State v. Wormley

• Decision Date: 22 October 1997
• Citation: 701 A.2d 944,305 N.J.Super. 57
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Arvaus WORMLEY, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Robert EDEN, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. James BROOKS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 57

305 N.J.Super. 57

701 A.2d 944

STATE of New Jersey, Plaintiff-Respondent, v. Arvaus WORMLEY, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Robert EDEN, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. James BROOKS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 30, 1997.

Decided Oct. 22, 1997.

Ivelisse Torres, Public Defender, for defendant-appellants, Arvaus Wormley, Robert Eden and James Brooks (Michele A. Adubato, Designated Counsel, on the brief in A-5720-94T4, Olivia Belfatto Crisp, Designated Counsel, of counsel and on the brief in A-5978-94T4, and Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief in A-6466-94T4).

Edward M. Neafsey, Acting Union County Prosecutor, for plaintiff-respondent (Eileen Regan-Adams, Assistant Prosecutor, of counsel and on the brief in A-5720-94T4, Thomas M. Roughneen, Prosecutor's Agent, of counsel and on the briefs in A-5978-94T4 and A-6466-94T4).

Arvaus Wormley, defendant-appellant, filed a pro se supplemental letter brief.

Before Judges PRESSLER, CONLEY and CARCHMAN.

The opinion of the court was delivered by

CONLEY, J.A.D.

Tried jointly ¹, each defendant was convicted by the jury of robbery and weapons offenses. As to the robbery, defendants Wormley and Eden were convicted of first-degree robbery with a firearm, N.J.S.A. 2C:15-1, while defendant Brooks was convicted of the lesser included second-degree robbery. All three, however, were convicted of possession of the firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). All three were also convicted of possession of the firearm without a permit, N.J.S.A. 2C:39-5(b). ² Wormley and Eden were also, in a separate trial with the same jury, convicted of possession of a firearm by one previously convicted of kidnapping and/or robbery, N.J.S.A. 2C:39-7. Eden and Wormley were sentenced to extended terms; Eden to an aggregate term of fifty years with a twenty-year disqualifier, and Wormley to an aggregate term of fifty-five years with a twenty-year disqualifier. Brooks received an aggregate term of eight years with a three-year disqualifier. We reverse the convictions and remand for a new trial.

I

A detailed factual recitation might be of some interest, but for the purposes of this opinion we think the following summary is sufficient. The State's primary witness was William Nelson, who claimed to have been robbed at gun point of $40, a jacket and a key chain with a pink rabbit's foot. According to Nelson, there were three robbers, two with guns and a person in the getaway car whose face he did not see. Troy Tucker, a lifetime friend of Nelson, was the other primary witness. He happened onto the scene as the perpetrators were speeding off and passed his car, going the wrong way on a one-way street. Tucker made a u-turn and gave chase, ultimately leading to the arrest of defendants as their vehicle pulled into a gas station. Tucker, however, never saw the alleged robbery or the perpetrators and his chase of defendants' vehicle was based upon someone's having shouted to him as defendants' car passed him "yo, they robbed us." Meanwhile, Nelson and his friends were chasing another car that they thought was the getaway vehicle, only to be thwarted in their efforts when an officer they asked for help, after the vehicle had stopped and the occupants got out, refused to respond.

In addition to a pellet gun, items that Nelson claimed had been taken from him, a jacket he identified as his and a key chain with a pink rabbit's foot, were found in defendants' vehicle. Nelson claimed that three of his friends who had been with him when he was robbed also had their coats or jackets taken. Several coats, other than Nelson's, were, in fact, found in defendants' car, along with $200. But, aside from Nelson, only one other person responded to the police station to claim a coat, and Nelson denied that that person was one of the other victims.

During trial, Nelson identified Eden and Wormley as the two gun-toting thieves. Yet he did not select Wormley's photo from the police photo line-up shortly after the incident and he selected the photo of a person all agree was not involved at all. He did select Eden's photo, but he also selected Brooks' photo. Brooks was the driver of the car Tucker chased. Nelson, however, consistently maintained he did not see the driver of the getaway car and he did not identify Brooks at trial. In addition, Nelson claimed that one of the two men with guns wore a beige or brown-colored jacket. According to the officers on the scene, however, neither of the two defendants Nelson claimed he saw, Eden and Wormley, was wearing a beige or brown-colored jacket when they were arrested at the gas station. ³

The evidence found in defendants' car certainly was enough to link them to some sort of theft. But the critical aspect of the State's case was the claim that much more than a theft had occurred. As to that, Nelson's testimony was essential. It was only he who linked the pellet gun ⁴ found in defendants' vehicle to the theft, identifying it as one of the guns he and his friends had been threatened with. Although he insisted both perpetrators "[were] waving the guns towards [his] face," an exhaustive search by the police failed to locate a second gun.

