July 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTWAN MITCHELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-12-1458-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 14, 2007
Before Judges Lintner and C.L. Miniman.
Defendant Antwan Mitchell, also known as Terrell or Rell, and co-defendant Henry Bullock (Bullock) were charged in a six-count indictment with first-degree purposeful or knowing murder contrary to N.J.S.A. 2C:11-3(a)(1), (2) (count one); first-degree felony murder contrary to N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery contrary to N.J.S.A. 2C:15-1(a)(1) (count three); first-degree carjacking contrary to N.J.S.A. 2C:15-2 (count four); third-degree unlawful possession of a weapon contrary to N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a) (count six).
On April 26, 2004, the trial judge conducted a Miranda*fn1 hearing and concluded that defendant's three sworn statements were voluntary and admissible at trial. After a hearing regarding the admissibility of a taped conversation between a government witness, Quinton Lowe, and co-defendant Bullock, the trial court admitted a redacted version of the tape.
Defendant was tried by jury over five days between April 27 and May 5, 2004. He elected not to testify or have the jury instructed on his right to remain silent. On May 5, 2004, after the State rested, defendant moved to dismiss the indictment, arguing that the State failed to establish each element of each offense beyond a reasonable doubt. The motion was denied.
On May 7, 2004, after two days of deliberation, the jury found defendant guilty of first-degree murder (count one), first-degree felony murder (count two), first-degree robbery (count three), and first-degree carjacking (count four). He was found not guilty of the two weapons charges (counts five and six). On June 18, 2004, defendant was sentenced to sixty years in prison on the first-degree murder and felony-murder counts (counts one and two) with an eighty-five percent period of parole ineligibility. The court merged the robbery conviction (count three) and the carjacking conviction (count four) with the felony murder conviction (count two). The judge found that aggravating factors three, six, and nine outweighed the "nonexistent mitigating factors." Defendant timely appealed. We affirm the convictions but remand for resentencing.
The relevant facts are as follows: Defendant and the victim, Christopher Cooper, were acquaintances who went to a gym in Newark together every morning. Either Cooper would pick up defendant or they would meet at the gym. Cooper and defendant had known each other for about a year by the time of the murder on March 26, 2002. Cooper always wore a platinum necklace, a Rolex or Coram watch, a diamond bracelet and a one-karat diamond earring. The jewelry was worth approximately $40,000. Cooper also carried a Fendi wallet given to him by his fiancée, Kimberly Harris. As defendant was aware, Cooper kept a shoe box containing as much as $70,000 in cash in his townhouse at 19 Country Club Lane, Scotch Plains.
Defendant and Bullock, with whom Cooper was also acquainted, met on March 25, 2002, and planned to rob Cooper of his money the next day. Defendant told Bullock that he would call him on his cell phone after Cooper picked him up the following day and they would set up "a meet" so that they could both rob Cooper.
During the morning of March 26, Cooper and defendant were together as usual. Later that afternoon, Cooper picked up defendant at his house, driving a bluish-gray Ford Taurus station wagon, license plate MAA-17N. Defendant drove the Taurus while Cooper ate. When they saw Bullock on the street, Cooper said that Bullock owed him money and told defendant to pull over. Bullock got into the back of the station wagon. At some point, defendant pulled over to the side of the road to urinate, and when he got back into the car, Bullock was holding a gun to Cooper's head and telling him to hand over his jewelry and cash. When Cooper asked what was going on, Bullock shot him in the shoulder and demanded to know where the rest of the money was. Cooper told them that he had around $60,000 at his house.
