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After a fifteen-day trial, a jury agreed with the State’s contention that defendant Terrence L. Strother’s year-long dispute over a woman with another man, Shane Stevens, resulted in defendant assaulting Shane by shooting a flare at Shane’s car; and later that day recruited some friends to help with his retaliation firing two flares at Shane’s family home, causing its destruction.
IN STATE OF NEW JERSEY v. TERRENCE L. STROTHERS, No. A-5157-18, Superior Court of New Jersey, Appellate Division (Nov. 15, 2022), he sought to avoid prison and the convictions that the jury found obvious.
When the jury reached its verdict, it found the defendant guilty of eleven of the state’s thirteen counts. The defendant was convicted of:
- third degree conspiracy to commit arson as a lesser included offense of second degree conspiracy to commit aggravated arson;
- third degree arson, as a lesser included offense of second degree aggravated arson; third degree conspiracy to commit criminal mischief;
- third degree criminal mischief; third degree conspiracy to commit aggravated assault as a lesser included offense of second degree conspiracy to commit aggravated assault;
- third degree aggravated assault as a lesser included offense of second degree aggravated assault;
- second-degree aggravated assault;
- two counts of third-degree possession of a weapon for an unlawful purpose; and three counts of fourth-degree unlawful possession of a weapon.
Defendant received a total of eleven years in prison for second degree aggravated assault under the No Early Release Act (NERA), NJSA 2C:43-7.2, consecutive to four years in prison for third degree arson, a third degree felony. , and third and fourth degree weapons felonies. The defendant was also ordered to pay $50,000 in restitution to the Stevens family.
CHALLENGES TO CONVICTION
The defendant contested the trial judge’s:
- denial of defendant’s motion for judgment of acquittal;
- admission of state fire expert’s testimony;
- decision not to replace a deliberating juror; and
- jury instruction on the conspiracy to commit aggravated arson and aggravated arson charges.
Defendant argued that the use of a gun was “a sporadic occurrence because no one expected Stevens and his friends to drive by . . . defendant’s house.” The only “weapons” brought were a bat and a two-by-four in case he and his friends were outmatched in the fight.In denying the defendant’s motion for acquittal, the judge reasoned that all the co-conspirators had met earlier at the defendant’s residence and at some point went over to Steven’s residence to accompany the defendant in his, I presume, vendetta for and retaliation for damage to his car. That, in connection with the telephone conversation in which the defendant threatened Shane that although he might go back to school to California, his house is not, at least creates the inference that he was going there to do something to the home. And as it turned out, he went there with others who had light guns and it was obvious to the defendant that others had light guns . Defendant Joshua Maldonado fired a gun. He recruited Barnes to accompany him. Barnes fired a gun.
In order to convict the defendant of conspiracy to commit a crime, the State had to satisfy NJSA 2C:5-2(a), which provides, in relevant part:
A person is guilty of conspiring with another person or persons to commit an offense if, for the purpose of furthering or facilitating its commission:
Agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
Agrees to assist such other person or persons in the planning or commission of such crime or an attempt or solicitation to commit such crime.
The Court of Appeal concluded that the denial of the defendant’s motion to acquit the arson, assault, and related weapons charges was appropriate.
Jury member change
Defendant requested the juror substitution and should not benefit from the substitution by claiming it was a mistake. He should not be able to argue that an adverse ruling by the trial judge was the result of error, when he urged the judge to adopt the proposition now alleged to be erroneous.
Although the alleged error was not invited, the plain error rule applies because defendant neither objected to the removal of juror number nine nor argued that it was too late to reconstitute the jury. Once a jury begins its deliberations, the trial judge may not substitute an alternate juror unless “a juror dies or is dismissed by the court for cause or other inability to continue.” The replacement of juror nine was compatible with Rule 1:8-2(d)(1) and did not violate defendant’s due process rights by denying him a fair trial.
Although “and/or” is used repeatedly in the model jury instructions and the jury is instructed to consider alternative options, defendant fails to show how the phrase was improperly used in this case. Regarding defendant’s guilt, the State argued that he fired the gun at Shane’s car, and his conspiracy with others directly led to them firing the gun at Shane’s home. This did not provide a reasonable possibility that one juror will find one theory proven and the other not proven, but that all jurors will not agree on the same theory.
JUDGMENTS AND INDEMNIFICATION
Finally, the defendant objected to the judge’s order to pay restitution against Stevens’ expenses of $138,065.27, which were not offset by insurance coverage. The judge assessed the defendant’s ability to pay restitution, taking into account his wage income at the time of sentencing and his expected employment after serving his sentence.
When ordering restitution, the judge ignored and cut off one of the victims: Shane’s insurance company. It should have appeared at the judgment and claim damages. Otherwise, this case proves that jealousy should be curbed and by punishing the “other man” the loveless will now spend 11 years in prison and when he gets out he will have to pay his victim $138,065.27 or go back to prison.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and email@example.com.
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