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N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A.
2C:11-3a(3) (count three); second-degree reckless manslaughter, N.J.S.A. 2C:11-3a(3), as a lesser-included offense of
first-degree murder (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Merging counts one
and two, the court sentenced defendant on count three to a forty-five year term of imprisonment with a period of
parole ineligibility for eighty-five percent of that term and to concurrent sentences for lesser terms on the
remaining convictions. We affirm. "> 199 N.J. 541"> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
The status of this decision is unpublished
Original Wordprocessor Version
This case can also be found at 199 N.J. 541, 973 A.2d 944.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1572-06T4A-1572-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL MCCALL a/k/a MICHAEL
COVINGTON,
Defendant-Appellant.
Submitted September 8, 2008 - Decided
Before Judges Carchman, R. B. Coleman and
Simonelli.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment
No. I-03-06-2173.
Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone,
Designated Counsel, on the brief).
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Anne Milgram, Attorney General, attorney for respondent (Paul Salvatoriello, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant, Michael McCall, appeals from his conviction in the Law Division following a jury trial in November
2005, of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A.
2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree reckless
manslaughter, N.J.S.A. 2C:11-3a(3), as a lesser-included offense of first-degree murder (count four); third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4a (count six). Merging counts one and two, the court sentenced defendant on
count three to a forty-five year term of imprisonment with a period of parole ineligibility for eighty-five percent of
that term and to concurrent sentences for lesser terms on the remaining convictions. We affirm.
On December 6, 2002, Carlos Velez was shot and killed while working at his store, the Elwood Mini Market
located at 96 Elwood Avenue in Newark. Earlier that day, defendant McCall and co-defendants, Andreas Motley,
Robert Luma, and Rashawn Stevens, conspired to commit a robbery of the mini-mart and proceeded to arm
themselves with a .380 handgun and a 9mm handgun, both firearms supplied by defendant. At the time of the
robbery, defendant was 42 years old. The other three participants were all under 18 years of age.
The following account of the robbery is taken from co-defendant Motley's trial testimony, given pursuant to a plea
agreement whereby Motley admitted that he robbed and shot Mr. Velez. Once they arrived at the store, Luma and
Stevens waited at the cab while defendant and Motley entered the store. Defendant was armed with the 9mm
handgun and Motley with the .380. Motley approached the counter while defendant positioned himself at the front
door. The men drew their weapons and demanded money. When Mr. Velez began to side-step, defendant told
Motley, "Hit him," whereupon Motley shot Velez dead. Attempts to open the cash register were unsuccessful, and
defendant was only able to take the register's change dispenser. The four men returned to defendant's apartment
by cab and divided the proceeds from the dispenser, which totaled less than ten dollars. Also present at the
apartment was Barbara Manning, defendant's girlfriend and mother of his two children. The four men and Manning
spent the remainder of the day in defendant's apartment smoking marijuana.
On December 10, 2002, Newark Police Detectives were questioning Luma in connection with another robbery and
homicide which had occurred near a sports store. Results of ballistic testing revealed that a shell casing recovered
from the sports store robbery and one from the mini-mart robbery were fired from the same .380 handgun. In
giving his statement about the sports store robbery, Luma also implicated himself in the mini-mart robbery, and
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based on Luma's statements the detectives decided to question defendant, who was in custody on unrelated
charges. Defendant was advised of his Miranda rights, which he waived, and he subsequently executed a written
statement admitting the events surrounding Mr. Velez's death.
On appeal, defendant raises the following arguments:
POINT I - DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED
WHEN THE STATE ELICITED TESTIMONY THAT A NON-TESTIFYING CO-DEFENDANT HAD
IMPLICATED DEFENDANT IN THE ROBBERY AND MURDER. (Not Raised Below.)
