Before Judges Baime, Brochin and Eichen.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Bergen County.
Following a protracted jury trial, defendant was found guilty of two counts of first degree kidnaping (N.J.S.A. 2C:13-1b(1) and (2)), two counts of first degree robbery (N.J.S.A. 2C:15-1), two counts of possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), two counts of possession of a handgun without a permit (N.J.S.A. 2C:39-5b), purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)), and two counts of felony murder (N.J.S.A. 2C:11-3a(3)). After merging the convictions for felony murder and possession of a firearm for an unlawful purpose, the trial court sentenced defendant to an aggregate term of life imprisonment plus sixty years with a forty year parole disqualifier on the surviving counts. Defendant appeals. We reverse defendant's conviction for purposeful or knowing murder because: (1) the prosecutor elicited testimony from two investigators that defendant's non-testifying co-defendants had implicated her in the robberies and murder, (2) the trial court erroneously allowed the State to cross-examine the defense's expert witnesses using inadmissible hearsay, and (3) hearsay evidence was improperly admitted under the co-conspirator exception. These errors did not affect the remaining convictions, which we affirm.
Defendant, who was eighteen years old, resided in Conyers, Georgia with her father, step-mother and brother. In June 1994, defendant's father ordered her to leave the family home for disciplinary reasons. Penniless and unemployed, defendant found shelter with her boyfriend, Edward Kummer, and others. Through Kummer, defendant met Ivie Demolina and Thomas Christopher James.
Demolina had worked for an escort service in New York City. During the summer, she hatched a plan to rob several of her former clients. Over Kummer's objections, Demolina and James enlisted defendant in the scheme. The plan was for the two women to gain entry to the victims' residences by promising sexual services. The victims were to be restrained and their belongings taken.
In July 1994, defendant, James and Demolina left Georgia for New York City. At some point during the journey, Demolina placed a collect telephone call to her half-sister, Magda Rahey, who resided in Brooklyn. Demolina told Rahey she was in the company of James and defendant. During the conversation, Rahey heard two voices in the background. One was a male; the other was a female having a "thick [southern] accent." Demolina told Rahey that the three intended to "finish something off" and to "take care of something." When pressed for details, Demolina responded that she, James and defendant planned to go to New Jersey to "kill" a man. Demolina added that she might visit Rahey while in the area.
Demolina, James and defendant arrived in Brooklyn some time in August. They took up residence with Demolina's mother, Maria Rios, and her half-brother, Ben Rosario. Demolina and defendant purchased wigs which they were to wear in the planned robberies. The stage was thus set for execution of their plan.
On August 3, 1994, Demolina telephoned Robert Hippman. Calling herself "Erica," Demolina told Hippman that she and her friend "Alexis," who was also an escort, were in the area. Demolina offered to provide sexual services to Hippman in exchange for money. Hippman had met Demolina on a prior occasion when he had telephoned the L'Affaire Escort Service on December 24, 1992. Demolina had identified herself as "Erica" and the two had engaged in sexual relations. Hippman thus invited the two women to his highrise apartment in Hackensack.
At the appointed hour, Efrain Papaleo, a friend of Rosario, drove Rosario, defendant, Demolina and James to Hippman's apartment. During the ride, it was agreed that Demolina would identify herself as "Erica" and defendant would identify herself as "Alexis." Once having gained entry into Hippman's apartment, James was to brandish a firearm and restrain the victim. Papaleo and Rosario were to remain in the automobile.
At approximately 1:30 a.m., defendant and her companions arrived at Hippman's building where they were greeted by William Mooney, the doorman. Identifying herself as "Erica," Demolina explained that they were there to visit Hippman. Using the building's intercom, Hippman confirmed that "Erica" and "Alexis" were his guests.
Hippman was not happy to see that "Erica" and "Alexis" were accompanied by James. He nevertheless allowed the three to enter the apartment based upon Demolina's statement that James merely wished to use the telephone. Hippman testified that "Alexis," whom he identified in court as the defendant, suddenly pointed a dark gray or black gun at him and announced, "this is a stickup." Hippman was ordered to lie face down. When he refused, James pulled out a second gun. James then taped Hippman's hands and legs so he could not move.
As Hippman lay immobilized on his stomach, defendant, Demolina and James ransacked the apartment. After placing numerous items in a sports bag, James held a pair of scissors to Hippman's back while the two women secured him with additional duct tape.
The trio left Hippman's apartment at approximately 4:00 a.m. James carried the sports bag containing the stolen items. Papaleo then drove defendant and her companions to Brooklyn. En route, they stopped at the Valley Bank in Bergenfield where James used Hippman's ATM card to withdraw money from the cash machine.
Hippman was eventually able to free himself and summon the police. The police subsequently retrieved a surveillance tape of the Valley Bank's ATM machine. The tape showed James using Hippman's ATM card. Hippman later identified James from the tape as the man who had assisted defendant and Demolina in the robbery.
The next victim was James Polites. Polites lived alone in an apartment in Edgewater. Among other business ventures, Polites was a partner with John Acunto and Francis Sposa in a bar located in Fort Lee. The practice was for Sposa to distribute cash profits in a white envelope. Polites would obtain the envelope at his leisure and give Acunto his share. In the beginning of August, Sposa gave Polites an envelope containing $5,000. Polites telephoned Acunto and told him that he would give him his share when the two next met.
Demolina was acquainted with Polites. She had met Polites and his friend, Leonard Marshall, at a nightclub in 1992. Demolina had introduced herself as "Evia." Polites and Demolina engaged in a sporadic romantic relationship that ended in 1994.
On August 4, 1994, Demolina telephoned Polites at his Fort Lee bar and told him that she and "Alexis" were in the area and wanted to engage in a menage a trois. Demolina instructed Polites to make sure he was alone and to have a bottle of Pino Grigio Santa Marguerita wine at hand. After concluding his telephone conversation with Demolina, Polites described what had occurred to Vincent Luppino, a friend who was also a patron of the bar. He also told Sposa. Later that night, Sposa answered the telephone at the bar, and a woman asked for Polites. Demolina and defendant made final arrangements with Polites to meet him at his apartment. Demolina told Polites that she and her friend charged $300 an hour for sexual activities. This call was placed from a pay telephone near Rios's apartment in Brooklyn. Polites left the bar and was never again seen alive.
Polites' death was not discovered until August 8, 1994. As we mentioned, Polites was to meet Acunto and deliver his share of the profits from the bar. Acunto attempted to reach Polites by telephone, but was unsuccessful. After getting numerous busy signals, Acunto tried contacting Polites by paging him. Ultimately, Acunto received a telephone call from James who had stolen Polites' pager. Acunto asked whether he was speaking to Polites. When James said no, Acunto hung up.
His suspicions aroused, Acunto proceeded to the Fort Lee bar but was told that Polites had not appeared. Acunto then drove to Polites' apartment where he gained entry by using a key Polites had given him. Acunto immediately noticed that the apartment had been ransacked. Fearing the worst, Acunto proceeded to the second floor where he observed Polites' ankles bound together protruding from the bedroom doorway. Entering the bedroom, Acunto saw that Polites was hanging from the doorway with his upper torso suspended and his head approximately six inches from the floor. Polites' body was positioned face down with his ...