On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication January 12, 1996.
Before Judges Michels, Baime and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
Defendant Donald Loftin appeals from his conviction of third degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count one); second degree possession of a firearm with a purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a (count two); second degree burglary while armed with a deadly weapon, contrary to N.J.S.A. 2C:18-2 (count three); first degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count four); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count five); and purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1),(2) (count six). The State cross-appeals, arguing that the robbery conviction should not have been merged with the previously merged felony murder conviction. We affirm the convictions but remand to the trial court to merge the conviction of possession of a firearm with a purpose to use it unlawfully into the burglary, robbery or murder conviction; reverse the merger of the robbery conviction; and order the trial court to restructure the consecutive sentence.
On the evening of March 28, 1992, Sophia Fetter, a sixty-nine year old woman employed as a chambermaid at Harrah's Casino Hotel in Atlantic City, was shot in the head and killed while cleaning Room 1134 of the hotel's Harbor Tower.
Harrah's utilized a security system by which every insertion of a key, whether a guest key or a specially designated master key like the one Ms. Fetter was issued when she began her evening shift, was logged in a computer which identified the exact key used, the door and the time of insertion. The security system records, together with interviews, enabled the police to reconstruct the following history for Room 1134 on the day of the murder.
At 7:46 p.m., the door to the room was opened by one of the keys issued to new guests, at which time room service was notified that the beds were unmade. Ms. Fetter was contacted by beeper and assigned to clean the room. The established procedure for all chambermaids was for them to jam a wooden stopper against the bottom of the room door to insure that the door remained wide open while the room was being cleaned. The maid would then pull her four-foot wide cleaning cart in front of the door, close to the threshold, to prevent entry by anyone else.
The computer records indicate that Ms. Fetter entered Room 1134 at 8:18 p.m. She immediately logged her personalized identification code into the room telephone, thus informing the maintenance department of her whereabouts. The room was entered a second time at 8:25 p.m. At approximately 8:30 p.m. a houseman walked by Room 1134 and observed that the door was closed and the maid's cart was down the hall between two other rooms. Room 1134 was reentered with Ms. Fetter's master key at 8:49 p.m.
The next entry into the room was at 10:27 p.m. when Mrs. Johnson, the prior occupant, mistakenly opened the door. She immediately closed it upon seeing someone else's luggage in the room. Although it was later determined that Ms. Fetter's body could be seen from the doorway, Mrs. Johnson saw only what she believed to be wine spilled on the floor. The computer records indicate that Mrs. Johnson then opened her own door across the hall.
By 10:30 p.m., Ms. Fetter's supervisor, Rashesh Rangrej, began to suspect that something was wrong. He contacted hotel security who opened the room at 11:36 p.m. and discovered Ms. Fetter's body on the floor between the two beds. An autopsy later revealed the cause of death to be a single gunshot wound to the head and brain.
Two bullets, one of which had missed Ms. Fetter, were recovered from Room 1134. Although the New Jersey State Police ballistics laboratory determined that the bullets had been fired from a .380 caliber semi-automatic pistol, possibly manufactured by Bryco, no spent shell casings were recovered. Ms. Fetter had $5 in her pocket and was wearing her jewelry when police discovered her body. The only item that appeared to be missing was Ms. Fetter's key caddy. *fn1
During the subsequent investigation, detectives met with bellman Donald Rasheed who had taken luggage to Room 1134 between 7:00 and 7:30 p.m. Rasheed stated that sometime during that evening he had reported to his bell captain that a "sneaky" and "suspicious" individual seemed to be following him. The man who was well dressed in a grayish-blue suit with a dark-patterned red tie, was black, of medium build, with glasses, mustache and short-cropped hair. Rasheed recalled that between 7:30 and 9:00 p.m. the man appeared whenever Rasheed carried luggage to a room, regardless of the floor. Rasheed stated that every time he attempted to get a good look at the man, who was sometimes as close as ten feet away, the man would quickly turn aside and pretend to be occupied with something else. Rasheed gave conflicting testimony as to whether he ever saw the man on the eleventh floor of the Harbor Tower.
