On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-03-0430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Gilroy.
On March 30, 2004, a Hudson County Grand Jury charged defendant and co-defendants, Paul Reid, Steven Reid, and Zaid Tariq,*fn1 in a fourteen-count indictment with first-degree murder of Joong Ahn, N.J.S.A. 2C:11-3a(1) or (2) (Count One);*fn2 first-degree felony murder of Joong Ahn, N.J.S.A. 2C:11-3a(3) (Count Three); first-degree murder of Muni Ahn, N.J.S.A. 2C:11-3a(1) or (2) (Count Four); first-degree felony murder of Muni Ahn, N.J.S.A. 2C:11-3a(3) (Count Five); first-degree armed robbery against Joong Ahn and Muni Ahn, N.J.S.A. 2C:15-1 (Count Six); two counts of first-degree kidnapping of Joong Ahn and Muni Ahn, N.J.S.A. 2C:13-1b (Counts Six and Seven, respectively); two counts of second-degree kidnapping of Jawad Mir and Amit Vishal, N.J.S.A. 2C:13-1b (Counts Nine and Ten, respectively); fourth-degree aggravated assault by pointing a firearm against Joong Ahn, Muni Ahn, Jawad Mir and Amit Vishal, N.J.S.A. 2C:12-1b(4) (Count Eleven); third-degree possession of a weapon (handgun) without a permit, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (Count Twelve); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Thirteen); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Fourteen).
The Grand Jury also returned a Notice of Aggravating Factors as to Count One, subjecting defendant to the death penalty, pursuant to N.J.S.A. 2C:11-3. Following a jury trial, defendant was convicted on all counts, except Counts Nine, Ten, and Eleven. During the penalty phase of the trial, the jury declined to find any aggravating factors, and the death penalty was not imposed. After the denial of defendants' motions for a new trial and for judgment notwithstanding the verdict, defendant was sentenced on Count One to life imprisonment; on Count Four to a consecutive life term; on Count Seven to a concurrent term of thirty years; and on Count Twelve to a concurrent term of five years. The remaining convictions were merged. All sentences, other than Count Twelve, were made subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. All appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other necessary facts when addressing the issues.
Joong Ahn owned a cell phone business in Philadelphia with his wife, where they also sold prepaid calling cards. Their nephew, Muni Ahn, also worked with them in the business. Defendant, as well as co-defendants Paul Reid and Zaid Tariq, managed separate cell phone businesses and engaged in the sale of prepaid calling cards. Through the assistance of Jawad Mir and Amit Vishal, defendant arranged for the discounted sale of a significant quantity of prepaid calling cards to Joong and Muni Ahn. On October 31, 2002, Joong, Muni, Mir, and Vishal proceeded to co-defendant Paul Reid's store in Sayreville, where defendant and the three co-defendants held the four hostage at gunpoint. As the four laid on their stomachs, defendant and the three co-defendants kicked and punched them. After seizing the large amount of cash that Joong had brought to purchase the prepaid phone cards, defendant sat on Joong's back and placed a shopping bag around his face for about a minute. When Joong struggled, defendant took a wire from an advertising board and strangled him with it until "he just stopped moving."
Defendant then took Mir and Vishal at gunpoint to the front of the store and told them that they had to shoot Muni if they wanted to live. After they refused, Mir and Vishal were dragged into the backseat of a car and driven around by co-defendant Zahid Tariq, accompanied by one of the Reids in the front passenger seat. After having been driven around for approximately fifteen minutes, they stopped and switched cars, placing Mir and Vishal into a white SUV. From there, they were driven around again until they stopped near what Mir believed to be a police precinct because he saw police cars parked nearby. While stopped, the other Reid brother "came running from the back" and sat in the rear of the SUV. Defendant entered the rear of the SUV across from Reid, took a gun from the Reid brother in the backseat, and handed it to Mir and Vishal, telling them to hold it tight so that their fingerprints remained on the gun. Defendant then threatened Mir saying, "I know your family back home. So if you open your mouth, I'll kill them." Mir and Vishal were then taken to a motel where they were given $10,000 each to remain silent. At the motel, defendant stated: "He burned the car and the bodies in them."
In the interim, about 1:30 a.m. on November 1, 2002, police and fire departments responded to a car fire in the parking lot of the Laidlaw Bus Company in Jersey City, across the street from the Hudson County Sheriff's Department and a substation of the Hudson County's Prosecutor's Office. The bodies of Joong and Muni were found in the burned SUV, later identified as Joong's vehicle. Joong had been hogtied and burned beyond recognition; he had to be identified through dental records.
Muni had had his arms tied behind his back and had been shot. Dr. John Krolikowski performed the autopsy on Joong. During the autopsy, no soot was discovered in Joong's airway, indicating that he was not breathing during the fire. Dr. Krolikowski opined that the cause of death was asphyxia. Medical examiner Lyla Perez performed the autopsy on Muni. Muni had duct tape around his hands and wires around his right ankle. The top of his skull was fractured in many places, and his brain was exposed. There was heat damage to his brain and to the bones of the skull, and traces of blood in the brain. The blood in the brain was in part due to bullet wounds inflicted prior to death. Soot and mucus was discovered in Muni's lungs, which together with the fact that his lungs were hyperinflated, indicated that he was alive during the fire. Perez opined that the cause of Muni's death was blunt trauma to the head and brain, and smoke inhalation.
