On appeal from Superior Court of New Jersey, Law Division, Essex County.
Michels, Skillman and Kestin. The opinion of the court was delivered by Skillman, J.A.D.
A jury found defendants Noroberto Bielkiewicz and Jermaine Pitts guilty in a joint trial of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b, and possession of a firearm with the purpose to use it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4a. The court sentenced defendants for murder to thirty year terms of imprisonment without eligibility for parole. The court merged defendants' convictions for possession of a firearm for an unlawful purpose into their convictions for murder. The court also sentenced defendants to concurrent four year terms of imprisonment for possession of a handgun without a permit.
Defendants filed separate appeals from their judgments of conviction, which we now consolidate.
On his appeal, Pitts argues:
I. THE TRIAL COURT'S PREJUDICIAL ACCOMPLICE LIABILITY CHARGE MANDATES THAT DEFENDANT'S MURDER CONVICTION BE REVERSED. (Not Raised Below).
II. THE TRIAL COURT'S PREJUDICIAL PASSION/PROVOCATION MANSLAUGHTER CHARGE MANDATES THAT DEFENDANT'S MURDER CONVICTION BE REVERSED. (Not Raised Below).
On his appeal, Bielkiewicz argues:
I. BERMUDEZ'S AND PEREZ'S IDENTIFICATION OF BIELKIEWICZ WERE IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION AND AS SUCH, THE PRE-TRIAL AND IN-COURT IDENTIFICATIONS BY THOSE WITNESSES SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
II. THE TRIAL COURT'S DENIAL OF BIELKIEWICZ'S MOTION FOR JUDGMENT OF ACQUITTAL CONSTITUTES REVERSIBLE ERROR.
III. BIELKIEWICZ'S CONVICTION SHOULD BE VACATED AS THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE THEORY OF ACCOMPLICE LIABILITY DID NOT ENUNCIATE THE SHARED INTENT REQUIREMENT, NOR DID THE TRIAL COURT ADEQUATELY REPEAT THE CHARGE OF ACCOMPLICE LIABILITY IN THE CONTENT OF THE LESSER INCLUDED OFFENSES. (Not Raised Below).
IV. BIELKIEWICZ'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE TRIAL COURT FAILED TO CHARGE THE JURY AS TO THE CAUSAL RELATIONSHIP BETWEEN DEFENDANT'S CONDUCT AND RESULT WITH RESPECT TO THE PURPOSEFUL OR KNOWING MURDER CHARGE AND THE FAILURE OF THE CHARGE TO RELATE THE CONFLICTING FACTUAL VERSION TO THE LEGAL ISSUES.
V. THE TRIAL COURT'S ERRONEOUS INSTRUCTIONS AS TO THE DEFINITIONS OF "PURPOSELY" AND "KNOWINGLY" WARRANT REVERSAL OF THE CONVICTIONS.
VI. BIELKIEWICZ'S CONVICTION OF PURPOSEFUL OR KNOWING MURDER WAS AGAINST THE WEIGHT OF THE EVIDENCE WARRANTING REVERSAL OF THE CONVICTION BY THIS COURT.
In addition, Bielkiewicz has filed a supplemental pro se brief which argues:
I. THE STATE'S USE OF THE CODEFENDANT'S STATEMENT TO OBTAIN AN INDICTMENT IN THIS CASE VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND AS SUCH, THE INDICTMENT MUST BE DISMISSED.
II. THE PROSECUTOR'S MISCONDUCT IN PRODUCING THE CODEFENDANT'S STATEMENT FOR JURY DELIBERATION AND VOTING DENIED THE DEFENDANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND AS SUCH, WARRANTS A DISMISSAL OF THE INDICTMENT.
III. THE UNTIMELY FILING OF THIS ISSUE PERTAINING TO THE GRAND JURY INDICTMENT CANNOT BE HELD AGAINST THE DEFENDANT AS IT WAS DONE WITHOUT HIS GIVING A WAIVER OR BEING AWARE OF HIS RIGHTS.
IV. THE EGREGIOUS SHORTCOMINGS OF COUNSEL ALLOWED THE STATE TO OBTAIN A CONVICTION IN VIOLATION OF DEFENDANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS TO THE CONSTITUTION.
V. TRIAL COUNSEL'S FAILURE TO FILE A MOTION FOR A SEVERANCE DEPRIVED THE DEFENDANT OF DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL.
VI. THE ACCUMULATION OF ERRORS AT TRIAL AND PRIOR TO TRIAL REQUIRES REVERSAL.
Except for Pitts' Point I and Bielkiewicz's Point III dealing with the trial court's jury instructions regarding accomplice liability, defendants' arguments are clearly without merit and do not require Discussion. R. 2:11-3(e)(2). However, we conclude that the
trial court's instructions regarding accomplice liability for murder were inadequate. Therefore, we reverse defendants' murder convictions and remand for a new trial. The erroneous jury instructions regarding accomplice liability do not affect defendants' convictions for possession of a handgun without a permit and possession of a firearm with the purpose to use it unlawfully against the person of another. Consequently, we affirm those convictions.
Defendants' convictions arose out of an incident in the parking lot of a Burger King in Newark, which occurred around 11:00 p.m. on August 19, 1991. The victim, Miguel Gonzalez, and his cousin, Carlito Perez, were tow truck drivers for Steve's Towing, which had a contract with the Burger King to tow illegally parked vehicles from its parking lot. On the night of the killing, Gonzalez and Perez were in the driveway of the Burger King in separate tow trucks about to leave the premises when, according to Perez, Pitts walked up to Gonzalez's truck and started yelling. A short time later Gonzalez got out of his truck and a fight ensued. Gonzalez was getting the better of Pitts in the fight, at which point Bielkiewicz and another male came to Pitts' assistance. Perez then got out of his truck to help Gonzalez. As Perez approached, he saw Gonzalez run toward his truck and Pitts, armed with a small black gun, run after Gonzalez. Gonzalez opened the door of his truck, got in, and put the truck in gear as Pitts stuck his hand in the window. Perez then heard Pitts fire two shots at Gonzalez. After being shot, Gonzalez drove rapidly out of the Burger King driveway, with Perez following in his truck. Perez heard three additional shots being fired as they drove away, one of which apparently struck the rear of Gonzalez's vehicle. Perez was unable to see who fired the additional shots because he had his head down to avoid getting shot himself. Perez followed Gonzalez for about one half mile until the Gonzalez vehicle went up onto the sidewalk, banged into a fence, and came to a stop. Gonzalez was pronounced dead shortly thereafter.
In addition to Perez, there were two other witnesses to the shooting incident who testified at trial, ...