On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-92-12-1421.
Before Judges Baime, Wallace, Jr. and Carchman.
Miles Feinstein argued the cause for the appellant.
Michael J. Williams, Deputy Attorney General, argued the cause for
respondent (John J. Farmer, Jr., Attorney General, attorney; Mr.
Williams, of counsel and on the brief).
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On the night of June 5, 1992, Russell Ferguson was robbed and fatally beaten. Following a protracted jury trial, defendant was found guilty of felony murder (N.J.S.A. 2C:11-3a(3)), second degree robbery (N.J.S.A. 2C:15-1), and second degree conspiracy (N.J.S.A. 2C:5-2). His alleged accomplice, Charif Abdul, was convicted of second degree robbery and second degree conspiracy, but was acquitted of felony murder. After merging the convictions, the trial court sentenced defendant to sixty years imprisonment with a thirty year parole disqualifier. Defendant appeals from the resulting judgment and the denial of his petition for post-conviction relief. We affirm defendant's conviction, but remand the matter to the Law Division for further proceedings.
Ferguson was a Paterson firefighter. On the night of the incident, he and his friends, Joseph Parkin, Charles Parkin, and David Prosser, imbibed substantial quantities of alcohol at Rosie's Tavern. Ferguson was extremely inebriated, so much so that the bartender refused to continue serving him. At some point, Ferguson left the tavern alone.
Although the exact chronology of events is not entirely clear, Ferguson ultimately encountered defendant, Abdul, Ahmadnour Ayoub, Isaam Atshan, Raaid Thabata and Marilyn Carrerro, who had gathered outside a nearby restaurant. Ferguson appeared helplessly intoxicated. Taking advantage of that condition, defendant and Abdul threw the victim to the ground. Defendant grabbed Ferguson's firefighter's medallion while Abdul relieved the victim of his wallet. In a statement given to the police upon his arrest, Atshan described how defendant repeatedly kicked Ferguson as he lay helpless on the sidewalk. Although Atshan disavowed that statement at trial, he admitted that he observed defendant and Abdul flee from the scene following the robbery.
Thabata and Carrerro departed in Carrero's automobile. They subsequently encountered defendant, Abdul and Atshan several blocks away. Defendant proudly displayed Ferguson's gold chain, noting that he had "mugged" the victim. Thabata and Carrero drove the three men to a nearby destination.
Meanwhile, Ferguson was able to make his way to Rosie's Tavern. According to Prosser, Ferguson appeared intoxicated and disheveled. Ferguson told Parkin "they got me," but was initially unable to explain what happened. He later related that he had been kicked and punched in the back and groin, but he could give no further details concerning the crime. Ferguson complained of abdominal pain, but refused medical assistance.
The Parkins drove Ferguson to his house. With their assistance, he was able to exit from the car, but he was "bent over" and could not stand erect. After helping Ferguson undress, the Parkins departed. Ferguson's wife, Cecelia, was not present, having moved out of the house three weeks earlier to assist her invalid mother.
Cecelia returned to the house the next morning. Unable to push the door more than a few inches, she peered in the crack and observed Ferguson's bare shoulder. The emergency squad was immediately summoned. They found Ferguson's body propped against the door. A search of the house revealed that the bathroom toilet was cracked and leaking. Feces were found in and around the bathtub. Ferguson was pronounced dead at the scene.
Dr. Lyla Perez performed the autopsy. She found that Ferguson's tenth and eleventh ribs were fractured, and that the decedent had suffered three deep lacerations in his spleen. Perez also found a deep hemorrhage of the muscles surrounding Ferguson's back. Although Ferguson suffered from advanced cirrhosis of the liver, Perez unequivocally concluded that the "laceration[s] of the spleen with contusions and intra-abdominal hemorrhage . . . and rib fractures" constituted the cause of death. Perez also determined that the injuries were consistent with the decedent having been repeatedly kicked in the area of his ribs. Perez discounted the possibility that Ferguson's death was a result of a fall or contact with a toilet. Such an accident would have resulted in large bruising on the outside of the skin. Perez emphasized that such an occurrence would not cause a ruptured spleen.
The police investigation revealed that defendant, Atshan, Thabata, and Omar Ayoub (Ahmadnour's brother) met on the afternoon of the day Ferguson's body was discovered. Defendant sold the gold chain he had stolen from Ferguson to Omar, but retained the firefighter's medallion. Defendant, Abdul and Atshan divided the proceeds. Omar subsequently discarded the chain upon learning that the police were investigating Ferguson's death.
On June 8, 1992, the police arrested Abdul on an unrelated charge. While transporting Abdul to the police station, one of the officers mentioned the investigation relating to Ferguson. Abdul spontaneously replied, "you must be talking about the chain." The police then apprised Abdul of his constitutional rights. Abdul thereafter confessed his participation in the crime.
The police arrested defendant later that day. He too was advised of his constitutional rights. After initially disclaiming any involvement, defendant admitted that he had participated in the robbery and might have kicked Ferguson while relieving the victim of his gold chain and medallion. Defendant stated that he had given the medallion to his girlfriend. She later brought the item to the police station at defendant's request.
It is against this backdrop that we address defendant's arguments. Defendant contends: (1) his confession was improperly admitted, (2) he was deprived of the effective assistance of counsel, (3) the jury's verdict was tainted by prosecutorial misconduct, (4) evidence pertaining to the victim's background should not have been introduced, (5) he was denied his right to confrontation by the prosecution's failure to divulge the identity of a confidential informant, (6) hearsay information was improperly admitted, (7) his right to a meaningful appeal was denied because not all sidebar conferences were stenographically recorded, (8) the State deprived him of due process by failing to preserve tangible evidence, (9) the conspiracy count should not have been submitted to the jury, (10) several jurors should have been struck because of their close relationship with law enforcement, (11) the instructions on robbery were not tailored to the facts of the case, (12) the charge on reasonable doubt was insufficient, (13) the jury should have been instructed on the statutory defense to felony murder, (14) the charge on accomplice liability was inadequate, and (15) the instructions on felony murder were confusing. Although this was not an error-free trial, we find no sound basis to disturb defendant's conviction. We nevertheless remand the matter for an evidentiary hearing respecting several of defendant's claims of ineffective assistance of counsel.
Defendant first contends that the court erred by denying his pretrial motion to suppress his confession. The ...