Defendant and Bullock intended at that point to drive to Cooper's house, but the station wagon was running out of gas. At about 3:45 p.m. they pulled into the Exxon gas station on Central Avenue and Raritan Road in Clark, which was only a short distance from Cooper's Scotch Plains townhouse. Defendant got out of the car and asked for $5 of gas. Cooper, yelling, tried to get out of the car, but was being restrained by Bullock from the back seat. The gas station attendant, Joga Singh, could not understand what Cooper was saying, but he thought the occupants of the station wagon were "joking around with each other." However, Susan Schwartz, a passenger in another customer's car, heard someone yelling, "[c]all the police, call the police. They're going to kill me." While Schwartz was trying unsuccessfully to reach the police on her cell phone, defendant pushed Cooper back into the station wagon, got in the vehicle, and drove out of the gas station onto Raritan Road heading toward the ShopRite supermarket, with Cooper's legs still hanging outside the vehicle. As the station wagon quickly left the gas station, Schwartz saw the license plate number, "ran into the gas station to call the police" and gave them the license plate number.
Meanwhile, defendant pulled into the parking lot of the ShopRite, at which point Bullock "shot [Cooper] in the back of his head, on the right side by his ear." Defendant pulled around the back of the supermarket as Bullock shot Cooper two more times in the head. Cooper's body then "fell out of the car." Defendant then sped away with Bullock in the rear seat.
Defendant and Bullock left the ShopRite and approached the red light at the corner of Valley Road and Broadway in Clark. Another motorist, Stuart Reiter, was stopped at the red light when he noticed Cooper's station wagon, also stopped at the red light, inching out and then going through the red light. The station wagon passed other cars on the way to the traffic circle and, when it could not go any further, Reiter saw someone get out of the passenger side door. He saw the person "holding something to his ear, and then turning around and throwing it down to the ground" before getting back in the car. The car took off immediately and passed other cars in the traffic circle before taking the entrance ramp to the Garden State Parkway. When Reiter passed the area where the car had stopped, he noticed an open cell phone on the ground by a church parking lot.
After defendant and Bullock got onto the Parkway, they got lost, turned around, and ended up in Union. During the drive, while they were stopped in traffic, defendant witnessed Bullock open the door and "throw something from the vehicle." They went to a "little mall" in Union and purchased baby wipes from a Rite Aid drug store. Bullock used the baby wipes to wipe down the car. Bullock asked defendant if he was "all right" and defendant said "yeah, I'm all right." They left the baby wipes in the car.
After wiping down the car, Bullock and defendant walked to a Dunkin' Donuts and bought doughnuts. They then walked to the bus stop across the street and boarded the bus to Springfield Avenue in Irvington. They did not sit together on the bus. They both got off the bus on Springfield Avenue, walked together for a minute, and then defendant walked alone down New Street. Before parting, Bullock again asked if defendant was "all right" and defendant said he was. After that day, defendant and Bullock never spoke about Cooper's murder.
Meanwhile, Pasquale Delvecchio, a police officer for the Township of Clark, was on duty the afternoon of March 26, 2002, when he was dispatched to the area of the Exxon gas station to look for a gray 1997 Ford Taurus Wagon with a license plate of MAA-17N. According to the police report, the initial call was received at 3:49 p.m., Delvecchio was dispatched at 3:51 p.m., and he arrived at 3:52 p.m. Delvecchio testified that he arrived in the area within forty-three seconds, turned into the ShopRite and proceeded to the loading dock area. He stopped when he observed a body in the driveway, motionless. Delvecchio went to render medical assistance and noticed that there "was a puddle of blood approximately a foot in diameter . . . under his head." The victim had no pulse.*fn2 Delvecchio called for paramedics and an ambulance before checking the area for evidence. He did not find any shell casings at the scene. Detective David Satkowski from the Clark Police Department also responded to the scene. The victim was wearing work boots, blue jeans, and a football jersey. He had no jewelry of any kind on his body. Cooper's wallet was recovered from his clothing but it contained no cash or credit cards.
George Gyure, a Union County Sheriff's officer, heard a radio broadcast about the Taurus on March 26, 2002, and he started looking for the car. He found it in a parking lot about 11:30 p.m. on March 27. Gyure was off duty at the time but parked a few spaces away and called 911. Nicholas Cadigan, another Union County Sheriff's officer, examined the Ford Taurus on March 28, 2002. Cadigan found a baby wipe on the driver's side floor and a box of baby wipes on the driver's seat. No fingerprints were found on any surface in the car or on the surface of any item within the car. Satkowski searched the interior of the Taurus and found a "secret compartment" on the dashboard "that's typically used by drug dealers to hold drugs." The compartment was empty.