POINT II - THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY
ALLOWING THE STATE TO INTRODUCE IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE
THAT DEFENDANT IMPREGNATED AN UNDERAGE GIRL, BEAT HIS GIRLFRIEND, SMOKED
MARIJUANA, PARTICIPATED IN OTHER UNRELATED ROBBERIES, LED A "GANG" OF
TEENAGERS, AND WAS INCARCERATED ON UNRELATED CHARGES.
POINT III - THE ABSENCE OF A LIMITING INSTRUCTION THAT THE CO-DEFENDANT'S
GUILTY PLEA CAN ONLY BE USED TO ASSESS THE CO-DEFENDANT'S CREDIBILITY AND
NOT AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT DEPRIVED DEFENDANT OF
THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)
POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO
A FORTY-FIVE YEAR TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING
FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We shall address each of defendant's arguments in turn.
I.
For the first time on appeal, defendant contends that his right to confront his accusers under both the
United States and New Jersey Constitutions was violated when the State elicited hearsay evidence that Luma, a
non-testifying co-defendant, had implicated defendant in the mini-mart robbery. Specifically, he asserts that under
State v. Young, 46 N.J. 152 (1965), and Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968),
the trial judge erred in allowing a detective to testify that Luma provided police with a statement that, in some way,
linked defendant to the mini-mart robbery and ultimately led to defendant's interrogation and arrest. The trial court
explained and we acknowledge that "[a] defendant may be prejudiced by the admission in evidence against a co-
defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-
examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the
prejudice . . .                                                                                                           ." Bruton v. United States, supra, 391 U.S. at 132, 88 S. Ct. at 1625-26, 20 L. Ed. 2d at 483 (1968).
The State responds, however, that defendant's right to confrontation was not violated because the detective
did not testify to, nor did the State seek to elicit, any of the substance of Luma's statement. The detective merely
communicated that defendant became a person of interest after Luma provided his statement.
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"The Confrontation Clause of the Sixth Amendment provides that "'[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.'" State v. Castagna, 187 N.J. 293, 308-09
(2006) (quoting U.S. Const., amend. VI)); accord Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L.
Ed.2d 177, 187 (2004). "'The central concern of the Confrontation Clause is to ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before
the trier of fact.'" Ibid. (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed.2d 666, 678
(1990)). "The primary interest advanced by the Confrontation Clause is the right of cross-examination." State v.
Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994) (citing Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662,
96 L. Ed.2d 631, 641 (1987)).
In Crawford, the United State Supreme Court outlined its approach to Confrontation Clause issues. There, the
Court instructed that if the statement is testimonial it may not be admitted unless the declarant is legally
unavailable and defendant had a prior opportunity for cross-examination of the declarant. Crawford, supra, 541 U.S.
at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. However, if the statement is non-testimonial it is exempted from
Confrontation Clause scrutiny. Ibid.
Our jurisprudence has also been extremely protective of a defendant's right to confront his accusers. For
example, in State v. Young, supra, 46 N.J. 152, our Supreme Court held that a hearsay statement of one co-
defendant implicating another co-defendant is inadmissible. Thus, "where a defendant moves to eliminate all
references to himself from a codefendant's statement which the prosecution proposes to place in evidence, the trial
court must grant such a motion." Id. at 157. Consistently, in State v. Walden, 370 N.J. Super. 549 (App. Div.), certif.
denied, 182 N.J. 148 (2004), we reversed and remanded a defendant's conviction where an alleged co-perpetrator,
who had pled guilty, refused to testify after the prosecutor had commented in his opening statement that the non-
testifying co-perpetrator would implicate defendant. We held that the prosecutor's comments, coupled with the
prosecutor's vouching for the prosecution's key witness who did testify, deprived defendant of a fair trial. Id. at 552.