Defendant raises the following arguments for our consideration:
THE STATE'S FAILURE TO APPRISE THE DEFENDANT OF THE CRIMINAL COMPLAINT AGAINST HIM PRIOR TO THE QUESTIONING NECESSITATES SUPPRESSION OF HIS PURPORTED STATEMENTS. U.S. CONST., AMEND. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE DEFENDANT'S PURPORTED UNCOUNSELED STATEMENTS, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART 1, PAR. 1.
THE DEFENDANT WAS EFFECTIVELY DENIED HIS RIGHT TO A JURY TRIAL BY THE TRIAL COURT'S REPETITION, DURING ITS CHARGE TO THE JURY, OF HIGHLY PREJUDICIAL HEARSAY STATEMENTS MADE DURING TRIAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 9. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING ONLY A PARTIAL READBACK OF THE TESTIMONY OF A CRUCIAL WITNESS. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DISALLOW THE TESTIMONY OF A STATE'S MEDICAL EXPERT.
THE DEFENDANT RECEIVED A MANIFESTLY EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. THE SENTENCES SHOULD RUN CONCURRENTLY.
B. THE BASE TERMS OF LIFE IMPOSED FOR MURDER ARE EXCESSIVE.
Defendant raises the following arguments pro se: 1) his custodial statements should have been suppressed because they followed his arrest which was obtained without a valid warrant;
2) he was denied effective assistance of counsel because counsel failed to move to suppress defendant's statements on the basis of his illegal arrest; 3) the trial judge erred by giving an incomplete and prejudicial instruction on reasonable doubt; 4) the trial judge failed to tailor his instructions as to the defense theory and failed to give examples during the instructions; 5) the trial judge failed to require the jury to be unanimous in its findings as to the underlying facts of the charges; 6) the trial judge erred by not charging the lesser-included offenses on the charge of murder of Muni Ahn; 7) the trial judge improperly shifted the burden of proof to the defendant, showing his disapproval of defendant's actions leading to the death of the victim; 8) the trial judge erred by failing to instruct the jurors that if some of them were to find defendant had acted purposely or knowingly and others were to find that defendant had acted recklessly it could have determined defendant guilty of aggravated manslaughter; 9) the instructions were prejudicial as to inferences the jury could draw from the use of a firearm; and 10) the instructions concerning use of circumstantial evidence was misleading and prejudicial.
We have reviewed each of these arguments in light of the record and pertinent law and have concluded that they are all without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
In Point I, defendant argues that the trial judge erred by denying his motion to suppress his pretrial statement to the police. Defendant contends that at the time he was questioned, the police failed to inform him that either a criminal complaint had been, or was about to be filed against him, and that such omission impacted upon his ability to knowingly and intelligently exercise his rights to remain silent and to counsel. In Point II, defendant contends that the statement was taken in violation of his rights against self-incrimination and to counsel. The State counters that defendant had waived his rights and voluntarily provided a statement to the police. The State contends that no questioning occurred prior to defendant's arrest, and that defendant was aware he was under arrest in connection with the murders when he waived his constitutional rights. Because the issues are inter-related, we will address them together.
Prior to trial, a hearing was conducted addressing defendant's motion to suppress evidence. Testifying for the State were Detective Lieutenant Charles Russo and Detective Sergeant Theodore Wagner, both from the Hudson County Prosecutor's Office, Homicide Division. Russo testified as follows. On November 3, 2002, having received information that two individuals possibly involved in the double homicide lived in the Sayreville area, he, Wagner, and other officers from the Hudson County Prosecutor's Office proceeded to a Quick Chek store in Sayreville and apprehended defendant and Zaid Tariq as they exited the store. Even though Russo did not have a complaint warrant in his possession at the time of defendant's apprehension, he would not have allowed defendant to leave had he resisted because defendant was a "target" in the investigation.*fn3 Russo handcuffed defendant behind his back and placed him into the police car with Wagner, for the purpose of transporting defendant back to the Prosecutor's Homicide Unit in Jersey City. Although Russo told defendant "basically what was going on" and that "we wanted to talk to him," he never told defendant that he was facing a murder charge; only that they would talk when they got back to Jersey City. However, Russo did inform defendant of his Miranda*fn4 rights, and defendant remained silent throughout the ride to Jersey City.
Russo stated that they had arrived at the Jersey City homicide base at around 4:15 p.m. Although he removed the handcuffs from behind defendant's back, he handcuffed defendant to a chair in the interview room. Russo read defendant his Miranda rights, and defendant asked to read them himself. After reading the Miranda waiver form, defendant signed the waiver at 4:17 p.m., stating that he had no problem with talking to Russo.
After Russo conversed with defendant about general matters, trying to place him at ease, Russo asked defendant what he had done on Halloween. Initially, defendant told Russo that on October 31, he had worked in his store, that his girlfriend Maribel Aquino had arrived at the store at approximately 8:00 p.m., and that sometime prior to closing at 9:30 p.m., Vishel and Mir had visited and then left. After closing the store, defendant took Maribel to get something to eat and then proceeded to the Gallery Motel where he spent the night with her. Russo, who had been in and out of the interview room getting updates on other witnesses' statements, told defendant he was not telling the truth. At 6:40 p.m., they took a break. When they returned from the break at 7:10 p.m., defendant said, "I'm about to tell you the truth." Defendant then gave a second statement that placed him at the scene of the crimes. When Wagner brought in the bag of ...