STATE OF NEW JERSEY v. DUANE KELLY

Case Date: 04/06/2009
Court: Superior Court of New Jersey
Docket No: none

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5074-03T43199-05T4


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUANE KELLY, a/k/a DWAYNE A. KELLY,

Defendant-Appellant.

___________________________________


Argued January 6, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Union County, No. 02-03-0460-I.

Jay L. Wilensky, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Mr. Wilensky, of

counsel and on the brief).

Joie Piderit, Deputy Attorney General, argued

the cause for respondent (Anne Milgram, Attorney

General, attorney; Ms. Piderit, of counsel and

on the brief).

The opinion of the court was delivered by

WEFING, P.J.A.D.

A jury convicted defendant of two counts of murder, N.J.S.A. 2C:11-3(a)(1); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); and one count of first-degree robbery, N.J.S.A. 2C:15-1. The trial court merged the robbery and felony murder convictions into the convictions for murder and sentenced defendant to two consecutive life terms, each with a thirty-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I

The matter has a complex factual and procedural background which must be set forth to properly analyze defendant's contentions on appeal.

Defendant was convicted of killing 24-year-old Rajauhn Anderson and 21-year-old Malcolm Mills on the evening of June 15, 2001. Anderson maintained a business selling marijuana and hallucinogenic mushrooms from his apartment located at 327 Watson Avenue in Plainfield. Charles Knight went to the apartment in the late afternoon of June 15 to purchase some marijuana, and defendant answered the door and let him in. Derrick Davis and Mills arrived some time later.

Davis testified that Anderson opened a kitchen drawer and took out what appeared to be a gun wrapped in a scarf and took it upstairs. Davis said that he did not go upstairs because Anderson insisted that anyone doing so take off his shoes and Davis did not wish to do so.

Knight, however, did remove his shoes and go upstairs with Anderson, as did Mills and defendant. Knight testified that when the four men were upstairs, Anderson displayed a .38 caliber silver revolver that he kept wrapped in a scarf. Knight also testified that Anderson took a box out of a closet and showed the men a black, semiautomatic handgun that had been in the box. Anderson passed it around but would not permit defendant to handle the weapon. Anderson returned the gun to the box and placed the box back in the closet.

There was additional testimony about Anderson keeping guns in the house. His next door neighbor, Yusef Greene, testified that Anderson kept a .38 caliber chrome revolver wrapped in a scarf and had a .40 caliber semiautomatic handgun that he kept in a box.

After Anderson showed these guns, he, Mills and Knight decided to get something to eat and Knight drove the men to a nearby health food store. Davis left the house at the same time but he did not go with the other three men. Defendant remained behind in the house.

Knight testified that he, Anderson and Mills were away for about thirty or forty minutes. When they had finished eating their food, Knight drove them back to Anderson's home. Anderson and Mills got out of the car and walked into the house. Knight remained in the car, expecting them to come back, because they had asked for a ride to the barbershop. Knight waited in the car for twenty to thirty minutes and then went and knocked on the door and rang the bell but no one answered. He also called Anderson on his cell phone, but there was no answer. A review of Anderson's cell phone records placed this call at 5:57 p.m. Knight waited a few more minutes and then drove off.

Jeffrey Goodman was a friend of the defendant. He testified that he was working at the South Avenue Car Wash in Plainfield on June 15 when he saw defendant walking by quickly, carrying a book bag. Goodman could not place the time but knew that it was still light. He said that defendant was sweating and looking behind him. Goodman spoke to defendant, but he testified defendant just waved back and continued walking quickly, not stopping to talk.

At approximately 6:00 p.m. on June 15, Anthony Sapienza drove his Ford pick-up truck to Little Italy Pizza in Fanwood. He parked his truck and went in to pick up his pizza but left his keys in the truck. When he returned, the truck was gone. He reported the theft and the truck's license plate number. There was testimony that it was a ten-minute walk from Anderson's home in Plainfield to the pizza place in Fanwood.

At approximately 6:30 p.m. Patrolman Alejandro Yanes of the Clark Police Department, who had received a broadcast about the stolen truck, saw defendant driving that truck. Yanes testified that defendant looked in his direction, saw the patrol car, sped up, crossed double yellow lines and turned left. Yanes turned on his lights and siren and followed him. Yanes said the pursuit went through residential areas (at one point through several back yards) and streets with heavy traffic, that defendant's speed went up to sixty miles per hour and that he went through stop signs without stopping. Eventually the front passenger tire on the truck blew out and the truck hit a parked car, a light post, and then a tree.

Defendant leapt out of the truck and began to run, with the police in pursuit. Defendant ran toward a reservoir, jumped in and went out approximately twenty feet from the shore. He eventually responded to repeated commands to come out of the water and was handcuffed. Defendant was bleeding from his head, and the first aid squad was summoned to assist him.

Patrolman Steven Francisco of the Clark Police Department assisted Yanes in apprehending defendant. Francisco secured the scene and retrieved the following items:

l. a .40 caliber High Point semiautomatic handgun that had been wedged between the dashboard and the windshield of the truck;

2. a black knapsack which contained eight bags of marijuana, weighing .78 pounds, large and small plastic bags and a scale;

3. a magazine containing live ammunition--five .40 caliber full metal jacket rounds--from the front passenger floor; and

4. a box of .40 caliber metal jacket rounds.

Sapienza, the truck's owner, did not own any guns, and he did not keep any guns, drugs or scales in his truck. After the truck was returned to him, he found a box for a High Point .40 caliber handgun, and he turned it over to the police.

Defendant was placed under arrest and charged with burglary, theft, possession of a controlled dangerous substance with intent to distribute within 500 feet of a public facility, eluding, resisting arrest, possession of a weapon in the course of a drug crime, and certain persons not to have weapons.

The day after defendant was arrested, Patrolman Yanes saw him in the Clark jail and inquired how he was doing. Yanes told him he would probably face ten years in jail based on the events of the day before. Yanes testified that defendant responded no, that he was going away for life. Yanes did not understand this response.

Two days later, on June 17, Leslie Pennington, an aunt of Mills, went to Anderson's house looking for Mills. She was accompanied by his brother, father and his brother's fiance