On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-05-0547.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); aggravated arson, in violation of N.J.S.A. 2C:17-1a(1); possession of a destructive device for an unlawful purpose, in violation of N.J.S.A. 2C:39-4c; and possession of a prohibited destructive device, in violation of N.J.S.A. 2C:39-3a. The trial court denied defendant's pretrial motion to suppress two oral and two written statements he gave to the police. A jury acquitted defendant of purposeful or knowing murder but found him guilty of the lesser included offense of aggravated manslaughter. The jury also found defendant guilty of the remaining charges, including felony murder. The trial court sentenced defendant to life imprisonment for felony murder, subject to a sixty-three year and nine month period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent ten-year term for possession of a destructive device for an unlawful purpose. The court merged defendant's other convictions.
Defendant's convictions were based on a fire that occurred on March 1, 1998 in an abandoned factory in Paterson occupied by homeless persons. The victim, James Tenbe, was an occupant of the factory who lived in an area called the"hole." Defendant would sometimes stay in the same factory building as the victim.
When members of the fire department arrived at the burning factory building, they found Tenbe lying in the grass about fifteen feet away from the building, badly burned and in serious pain. When Tenbe was asked whether anyone else was in the building, he responded:"I hope the bastard that did this is in there."
The fire department's investigation indicated that the fire had started in the"hole" where the victim lived and that it had been"supported" by a flammable liquid. The fire department concluded that the cause was arson.
In a hospital interview, Tenbe told an investigator from the Passaic County Prosecutor's Office that he had fallen asleep in the hole after drinking a six-pack of beer. A short while later, he woke up, with his body on fire. Although Tenbe did not indicate how the fire started, he did say he had not smoked or lit any candles.
Around a week after the fire, another occupant of the abandoned factory, Norma Melendez, called the police. After first calling anonymously and identifying another person as the perpetrator, Melendez identified herself and came to the Paterson Police Department to be interviewed. At that interview, she identified defendant as the perpetrator.
At trial, Melendez testified that she saw defendant enter the factory shortly before the fire carrying a grocery bag. About five or ten minutes later, she saw him leave. A little while later, she saw smoke coming from the factory.
After Melendez identified defendant as the likely perpetrator, the police reinterviewed Tenbe. When they arrived at the hospital, the police asked Tenbe to look at a set of photographs to see if he could identify the person who burned him and, according to one of the officers, Tenbe nodded as if to say"okay,... let me see them." When Tenbe saw the photograph of defendant, he"open[ed] his eyes... a little wider than usual and grabbed the photograph." The police officers had difficulty retrieving the photograph as Tenbe"crumbled" it in his hand. Tenbe did not say anything after crumbling the photograph. Three days after this second interview, Tenbe died of multiple-organ failure caused by the extensive burns he had suffered in the fire. Tenbe's death occurred before the police could obtain a statement from him explicitly identifying the perpetrator of the fire.
A week after the victim's death, the police arrested defendant on unrelated charges. After keeping him in jail overnight, the police brought defendant to an interview room around 8:15 a.m. and began questioning him about the fire. Approximately an hour later, defendant gave a statement admitting his involvement. In his first statement, which was typed by the police and signed by defendant, he claimed that"J.D.," another homeless person he had been drinking with in the park, asked him to throw a bottle of gasoline at the victim. According to defendant's original version of the offense:
He... gave me a bottle with red liquid inside, and it had a rag coming out of the top. The bottle was inside a brown paper bag that you use when you go shopping. I could smell the gasoline from the bottle and the rag. He went inside the factory by himself and I went in after him. He waited for me to be inside the building and I walked through the hole and met him inside. He gave me the bag and told me to light it up and throw the bottle at the old man [Tenbe]. I lit the bottle up and walked over to the hole. When I looked in it was dark and I saw the old man laying in the bed. I told [J.D.] that I couldn't do it, but he kept telling me to do it and burn the old man. Then [J.D.] pushed me and I fell on the ...