II

On appeal, defendant Wormley raises the following contentions:

POINT I. THE IN-COURT IDENTIFICATION BY WILLIAM NELSON WAS SO IMPERMISSIBLY SUGGESTIVE AS TO BE UNRELIABLE AND RESULTED IN THE SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.

POINT II. THE LIMITATION OF THE CROSS-EXAMINATION OF WILLIAM NELSON INFRINGED UPON THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT III. IT WAS ERROR FOR THE COURT TO ALLOW INVESTIGATOR KOTLARZ TO TESTIFY AS AN EXPERT ON FIREARMS.

POINT IV. IT WAS ERROR FOR THE COURT TO FAIL TO CHARGE THE LESSER-INCLUDED OFFENSE OF THEFT.

POINT V. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI. IT WAS ERROR FOR THE COURT NOT TO GIVE A CLAWANS CHARGE AT DEFENDANT'S REQUEST AND TO PRECLUDE COMMENTS OF THE NON-PRODUCTION OF MR. ARNOLD AS A WITNESS.

POINT VII. THE STATE'S MOTION FOR AN EXTENDED TERM SENTENCE SHOULD NOT HAVE BEEN GRANTED.

POINT VIII. THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND SHOULD BE REDUCED. (Not Raised Below).

In a pro se supplemental brief, defendant Wormley contends:

POINT I. THE DEFENDANT/APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS UNDER BOTH THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

1. The Failure To Move For A Dismissal of the Indictment.

2. The Failure To Make A Timely Motion For A New Trial.

3. Failure To Investigate Prior Convictions.

POINT II. THE APPELLANT SHOULD BE GRANTED A NEW TRIAL BECAUSE OF THE CUMULATIVE EFFECTS OF ALL THE VIOLATIONS AND CONSTITUTIONAL ERRORS COMMITTED AGAINST HIM.

Defendant Eden raises the following contentions:

POINT I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT.

POINT II. THE COURT ERRED IN FAILING TO QUESTION THE EMPANELED JURORS INDIVIDUALLY TO DETERMINE IF THE EXCUSED JUROR HAD TAINTED THE REMAINDER OF THE PANEL. (Partially Raised Below).

POINT III. THE INTRODUCTION OF HEARSAY EVIDENCE VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT IV. THE COURT'S REFUSAL TO PERMIT CROSS-EXAMINATION OF THE STATE'S MAIN WITNESS REGARDING HIS DRUG HABIT WHICH AFFECTED HIS ABILITY TO PERCEIVE THE EVENT AND IDENTIFY THE ASSAILANTS VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION.

POINT V. THE SENTENCE WAS MANIFESTLY EXCESSIVE.

A. THE COURT ERRED IN FINDING THAT A PELLET GUN MET THE DEFINITION OF A FIREARM WITHIN THE MEANING OF N.J.S.A. 2C:39-1F, WARRANTING THE IMPOSITION OF A MANDATORY TERM OF IMPRISONMENT UNDER THE GRAVES ACT.

B. THE COURT ERRED IN FINDING THAT DEFENDANT'S 1987 CONVICTION FOR ARMED ROBBERY QUALIFIED HIM AS A SECOND GRAVES ACT OFFENDER WHICH WARRANTED THE IMPOSITION OF AN EXTENDED TERM.

Defendant Brooks raises the following contentions:

POINT I. THE JUDGE ERRED IN HOLDING THAT DEFENSE COUNSEL COULD NOT QUESTION WILLIAM NELSON BEFORE THE JURY ON THE SUBJECT OF HIS DRUG USE.

POINT II. THE TRIAL COURT'S DEFINITION OF CONSTRUCTIVE POSSESSION WAS INCORRECT AND CONFUSING AND DEFENDANT'S CONVICTIONS FOR POSSESSORY OFFENSES MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. (Not Raised Below).

POINT III. DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE IS PATENTLY INCONSISTENT WITH HIS ACQUITTAL OF ARMED ROBBERY AND THE CONVICTION MUST BE VACATED.

POINT IV. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONCLUSION THAT THE CARBON DIOXIDE POWERED PELLET GUN WAS A FIREARM WITHIN THE MEANING OF THE STATUTE AND DEFENDANT'S CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE VACATED. (Not Raised Below).

POINT V. DEFENDANT'S CONVICTION FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE MUST MERGE WITH HIS ROBBERY CONVICTION AND THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We are convinced the limitation upon Nelson's drug use, raised in Wormley's point II, Eden's point IV and Brooks' point I, and the claim of juror taint raised in Eden's point II, require reversal, either separately or cumulatively. We therefore do not address the sentencing contentions, although we note our concern over the extended terms, raised in Wormley's point VII and Eden's point VB. As to the claims concerning Nelson's identification of Wormley and Eden raised in Wormley's and Eden's respective point I, we note only our concern that of the twelve photos shown to him, Nelson testified that he was familiar with eight or nine of the people depicted. By virtue of the fact that he did not know the perpetrators, his...