On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
O'Brien, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c., temporarily assigned.
CONLEY, J.S.C., temporarily assigned.
Following a jury trial defendant Sundiata Lumumba was convicted of four counts of kidnapping in violation of N.J.S.A. 2C:13-1b (Counts One to Four); knowing or purposeful murder
in violation of N.J.S.A. 2C:11-3a(1), (2) (Count Six) and felony murder in violation of N.J.S.A. 2C:11-3a(3) (Count Seven).*fn1 The State's motion for mandatory extended Graves Act terms was granted. Defendant was committed to the custody of the Commissioner of the Department of Corrections for four concurrent 30 year terms with 15 years parole ineligibility on the kidnapping Counts. On Counts Six and Seven, defendant was committed to the custody of the Commissioner of the Department of Corrections for two terms of life imprisonment with 30 years parole ineligibility, concurrent with each other but consecutive to the kidnapping sentences. In addition, a $150 Violent Crimes Compensation Board penalty was imposed.
The convictions arose from the killing of Darryl Workman on August 23, 1985. The State's case as to this killing was essentially presented through the testimony of co-defendant Samuel Wilkerson, who testified for the State as part of a plea bargain. Wilkerson, who acknowledged before the jury that he was a "lying murdering piece of s___" and that he would kill them to protect himself if necessary, testified that Workman was to be a witness in the murder trial of Wilkerson's friend Kenneth Parnell, and that he had tried to get him to change his testimony. Wilkerson also told the jury that Workman had snatched defendant's sister's pocketbook. He and defendant had decided to kill him.
On the evening of August 23, 1985, defendant rented a Camaro from the National Car Rental in Philadelphia. He and defendant drove to the S Lounge also in Philadelphia. Wilkerson went inside where Workman was, and asked to speak to him outside. They went outside and across the street to where defendant was waiting in the Camaro and got into the car. Wilkerson's and defendant's intention was to kill Workman.
According to Wilkerson, defendant called the planned killing, "taking care of business."
The three men drove a while and eventually stopped somewhere in New Jersey, when Wilkerson pulled a .38 "lemon squeezer" and shot Workman in the chest. Defendant then pulled Workman from the car and Wilkerson shot him again in the chest. Workman rolled over onto his stomach and Wilkerson shot him in the back. Meanwhile, defendant had reentered the car and kept saying 'shoot him in the head'. After Wilkerson fired two more shots, they dragged the body over to some bushes where they threw it. Workman's body was discovered the next morning. It was undisputed the cause of his death was the shooting.
Wilkerson's grandfather testified that defendant had told him sometime during the summer he had bought a .38 caliber gun but needed some bullets. Defendant had asked him for bullets and obtained four or five .38 shorts. An expert determined that three bullets removed from the victim's body were .38 shorts. A search warrant executed at Wilkerson's house resulted in seizure of 23 live .38 caliber bullets. A search of defendant's house led to the seizure of a calendar with the following entries:
Aug. 23, 1985: I worked 8:30 a.m. to 3:30 p.m. (business day)
Aug. 25, 1985: (business day)
Oct. 10, 1985: Pop is down.
'Pop' or 'Poppy' was Wilkerson's street name, and October 10, 1985 was the date of Wilkerson's arrest.
A National Car Rental employee identified defendant as the renter of a Camaro on August 23, 1985 and testified he had returned it the evening of August 25, 1985. It had gone 290 miles.
In addition to this evidence, the State sought to admit evidence of another crime committed that weekend. It was admitted pursuant to Rule 55 as evidence of a common plan. Wilkerson gave the State's primary account. After shooting Workman,
he said he and defendant planned to kill William Johnson, defendant's brother-in-law. Defendant wanted him killed because Johnson saw defendant beat his wife, who was Johnson's sister and because Johnson had told defendant's parole officer and had filed charges against him.
On August 25, 1985, Wilkerson and defendant drove back to New Jersey and parked the Camaro outside Johnson's house in Gloucester County. Eventually Johnson came out and got into a car accompanied by a "girl and a little boy." They drove off; defendant and Wilkerson followed them to a movie theater. Defendant and Wilkerson went into the theater, with the latter wearing a number of bandaids on his face -- a disguise suggested by defendant. Defendant wore a broad-rimmed hat down over his face.
After the movie Wilkerson went to the Camaro and spoke with defendant. Wilkerson was reluctant to shoot Johnson because there were too many people around, and because there was the little boy in the car. After defendant insisted, Wilkerson walked up to Johnson's car and shot him three times in the head "to make sure he was dead," as instructed by defendant. Wilkerson returned to the Camaro, and the two drove from Gloucester County back to Philadelphia. An eye-witness to the Gloucester County shooting, who had been at the movies, identified both Wilkerson and defendant as well as the Camaro.
Johnson, who survived his injuries, testified and described the extent of them which included replacement of the top of his palate and part of his gum, 70 stitches on his face, 150 stitches inside his stomach, and removal of his spleen and four teeth.
