On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-09-1830-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Remanded Resubmitted May 7, 2007
Before Judges Skillman, Holston, Jr. and Grall.
Bergen County Indictment No. 03-09-1830-I, filed September 26, 2003, charged defendant, Albert Wessel, with murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count three); second-degree armed burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree burglary, contrary to N.J.S.A. 2C:18-2 (count five); fourth-degree theft of movable property, contrary to N.J.S.A. 2C:20-3 (count six); third-degree possession of a weapon, a golf club, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count seven), and fourth-degree unlawful possession of a weapon, a golf club, under circumstances not manifestly appropriate for its lawful use, contrary to N.J.S.A. 2C:39-5(d) (count eight).
A trial was held from June 15 through July 13, 2005, before a jury. The jury convicted defendant of counts one, two, three, four, five, seven and eight, and of the lesser included disorderly persons offense of theft (count six).*fn1
The judge merged count two into count one, count five into count four, and count six, count seven, and count eight into count three. On count one, defendant was sentenced to life imprisonment with thirty years parole ineligibility; on count three, to a consecutive fifteen years imprisonment, with 85% to be served without parole, and on count four, to a concurrent seven years imprisonment, with 85% to be served without parole. Defendant appeals his conviction and sentence. We affirm.
The following evidence was presented at trial. The victim, Edwin Parker, age eighty-seven, lived alone in a first floor garden apartment in Lodi. On June 10, 2001, a neighbor contacted the Lodi police after not having seen Parker for the previous three or four days.
Sergeant John Dorans responded to Parker's apartment at 6:54 p.m. When he entered the unlocked front door, he saw the victim lying in his bed, covered with a blanket. It was clear the victim was dead, as a result of which Dorans notified headquarters.
Bergen County Medical Examiner, Dr. Sundandan Singh, responded to the scene as did Detectives Dennis Suarez and Gerard Dargan of the Bergen County Prosecutor's Office Homicide Squad. Suarez and Dargan conducted an investigation of the crime scene looking for evidence. In the bedroom there was blood on both sides of the bed, on the ceiling, on the headboard, on the wall behind the headboard and on the door. On top of the pillow was a green knit cap, stained with what appeared to be blood. Next to the cap was a bone fragment. On the second shelf of the closet, the officers found a ten inch crescent pipe wrench and a metal hammer with a rubber handle. Detective Suarez seized the wrench and the hammer because they both had the weight to cause the injuries inflicted on Parker, and they both appeared to have blood stains.
On June 11, 2001, Dr. Singh performed an autopsy on Parker. He opined that Parker had died twenty-four to forty-eight hours earlier. Dr. Singh determined that the body received at least ten to twelve blows. There were numerous compound and comminuted fractures. The effects of the blows were clearly visible. The brain was severely lacerated. The nose was broken, as was the upper jaw. The cause of death was "massive blunt trauma of the head, neck and upper thorax." When shown the hammer and wrench, Dr. Singh believed they could have been used to cause the injuries. In April 2004, after defendant's arrest, Dr. Singh examined a golf club and stated he could not exclude it as a potential weapon used in the murder.
There were no signs of forced entry into the apartment. The police believed a burglary had occurred as several bedroom dresser drawers had been opened, and a jewelry box, and button box were found tossed on the floor. Although there were two VCR tapes on top of the television, there was no VCR.
Parker was well-known throughout the apartment complex and was often seen feeding the squirrels, birds and cats in the neighborhood. Parker never locked his door; rather, while the screen door might be closed, the main door to the apartment always would be open.
Elsa Fouskey, and her then husband, Luis Acosta, were next door neighbors of Parker and remained friends with him even after they moved from the complex in 1994. Acosta had sold a VCR to Parker around 1991, which he always kept on top of his television. Fouskey last saw Parker when she went to his apartment on June 5, 2001. The VCR was on the television at that time. Fouskey also noticed that Parker had a golf club in the bedroom in a bucket, which looked to her to be an iron.
An analysis of Parker's caller ID showed that several calls had been made to him from the Passaic County jail. The calls were traced to inmate Cynthia Rodriguez. Rodriguez met Parker in the summer of 2000. She was a prostitute and at times sold herself to Parker. In addition, she became friends with him, helped him around the apartment and visited him two to three times a week. Rodriguez also noticed a golf club in Parker's bedroom.
Rodriguez asked Parker for money on various occasions and sometimes he would give her twenty dollars "for no reason at all." On other occasions, she saw money lying around his apartment and took it without his knowledge. Rodriguez used most of the money Parker gave her for crack cocaine.