Harris, Cooper's fiancée last saw him about a week before he was killed. They had lived together in Cooper's townhouse until they separated in the middle of March 2002. However, Harris still had access to the townhouse and on March 27, 2002, she consented to a search of the home by Detective Donald DeAquino. DeAquino found a shoebox containing $56,625 in a closet. The money was mostly twenty dollar bills and some bills were bundled together.
Reiter called "Crime Stoppers" on March 28 after hearing a news broadcast on the radio about a police investigation in the area regarding events on March 26, 2002. After receiving Reiter's information, DeAquino went to the church on Valley Road and found a broken cell phone on the ground in the church parking lot, with parts of it lying just outside the parking lot on the roadway. No prints of evidential value were found on the phone.
The phone number for the broken phone was 973-277-7050. From the Nextel phone records, DeAquino determined that the billing name for the phone was Rassoull Abdullah. Abdullah was Cooper's best friend and Harris said that the phone was used by Cooper as his own. The police then made an effort to obtain call detail records for that phone for the day of the murder to ascertain phone numbers for calls made to and from Cooper's cell phone.
Because of the frequency of calls to the victim's telephone prior to his death, DeAquino also obtained records for another phone with the number 973-452-7268. That phone number appeared on the call detail record eight times between 2:55 p.m. and 3:17 p.m. on March 26, 2002, meaning that eight calls were placed from or received by that phone. There were also other connections between those two phones earlier in the day. For that reason, the police decided to question Quinton Lowe, who was listed as the subscriber of the second phone.
Lowe, who had several prior convictions for assault, robbery and weapons offenses and used an alias, was questioned by police on May 30, 2002, about one of his cell phones. He told police he had given the cell phone to his friend, Bullock. Bullock paid the bills for that phone. In April 2002 Bullock told Lowe that the phone had been lost or stolen.
The police told Lowe that the cell phone "had been used to contact someone [who had been] murdered." Lowe denied any involvement with the murder and told the police that he did not use that phone. Lowe agreed to wear a wire underneath his clothing and meet with Bullock to prove that he had nothing to do with the murder. Detective Bridget Lawrence with the Union County Prosecutor's Office took Lowe's sworn statement and secured his agreement to wear the body wire.
Lowe met with Bullock at a car wash in Hillside on May 30, 2002. The police did not tell Lowe what to say or what to "get out of" Bullock but they gave him some details about the investigation. Lowe and Bullock conversed, and at the end of the conversation, the police arrested both of them. Lowe was arrested only as "part of a show" so that Bullock would not know about his cooperation with police.
During the conversation, Bullock stated that "the nigga got out for gas -- for the gas thinking only . . . nigga. They could never get at me. This nigga he had on fatigues." Lowe asked Bullock if he was sure the other person would not go to the police. Bullock responded that "word is bond this nigga, he a official, I'm telling you if not I'd have burned this nigga right after that shit went down." Lowe explained that "official" meant that he was "straight up" and "wouldn't tell" and "burned" meant that Bullock would have killed him.
Also during the conversation, Bullock told Lowe to tell the police that someone named Ali Kazel or Edwards used the phone because that person was dead and "can't tell nothing." Edwards was also "known for doing kidnapping and robberies." During the conversation, Bullock told Lowe to lie to the police to "help cover up [the] crime."
Lowe told Bullock that the police had his name and some surveillance tapes, but Bullock responded that he had a mask and gloves on and that "every fuckin window had 20," which referred to the degree of tint on the windows in the car. Lowe also tried to get Bullock to give the name of his accomplice but Bullock never responded.
