On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-09-1061, 03-09-1213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 10, 2007
Before Judges Cuff, Winkelstein and Baxter.
Following a jury trial, defendant Tivon E. Neals was convicted of first degree murder, contrary to N.J.S.A. 2C:11- 3a(1) and 11-3a(2); second degree possession of a weapon (a handgun) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b. He was also convicted, on a separate indictment joined prior to trial, of fourth degree retaliation against a witness or informant, contrary to N.J.S.A. 2C:28-5b; and third degree terroristic threats, contrary to N.J.S.A. 2C:12-3a. After merging the possession of a weapon for an unlawful purpose charge with the murder charge, Judge Almeida sentenced defendant to a fifty-year term of imprisonment subject to a No Early Release Act*fn1 parole ineligibility term for the murder conviction. On the unlawful possession of a weapon conviction, the judge imposed a concurrent four-year prison term. He also merged the terroristic threat conviction with the retaliation conviction and imposed a consecutive prison term of four years with a one-year period of parole ineligibility on the retaliation charge. The appropriate fines, penalties and assessments were also imposed.
On August 2, 2003, defendant Tivon Neals, M.L., and Thomas T.*fn2 were traveling to their friend's house in New Jersey to spend the weekend together. They drove in Thomas T.'s mother's red, two-door Mitsubishi Eclipse. A nine millimeter gun that belonged to Thomas T.'s mother was in the car. Thomas T. brought the unloaded weapon to show it to his friends and then placed it on the floor in the backseat of the car.
Defendant and M.L. lived in the same apartment building in Brooklyn, New York, and shared a group of friends, all of whom referred to defendant as "T." M.L. had been to New Jersey on prior occasions to visit H.C., nicknamed "H.," and Thomas T., a close, long-time family friend*fn3 who lived in Cinnaminson. M.L. was "good friends" with defendant, but this was their first visit together to New Jersey. Thomas T. did not know defendant as well, although he met him previously at M.L.'s Brooklyn apartment.
The trio were staying in Camden for the weekend with H.C.'s grandfather. During the evening of August 4, 2003, defendant and H.C. got into an argument at the home of H.C.'s relatives. M.L. decided that he and defendant should return to Brooklyn. Despite the late hour, Thomas T. agreed to drive them to the train station in Trenton. At some point before leaving to take them to the train station, Thomas T. placed his mother's nine millimeter gun into the trunk because he did not want to have a gun in the car while driving such a noticeable car at a late hour. He explained that he gave the unloaded gun to M.L. to take with him to New York and that the gun was already in M.L.'s bag in the trunk.
At approximately 10 or 11 p.m., the young men were on their way to the station. Defendant occupied the passenger seat beside Thomas T. and M.L. sat in the backseat behind Thomas T. On the way to the train station, M.L. and defendant teased Thomas T. about "Jersey's country," so Thomas T. drove them to Burlington City to prove that New Jersey had a "hood." Thomas T. was unfamiliar with the Burlington City area and got lost. Meanwhile, in Burlington City, James Nesbitt, a thirty- year-old resident, sat in front of his house, which was located at the corner of York Street and Clarkson Street. At approximately 12:30 a.m., a heavy-set 5'7" tall, African-American male named Anthony McNair tried to sell Nesbitt pornographic DVDs, which he carried in his hands, but Nesbitt declined to purchase them. The man walked away towards Clarkson Street while Nesbitt continued speaking with a friend.
Moments later, Thomas T. reached the intersection of York and Clarkson Streets and began making a right-hand turn. Thomas T. noticed a heavy-set black man motioning to him. The man was the same person who had tried to sell the pornographic DVDs to Nesbitt. Thomas T. stopped the car. M.L., who had been lying down in the backseat, sat up thinking they were at the Trenton train station. He did not recognize the area and noticed that a black, middle-aged man was standing behind the car, motioning towards them. Thomas T. put the car in reverse towards the black male and stopped the car in front of him.
McNair approached the driver's side window and either leaned forward towards the window or actually leaned into the car.*fn4 McNair asked Thomas T. "what do you need?" to which Thomas T. responded "what's you mean?" Thomas T. believed that McNair was trying to sell him something, although he did not see anything in his hands.
