On appeal from the Superior Court of New Jersey, Law Division, Mercer County, I-96-10-1184.
Before Judges Wallace, Jr., Carchman and Lintner.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 11, 2001
Appellant filed a pro se supplemental brief.
Following a jury trial defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a); felony murder, N.J.S.A. 2C:11- 3(a)(3); robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:5-2; kidnapping, N.J.S.A. 2C:13- 1(b); burglary, N.J.S.A. 2C:18-2(a); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a crossbow for an unlawful purpose, N.J.S.A. 2C:39-4(d). The trial judge merged the aggravated manslaughter and burglary counts with the felony murder count and imposed a sentence of life with a thirty-year period of parole ineligibility on the felony murder conviction. The judge also merged the conspiracy conviction and weapons counts into the robbery count and imposed a concurrent sentence of twenty years with a ten-year period of parole ineligibility on the robbery conviction and imposed a concurrent sentence of thirty years with a fifteen-year period of parole ineligibility on the kidnapping conviction.
On appeal, in his main brief defendant contends: (1) the State failed to comply with the Uniform Extradition Act and therefore his statement was inadmissible; (2) it was error to admit hearsay testimony that a non-testifying co-defendant implicated defendant; (3) the admission of Timoteo Terron's prior inconsistent statement violated State v. Gross, 121 N.J. 1 (1990); and (4) his sentence was excessive. In his pro se brief defendant contends (1) the cumulative errors deprived him of a fair trial; (2) there was insufficient evidence to convict him of kidnapping; (3) the judge failed to instruct the jury to indicate which of the felonies it chose as the predicate felony for felony murder; and (4) the sentence was invalid. We reverse the kidnapping conviction and remand for resentencing. In all other respects we affirm.
We need not recount the facts at length. The State presented evidence to show that Mohamed Maghoub, the owner of a used car lot, taxicab company, and several rental properties in Trenton, was introduced to Ivelisa Figueroa in January 1996. Maghoub and Figueroa became friends. Figueroa told defendant about Maghoub and discussed a plan to rob Maghoub. Defendant asked three of his friends – Martin Robles, Elvis Terron and Timmy Terron – to help him in the robbery. Except for Timmy, all agreed.
Around 9:30 p.m. on January 30, 1996, Figueroa visited Maghoub at his house. While there, she called defendant and told him to proceed with the robbery. Defendant, Robles, and Elvin drove to an area near Maghoub's house. After their arrival, they decided not to commit the robbery. When they went to leave however, the car would not start. Defendant called Timmy and asked him to drive over and help them jump-start the car. While waiting for Timmy to arrive, the three men changed their minds again and decided to proceed with the robbery.
Defendant, Robles, and Elvis entered Maghoub's house through a rear door and saw Maghoub sitting on the living room couch with Figueroa. Defendant was carrying a shotgun and Robles was carrying a crossbow. Defendant "racked" a round into the shotgun chamber to scare Maghoub and told him not to move. Maghoub immediately screamed and jumped at defendant, grabbing the shotgun. They wrestled for the shotgun, moving into the hallway and falling on the floor, both of them still holding onto the gun. Elvis tried to wrap duct tape around Maghoub's mouth to stifle his screams. In the struggle, the gun went off and Figueroa was struck in the thigh. Defendant yelled for Robles to help him. Robles gained control of the shotgun and started hitting Maghoub on the head with it.
Defendant then ran upstairs to look for a briefcase which Figueroa said contained money. Defendant returned downstairs. Maghoub was on the floor and still breathing at that time. Defendant searched through Maghoub's pockets, and removed his wallet. He also removed two rings and two bracelets from the victim.
Defendant, Figueroa, Robles, and Elvis then fled through the backdoor of the house. The group ran through the backyard down to a railroad yard where they hid the shotgun and crossbow and broke open and left the brief case which only contained documents relating to Maghoub's used car lot.
The group then went to Timmy's apartment where they discussed the incident. Timmy's father, Timoteo Terron, heard the group boasting about what happened and scolded them. Defendant divided the proceeds of the robbery, which included $260, the rings and the bracelets. Timoteo attempted to help Figueroa with her gun shot wound. Figueroa refused to go to the hospital because she was afraid. She told Timoteo she was shot when defendant and Maghoub were wrestling with the shotgun. Defendant, Robles, and Elvis left the apartment, but Figueroa stayed the night, nursing her injury.
The next morning defendant contacted Ann Marie Perez to help Figueroa. Perez accompanied defendant and Timmy to the apartment to check on Figueroa. Figueroa was in bed, so her wound was not visible to Perez. Figueroa told Perez she had spent the night out and her aunt would be angry at her. She asked Perez to go to her aunt's house and bring back some clothes which Perez did later that day. When Perez returned with the clothes, she noticed the bandage on Figueroa's leg. She asked Figueroa what happened. Figueroa explained she was accidentally shot when defendant and some others tried to rob someone.
