                                       RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE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.




                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NOS. A-3606-17T3
                                                                      A-3608-17T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JAHCIR KING,

     Defendant-Appellant.
_____________________________

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

MICHAEL KEE,

     Defendant-Appellant.
________________________________

                    Argued September 20, 2018 – Decided October 9, 2018

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 17-11-3227.
            Megan J. Davies argued the cause for appellant Jahcir
            King.

            Raquel DeStefano, Assistant Deputy Public Defender,
            argued the cause for appellant Michael Kee (Joseph E.
            Krakora, Public Defender, attorney; Raquel DeStefano
            and Jennifer N. Sellitti, Assistant Deputy Public
            Defender, on the brief).

            Joseph J. MacNamara, Assistant Prosecutor, argued the
            cause for respondent (Mary Eva Colalillo, Camden
            Country Prosecutor, attorney; Joseph J. MacNamara, of
            counsel and on the brief).

PER CURIAM

      On leave granted, codefendants, Jahcir King and Michael Kee, appeal

from an order that denied their motions for severance of their trials. King also

appeals from an order that denied his motion to dismiss the indictment. The

motion record contains no evidence defendants participated in the same act or

same series of acts constituting a crime.    The transcript of the grand jury

presentment contains no evidence of any deficiency in that proceeding.

Accordingly, we reverse the order denying severance but affirm the order

denying King's motion to dismiss the indictment.

      In a single indictment containing ten counts against Kee and one count

against King, a Camden County grand jury charged Kee with first-degree

murder, two weapons offenses, hindering apprehension, and six counts of

                                                                        A-3606-17T3
                                       2
witness tampering. The State later dismissed five counts of witness tampering.

The indictment's eleventh count — the only count against King — charged him

with witness tampering.

      According to the indictment, Kee committed the murder, possessed a

weapon, a handgun, hindered his apprehension, and threatened a witness on

March 1, 2017.      The indictment alleged King tampered with a witness on

October 19, 2017, more than seven months after Kee committed the murder.

      These are the State's factual allegations. On March 1, 2017, Kee, driving

a car occupied by two other men and a woman, parked on a Camden Street. Kee

and one of the men exited the car, walked around a corner, and walked up to the

driver's side window of a parked car occupied by three men. Carlos Rosa was

sitting in the driver's seat.   Kee and Rosa spoke and then argued. Kee drew a

handgun and shot Rosa, killing him.

      Kee and the man with him fled the scene and ran back to their car. Kee

gave the female passenger (the witness) the handgun and said he would kill her

if she told anyone. After Kee sped away, an officer in a nearby patrol car saw

him speeding, pursued him, and pulled him over. Other officers arrived and

transported Kee and his car's occupants to the police department. The witness,

who had concealed the handgun on her person, stuffed it behind the rear seat of


                                                                       A-3606-17T3
                                         3
the patrol car in which she rode to the police station. Police discovered the

handgun the next day. Ballistics tests established that it was the murder weapon.

      The witness and the man who accompanied Kee when he shot Rosa

eventually gave statements implicating Kee. Kee was arrested for the homicide.

During the months following his arrest, he made numerous calls from jail — all

recorded — to the witness. The five witness tampering counts of the indictment

the State eventually dismissed were based on the content of Kee's telephone calls

to the witness from the jail.

      The witness tampering charge against King is based on a Facebook post.

King had received a subpoena the State issued to the witness.     The Facebook

post contained a copy of the subpoena. This appeared above the subpoena on

the post:

            "Man f*** this ik [(I know)] it's early n all but frankly
            IDGF [(I don't give a f***)] this rat ass bitch got my
            cousin bagged all like that's ya best friend SMD [(suck
            my d***)] who got a problem bout it's w.e [(whatever)]
            I ain't hiding [(three emoji 100 signs)] n u keep lying
            saying u didn't but here's the proof [(emoji 100)].
            [Witness's first name] the f***in Rat YA DONE!!!!
            Free Oosoo Milk Nificent and Mikey #FTR (F*** The
            Rats) #FTL [(F*** The Liars) (seven middle finger
            emojis)]."

      Following King's arrest, he gave a statement to Camden County

detectives. He admitted making the Facebook post but denied it was a threat.

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                                       4
He explained that "Ossoo Mile Nificent" was his cousin and "Mikey" was

defendant Kee, a distant relative of his stepsister. He said a "picture" of the

subpoena was sent to him but he did not know who sent it. He claimed that he

intended nothing by the post, he was simply voicing his opinion about the

witness being a hypocrite. He also claimed that when he wrote "YOU DONE,"

he meant he wanted nothing more to do with her, no more phone calls or

communication. He did admit having a conversation with Kee after Kee's arrest.