McNair reached toward his side with his right hand as he started to pull up his shirt. Thomas T. testified that he was not alarmed by McNair's action and did not see anything at the man's waistband or underneath his shirt. Although the dynamics of the car and Thomas T.'s head slightly obstructed M.L.'s view from the backseat, he was able to see McNair and saw him motion towards his navel. Like Thomas T., M.L. was not alarmed by McNair's movement and noticed that Thomas T. did not appear anxious.
Suddenly, M.L. heard a "bang" like a gunshot. At the same time, Thomas T. saw a flash in front of his face as he heard the sound of a loud "big pop." Both M.L. and Thomas T. noticed that McNair was no longer standing at the car window. M.L. thought McNair fired into the car and hid down. Then he smelled gun powder and felt a ringing sensation in his ears. Thomas T. was in shock and did not move. M.L. thought Thomas T. had been shot because he remained motionless.
M.L. saw defendant nudge Thomas T., who started the vehicle and sped off. He drove into Pennsylvania and returned to New Jersey. During this ride, M.L. saw Thomas T. retrieve a bullet shell from somewhere in the car and hand it to defendant. M.L. does not know what defendant did with the bullet shell, but believes he threw it out the window. Afterwards, M.L. laid down, traumatized, and listened to the music in the car. He does not recall the particulars of any conversation with Thomas T. or defendant. Thomas T. recalled that M.L. and defendant told him McNair had a gun.
Thomas T. drove M.L. and defendant to the Hamilton station, but no trains were running. He then drove them to the Trenton station where they took a train to Brooklyn.
Back in Burlington City, McNair was dead, lying face down in a pool of blood. A crowd had already formed by the time the paramedics and police officers arrived. Patrolman William Hunt unsuccessfully attempted to resuscitate McNair. Hunt then noticed a DVD case on the ground near McNair's body. A search of the victim's pocket revealed only a miniature bottle of alcohol, a lighter, two quarters, lip balm, and a pack of cigarettes.
Moments before the shooting, Chief John Lazzarotti and other patrolmen of the Burlington Police Department had been executing a warrant four blocks from York and Clarkson Streets. At approximately 12:38 a.m., they were dispatched to the corner of York and Clarkson Streets for a shooting and responded within seconds to find five or six individuals on that corner frantically waving them down and pointing to the victim who was lying face down on Clarkson Street in a large pool of blood.
The witnesses, who waved down the police officers, stated that around 12:30 a.m., they saw an unfamiliar red, two-door sports vehicle*fn5 stop at the York and Clarkson Streets intersection and reverse towards McNair. Some witnesses recognized the victim because they attended high school with his son. Earlier in the night, they had seen the victim holding CDs and DVDs he was trying to sell. When the car stopped, the victim leaned over into the driver's side and spoke to the occupants of the vehicle. The witnesses did not see anything in the victim's hands when he approached the car, but saw him reach towards his waistband during the conversation. They were unable to hear anything or see any activity in the car, although they noticed that the driver wore a green and yellow shirt and/or hat.
The witnesses then heard a loud bang and saw a spark as they watched the victim reel backwards and try to run until he collapsed on Clarkson Street. The red sports car sped off down Clarkson Street towards the highway.
Thereafter, two witnesses, A.J. Reed and Markell Wilder, approached the victim to check on him. He was lying face down on the ground in "a lot" of blood, making gurgling noises as he struggled to breathe, so Wilder turned his head to the side to ease his breathing. The police and paramedics arrived shortly thereafter. An autopsy revealed that McNair died of a gunshot wound to the mouth.
On August 7, 2003, Thomas T. and M.L. discovered that the victim died from a gunshot and that the driver of a red coupe was suspected. Later that day at approximately 8:05 p.m., detectives at the Burlington County Prosecutor's Office and other law enforcement agencies executed a search warrant at Thomas T.'s residence in Cinnaminson where he resided with his mother and his stepfather. When they arrived, Thomas T. was not home, but his mother was present and called him on the phone to return home. The police recovered a green and yellow baseball cap with a Negro League Baseball Museum emblem on it.
Thomas T., then seventeen years old, returned. His mother gave the police officers permission to take him to the Prosecutor's Office to question him. Detective Michael Sperry of the Burlington County Prosecutor's Office Major Crime Unit and Detective Joseph Caruso of the Burlington City Police Department arrived at the Prosecutor's Office with Thomas T. at approximately 9:45 p.m. Thomas T.'s mother did not ride to the police station with her son because she had to work that night. She did not arrive at the Prosecutor's Office until 10:55 p.m.
