On appeal from Superior Court, Law Division, Essex County.
Pressler, Gaulkin and Baime. The opinion of the court was delivered by Baime, J.A.D.
The novel question presented by this appeal is whether a defendant's prearrest failure to provide the police with information which, although exculpatory with regard to the crime charged, would incriminate him as to another offense, can be used to attack his credibility at trial. We hold that a defendant is under no obligation to volunteer such information to the police and, therefore, the State should not be permitted to attack his credibility on that account.
Following a protracted jury trial, defendant was convicted of murder (N.J.S.A. 2C:11-3a(1), (2)), armed robbery (N.J.S.A. 2C:15-1) and two counts of aggravated assault (N.J.S.A. 2C:12-1b(1). On the murder conviction, defendant was sentenced to a custodial term of 30 years. Pursuant to N.J.S.A. 2C:11-3b, the entire sentence is to be served without parole eligibility. Concurrent sentences were imposed on the other charges.
In the early morning hours of November 24, 1983 Omar Muhammed was shot and killed and Michael Bambo was wounded during the course of a heated dispute concerning a drug transaction. The State's theory at trial was that defendant shot both men when they refused to permit him to sample a quantity of cocaine he was about to purchase. The defense
contended that Muhammed and Bambo accidently shot each other while they were attempting to rob the defendant.
The record discloses the following salient facts. In the evening of November 23, 1983 defendant, Joseph Deleva, Terri Giannetta and Dominie Buda were having drinks at the Finnish Line, a tavern located in Newark, when they decided to purchase some cocaine. The group proceeded to an address located on Fifth Street and Bloomfield Avenue where Deleva attempted to buy the drugs from an acquaintance, Bryon Robinson. Although Robinson did not have any cocaine in his possession, Bambo, who apparently overheard the conversation, suggested that they could purchase the drugs from him. After brief negotiations, it was agreed that the group would follow Bambo to his apartment in Nutley.
Bambo and Robinson then met Muhammed and drove off in Muhammed's automobile. During the ride, Bambo confided to Robinson that he intended to "beat [those] white guys" by selling them something other than cocaine. Bambo agreed to pay the other two men $40 each and "some beer and wine" in return for their assistance.
Defendant, Deleva, Giannetta and Buda followed in Buda's automobile. En route to Bambo's apartment, Buda became increasingly alarmed because it appeared that Muhammed was driving in circles. When they finally arrived at the parking lot adjacent to Bambo's apartment building, Buda, because of her concern, parked her automobile facing the exit approximately 27 feet from Muhammed's vehicle. Defendant then accompanied Robinson, Muhammed and Bambo into the building. While in the apartment, Bambo obtained a tinfoil apparently containing cocaine.*fn1
The men then returned to the parking lot. At that point, an argument developed because defendant refused to pay for the cocaine without first sampling it. Deleva and Giannetta observed Muhammed "unzip his jacket" and reach across his chest in a manner which caused them to fear he was in possession of a firearm. Deleva urged defendant to return to the car. Defendant refused, however, and proceeded to the driver's side of Muhammed's automobile.
It is at this point that the State's and the defense's version of what transpired differs markedly. According to the State's witnesses, Muhammed was seated in the driver's seat with the door open when defendant approached. The window on the driver's side was also open. Robinson testified that as Muhammed leaned across the seat to unlock the door on the passenger's side, defendant reached in the driver's window and shot the deceased in the chest. After hearing the shot, Robinson attempted to escape, but was confronted by defendant who pointed the gun at him and demanded the cocaine. Robinson told defendant that he didn't have the drugs and emptied the contents of his pockets. When defendant bent down, Robinson ran off.
Bambo testified that Buda drove out of the parking lot when the shots were fired. At that point, defendant, who was apparently still chasing Robinson came upon Bambo and, without warning, shot him in the shoulder. Bambo and Robinson then ran toward a police patrol car that was approaching the parking lot. The two men frantically told the officer about the shootings. Bambo was immediately taken to the hospital for treatment of his wounds.
The accounts of Robinson and Bambo were corroborated by the testimony of several residents of the apartment complex. Although they were unable to positively identify defendant as the perpetrator of the shootings, their descriptions of the fast-moving events confirmed the version of Robinson and ...