Here, co-defendant Luma, while in custody regarding a sports store robbery, voluntarily gave a statement
that led Elwood Detective Michael Chirico to speak with defendant. The detective did not testify that Luma
implicated defendant in the mini-mart robbery. His testimony did not reveal the substantive content of Luma's
statement; nor did the State's line of questioning attempt to elicit such content. Rather, the detective merely
testified that he took a statement from Luma, and then afterward, he spoke to defendant. In State v. Bankston, 63
N.J. 263, 268-69 (1973), our Supreme Court held:
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It is well settled that the hearsay rule is not violated when a police officer explains the
reason he approached a suspect or went to the scene of the crime by stating that he
did so "upon information received." Such testimony has been held to be admissible to
show that the officer was not acting in an arbitrary manner or to explain his subsequent
conduct.
[Id. at 268-69 (citations omitted).]
We also note defendant's failure to object to the detective's testimony, as well as defense counsel's repeated
references to the detective's statement during his closing statement. Even if there had been error in allowing the
detective to make any mention of Luma's statement which led him to speak to defendant, it was not plain error,
clearly capable of producing an unjust result. Rule 2:10-2; see State v. Cotto, 182 N.J. 316, 336-37 (2005) (harmless
error for trial judge to admit a hearsay statement given to police, that led them to capture defendant, in light of the
other "strong identification evidence" the State proffered to prove defendant committed the robbery); see also
State v. Roach, 146 N.J. 208, 224-26 cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed.2d 424 (1996) (in light of
defendant's testimony that he "admitted to being at the crime scene[,] admitted to planning the robbery, being a
lookout, knowing about the guns, and knowing the details of the shooting[,]" it was harmless error to allow a
detective to testify that only after meeting with various co-defendants did he then speak with defendant and inform
defendant that he was a suspect).
As discussed hereafter, defendant himself gave a statement admitting his involvement in the incident. In
addition, Motley, a co-perpetrator, testified at trial concerning defendant's involvement. Under such circumstances,
the detective's reference to Luma's statement was harmless.
II.
Defendant next contends that the trial judge admitted various pieces of evidence in violation of N.J.R.E.
404(b), and that the combined effect was to deprive him of his right to a fair trial. Specifically, defendant posits that
the following evidence was erroneously admitted: (a) Manning became pregnant with one of defendant's children
when she was underage; (b) defendant hit Manning on one occasion; (c) defendant, Manning, and his co-
defendants smoked marijuana after the homicide; (d) Motley testified that he and defendant previously committed
other robberies together; (e) the State used the word "gang" in its summations; and finally, (f) the detective
disclosed that defendant was already in custody on unrelated charges when the detective asked to speak with him.
The State counters that none of the specified evidence was offered to show that defendant was predisposed
to commit crimes. It further adds that "fleeting, and often unexpected, references in the context of a long trial with
overwhelming evidence of defendant's guilt" are harmless. In addition, the trial judge properly instructed the jury
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concerning the limited extent to which other crimes evidence could be considered, thereby purging any
unnecessary taint. The controlling rule, N.J.R.E. 404(b), states:
Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of a person in order to show that such person
acted in conformity therewith. Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident when such matters are relevant to a material issue in
dispute.
Admissibility of 404(b) evidence is generally governed by a four-part test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent
prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
"Despite its prejudicial nature in some contexts, Rule 404(b) does not exclude evidence of other crimes, wrongs, or
acts under all circumstances." State v. Nance, 148 N.J. 376, 386 (1997). "The rule recognizes that there are times
when that evidence is probative of a material disputed fact in the case." Ibid.
It is the trial judge's function to act as a gatekeeper to the admission of other-crime evidence. State v.
Hernandez, 170 N.J. 106, 127 (2001). Indeed, we review the record under an abuse of discretion standard because it
is recognized that the trial judge is in the best position to engage in the balancing required of evidentiary findings,
and for this reason, such findings are entitled to deference. State v. Covell, 157 N.J. 554, 564 (1999). The trial court
properly may allow evidence of other conduct to show the defendant's motive, intent, or absence of an accident.
The court must, however, "instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41.
