Judges King, Havey and A.M. Stein.
The opinion of the court was delivered by: King, P.J.A.D.
Defendant appeals from convictions for armed robbery and purposeful or knowing murder. The charges stemmed from the killing of Anthony Mazzo, co-owner of a gas station in Pleasantville, on March 21, 1986. We conclude that the convictions must be reversed and we remand for a new trial. Irrelevant and unduly prejudicial evidence was admitted purporting to demonstrate defendant's consciousness of guilt. We also conclude that the trial prosecutor acted improperly by using a strategy designed to circumvent, in part, a pre-trial ruling barring the State from introducing evidence that defendant later committed a violent crime in Pennsylvania. The prosecutor urged the jury to draw an inference which he knew was false and which defendant could not rebut without revealing his commission of the later crime to the jury. This deprived defendant of a fair trial. The jury instruction on passion/provocation manslaughter was also in error.
In late 1985, Frank Millett (defendant) and his family moved from Alaska to Havertown, Pennsylvania, a Philadelphia suburb. He worked as a chimney sweep. In February 1986, defendant started a second job with Med Labs of Delaware as a phlebotomist. This involved travel to nursing homes to draw blood from patients for laboratory analysis.
Phillip Blank, defendant's elderly next door neighbor, was aware that the Millett family was having financial difficulties and was "kind of strapped." They had sold their furniture in Alaska. Blank also knew that defendant's job required him to travel. Once, he had lent defendant his Sunoco credit card to buy gasoline. Defendant returned the card that same evening, and later paid Blank in cash for the amount charged.
On Friday, March 14, 1986, Blank gave defendant's wife his Amoco credit card which Blank himself had never used. Blank told her that, until defendant got paid, defendant could use the card to buy gas to get to and from work. Blank never intended to give the Amoco card to defendant to use permanently, and had no reason to believe that defendant would be leaving the area.
On the same day, Med Labs Vice President Judy Knotts terminated defendant's employment. Defendant had picked up his last paycheck at the main Med Labs office in Wilmington the day before. On Monday, March 17, defendant's wife told Blank that defendant had left home, and that she did not know where he was. Blank then phoned Amoco and requested cancellation of the credit card. In response to the question whether the card was lost or stolen, he told the Amoco representative the card was stolen.
On this same date, a man registering under defendant's name checked into the Star Motel in West Atlantic City. He gave his home address as Anchorage, Alaska. This man checked out on March 19, leaving a handbag and a beeper belonging to Med Labs.
The motel manager was unable to identify defendant as the person who stayed at the motel.
George Mazzo (George) was the co-owner of Triangle Amoco Service Station in Pleasantville. On March 21, 1986, at 1:30 p.m., he received a telephone call from defendant whose car was disabled on the Garden State Parkway and needed a new battery. George drove to the location and installed a new battery. Defendant produced Blank's Amoco credit card but did not disclose that he was not Phillip Blank. George took the credit card and instructed defendant to follow him to the service station to process the credit card transaction. The two arrived at the station at about 2:30 p.m. Anthony Mazzo (Anthony), George's brother, was at the station when they arrived. George made an in-court identification of defendant at trial.
George filled out a charge receipt in the amount of $90 and phoned Amoco for credit approval. He was told by Amoco that the sale was rejected and to confiscate the card. George bent the card in half but did not break it. Defendant was told that the card was rejected and that payment would have to be in cash. Defendant said he would call his parents in Margate for money and went to a public telephone down the street. When he returned, he told George that his parents would arrive shortly with cash. Defendant looked angry, and spent the afternoon in and around his car smoking cigarettes, seeming impatient. Meanwhile, defendant's credit card and sales slip remained in the service station office.
At about 5:15 p.m., George prepared to leave the service station for the day. He told Anthony that defendant was to pay in cash only for the battery since his credit card was rejected. He gave Anthony $40 in cash to finish the day's business, which normally ended at 7 p.m., and took the rest of the money from the cash register with him. George left after telling defendant that Anthony would take care of his transaction. At home, George asked his mother to call Anthony in the morning to wake him for work.
The next morning, March 22, George's mother called to tell him that Anthony had not returned home the night before and that there was no answer at the service station. Shortly after 8 a.m., George discovered Anthony lying on the service station office floor. He immediately summoned the police. George later told the police that an iron breaker bar was missing from the service station. A breaker bar resembles a heavy ratchet and is used to break large bolts and nuts.