The arrest of Bullock led to the arrest of defendant on June 1, 2002. Bullock, in inculpating defendant, provided the only information the police had about defendant's involvement in the murder. Detective David Satkowski and Detective Bridget Lawrence began to look for defendant under his given name and his nickname, "Rell." With Bullock's help, Satkowski looked for defendant at two addresses in Newark. Defendant was later arrested on June 1, 2002, at the Union Police Department when he reported there for questioning. Satkowski transported defendant to the Clark Police headquarters.
Defendant gave three sworn statements to the police after he was arrested, all of which were the subject of his motion to suppress. At the suppression hearing, Lawrence testified that on June 1, 2002, she met with defendant around 7:00 p.m. while he was being photographed, fingerprinted and searched. Lawrence advised defendant of his Miranda rights and he signed a form waiving those rights at 7:05 p.m. According to Lawrence defendant was in good physical condition and was "cooperative," "lucid," and did not appear to be under the influence of any intoxicating substances when he spoke with Detectives Lawrence and Satkowski. Defendant did not immediately admit that he was part of the murder. However, after the police "played a portion of the audio cassette made by Mr. Bullock" for defendant, defendant agreed to make a statement and provided information about the crime which largely inculpated Bullock and was apparently intended to exculpate defendant.
Defendant signed a second Miranda waiver form and gave his first sworn statement at 10:00 p.m. The statement was completed at 10:55 p.m. and executed at 11:47 p.m. Throughout this period of time, defendant never exercised any of his constitutional rights nor did he indicate he was too tired to continue. He was provided with food and beverages. Before the statement was executed, Lieutenant Kevin Foley from the Union County Prosecutor's Office reviewed defendant's statement and asked a few follow-up questions about the clothes defendant wore and where he discarded them on the night of the murder. Those questions and answers were handwritten onto the statement. Defendant made a correction to part of the statement.
In the statement defendant indicated that he spent some time with Cooper during the morning of March 26, 2002. Later that same afternoon, Cooper picked up defendant at his house. Cooper was driving the Ford Taurus station wagon. Defendant drove Cooper's car while Cooper ate. While driving, they saw Bullock. Cooper said that Bullock owed him money, so they pulled over and Bullock got in the back seat. Defendant said that he did not know that Bullock and Cooper "knew each other like that."
Defendant stated further in this first statement that after turning around, he pulled over and got out of the car "to take a leak." Cooper and Bullock were talking, and when defendant got back in the car, Bullock had a gun to the back of Cooper's head. When Cooper asked defendant what was going on, Bullock shot Cooper in the shoulder.
While still holding the gun to the right side of Cooper, Bullock asked Cooper "where the fuck is the money at. Cooper said that he had $300 on him and Bullock said "mother fucker I'm talking about the other money you got. Is that money at your house?" Cooper told Bullock that there was $60,000 at his townhouse.
Cooper told defendant to "just drive" and directed him onto Route 22. Bullock demanded to know where Cooper lived, and Cooper said to take exit 135 of the Garden State Parkway. At that point, Bullock noticed that the car had no gas so they pulled into a gas station. Bullock told Cooper to give defendant money for gas and Cooper handed defendant a ten dollar bill. Defendant told the gas station attendant to give him $5 worth of gas. As he stood outside of the car, defendant noticed Cooper "struggling," or trying to get out of the car, so he got back into the car and drove off. Bullock was holding Cooper from the back seat and defendant stated that he did not try to prevent Cooper from getting out of the car.
We went around the corner, I was driving, [Cooper]'s legs were hanging out of the car and [Bullock] was still holding on to him. As I was pulling into the parking lot of the ShopRite [Bullock] shot [Cooper] in the back of his head, on the right side by his ear. I pulled into the back of the ShopRite and [Cooper] fell out of the car. After the first shot I heard a second shot and it seemed like there was another and [Cooper] fell out of the car. I kept driving and [Bullock] stayed in the back seat.
After Bullock shot Cooper and Cooper fell out of the car,
Bullock said "mother fucker get me out of here."