Detectives Sperry and Caruso decided to interview Thomas T. without his mother. Initially, he provided no information related to the shooting. The police told him that they learned from his girlfriend that he had information about the August 5 shooting and was present when it happened. Thomas T. then agreed to give a tape-recorded statement summarizing his recollection of the shooting.
At 10:59 p.m., Thomas T. provided a recorded statement to the police. It concluded at 12:10 a.m. In his statement, he described the shooting incident and stated that defendant and M.L. told him that the victim was armed with a gun. He also stated that he took his mother's gun without her permission and without obtaining a permit.
Thereafter, Detectives Sperry and Caruso asked Thomas T. to conduct a consensual intercept. Detective Sperry testified that he explained to Thomas T. that the consensual intercept would enable the police to listen to and record his phone conversation with third parties.
After discussing the consensual intercept, Sperry and Caruso requested Thomas T. to call M.L. and defendant for purposes of listening to and recording their conversations. At 1:20 a.m., the detectives spoke to Thomas T.'s mother and asked for her permission to have her son conduct the consensual intercept because he was a juvenile. She agreed.
At 1:55 a.m., the officers supervised Thomas T. as he called M.L. to discuss the shooting and find a contact number for defendant, but M.L. was unavailable. The police took Thomas T. home between 2:30 to 3 a.m.
The following afternoon, at approximately 1:30 p.m., the detectives asked Thomas T. to contact M.L., defendant or both for purposes of the consensual intercept. Detective Sperry spoke to Thomas T.'s mother on the phone and again requested her permission to conduct another consensual intercept with her son. She agreed.
The detectives and Thomas T. returned to the Prosecutor's Office where Thomas T. contacted M.L., while Detectives Sperry and Caruso listened to and recorded the conversation. During the intercept, Thomas T. asked M.L., "So why T overreact like that, man? . . . Why he even pull that shit out, man?" M.L. believed that Thomas T. was questioning why defendant overreacted and pulled out a gun. M.L. then responded, "See, I don't even know 'cause [defendant] said [the victim] pulled out something. I seen it too." M.L. then provided Thomas T. with the pager number of "T." The police recorded the pager number and discovered that it belonged to Tivon Neals.
Thomas T. tried to contact T. twice. Thomas T. made the first phone call at 7:27 p.m. and left a numeric message in the page. At 7:29 p.m., he dialed T. again and left a voice message requesting a return phone call at a number provided by the police. At 7:50 p.m., T. called back and they spoke. Thomas T. recognized the voice on the other end of the phone as that of his friend T..
During the conversation between the two, Thomas T. mentioned that a shooting involving a red Eclipse was being broadcasted in the news. He stated, "I don't know how that shit happened, yo" to which defendant responded, "Nigger got the fever. (Laughing) That shit ain't no mother fucking play toy. You understand? . . . When it bangs on a nigger, it takes niggers out." The State contends defendant then made the following statement:
Word to mothers, so nahmean, I, nahmean? I didn't wanna do it but, at the same time, it's better him than us. Nahmean? It's better him than you. 'Cause that nigger had an ax. He was gonna give it to you. And I know he got, you know, got laid with something on his waist so, unless niggers took it off him, that's how they found him.
The State alleges the following colloquy occurred between Thomas T. and defendant:
[THOMAS T.]: I didn't even see that shit but son, yo, this shit crazy. I didn't even see that shit pull out, yo.
VOICE: Yeah, son. I had it in my lap, son.
VOICE: Fucking niggers nahmean? Niggers, I told niggers, yo, don't, nahmean? I ain't sleeping on niggers or whatever. Soon as, son, see, you see the black on that hammer,*fn6 nahmean, nigger hold some for a second and that's all it took, man. He out the game now, so, fuck him. Dead men don't talk. You know? Nahmean?
VOICE: No. No. Fuck that. What are, what're they gonna say? They need, son, the shell is out the game, the hammer's out the game.
[THOMAS T.]: Yeah. What'd you do with, what'd you do with that shit?
VOICE.: Shit, I threw that shell in the fucking woods, "B". That shit is out.
[THOMAS T.]: Oh, you threw it, you threw it in the City?
VOICE: Son, after we, no, we was in fucking, uh, Philly when that shit happened. Remember when you got on the ...