On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, I-99-06-00983.
Before Judges Petrella, Lintner and Yannotti.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2004
Following a jury trial, defendant Abdul A. Abdullah was convicted of knowing and purposeful murder, N.J.S.A. 2C:11-3a(1)(2) (Count One); second-degree burglary, N.J.S.A. 2C:18-2 (Counts Two and Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Counts Four and Five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C: 39-5d (Counts Six and Seven).
Prior to trial, defendant's motions to suppress evidence seized from the victim's apartment, dismiss the indictment, suppress the telephone toll records from the Atlantic County Jail to the victim's residence, and suppress his statements to the police were denied.
On September 13, 2002, the trial judge sentenced defendant on the murder conviction to a life term with a minimum period of thirty years without parole. On the third count armed burglary conviction, defendant was sentenced to a consecutive term of ten years with a five-year period of parole ineligibility. The remaining convictions were appropriately merged. Defendant appeals and we affirm.
Defendant, also known as Aleem, first met Catrina Lark in 1996 and thereafter they developed a relationship. Defendant would visit Lark during the day and return to his girlfriend Joan Robinson's apartment at night. Defendant fathered two children with Robinson and referred to her as his"wife." Defendant's relationship with Lark ended sometime between December 1998 and January 1999. Lark then began dating defendant's cousin Robert Boswell. After being incarcerated on January 15, 1999, in the Atlantic County Jail for a parole violation, defendant learned that Lark was seeing his cousin. Soon thereafter, Boswell was incarcerated in the same jail. On March 21, 1999, Corrections Officer Frank Timik observed an argument between defendant and Boswell while they were being visited by their respective girlfriends. Timik heard defendant call Lark a"bitch" and a"whore." Defendant and Boswell were thereafter placed on the no contact list.
According to Lark's mother, Shelby, Lark refused to accept daily collect calls from defendant after their relationship ended. Phone records from Atlantic County Jail indicate that defendant made 467 calls to Lark from the County Jail. (Defendant admitted making numerous calls to Lark, including 192 calls in a single day.) Shelby testified that one day in March, while she was visiting Lark, she accepted a call from defendant and used the occasion to tell him to stop calling her daughter because Lark did not want to be bothered by him anymore. Shelby stated that defendant responded:"If I can't have the bitch, nobody can have her. I'll kill her first."
Defendant claimed that he made the calls after he learned Lark was pregnant with his child and she threatened to abort the pregnancy if he did not leave his wife. Defendant told Lark that he would not leave his wife but that he would be a father to his child. He denied ever threatening Lark. Defendant was released from the county jail in April 1999.
On May 1, 1999, at approximately 3:30 a.m., Lark phoned Jessica Ruiz, her friend and neighbor who lived in an apartment across the street from her. At the time Ruiz was awake watching television with her then boyfriend, Lark's cousin, Ronald Taylor. Ruiz related that Lark called her and told her that defendant was outside"knocking on her window trying to get in her house." Before hanging up the telephone, however, Lark told Ruiz that defendant had left the area and that she would be all right.
Stella Hargrove lived on the second floor in the same apartment building as Lark. She testified that she was awakened in the early morning hours by a female voice in Lark's apartment saying,"Aleem don't hit me." Ronald Taylor woke up and left Ruiz's apartment between 7:00 and 8:00 a.m. He went across the street to visit Lark. When Taylor arrived at Lark's apartment, he found the door unlocked and Lark lying on the kitchen floor. The apartment was in complete disarray and Lark was lying in a pool of blood. Taylor ran back to Ruiz's house and told her to call the police.
Officer Ed Leon of the Atlantic County Police Department was dispatched to Lark's apartment. Leon found Lark lying on her kitchen floor, nude from the waist down, with a pool of blood around her head. She had no pulse, her skin was cold, and she was becoming rigid.
Police officers seized various items from Lark's apartment believed to be associated with the attack that were either near the body or in Lark's bedroom. The items included: a blood stained rolling pin, a broken clothes iron, a broken ceramic lamp, a broken cast iron frying pan, three blood-stained serrated steak knives with bent blades, three blood-stained kitchen knives with broken blades, and three intact blood-stained kitchen knives. Only two items, both serrated steak knives, were not found in plain view - one behind a chair in the bedroom and the other on the right side of a sofa cushion which was slightly askew. According to the Atlantic County Medical Examiner, Doctor Hydow Park, Lark's death was caused by"multiple blunt and sharp force injuries to the head, neck, and upper torso areas." These included numerous stabbing and cut wounds to her head, face, neck, back, hands, and chest.