A composite sketch was prepared from Rasheed's description. Subsequently, security and law enforcement officers reviewed hundreds of hours of videotapes from the cameras which surveil the public areas of Harrah's to see if anyone resembling the man depicted in the composite sketch appeared on camera. It soon became apparent that such a man appeared on various videotapes in various locations in a time sequence matching relevant events. To obviate the need to review each of the videotapes in their entirety, Atlantic City police personnel prepared a composite videotape showing sequentially all segments in which this man appeared.
The composite videotape, which we reviewed, revealed the following events. At 6:18 p.m., the suspect is seen wearing a black trench coat, walking through the garage lobby, and heading toward the crosswalk which links the garage to the hotel. Six minutes later he is seen returning over the crosswalk toward the garage. At 6:31 p.m., he again comes into view, dressed in a suit. He appears in the garage lobby at 6:34 p.m., where he rides the elevator to the top floor of the garage and looks over the wall toward the Harrah's complex. At 6:37 p.m., he rides back down to the second floor and walks toward the crosswalk and back to the hotel, proceeding in the same direction as pedestrian traffic.
The suspect is next seen at 7:15 p.m. in the concourse area. At 7:16 p.m., he enters the Harrah's gift shop where he remains until 7:17 p.m. *fn2 During this sequence, the suspect comes clearly into view and the pattern on his necktie is visible. The suspect is next seen at 7:18 p.m. boarding a Harbor Tower elevator. He does not reappear on the videotape composite until 8:30 p.m. when he exits an Atrium Tower elevator at a place providing a direct route out of the complex. At 8:33 p.m., he is seen walking on the side of the center rail against the flow of pedestrian traffic toward the garage. At 8:37 p.m., the suspect is seen descending a set of steps; at 8:39 p.m., he is seen returning over the crosswalk back toward the hotel where he summons a Harbor Tower elevator and paces the floor. The suspect is next seen at 9:00 p.m. leaving the complex, walking with the flow of pedestrian traffic along the proper side of the crosswalk.
Rasheed reviewed the composite videotape and told police that he was certain that the person shown was the man who had followed him that night. At trial, he identified defendant as the man who had followed him.
No further progress was made on the case until sometime in May 1992, when Atlantic County Detective Joseph Friedrich read a newspaper article in the Philadelphia Inquirer reporting the arrest of a man and the seizure of a .380 caliber semi-automatic handgun from his car. Friedrich contacted the State Police ballistics laboratory which was in possession of the gun. From a ballistics test, it was conclusively determined that the gun was the one used to kill Ms. Fetter.
The events leading to defendant's arrest were as follows. On May 9, 1992, defendant attempted to purchase a computer system with a credit card issued in the name of Gary Marsh, *fn3 at a Sears store in the Oxford Valley Mall in Middletown, Pennsylvania. When the clerk attempted to obtain authorization from the Sears credit department, he was told to detain defendant since the credit card had been reported stolen four days earlier. The Sears security department was notified and security cameras were then focused on defendant, whose movements over the next fifteen minutes were captured on videotape. Defendant's arrest by the Middletown police is shown briefly on the videotape.
When the police searched defendant's wallet, they discovered Marsh's credit card and driver's license and also a receipt for a Bryco .380 caliber semi-automatic weapon. *fn4 The police then obtained search warrants for defendant's home and two vehicles. They discovered a gun carrying case in defendant's home, together with 500 rounds of shells and various paraphernalia used to reload spent cartridges. In their search of defendant's car that was parked at the Oxford Valley Mall, police found one full and one partially full magazine for a .380 semi-automatic in the glove compartment; a rubber face mask and a gun concealed under the dashboard on the driver's side with one round chambered in the gun; and a shoulder holster behind the driver's seat. The gun was sent to the New Jersey State Police for ballistics testing and was later returned to the Mercer County authorities since the crimes against Marsh occurred in Lawrence Township.