Here, the evidence of defendant's guilt was substantial. Defendant had knowingly, voluntarily, and
intelligently waived his Miranda rights and confessed to his participation in the events that led to the death of Mr.
Velez. In addition, Motley, one of his co-defendants, testified and corroborated the facts of the crime. Testimony
from the investigating officers regarding ballistic and forensic testing, as well as that from witnesses such as
Manning also strongly supported the jury's guilty verdict. In context, we do not find that the court's evidentiary
rulings, either singly or cumulatively, constituted an abuse of the court's discretion.
We are satisfied that the testimony regarding defendant's relationship with Manning, his alleged prior abuse
of her, and the fact that she had one of his children when she was underage, were properly admitted to provide "a
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basis for the jury to infer" that Manning must be biased. State v. Timmendequas, 161 N.J. 515, 594 (1999), cert.
denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001). Bias and interest are always relevant and always non-
collateral. N.J.R.E 607; State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996) (citation omitted).
Manning is the mother of two of defendant's children and had a long-term relationship with him. While that
relationship might suggest a bias in favor of defendant, the fact that she was once abused might give her reason to
give untruthful testimony to hurt defendant. To allow balance and to safeguard against any claim of unfair
prejudice, the court limited the State to eliciting testimony that Manning was twenty years old in 2002 when she
was living with defendant and that she was the mother of his children. The jury was left to do the math and no
undue emphasis was placed on the fact that Manning had children with defendant when she was underage. We are
convinced that no undue prejudice occurred when such facts were allowed to impeach Manning. The jury was
merely permitted to assess more fully Manning's credibility.
The evidence that defendant, Manning, and the co-defendants were smoking marijuana following the murder was
relevant to the testimony proffered "insofar as it may relate to a witness' ability to perceive and recall." State v.
Ciuffini, 164 N.J. Super. 145, 154 (App. Div. 1978) (citing State v. Franklin, 52 N.J. 386, 398-400 (1968)). This evidence
may also be used to show motive or intent for committing the crime by explaining the nature and the impetus
behind it.
The State's use of the word "gang" during closing argument was wholly innocuous. The trial judge, in addressing
defense counsel's motion for a mistrial, correctly noted that a closing statement is not evidence but rather an
attorney's assessment of the evidence and his arguments thereon. State v. Carswell, 303 N.J. Super. 462 (App. Div.
1997). Thus, N.J.R.E. 404(b) is not offended because that rule only applies, by its plain language, to evidence of
"other crimes, wrongs, or acts." Considering the overall context in which the State used the term "gang" it could not
reasonably be understood to suggest that defendant was running an organized criminal syndicate. Instead, the
term plainly referred to the group of individuals acting in concert to commit the crime. It is to be remembered that
"[w]e afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably
related to the scope of the evidence presented." State v. Harris, 141 N.J. 525, 559 (1995). We perceive no undue
prejudice in the use of the word "gang" to refer to defendant and his cohorts. We are likewise satisfied the trial court
did not improperly exercise its discretion in not providing a limiting instruction that might have implanted or
exaggerated the connotation that the word "gang" might mean an organized criminal syndicate.
Motley stated that he and defendant committed other robberies together, however, there is no indication that the
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State intentionally sought to elicit such testimony. Rather, Motley was unresponsive to the State's questions.
Immediately after defendant objected, the trial judge twice instructed the jury that it should only focus on the
incident at issue and not on any other crimes. The court refused, however, to grant a mistrial and that refusal was
within its discretion:
The decision of whether inadmissible evidence is of such a nature as to be susceptible
of being cured by a cautionary or limiting instruction, or requires the more severe
response of a mistrial, is one that is peculiarly within the competence of the trial judge,
who has the feel of the case and is best equipped to gauge the effect of a prejudicial
comment on the jury in the overall setting.
[State v. Winter, 96 N.J. 640, 646-47 (1984).]