Rodriguez met defendant in April 2001, after which they began "dating," getting high together and engaging in sex. She stopped seeing him on May 22, 2001, when defendant told her his girlfriend, Robin Velardo, was out of jail and that he was reconciling with her. Rodriguez did not know Velardo.
Prior to their breaking up, defendant accompanied Rodriguez on two occasions to Parker's apartment so she could get money in order to buy cocaine and get high. On the first occasion, defendant met Parker when Parker came out of his apartment to say hello to him before Parker gave Rodriguez twenty dollars. The second time, while defendant was waiting for Parker to take Rodriguez to the bank to withdraw some money, Rodriguez came out of Parker's apartment and handed defendant a beer. When Parker came out, he saw defendant.
When Velardo was released from prison in May 2001, following her arrest for prostitution, defendant told her that Parker was Rodriguez' "sugar daddy" and that he accompanied Rodriguez to Parker's house to get money for Rodriguez. Velardo testified that one time she was with defendant when he drove to Parker's house to obtain money to help Rodriguez get herself out of some trouble. According to Velardo, she stayed in the car while defendant walked up to the house and got the money. Once they had the money, she and defendant bought some crack and smoked it. Defendant told Velardo that the door to Parker's apartment was always open.
By June 2001, Velardo had been going out with defendant for approximately six years. During the previous few months, she lived with defendant, his mother and his brother in their home in Garfield. Velardo acknowledged engaging in prostitution to earn money to support her long standing drug addiction to crack cocaine, which cost $300 to $400 a day.
Velardo testified that on a night between June 7 and June 10, 2001, defendant left his mother's house in his mother's red Ford between 10:00 p.m. and midnight. Defendant told Velardo he was going to get some money at Rodriguez' "sugar daddy's house" in order to purchase crack cocaine. Velardo stated that when defendant returned, defendant said, "he woke up, I killed him." The defendant did not indicate who had awakened, but she assumed it was Parker. Defendant told Velardo he had killed the victim by hitting him on the head with a golf club, and took six dollars, a VCR and some used stamps. Defendant told Velardo to get rid of the stamps so she flushed them down the toilet. After taking a shower, defendant put his clothes in a bag and left. He told Velardo he threw the clothes in a dumpster in Clifton before going to Paterson to buy crack.
Velardo never saw the defendant with a golf club or a VCR when he returned that evening. However, defendant told Velardo at some point that he got rid of the VCR by throwing it away. He repeatedly told her he killed the man because he "woke up."
Velardo and defendant constantly fought, and she often threatened to call a homicide detective "just to piss him off." In retaliation, defendant told her he would tell the police she had driven the car on the night he killed the victim, and that his mother and brother would swear to that fact. She and defendant subsequently moved to an apartment in Paterson. The fighting between them continued until she was arrested on outstanding warrants.
Jose DiPini testified that in March 2003, he met defendant, when DiPini was looking for work. Defendant, who did carpeting, was able to provide work for DiPini on three separate occasions. The men also shared crack, eventually every day. They bought their drugs from the same drug dealers in Paterson, and got high in defendant's Paterson apartment. On April 7, 2003, DiPini got into a dispute with a drug dealer, which was witnessed by defendant. Defendant asked DiPini, "[Do] you want me to take care of that situation for you?" DiPini declined but defendant stated, "[w]hat's the matter, you never killed anybody. I have."
Two weeks later, DiPini was present during an argument between defendant and Velardo in which Velardo indicated she was tired of cleaning "his messes." When DiPini asked what Velardo meant by "messes," defendant answered "that thing," which DiPini took to mean the homicide.
Sometime thereafter, when DiPini was headed home from defendant's apartment, he saw Velardo and asked her why he did not see her there. She replied that she was scared to return because she had already been away from the apartment for a long time that day. DiPini saw that Velardo was terrified of defendant, so he asked her what had happened, and she told him that defendant had murdered an older man.
DiPini went to defendant's apartment on May 3, 2003, and was told by defendant that the police had come to the apartment the night before. DiPini described defendant as paranoid. He had not opened the door, and feared that Velardo, who was in the Bergen County Jail, was talking "to the wrong people." Defendant stated that the police had been coming to his mother's house and wanted to take a DNA swab from him. He speculated the police might have found something at the scene that could be matched to him. Although defendant told DiPini he had killed an older man, he would "clam up" when DiPini asked for details.
On May 6, 2003, DiPini approached Garfield Police Detective Williams to tell him what he had been told by defendant about the murder and eventually gave a statement to members of the Bergen County Prosecutor's Office. He testified, at trial, that no promises had been made to him in exchange for his testimony, although he was serving a sentence at a halfway house at that time. ...