State v. Spence
| Decision Date | 23 December 2020 |
| Docket Number | DOCKET NO. A-4134-18T3,DOCKET NO. A-3652-18T3 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. STERLING C. SPENCE, a/k/a STERLING SPENCE JR., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAURICE BURGESS, a/k/a MAURICE DE'ANDRE BURGESS, MAURICE BURGES, and MOE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 13-01-0083 and 17-08-1760.
Joseph E. Krakora, Public Defender, attorney for appellant Sterling C. Spence (Michele A. Adubato, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Maurice Burgess (Frank M. Gennaro, Designated Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John J. Lafferty, IV, Assistant Prosecutor, of counsel and on the brief).
Appellant Sterling Spence filed a pro se supplemental brief.
In these back-to-back appeals, which we have consolidated for purposes of this opinion, Sterling Spence (Spence) and Maurice Burgess (Burgess) (collectively defendants) appeal from multiple convictions related to the murder of DeVonte Molley (the victim), which took place in the course of a robbery of the victim at an Atlantic City hotel (the Hotel). We affirm as to both defendants.
On December 21, 2015, the victim, Burgess, and an acquaintance were staying in a room at the Hotel which was registered to the victim. The victim and Burgess sold heroin out of the room and occasionally left to facilitate sales. That night,Burgess texted Charles Wynn1 (Wynn) to ask if he knew anyone who wanted to purchase heroin. Wynn called Spence to ask if he personally had any drugs to sell. Spence contacted Burgess, who told Spence to search the dresser in the Hotel room to retrieve more drugs to sell.
Spence and Wynn entered the Hotel and went to the eighth-floor stairwell so that the manager would not see the them moving drugs and call the police. Burgess let them into the Hotel room and then left to sell drugs. The victim was asleep on the couch when Spence and Wynn entered. Wynn went into the bedroom to check the dresser drawer for drugs while Spence went to the bathroom.
As Spence exited the bathroom, he saw the victim walking towards the bedroom with a gun. Spence called out to the victim to let him know that he and Wynn were in the Hotel room, and then the victim turned towards Spence and pointed the gun at him. Spence slapped the gun out of the victim's hand, resulting in both the victim and Spence struggling for control over the gun. The gun discharged while the victim and Spence were struggling for the gun and Spence was attempting to turn the gun away. The victim fell to the ground, and both Spence and Wynn fled.
Police responded to the scene and found the victim, who was still alive, lying on the floor of the lobby with a gunshot wound. A bystander (the bystander), attempted to administer medical assistance to the victim but was unsuccessful. An autopsy later determined that the victim died from a gunshot wound to the lower abdomen on his right side. Police interviewed the bystander within twenty-four hours of the incident. Police also found heroin, a digital scale, an LG cellphone, and a nine-millimeter shell with a "Luger" stamp in the Hotel room. Surveillance footage showed an individual holding the door open for Spence and Wynn and remaining in the room for a little over one minute. After that time, the three men quickly exited the room and went to the elevator, later followed by the victim, who exited the room holding his stomach. Utilizing a photo array and a photo from a Facebook page of "Mo Humble," officers were able to identify Burgess exiting the hotel room.
On December 23, 2015, police conducted surveillance of Burgess outside a Motel (the Motel). Burgess exited the Motel and entered a vehicle driven by Spence. Police followed the vehicle to a McDonald's where they arrested the defendants. During the course of the arrest, a Cricket cellphone fell to Burgess's feet. Spence informed the police that there were two phones in the vehicle; one was his own LG flip phone, and the other belonged to his cousin Burgess.
Forensic examination of the cell phones revealed that on the night of December 21, 2015, Spence and Burgess exchanged more than twenty text messages. The messages contained such information as "everything still a go?" "Yeah, he asleep"; "What's the room number?"; ; "How far?" "Bout to pull up."; "Search everything and make him get the rest of the bread."; "Hit me when on the floor." The last text message coincided with the arrival of Spence and Wynn to the Hotel, and Burgess letting the two into the room.
During plea negotiations, Spence certified that he "entered the room to steal money and drugs . . . [when the victim] woke up waving a gun and screaming." Spence explained that when he "tried to disarm [the victim] . . . the gun went off," but denied planning to rob the victim or entering the victim's room with a weapon.
All three defendants were tried together, and each testified. Burgess testified that the text messages were all related to the preparation and supply of drugs for sale, not a scheme to rob the victim.
Wynn testified Burgess suggested that the two could make money selling drugs. He further testified that when he entered, he did not have an intent to steal anything, but once inside, the opportunity arose. He testified that he wasunarmed and saw no gun. While he was in the bedroom checking the dresser, he heard a gunshot. He and Spence then ran.
Spence testified that he went with Wynn to the room to sell drugs. He testified that when Burgess let him and Wynn into the room, neither was armed and the victim was asleep. He testified that the text messages he exchanged with Burgess related to drug dealing. When they arrived, the victim awoke and produced a gun, which fired during a struggle between he and Spence.
The jury found Spence guilty of two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), one count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), and one count of second-degree certain person not to have a weapon because of a prior conviction, N.J.S.A. 2C:39-7(b)(1). The judge sentenced Spence to an aggregate sentence of fifty years with an 85% parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6.
The jury found Burgess guilty of two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), one count of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(3), one count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and one count of second-degree possession of a firearm foran unlawful purpose, N.J.S.A. 2C:39-4(a). In a separate proceeding, the judge found Burgess guilty of one count of second-degree certain persons not to have a weapon because of a prior conviction, N.J.S.A. 39-7(b). The judge sentenced Burgess to an aggregate sentence of fifty years with 85% parole ineligibility pursuant to NERA, a concurrent term of eight years for unlawful possession of a handgun, a concurrent term of seven years for certain persons not to have firearms, and a concurrent term of four years for violation of a probationary sentence imposed in 2013.
On appeal, Spence raises the following arguments for this court's consideration:
In his pro se brief, Spence raises the following arguments on appeal, which we have renumbered:
On appeal, Burgess raises the following arguments for this court's consideration:
Defendants both maintain that several comments made by the...
To continue reading
Request your trial