On September 22, 1993, the jury found defendant guilty on all counts. After defendant's motions for a new trial and to interview jurors were denied, defendant was sentenced on count six to a term of life imprisonment with thirty years parole ineligibility and committed to the custody of the Commissioner of the Department of Corrections. Defendant was sentenced on count two to a seven-year term consecutive to the sentence on count six; to a four-year term on count one to run concurrently with the sentence on count six; to a four-year term on count three to run concurrently with the sentences on counts one and six. Counts four and five were merged with count six. Defendant's aggregate sentence was therefore life imprisonment plus seven years, with a thirty-year parole disqualifier, and an aggregate $350 V.C.C.B. penalty.
Defendant appeals. The State cross-appeals, arguing that the robbery conviction should not have been merged with the previously merged felony murder conviction.
On appeal, defendant argues:
POINT I OTHER CRIMES EVIDENCE PERMEATED THE TRIAL INCLUDING A VIDEOTAPE OF THE DEFENDANT COMMITTING AN UNRELATED OFFENSE WHICH WAS PLAYED ON MULTIPLE OCCASIONS. SUCH PREJUDICIAL EVIDENCE, ADMITTED WITHOUT ANY LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, PARAS. 1, 9, 10. (partially raised below.)
POINT II DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WERE VIOLATED BY NUMEROUS UNDULY PREJUDICIAL ERRORS INVOLVING THE PREPARATION, SHOWING AND INTERPRETATION OF THE HARRAH'S COMPOSITE VIDEOTAPE, REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARAS. 1, 9 AND 10. (Partially raised below.)
A. The composite videotape was not properly authenticated, as required by N.J.R.E. 1001(d), and it should not have been admitted because it was incomplete and incorrect, making its integrity suspect. (Partially raised below.)
B. It was reversible error for the trial court to permit a law enforcement fact witness to narrate the videotape, including providing his opinion as to the identity and guilty of the defendant, and to neglect to instruct the jurors regarding their evaluation of his testimony. (Not raised below.)
C. The Prosecutor improperly distorted facts concerning the videotape in summation, reinforcing the above errors.
POINT III DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WERE VIOLATED BY THE TRIAL COURT'S ABUSE OF DISCRETION IN EXCLUDING EVIDENCE OF THIRD PARTY GUILT OFFERED BY DEFENDANT, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 9, 10.
POINT IV THE VOIR DIRE OF THE PROSPECTIVE JURORS WAS INADEQUATE TO ASSURE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AS THE COURT FAILED TO EXPLORE: THE JURORS' PRIOR KNOWLEDGE OF THE CASE; WHETHER ANY JURORS HAD PREVIOUSLY SERVED IN A CIVIL CASE; WHETHER THE JURORS WOULD BE ABLE TO APPLY THE COURT'S LEGAL INSTRUCTIONS IF THEY DISAGREED WITH THEM; AND WHETHER THE JURORS HAD ANY RACIAL PREJUDICES OR BIASES. (Not raised below.) U.S. CONST. AMENDS. VI, XIV; N.J CONST. ART. I, PARAS. 1, 9, 10.
POINT V THE DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY COMMITTED MISCONDUCT IN DETERMINING THAT DEFENDANT WAS REPRESENTED BY A PUBLIC DEFENDER, A FACT REFLECTING DEFENDANT'S INDIGENCY WHICH WAS NOT REVEALED BY THE EVIDENCE AT TRIAL.
POINT VI IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO REFUSE TO CHARGE THE LESSER-INCLUDED OFFENSE OF MURDER, ENTITLING DEFENDANT TO A NEW TRIAL.
POINT VII DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AS COUNSEL MADE NUMEROUS ERRORS, INCLUDING THE FAILURE TO OBJECT: TO OTHER CRIMES EVIDENCE; TO A DETECTIVE'S IMPROPER OPINION TESTIMONY REGARDING DEFENDANT'S LOCATION WHEN HE WAS NOT VISIBLE ON HARRAH'S VIDEOTAPE; AND TO THE INADEQUATE VOIR DIRE OF PROSPECTIVE JURORS. (Not raised below).
