On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 18, 1997.
Before Judges Baime and P.g. Levy. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by
A jury found defendant guilty of conspiracy to commit murder (N.J.S.A. 2C:5-2), purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)), possession of a handgun without a permit (N.J.S.A. 2C:39-5b), and possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a). The jury declined to impose the death penalty. On the conviction for murder, defendant was sentenced to thirty years imprisonment without parole eligibility. A concurrent sentence of four years was imposed on the conviction for possession of a handgun without a permit. The remaining convictions were merged.
On appeal, defendant argues: (1) the trial court erred by denying his motion to suppress evidence, (2) the State failed to prove the authenticity of a tape recorded conversation allegedly engaged in by the co-conspirators, (3) the co-conspirator exception to the hearsay rule was applied improperly, (4) the testimony of the investigating police officer violated State v. Bankston, 63 N.J. 263, 307 A.2d 65 (1973), and (5) the cumulative effect of these errors was to deny defendant a fair trial. In a supplemental pro se brief, defendant claims: (1) his confession to the police should have been excluded, (2) the trial court's jury instructions did not adequately distinguish between aggravated manslaughter and reckless manslaughter, and (3) he was deprived of the effective assistance of counsel. We find no basis to disturb defendant's convictions.
We need not recount the facts at length. The prosecution's theory was that defendant was hired by Georgia Wooten and Walter Wilson to kill Rondell Germany, the former boyfriend of Wooten's sister, Michelle. Wooten promised to pay defendant $500 to commit the murder. As part of the plot, Wooten lured Germany to her apartment building under the guise of mediating his dispute with Michelle. Defendant confronted Germany in the hallway and shot him from a distance of ten feet. Germany staggered into Wooten's apartment and fell to the floor. Defendant then stood over the victim and fired a second shot.
The killing was witnessed by Wooten's son, Lawrence. He testified in graphic detail about the chronology of events leading to Germany's death. According to Lawrence, his mother and Germany were seated on the second floor landing when defendant entered the building, pulled a gun from his waistband and opened fire. Lawrence recounted that his mother immediately left the hallway and entered her apartment. Defendant then pursued Germany, who managed to kick in the door to Wooten's apartment before collapsing. Defendant quickly entered the room and fired another shot into the prostrate victim.
Lawrence testified that several minutes after the killing, the telephone rang. Responding to the call, Lawrence recognized the voice of his cousin, Wilson, who asked to speak to his mother, noting that he was calling at defendant's behest. After Wooten picked up the receiver, Lawrence, from a kitchen extension, heard Wilson tell his mother that defendant said he needed the money to flee the city that night. Wooten told Wilson not to come to the apartment, but that she would give the money to Lawrence. Wilson asked whether defendant had shot the victim in the heart. Wooten replied that she did not know, but that she believed defendant had shot Germany twice. The telephone call then terminated.
The police were immediately dispatched to Wooten's apartment where they found the door frame damaged as if there had been a forced entry. Germany was lying face down on the bedroom floor. Additional police personnel arrived shortly thereafter. As he mounted the stairs to the third-floor apartment, Detective John Molisso discovered a 9-millimeter Luger caliber bullet and a shell casing. A bullet hole was discovered in the floor of Wooten's apartment.
Earlier, Officer Peter DeAngelis had noticed an answering machine on a nightstand adjacent to the bed in the room in which the victim was found. The light on the machine was blinking, indicating that there was a recorded telephone message. Because the room was in disarray, DeAngelis decided to secure the tape to insure its preservation. When Molisso subsequently arrived at the apartment, he asked Wooten whether she would consent to a search. Wooten, who at that time was not considered a suspect, appeared cooperative and executed a written consent to search. The search yielded no incriminating evidence.
Wooten, Lawrence and Michelle were then transported to police headquarters for the purpose of giving statements. Before commencing the witness interviews, DeAngelis and Molisso listened to the tape for the first time, but could not identify any of the voices. The officers replayed the tape when they ...