As the Court in Winter further noted, "[t]he adequacy of a curative instruction necessarily focuses on the capacity of
the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647. The curative
instruction given in this case properly addressed the unsolicited comment by Motley and the disclosure by the
detective that defendant was in custody on unrelated matters. That disclosure involved no elaboration as to why
defendant was in custody at that time.
As already stated, in a careful review of the entire record and viewing the alleged errors, separately and in
the aggregate, we find them non-existent or harmless. Certainly we discern no error was so unduly prejudicial to
defendant as to warrant a reversal. See State v. La Porte, 62 N.J. 312, 320 (1973) (citing State v. Orecchio, 16 N.J. 125,
129 (1954)).
III.
Defendant next contends the trial judge plainly erred by not providing a limiting instruction to explain that
evidence of Motley's guilty plea was allowed only to assess his credibility as a witness, and not as substantive
evidence of defendant's guilt. The State reminds us that defense counsel failed to request a tailored charge and that
defendant had the opportunity to thoroughly cross-examine Motley at trial. The trial judge gave the standard jury
charge on credibility and instructed the jury that testimony of an alleged accomplice should be carefully
scrutinized. In light of defendant's own admissions as to his guilt, along with other substantial evidence
establishing defendant's guilt, we find no plain error occurred in the jury charge as given.
Indeed, this very issue was recently address by the Supreme Court in State v. Comer and State v. Adams, 194
N.J. 186, 208 (2008), consolidated for the purposes of the Court's opinion. There, the Court concluded:
[T]he trial court should instruct the jury that it must carefully scrutinize the testimony of
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a co-defendant in light of the witness's special interest and that a co-defendant's guilty
plea may be used only to assess credibility and may not be used as substantive
evidence of a defendant's guilt.
In applying that ruling to the circumstances of the case, the Court nevertheless observed:
At trial, defense counsel thoroughly cross-examined [the testifying co-defendant] to
challenge his credibility and [his] lack of credibility was a major theme in closing
arguments for the defense, which asserted that [the testifying co-defendant] was a liar.
The detailed testimony of [the testifying co-defendant] independently established his
guilt of the crime and, therefore, his guilty plea added little weight to that testimony.
Further, the trial court gave the standard charge on credibility. Under those
circumstances, we are satisfied that "the error did not have the clear capacity to
produce an unjust result and that it had a minimal effect on the outcome of trial."
[Id. at 208-09.]
Those same observations inform our review of the case at bar.
IV.
Defendant argues the trial court abused its discretion in sentencing defendant to a forty-five-year prison term, with
an eighty-five percent parole disqualifier. More specifically, he contends the trial judge incorrectly found applicable
aggravating factors N.J.S.A. 2C:44-1a (1), (2), (6), (9), and (12). Defendant alleges the trial judge placed too much
weight on the usual aggravating factors (6), prior record, and (9), the need to deter. Defendant maintains the trial
court did not articulate the reasons for its finding, but rather relied on a general need to deter, thus resulting in
double-counting. Defendant also contends the judge erred in finding aggravating factors (1) and (2) because the
victim's advanced age was already taken into account in finding aggravating factor (12). Similarly, defendant asserts
there were no facts in the record that made this killing more heinous than others.
The trial judge noted on the record defendant's prior twenty-one arrests before finding that aggravating factors (1),
(2), (6), (9) and (12) substantially outweighed the non-existent mitigating factors. In making his findings, he credited
defendant with setting events in motion that "recklessly and needlessly" led to Mr. Velez's death. Also, the judge
gave specific reasons for deterrence, noting, in particular, defendant's current influence over impressionable youths
and the need to stop him from influencing other youths. We also do not agree with defendant's assertion that the
trial judge double-counted factors.
Affirmed.
The State, in exchange for Motley's testimony, dropped the murder charges against him and allowed Motley to
plead guilty to aggravated manslaughter and first-degree robbery, for which he received an aggregate prison term
of twenty-five years.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
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(continued)
(continued)
19
A-1572-06T4
December 23, 2008
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