On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, I-97-7-733.
Before Judges Petrella, Kestin, and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 01-24-02
A Union County grand jury returned Indictment No. 97-7-733, charging defendant Khalif James as follows: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree robbery, N.J.S.A. 2C:15-1 (count five); second-degree possession of a certain weapon, a Colt .38 caliber handgun, with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (count six); second-degree possession of a certain weapon, a Smith & Wesson .38 caliber handgun, with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (count seven); unlawful possession of a handgun, a Colt .38 caliber handgun, without first having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b) (count eight); and unlawful possession of a handgun, a Smith & Wesson .38 caliber handgun, without first having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b) (count nine).*fn1
The co-defendants' cases were severed, and defendant stood trial alone. A jury found defendant guilty on all counts, with the exception of counts six and eight relating to the Colt .38 caliber handgun. The trial judge merged count seven into count five, and the conviction for felony murder (count four) into the conviction on count two for murder, and sentenced defendant on that count to life imprisonment, with thirty years to be served without parole. The judge also imposed concurrent sentences on the other convictions. Finally, the appropriate monetary penalties and assessments were also imposed. Defendant appeals. We affirm.
According to the State's proofs, on January 27, 1997, Jason Means was driving his 1995 Hyundai Elantra when he saw his friend, Lawrence McGriff, in front of Means's home. He picked up McGriff, and they continued to drive around until they observed Rahmill Thomas. They picked up Thomas who sat in the rear of the vehicle. They entered the borough of Roselle and observed defendant. At McGriff's suggestion, they invited defendant into the car. Defendant sat next to Thomas in the rear of the vehicle. McGriff was in the front passenger seat. Means said he and McGriff had been drinking Bacardi. While they were driving around, defendant and McGriff began discussing "robbing someone." At some point, Means agreed to participate in a robbery with McGriff and defendant.*fn2 According to Means, it was agreed that if they "came across someone who looked vulnerable that we were going to rob him." While in the car, McGriff discharged his gun, a Colt .38 caliber revolver. In addition, defendant told the others that he had a gun with him.
Means realized he needed gas because they "had been riding around for a long period of time." Defendant suggested they rob the gas station. According to Means, "[t]he plan was for [him] to go get the gas, to draw the attendant out and as he was out of the booth, they would come up and rob him."
Means dropped McGriff and defendant off near the gas station. He then drove to the gas station with Thomas and obtained gas in the amount of $3.00, which had been given to him by defendant. Means then drove to the location where he had let McGriff and defendant out of the car. They had agreed that Means would park his car at that location and defendant and McGriff would return there after completing the robbery. Means observed defendant and McGriff approach the gas station. As he was waiting for them to return, he heard gunshots. Defendant ran back to the car. According to Means, defendant was "hysterical" and wanted to leave McGriff at the gas station. Within seconds, McGriff returned. After defendant and McGriff entered the vehicle, they began to argue about who had shot Ramon Medina, the gas station attendant. Means began to argue with defendant because he wanted Means "to pull off quickly and fast and flee the scene quickly, real fast." Means refused to do so because "it was too obvious." An argument developed and Means "ended up putting [defendant] out of" the car, along with Thomas.
Means returned to his home with McGriff. They sat on the porch. McGriff gave Means his gun and told him that defendant had shot the victim. He asked Means to dispose of the gun. Means wrapped the gun inside a shirt and placed it above a drop-ceiling panel in his home. The day after the robbery, defendant asked his friend Travelle Jackson to hide his gun, a Smith & Wesson .38 caliber revolver. Two bullets found at the scene, including one found in the lining of the victim's jacket, were determined to have been fired from a Smith & Wesson .38 caliber revolver.
Concerned that he may be implicated in the robbery because his car had been used, Means called the police to report the incident, claiming to be an innocent witness. He initially gave a statement to the police that both he and McGriff were getting gas when the robbery took place. He made no mention of defendant. However, the police received other information that made Means's statement seem untruthful.
An eyewitness, Joseph Nyars, had heard the shots and told the police he saw two men dressed in black, one near the street and the other closer to the gas station. They met at the street, screamed, and ran away. From his vantage point, Nyars could not see the victim; however, he saw Medina's Doberman pinscher standing nearby. Police from Linden and Roselle were dispatched to the scene. Linden Patrolman Peter Hammer observed the victim lying face down on the ground. He was lying in a pool of blood and did not appear to have any sign of life. He had been shot four times. The victim was pronounced dead by medical personnel who arrived at the scene within five to ten minutes. Hammer observed a parking ticket laying on the ground near the body. Ultimately, police determined that the summons had been issued to McGriff. Hammer also observed a bullet by the pumps and one laying on the floor in the booth. Two bullets had passed through the victim's jacket.
The police went to McGriff's home, and he accompanied them to the station for questioning. During the questioning, the officers discovered that McGriff had what appeared to be a fresh dog bite on his leg and blood on his clothing. While the police were questioning McGriff, he directed them to a safe in his grandfather's house. The police brought the safe back to police headquarters and McGriff opened it. Sergeant Edward Fitzgerald of the Union County Prosecutor's Office observed and seized five copper-jacketed bullets.
As previously noted, during the course of the investigation the police obtained information that brought into question the truth of Means's initial statement. When confronted with the information, Means gave a second statement in which he admitted his involvement and told the police that defendant and McGriff carried out the robbery. He then informed the police that he had hidden McGriff's gun, the Colt .38 revolver, in his house. The police retrieved the gun. It was loaded with one copper-jacket bullet and five spent Remington-Peters shells. A ballistics examination determined that the bullet that caused the fatal wound was discharged from the Colt revolver. In addition, McGriff's blood and the victim's blood were found on the gun. ...