Joseph Helfrich, an identification officer with the Atlantic County Sheriff's office, arrived at the scene at 9:50 a.m. He took photographs of the office, the position and condition of the body, and an envelope lying at the foot of the body. There was no blood underneath the envelope. There were spots of blood on it. The envelope contained two State Farm automobile insurance identification cards; a paycheck stub in defendant's name from Med Labs; an auto tags receipt dated March 14, 1986, made out to defendant; the rear page of a car owner's manual; and an envelope from the Pennsylvania Department of Transportation.
The victim's pockets were pulled out. The drawers of the cash register were pulled from the register and scattered on the floor. The victim's head could have hit a cabinet as he fell to the floor in the cramped service station office. Some fingerprints were taken from the scene which did not match defendant's or the victim's fingerprints. Samples of hair and blood taken from the scene did not match defendant.
Blotches of blood in one photograph were identified by Helfrich as partial shoeprints resulting from the victim's blood having been tracked around the body on the floor of the service station. Helfrich did not know if the shoeprints resulted from contamination of the scene by police officers or others, or whether it was made by the perpetrator.
Dr. Donald Jason, a forensic pathologist, arrived at the scene at 10:15 a.m. He observed a pool of blood around the victim's head. Interpreting this information and a later examination of the body, he determined that the victim had been struck and died in the area where he was found, between 5:30 p.m. and 11:40 p.m. on March 21. After an autopsy, he also determined that death was caused by ten blunt-force injuries to the head which resulted in skull fractures and contusions of the brain. The object used was a heavy item, cylindrical in shape, such as a tube-shaped piece of metal. It could have been a large wrench, pipe, or breaker bar. The first wound inflicted alone was capable of causing death. Each of the wounds was potentially the cause of death.
Investigator Thomas Prendergast of the Atlantic County Prosecutor's Office, Homicide Unit, was assigned the task of locating defendant and his vehicle. On March 23, 1986, the Amoco credit card belonging to Blank was used at the Cobbs Creek Amoco station in Philadelphia. On March 28, 1986, an individual purchased defendant's car from a used car dealer in Philadelphia.
On April 1, 1986, defendant encountered John Forgione outside Forgione's home in Lansdowne, Pennsylvania. Forgione first met defendant in December 1985 when defendant cleaned and repaired his chimney. Defendant asked if he could stop at Forgione's house and finish the chimney repair job which he had started in December. The two agreed that defendant would return the next day.
On April 2, 1986, defendant arrived at the Forgione residence as planned and worked on the chimney. He then assaulted Forgione and left him bound. After the assault Forgione discovered that articles of his clothing were missing. These included a pair of black patent-leather shoes, a pair of pants, socks, underwear, and a shirt. Forgione's wallet was also missing. Defendant's clothing, including his shoes and pants, were left in Forgione's house. The police later analyzed defendant's clothing and shoes. No link was found between these items and the murder of Anthony Mazzo.
Forgione told Lansdowne Police Sergeant Robert O'Donnell about the incident that had taken place at his home and provided a description of the missing clothing. When O'Donnell searched Forgione's home, he found clothing, shoes, and a wallet that did not belong to Forgione. The wallet contained the business card of Tommy Moore (Forgione's stage name), defendant's identification papers, a business card from Mazzo's Triangle Amoco Service Station in Pleasantville, and a temporary registration transfer card for a Pennsylvania vehicle, dated March 14, 1986, requesting that the vehicle be registered in Alaska.
O'Donnell was aware of the Atlantic County authorities' efforts to locate and apprehend defendant, who was believed to be in the Lansdowne area. Upon learning of the Forgione incident, O'Donnell coordinated with Investigator Prendergast and actively participated in the effort to apprehend defendant.
O'Donnell arrested defendant on April 6, 1986, in Yeadon, Pennsylvania. He was wearing Forgione's missing clothing when apprehended. Hair, blood and saliva samples taken from defendant and from the contents of his car provided no link to the Mazzo murder scene.
John Gannon was serving a lengthy sentence for burglary in Delaware County Prison, Pennsylvania, when he met defendant in that facility in May 1986 after his arrest. Gannon testified that in June 1986, as he was sweeping outside defendant's cell, defendant started a conversation about why each of them was in prison. Defendant recounted to Gannon the events leading to the death of Anthony Mazzo. Defendant's version was the same as George Mazzo's until the point when George left the service station. Defendant told Gannon that sometime after George left, he attempted to retrieve the Amoco credit card and paperwork from the office. An argument ensued with Anthony, during which Anthony pulled defendant's hair. Defendant then grabbed "a brick or pipe" from a nearby table and struck Anthony on the head numerous times. He then picked Anthony up off the floor, placed his body against the desk, and felt pieces of skull and brain matter in his hands. Defendant grabbed some of his papers off the floor and the car keys, and ran out of the gas station. As he was doing this, he said that he stepped in a puddle of blood on the floor. Defendant took the murder weapon with him because of fingerprints. As he ran from the gas station, he saw a car parked across the street, with two "Black males" inside.
