED THE CODEFENDANT THROW AN OBJECT FROM THE BRIDGE OVER THE MAURICE RIVER WHERE THE PURPORTED MURDER WEAPON WAS LATER RECOVERED.
POINT III THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT LIMITED HIS ABILITY TO PRESENT EVIDENCE OF THIRD-PARTY GUILT.
POINT IV THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S FAILURE TO PROPERLY WARN THE JURY TO DISREGARD DEFENDANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT IN ITS FINAL JURY INSTRUCTIONS. (Not Raised Below).
POINT V THE VIDEO LOCATED ON DEFENDANT'S CELL PHONE WHICH PURPORTEDLY SHOWED A FIREARM AT OR NEAR THE DEFENDANT WAS INADMISSIBLE AS A PRIOR BAD ACT UNDER N.J.R.E. 404(B) AND WAS ERRONEOUSLY ADMITTED AS PROPENSITY EVIDENCE, THEREBY DENYING THE DEFENDANT A FAIR TRIAL.
POINT VI DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE INADMISSIBLE LAY OPINION TESTIMONY BY THE INVESTIGATING DETECTIVE THAT THE DEFENDANT WAS THE PERSON DEPICTED ON THE WAWA SURVEILLANCE VIDEOS, THEREBY INVADING THE PROVINCE OF THE JURY AS THE FACTFINDER. (Not Raised Below).
POINT VII THE DEFENDANT MUST BE RESENTENCED BECAUSE THE COURT DID NOT
ADDRESS THE OVERALL FAIRNESS OF THE CONSECUTIVE SENTENCES. (Not Raised Below).
Clark raises the following arguments on his appeal:
POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE UNLAWFUL POSSESSION OF A HANDGUN CHARGE...
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