      Following the indictment, King filed motions to dismiss the indictment

and to sever his case for trial, both of which were denied. Kee filed a severance

motion, which was also denied. In an oral decision delivered from the bench,

the Law Division judge denied King's motion to dismiss the indictment. The

judge rejected King's argument that his Facebook post was protected free

speech, that the State was obligated to present his statement to the grand jury,

and that the post's content did not constitute a threat. The judge determined that

given the context of the post and the charges against Kee, a reasonable jury could

infer the post was a threat to the witness.

      The judge also denied both severance motions. The judge did not find

that trying the defendants together would result in "undue legal prejudice."

Rather, the judge determined that appropriate jury instructions would solve any


                                                                          A-3606-17T3
                                         5
concerns about the jury inappropriately considering the acts of one codefendant

against the other. As to Rule 3:7-7 — the rule that authorizes joinder of

defendants — the judge found that the rule's requirement defendants must be

"alleged to have participated in the same act or transaction or in the same series

of acts or transactions constituting an offense or offenses" was satisfied by "a

commonality . . . with regard to [the witness]."

        Amplifying his reasons in a written opinion, the judge found

"codefendants participated in a series of interrelated events in the case." The

judge stated, "[i]n direct response to [the witness] agreeing to testify in Michael

Kee's trial, Jahcir King posted a photo of [the witness's] subpoena on Facebook

and included serious threatening language." Acknowledging the State had not

yet alleged any direct evidence that King was involved in the homicide, the

judge nonetheless said he "understood the alleged actions of the codefendants

as a series of interrelated events stemming from the underlying murder." The

judge also "recognize[d] that a convincing argument can be made of the

existence of circumstantial evidence linking these two defendants with the intent

to threaten [the witness]." He did not articulate precisely what such argument

was, nor did he cite the facts from which such a circumstantial case could be

made.


                                                                           A-3606-17T3
                                        6
      Citing Rule 3:15-2 — the rule that affords relief from prejudicial joinder

— the judge found neither defendant had made a persuasive argument that a

joint trial would cause undue prejudice. The judge reiterated that proper jury

instructions would prevent any undue prejudice to either defendant.

      Codefendant King argues the following points on appeal: 1

            [I]. THE   TRIAL  JUDGE      COMMITTED
            REVERSIBLE ERROR BY ALLOWING THE
            PROSECUTION TO UTALIZE [sic] THE GRAND
            JURY AS A RUBBER STAMP, CAUSING
            IRREVOCABLE HARM TO THE DEFENDANT.

            [II]. THE   TRIAL    JUDGE  COMMITTED
            REVERSIBLE ERROR BY ALLOWING THE
            PROSECUTION TO JOIN TWO DEFENDANTS IN
            COMPLETE OPPOSITION TO THE LAW AND
            COURT     RULES     THEREBY    CAUSING
            SUBSTANTIAL     PREJUDICE   TO   BOTH
            DEFENDANTS AND A SIGNIFICANT DELAY IN
            DEFENDANT KING'S TRIAL.

Codefendant Kee argues:

            [I]. THE TRIAL COURT'S REFUSAL TO SEVER
            DEFENDANTS CONSTITUTED ERROR AS A
            MATTER OF LAW.

                  A. The trial court erroneously sustained
                  joinder because there is no evidence an
                  overarching, common scheme or plan of
                  both defendants.

1
  We have renumbered the point headings and deleted those concerning why
codefendants' motions for leave to file interlocutory appeals should be granted.
                                                                        A-3606-17T3
                                       7
                     B. The trial court's refusal to grant Mr.
                     Kee's severance motion will substantially
                     prejudice his defense.

        The State argues that the motion judge correctly denied all codefendants'

motions. As to King's indictment, the State denies it had a duty to present King's

statement to the grand jury and denies it violated King's right to free speech.

The State contends the evidence presented to the grand jury clearly established

a prima facie case of witness tampering. As to the severance motions, the State

argues the motion judge properly found both that codefendants engaged in

interrelated offenses and that any potential prejudice to codefendants could be

ameliorated by proper jury instructions.

        Codefendant King's first argument concerning the grand jury and the

indictment is without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).       The codefendants' arguments concerning severance are

meritorious.