Perez left. The next morning she read about Maghoub's murder in the newspaper and realized Figueroa was involved. She learned from Figueroa's aunt that the police were looking for Figueroa. Later that day she went back to Timmy's apartment and urged Figueroa to give herself up. Figueroa agreed and turned herself into the police.
On February 1, defendant asked Michael Valentin to drive him to the Philadelphia International Airport for a flight to Puerto Rico leaving the next morning, supposedly because his mother had died. Valentin dropped defendant off at the airport around 6:00 p.m. and returned to Trenton. The police arrived at Valentin's house sometime after midnight and asked if he knew where defendant was. Valentin told them he had taken defendant to the airport and described what defendant was wearing.
In the early morning of February 2, Detective David Maldonado sent out a general alarm for defendant. At 4:15 a.m., a Philadelphia police officer patrolling the airport heard the report and located defendant at the airline ticket counter. He arrested defendant and transported him to the Philadelphia police headquarters known as the Roundhouse. After Maldonado was informed of defendant's arrest, he immediately obtained an arrest warrant for defendant and, along with Detective Jack Kemler, drove to Philadelphia to interview defendant.
Maldonado, who spoke fluent Spanish, interviewed defendant in Spanish. He read defendant a Spanish Miranda form and had defendant read and sign it. Defendant initially told Maldonado he knew nothing of Maghoub's murder. After Maldonado described the details the police knew, defendant began to weep and admitted he was responsible for the robbery but not the murder. Maldonado interviewed defendant for about an hour, between 7:00 and 8:00 a.m. Around that time, Detective Robert Farabelli informed Maldonado of Pennsylvania's "six-hour rule" where the police have six hours from the time a defendant is taken into custody until the time a statement must begin or else they have to get permission from the district attorney to question a defendant.
Farabelli called Charles Gallagher, chief of homicide in the Philadelphia District Attorney's office, and discussed the possibility of defendant waiving his right to an extradition hearing. Gallagher replied that if defendant wanted to waive his right to a hearing and return to Trenton, he would have to sign a formal statement saying he was the person the Trenton police were looking for and that he understood the rights he was waiving. Farabelli relayed this information to Maldonado, and Maldonado asked defendant whether he was willing to waive his right to an extradition hearing. Defendant said yes. Maldonado then typed a waiver statement in English and translated it into Spanish before defendant signed the form.
After defendant executed the waiver of extradition form, Maldonado and Kemler escorted him back to Trenton. During the drive to Trenton, defendant again indicated he was only responsible for having the shotgun but not for the death of the victim.
Once they arrived at the Trenton Police Headquarters, Maldonado obtained a formal written statement from defendant. Defendant explained the events that led to the murder. He admitted he held the shotgun when he and the co-defendants entered Maghoub's home, that Maghoub was badly beaten, and that he rummaged through Maghoub's pockets looking for money.
The police arrested Elvis, Timmy, and Robles on February 1. They also confiscated the clothing and sneakers Elvis wore at the time of the homicide. Subsequent analysis of the clothing and sneakers revealed the presence of blood, although it could not be determined whose blood it was. Later that same day, Elvis took the police to a railroad yard near Olden Avenue where the police found a shotgun, crossbow, and Maghoub's briefcase. An analysis of the weapons recovered at the railroad yard revealed that blood found on the shotgun belonged to the victim. A ballistics analysis performed by the New Jersey State Police determined that the shotgun pellets recovered from the wall of Maghoub's house were fired from the shotgun recovered at the railroad yard.
Later, the police searched Timmy's apartment and found several of the victim's rings in a pipe under the kitchen sink. An analysis of the calling records of defendant's cellular telephone as well as Robles' cellular telephone revealed that several calls were placed or received by defendant to both Robles and Timmy shortly before and after the murder but none between 9:53 p.m. and 11:27 p.m. on January 30.
An autopsy was performed on Maghoub by Doctor Raafat Ahmad, the Chief Medical Examiner of Mercer County. Doctor Ahmad concluded Maghoub died between the late evening hours of January 30 and the early morning hours of January 31. She found his head injuries were caused by blunt force trauma, consistent with being bludgeoned with the barrel of a shotgun. Doctor Ahmad ruled the death a homicide and determined the cause of death was due to massive cranial cerebral injuries.
Defendant did not testify nor did he present any evidence or witnesses. As noted, the jury found defendant guilty of aggravated manslaughter, felony murder, conspiracy, ...