POINT VIII EVEN IF THE INDIVIDUAL ERRORS AS SET FORTH IN POINTS I THROUGH VII (OR ANY COMBINATION THEREOF) DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
POINT IX DEFENDANT'S SENTENCE OF LIFE IMPRISONMENT WITH A PAROLE DISQUALIFIER OF THIRTY YEARS ON COUNT SIX AND A CONSECUTIVE SENTENCE OF SEVEN YEARS ON COUNT TWO, WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE, REQUIRING MODIFICATIONS. (Not raised below).
Defendant argues that he was deprived of a fair trial because the jury was made aware of other crimes that he had committed; they watched a videotape showing him committing a crime and being arrested; defendant did not receive the benefit of the procedural safeguards intended to limit the use of other crimes evidence, e.g., a hearing pursuant to N.J.R.E. 104, a weighing of the probative value against the prejudicial effect of the evidence pursuant to N.J.R.E. 403; and the trial court offered no limiting instruction with regard to the evidence.
A. Evidence of Other Crimes, Wrongs or Acts
Defendant contends that there was no valid purpose for permitting the "tremendous amount" of other crimes evidence adduced at trial and urges that the State produced such evidence in violation of N.J.R.E. 404(b), which provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the Disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
However, defendant's contention that the face mask, bullets and involvement of State and Mercer County police constitute other wrongs or acts is unsupported under our case law. Evidence of the other wrong or act may involve affirmative, volitional conduct on the part of the defendant. See, e.g., State v. Davidson, 225 N.J. Super. 1, 10-13, 541 A.2d 700 (App. Div.), certif. denied, 111 N.J. 594 (1988) (permitting testimony going to the defendant's motive, plan and intent, that a month before the commission of the crime of ethnic terrorism for which defendant was being tried, he had contaminated the gas tanks of the victims' cars); see also State v. Elmore, 205 N.J. Super. 373, 500 A.2d 1089 (App. Div. 1985).
Frequently, the wrong or act appertains to an instrumentality of the crime or an element of the crime itself. See, e.g., State v. Rose, 112 N.J. 454, 488-89, 548 A.2d 1058 (1988) (testimony concerning defendant's reason for purchasing a shotgun, although inflammatory, was admissible to show that the murder of a police officer was not accidental); State v. McMenamin, 133 N.J. Super. 521, 525, 337 A.2d 630 (App. Div. 1975) (it was relevant to intent to admit six live marijuana plants growing on defendant's premises where defendant was charged with possession of marijuana); State v. Wood, 130 N.J. Super. 401, 410, 327 A.2d 440 (App. Div. 1973), aff'd, 66 N.J. 8, 327 A.2d 425 (1974) (where cause of death in a murder case was by gunshot wound, other wrongful act evidence was allowed to show that defendant had possessed a gun similar to the one used for the murder).
In contrast, the rubber mask, the bullets, and the testimony revealing that defendant's gun was in possession of the authorities from another jurisdiction bear no resemblance to the other wrongs or acts addressed by the courts with respect to N.J.R.E. 404(b). It is neither illegal nor wrongful to possess a rubber mask or ammunition. In addition, since defendant was arrested in Pennsylvania, the fact that another jurisdiction retained possession of the gun is not, in and of itself, of particular significance; no ready inference can be drawn therefrom with respect to defendant's preDisposition to commit the crime of murder with which he was charged. However, even had these items constituted other crimes evidence, their introduction was appropriate since each tended to prove a material fact in issue.
1. The Face Mask Found in Defendant's Automobile
The State contends that the presence of the mask in defendant's car supports the argument that defendant was inclined to utilize a disguise during the commission of a crime. Defendant was shown in the Sears videotape wearing eyeglasses as was the suspect in the Harrah's videotapes. Those glasses were never recovered by the police and defendant was never seen wearing glasses after his arrest. Moreover, all forms of identification found in defendant's wallet showed him without glasses.
Although defense counsel objected to the admission of the mask into evidence, the trial court properly admitted it. Since the mask could indicate defendant's inclination to resort ...