A few days later, Gannon telephoned the Criminal Investigation Division of Delaware County and reported his conversation with defendant to an investigator. He later gave a formal written statement. Gannon thought defendant was disturbed since it was not necessary to hit someone numerous times over the head to knock them out. Gannon stated that he was motivated to inform on defendant because he felt bitter towards him for unnecessarily hurting someone. Gannon claimed that though he had committed many crimes, he had never done anything violent.
Gannon denied that anyone connected with law enforcement had ever told him anything regarding the circumstances or details surrounding the murder of Anthony Mazzo. He also denied that he obtained, or expected to obtain, benefits in jail as a result of informing on defendant. Gannon denied that he worked for or regularly reported to the warden.
Defendant did not testify at trial. He presented four witnesses who testified regarding Gannon's credibility. Terrance McCracken and Alonzo Watts testified that Gannon had obtained privileges, including good jobs that were inconsistent with his level of seniority. They believed Gannon's privileges were linked to his status as a "snitch." Watts believed that no inmate in the jail would speak to Gannon because they knew he was a "snitch."
Frank Cruiess, who had known Gannon for twenty years, testified that Gannon was willing to inform on others for his own benefit. Gannon once asked Cruiess if he knew anything about defendant's case and appeared to be "fishing" for information.
Thomas Thompson testified that he had been questioned by the police about an unrelated homicide shortly after Gannon had approached him and asked questions about that case. Thompson believed that Gannon falsely implicated him in the homicide for Gannon's own benefit. He also had seen Gannon trying to talk to defendant, who on one occasion told Gannon to "get the f--- away from me."
On August 6, 1987, an Atlantic County grand jury returned an indictment which charged defendant with credit card theft, contrary to N.J.S.A. 2C:21- 6(c)(1) (count one); credit card fraud, contrary to N.J.S.A. 2C:21-6(d)(1) and (2) (counts two and three); armed robbery, contrary to N.J.S.A. 2C:15- 1 (count four); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count five); and purposeful or knowing capital murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count six).
On the prosecutor's pre-trial motion, counts one and three of the indictment were dismissed; the remaining counts were renumbered in sequence as counts one through four. On February 2 the judge denied defendant's motion to dismiss the indictment for violation of the Interstate Agreement on Detainers (IAD).
The jury trial began on April 16, 1990. At the close of the State's case, the judge entered a judgment of acquittal on the credit card fraud count. On April 27, 1990, the jury found defendant guilty of armed robbery and purposeful or knowing murder, but not capital murder. No finding was returned by the jury with respect to felony murder.
On the murder conviction, defendant was sentenced to life imprisonment, with a thirty-year parole ineligibility period. This sentence was imposed consecutively to the term of imprisonment defendant was then serving in Pennsylvania. On the armed robbery conviction, defendant was sentenced to a twenty-year term of imprisonment, with a ten-year parole ineligibility period. This term was imposed consecutively to both the sentence imposed on the murder conviction and the sentence in Pennsylvania. The judgment of conviction, entered on June 22, 1990, erroneously stated that defendant was found guilty of felony murder and purported to merge this "conviction" into the armed robbery conviction.
On this appeal, defendant raises these nine points:
1. DID THE TRIAL COURT ERR IN RULING THAT THE TESTIMONY OF STATE WITNESSES JOHN FORGIONE AND ROBERT O'DONNELL WAS ADMISSIBLE AT TRIAL, AND DID THE PROSECUTOR ACT IMPROPERLY BY URGING THE JURY TO DRAW AN INFERENCE WHICH HE KNEW TO BE FALSE.
2. DID THE JUDGE ERR IN FAILING TO PROPERLY INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER (raised as plain error).
3. SHOULD THE JUDGMENT OF CONVICTION WHICH STATES THAT DEFENDANT WAS FOUND GUILTY OF FELONY MURDER BE CORRECTED BECAUSE THE JURY DID NOT RENDER A VERDICT ON THAT COUNT (raised as plain error).
4. DID THE JUDGE ISSUE AN ERRONEOUS CHARGE ON ROBBERY AND FELONY MURDER AND DID HE ALSO ERR BY FAILING TO INSTRUCT THE JURY ON THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY (raised as plain error).
5. DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE INDICTMENT PURSUANT TO THE INTERSTATE ...