Before Judges Baime, Brochin and Bilder.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
This case presents questions concerning the reach of the Federal and State prohibitions against double jeopardy. Three Newark taxicab drivers were murdered within a two week period. The police investigation resulted in the arrest of defendant, Roger Hoyte and Larry Mayo. Hoyte, who confessed and pointed to defendant as one of the participants in the homicides, pled guilty to three counts of capital murder and was sentenced to an aggregate term of life imprisonment with a ninety year parole disqualifier when the jury did not return a death verdict. Defendant was brought to trial while Hoyte's appeal was pending. In his opening statement, the assistant prosecutor indicated that Hoyte would appear as a State's witness and implicate defendant in the killings. The trial court granted defendant's motion for a mistrial when Hoyte refused to testify after being granted immunity. The indictment was dismissed and retrial barred upon the court's finding that the prosecutor could not reasonably have expected that Hoyte would appear as a prosecution witness. The State appeals. We reverse.
We do not recount the facts at length. Between October 21 and November 8, 1995, three Newark taxicab drivers were murdered. The crimes had all of the earmarks of having been committed by a serial killer. In all three cases, the victim was shot at point-blank range with the same .22 caliber handgun. Curiously, each victim's shoes were missing when the body was discovered. The execution-style killings were widely reported by the media.
The homicides remained unsolved until November 16, 1995, when Tamika McGriff telephoned the Essex County Sheriff's Crimestoppers number and indicated that she knew the identity of the killers. In a subsequent interview with members of the prosecutor's homicide squad, McGriff related several incriminating statements made by Hoyte and defendant the previous evening while the three were watching a television news broadcast. When the commentator referred to the "serial killings," Hoyte exclaimed, "[t]hat's probably us" and "[w]e made the news." The news report alluded to the suspicion that some sort of bizarre ritual was involved because of the missing shoes, prompting Hoyte to note, "[w]e took the boots off because of [finger]prints." Hoyte described how defendant had dragged the drivers out of the taxicabs by their feet because "they couldn't be driving around with a dead body in the car . . . ." Hoyte explained that they removed the shoes from the victims so that the police could not trace their fingerprints. At that point, defendant angrily interrupted Hoyte's vivid description of the crimes, ordering him to "shut up" because "everybody's business ain't nobody's."
McGriff also recounted prior inculpatory statements made by defendant. After the second killing, Hoyte asked McGriff for her shoe size, exhibiting a pair of boots. According to McGriff, defendant remonstrated Hoyte, "[d]on't give her the boots of no dead man." Shortly after the third homicide, defendant confided to McGriff that Hoyte had "caught a body, had earned his stripes." When McGriff asked what defendant meant, he responded that Hoyte had killed a taxicab driver. McGriff also alluded to a prior incident in which defendant and Hoyte were "playing with" a gun, "tossing . . . it back and forth." At trial, McGriff identified the murder weapon, which had been discovered after the arrests, as "looking like" the gun she had seen in the possession of Hoyte and defendant.
Following their interview with McGriff, the prosecutor's office obtained a warrant to search defendant's residence. An identification card belonging to the first murder victim was found in a leather portfolio in defendant's bedroom. Defendant was arrested shortly thereafter.
Defendant gave a lengthy inculpatory statement after being apprised of his constitutional rights. In his statement, defendant admitted that he was present when the three homicides were committed. Although defendant's version of the killings tended to minimize the extent of his involvement, he nevertheless conceded that he assisted in disposing the victims' bodies and he shared in the proceeds of the robberies.
It is undisputed that defendant and Hoyte sold the murder weapon two days after the third murder. Derrick Hunter, a Newark firefighter, testified that he purchased the gun from defendant and Hoyte for fifty dollars. Hunter subsequently notified police and turned the gun over to the authorities. At the police station, Hunter identified defendant and Hoyte as the individuals who had sold him the gun.
The Essex County grand jury returned a multi-count indictment charging defendant, Hoyte and Mayo with a variety of crimes relating to the three homicides. Among other offenses, Hoyte was individually charged with the capital murders of all three victims. Defendant was charged with three counts of purposeful or knowing murder and related crimes. Mayo was charged with participating in only two of the three murders.
Because all of the defendants gave confessions detailing their complicity and that of their confederates in the murders, their cases were severed. Mayo eventually pled guilty to two counts of purposeful or knowing murder and was sentenced to thirty years imprisonment without parole. Hoyte initially challenged the admissibility of his confession. At the hearing, however, Hoyte testified that his twelve-page statement was accurate in every detail and that he and defendant committed all three murders. In negotiations with the prosecutor's office, Hoyte offered to cooperate in return for a prison term. The prosecutor's office rejected that offer. Hoyte ultimately pled guilty to the entire indictment, including the counts charging him with capital murder. In giving his factual basis for the plea, Hoyte described the defendant's and Hoyte's involvement in some detail. The jury refused to impose the death penalty. ...