He also testified to fights between defendant and his wife, Cheryl, who is Johnson's sister. Cheryl had called Johnson in June or July of 1985 to ask if she could stay with Johnson because defendant "was giving her a hard time." Defendant allegedly grabbed Cheryl and attempted to pull her away from Johnson. Later, according to Johnson, defendant saw him in Philadelphia, knocked Johnson to the ground and told him to
mind his own business or else risk being killed. This incident resulted in Johnson reporting the matter to defendant's Pennsylvania parole officer and filing a criminal complaint against the defendant.
Johnson also testified that Cheryl would often have bruises on her and that she and defendant did not have a loving relationship. Similar testimony regarding her bruises was presented by Howrhu Self, defendant's parole officer. Self also told the jury that defendant had violated his parole on several occasions.
Robin Rogers, Johnson's girlfriend, testified that defendant was abusing his wife and that defendant had punched Johnson and "threatened him with bodily harm." The State also presented Detective M. Scott Fitzpatrick who testified that as part of his investigation, he learned that defendant had previously been arrested for armed robbery in Lakehurst and that weapons were found in defendant's car at that time.
Defendant did not testify. However, James Bush testified that defendant and Cheryl were at his Philadelphia house, without a car, at 3:30 or 3:45 p.m. on Sunday August 25, 1985, the day of the Gloucester County shooting. Bush claimed that he had known defendant for 25 to 30 years and had never known him to be a "hit man". Moreover, Michael Woulfe testified that when he and Wilkerson were in the Gloucester County Jail, Wilkerson had told him that Wilkerson would have to frame defendant in order to get a good deal, and that he was planning on doing so.
Defendant's primary defense was alibi. In support of this, defendant's wife testified that defendant arrived home on the evening of August 23, 1985 at 6:30 p.m. He left the house briefly with a man named William Bruce and returned in time to attend a party at defendant's sister, Kathy Turner's house. Defendant and his wife did not have a car at the time, so they attended the party by way of public transportation. According to Cheryl, the party was held "for our son Dimples, Cynthia
[Carter] and Earl [Fowler]." They arrived at the party at 8:00 p.m. and did not leave until 7:30 a.m. the next day. Various pictures of them at the party were admitted into evidence. Elsie Clark, defendant's sister, testified similarly about the party, but could not remember the exact date on which it occurred.
On appeal, defendant raises the following points in the brief filed by counsel:
I. DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below).
II. THE TRIAL JUDGE'S VOIR DIRE OF THE PROSPECTIVE JURORS WAS SO PATENTLY INADEQUATE AS TO DENY DEFENDANT HIS SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY, HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND HIS RIGHT TO A FAIR TRIAL UNDER ARTICLE I, PARAGRAPH 9 OF THE NEW JERSEY CONSTITUTION; ALSO, THE JUDGE'S PRETRIAL INSTRUCTIONS TO THE JURORS WERE INADEQUATE IN THAT THEY FAILED TO INFORM THE JURORS THAT AN INDICTMENT IS NOT EVIDENCE OF GUILT, AND THAT THERE IS A PRESUMPTION OF INNOCENCE AND A BURDEN OF PROOF UPON THE STATE BEYOND A REASONABLE DOUBT. (Partially Raised Below).
III. EVIDENCE RULE 55 WAS BLATANTLY VIOLATED WHEN THE TRIAL JUDGE ADMITTED EVIDENCE CONCERNING: AN ATTEMPTED MURDER ALLEGEDLY COMMITTED BY DEFENDANT AND SAMUEL WILKERSON TWO DAYS AFTER THE INSTANT CRIME, PHYSICAL BEATINGS ALLEGEDLY INFLICTED BY DEFENDANT UPON HIS WIFE, AN EARLIER ALLEGED ASSAULT UPON WILLIAM JOHNSON, DEFENDANT'S PAROLE VIOLATIONS AND DEFENDANT'S PRIOR ARREST FOR ARMED ROBBERY.
IV. THE TRIAL JUDGE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL UNDER ARTICLE I, PARA. 9 OF THE NEW JERSEY CONSTITUTION WHEN HE FAILED TO INFORM THE JURORS THAT COMPLICITY OR VICARIOUS COCONSPIRATOR LIABILITY WAS AN ELEMENT OF EACH OFFENSE THAT HAD TO BE PROVEN BEYOND A REASONABLE DOUBT FOR EACH CRIME IN ORDER TO CONVICT DEFENDANT OF THAT CRIME. (Not Raised Below).
V. THE PROSECUTOR'S SUMMATION VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL UNDER ARTICLE I, PARA. 9 OF THE NEW
JERSEY CONSTITUTION BY: ASKING THE JURY TO CONSIDER DEFENDANT'S RESIDENCE IN PHILADELPHIA AGAINST HIM, ASKING THE JURY TO MAKE INFERENCES AGAINST DEFENDANT BECAUSE OF HIS DEMEANOR WHEN DEFENDANT NEVER TESTIFIED, CRITICIZING DEFENDANT FOR NEVER VISITING HIS BROTHER-IN-LAW IN THE HOSPITAL, TELLING THE JURY ABOUT THE IMPROPER STATE V. IRVING INFERENCE, AND ATTACKING DEFENDANT'S CHARACTER BY DISCUSSING THE GLOUCESTER COUNTY ...