Additionally, Lark had a large open skull fracture around her left eye caused by a heavy object.
Phillip Beesley, a Senior Forensic Scientist with the Department of Law and Public Safety Forensic Science Section (the Department), testified that swabbings taken from various locations in the apartment tested positive for blood and tissue and were submitted for DNA testing, along with blood samples taken from the victim and defendant. Patricia Prusak, also a Senior Forensic Scientist employed by the Department, found defendant's DNA matched one of the specimens taken from the apartment and also matched the source mixed with Lark's DNA on two other specimens taken from the apartment.
Officer Howard Mason and several other officers went to defendant's home. Mason noticed that defendant had a cut on his hand that was bleeding. Defendant claimed that he was injured when he fell from his bicycle. He also stated that he had not left his house the entire night. Defendant claimed that he had not been in Lark's apartment since the last week in December 1998.
Robinson told police that defendant left her apartment at approximately 2:40 a.m. and made a great deal of noise when he returned between 3:00 and 3:30 a.m. Two of defendant's fingerprints were found on the handle of the frying pan found next to Lark's body. A bloodstained glove belonging to defendant and used by him to lift weights was recovered from Lark's apartment.
At trial, Defendant admitted that he left his house at about 2:30 a.m. to purchase some marijuana. Victor Winters, a witness called by defendant, acknowledged selling marijuana to defendant and smoking it with him for about half an hour. Defendant denied referring to Lark as a"bitch" and a"whore" during the alleged incident at the county jail. Defendant also denied threatening Lark in a conversation with Lark's mother. He also claimed that approximately a week after he was released from jail and a week to ten days before the murder he saw Lark at a party at his cousin's house. According to defendant, there was no confrontation or ruckus between them. They had a brief conversation concerning whether she aborted her child. He claimed that they really did not interact and"would just pass each other by without too much conversation at all."
On appeal, defendant raises the following points
THE EVIDENCE PRESENTED TO THE JURY CREATED A RATIONAL BASIS FOR A VERDICT CONVICTING DEFENDANT OF THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. THE COURT'S FAILURE TO GRANT DEFENDANT'S REQUEST FOR A JURY INSTRUCTION ON THE LESSER OFFENSE DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PAR. 1, 9, 10.)
NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10.) (Not Raised Below.)
A. The Prosecutor's Repeated Comments That Defendant And His Alibi Witness Were Liars Was Improper.
B. The State Improperly Denigrated The Defense.
THE ADMISSION OF GRUESOME CRIME SCENE AND AUTOPSY PHOTOGRAPHS DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PAR. 9, 10.)
THE CUMULATIVE EFFECT OF THESE ERRORS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND A NEW TRAIL IS IN ORDER. (Not Raised Below.)
AS THE OFFENSES INVOLVED A SINGLE INCIDENT AND A SINGLE VICTIM, THE COURT ERRED IN ORDERING THAT DEFENDANT SERVE A MAXIMUM SENTENCE ON THE BURGLARY WHILE ARMED CONVICTION CONSECUTIVE TO THE MAXIMUM SENTENCE IMPOSED ON THE MURDER CONVICTION.
In a pro se brief, defendant raises the following additional points:
THE DENIAL OF THE MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM THE APARTMENT THAT THE DEFENDANT HAD CO-LEASED WITHOUT A SEARCH WARRANT WHERE THERE WAS NO JUSTIFIABLE EXIGENCY WAS A CLEAR VIOLATION OF THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION.
THE DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS TO DNA TESTING PRIOR TO HIS TRIAL THEREFORE THE DEFENDANT'S CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR THE OFFICE OF THE PUBLIC DEFENDER TO PROVIDE FOR THE REQUESTED DNA TESTING TO BE CONDUCTED.
THE STATE VIOLATED BRADY BY FAILING TO DISCLOSE THE JAIL TELEPHONE TOLL RECORDS FROM JANUARY 15, 1999 TO FEBRUARY 21, 1999 THAT WERE IN THE STATE'S POSSESSION PRIOR TO DEFENDANT'S TRIAL AND AS A RESULT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL.
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE MULTIPLE INSTANCES OF OTHER CRIMES EVIDENCE WITHOUT A PROPER CURATIVE INSTRUCTION ...