        The source rule for Rule 3:7-7 is R.R. 3:4-8, which provides in pertinent

part:

               Two or more defendants may be charged in the same
               indictment or accusation if they are alleged to have
               participated in the same act or transaction or in the same
               series of acts or transactions constituting an offense or
               offenses. Such defendants may be charged in one or

                                                                            A-3606-17T3
                                           8
             more counts together or separately, and all of the
             defendants need not be charged in each count. The
             disposition of the indictment or accusation as to one of
             several defendants joined in the same indictment or
             accusation shall not affect the right of the State to
             proceed against the other defendants.

The current rule, Rule 3:7-7, provides:

             Two or more defendants may be charged in the same
             indictment or accusation if they are alleged to have
             participated in the same act or transaction or in the same
             series of acts or transactions constituting an offense or
             offenses. Such defendants may be charged in one or
             more counts together or separately and all of the
             defendants need not be charged in each count. The
             disposition of the indictment or accusation as to one or
             more of several defendants joined in the same
             indictment or accusation shall not affect the right of the
             State to proceed against the other defendants. Relief
             from prejudicial joinder shall be afforded as provided
             by R. 3:15-2.

      Rule 3:15-2(b) provides in pertinent part that "[i]f for any other reason it

appears that a defendant or the State is prejudiced by a permissible or mandatory

joinder of . . . defendants . . . the court may . . . grant a severance of defendants,

or direct other appropriate relief."

      Interpreting R.R. 3:4-8, and specifically addressing the issue of whether

to join defendants requires the State to allege in the indictment that they

participated in the same act or transaction or in the same series of acts or

transactions, the Court explained:

                                                                              A-3606-17T3
                                          9
              The constitutional guarantee of indictment is not
              involved. The constitutional right is honored if the
              indictment charges the essential elements of the crime;
              it has nothing to do with joinder of offenders, a matter
              of trial practice. It seems to us that R.R. 3:4-8 was
              intended to mean only that the required showing be
              made in some acceptable form. The identity of the acts
              or transactions may appear from a comparison of the
              charges and participation may be inferred therefrom, or
              the State may advance its contention that defendants
              participated in the same acts or transactions by a
              showing independent of the indictments themselves.
              Upon either approach, the trial court's action was
              proper.

              [State v. Manney, 26 N.J. 362, 367–68 (1958).]

        In the case before us, the State did not allege in the indictment either that

King participated in the homicide or that Kee participated in King's Facebook

post.      In fact, during argument on the severance motions, the assistant

prosecutor stated explicitly the State was not claiming Kee participated in the

Facebook threat by King: "we have not charged conspiracy in this case, we are

not alleging that Michael Kee put Jahcir King up to it, we're not saying that

Jahcir King contacted Michael Kee and said this was what I was going to do."

Rather, the assistant prosecutor alleged "there is a connection between the

transactions. That connection would be that Michael Kee is charged with the

murder. [The witness] is a witness in that murder. Jahcir King tampered with



                                                                             A-3606-17T3
                                         10
[the witness] in reference to her participation as a witness in the murder charges

against Michael Kee. That is the connection."

      Rule 3:7-7, which permits the State to charge two or more defendants in

the same indictment, requires that the defendants "are alleged to have

participated in the same act or transaction" (emphasis added). Stated differently,

the clear and unambiguous language of the rule requires more than a mere

connection. Here, the State not only presented no evidence of joint participation

by either codefendant in the offense charged against the other, but also admitted

there was no such evidence. Rather, it submitted a "connection" between the

crimes sufficed.    A mere connection being insufficient, defendants were

improperly joined in the indictment. Because they were improperly joined in

violation of Rule 3:7-7, we need not reach the issue of whether defendants

demonstrated prejudice under Rule 3:15-2(b).

      We recognize "[t]he decision whether to grant severance rests within the

trial court's sound discretion and is entitled to great deference on appeal." State

v. Brown, 118 N.J. 595, 603 (1990) (citing State v. Laws, 50 N.J. 159, 175

(1967)).   Here, by making a determination unsupported by the evidence,

contrary to the assistant prosecutor's explicit representation that he was not

asserting either codefendant participated in the offense charged against the


                                                                           A-3606-17T3
                                       11
other, and contrary to the rule requiring such joint participation as a prerequisite

to joinder of defendants, the court abused its discretion.

      The order denying severance of the codefendants' trials is reversed. The

matter is remanded for separate trials. We do not retain jurisdiction.




                                                                            A-3606-17T3
                                        12