Bullock was wearing "[a] black leather coat, a black baseball cap, blue jeans and work boots;" defendant was wearing "[a] black army jacket, a fatigue Timberwolf basketball cap, blue jeans and work boots."*fn3 Cooper was wearing "[w]ork boots, jeans, a baseball jacket and a dark jersey." Defendant did not recall if Cooper was wearing any jewelry that day or if Bullock had any of Cooper's jewelry.
After leaving the ShopRite and then wiping down the car, Bullock asked defendant if he was "all right" and defendant said "yeah, I'm all right." Defendant did not know if Bullock still had the gun after they bought the doughnuts. He did not see Bullock pick up any of the shell casings and did not know if Bullock was wearing gloves. Defendant did not see Bullock discard Cooper's car keys. Defendant saw Bullock take the $300 Cooper had on him that day.
Defendant stated that he and Cooper had known each other "[a]bout three or four months," they "were getting to know each other," and "use[d] to go to the gym together." He had been to Cooper's apartment in Scotch Plains only once when Cooper stopped there to change his clothes. Cooper had "fronted" defendant narcotics, up to ten grams at one point, and the most money defendant had ever owed Cooper was between $290 and $300. Defendant did not owe Cooper money at the time of his death. At some point, Cooper offered to sell defendant two coats that had belonged to Harris.*fn4 Defendant could not afford the fur coat but he bought the leather coat for $400. Defendant denied being at Cooper's residence when Cooper removed the box of cash after a fight with Harris, contrary to information supplied by Harris.
After giving his first statement, defendant "voluntarily agree[d] to take [police] on the route he had taken to Clark that day" and the route taken after the murder. "[S]ometime after midnight" but before 1:00 a.m., defendant, Sergeant Kevin White from the Clark Police Department, Lawrence, Satkowski, and Foley got into White's police vehicle along with defendant who was handcuffed during the ride. Lawrence testified that defendant remained cooperative throughout the ride.*fn5
After tracing the route, they drove back to Clark, pointed out the surveillance video cameras at the Exxon gas station and at the ShopRite to defendant, and asked defendant to "think about what those video cameras had captured on March the 26th." The video tapes were of no evidential value to the investigation because the ShopRite tapes did not cover the area involved and the Exxon cameras had no tapes inside. However, the police pointed out the cameras to defendant because they "knew there was other information that [defendant] possessed that he didn't provide to [the police] during the first statement." Lawrence admitted that she knew that there was nothing of any evidential value on the available tapes and that she had tricked defendant.
Defendant was brought back to the police station around 1:30 a.m. on June 2, 2002, signed a another Miranda waiver form at 2:04 a.m., and gave his second sworn statement. Lawrence testified that defendant was given refreshments, food, cigarettes, and bathroom breaks and did not "appear to be overly tired or in need of any physical treatment" at the time.
After detailing his and Bullock's exact route, defendant stated that he had not told the "entire truth" in his prior statement. Defendant gave the second sworn statement "[b]ecause it's the truth and [he] didn't kill [Cooper], [Bullock] did. He pulled the trigger and I didn't know he was going to do it."
Defendant admitted that he had met with Bullock the day before and had planned on robbing Cooper of his money, but not his jewelry. Defendant told Bullock that he would call him on his cell phone after Cooper picked him up and they would set up "a meet" so that they could rob Cooper. Defendant stated that he did not intend to kill Cooper but Bullock did intend to kill him. Defendant thought Bullock was just "trying to further intimidate [Cooper]" when he shot him in the shoulder and did not know that Bullock intended to kill Cooper until "he shot him in the back of the head."
When defendant got back in the car after "tak[ing] a leak," Bullock "already had the gun . . . to [Cooper]'s head and was telling him to take the fucking shit off, referring to his jewelry. He said take off the jewelry and give me the money, too." Cooper complied and Bullock put the jewelry and money in his pocket. Bullock asked where the money was and Cooper said that he had around $60,000 at his house. They had intended to drive to Cooper's apartment in Scotch Plains without stopping but realized that the car was running out of gas and stopped at an Exxon station.
While Cooper was trying to get out of the car at the Exxon station, he said "call the police." Defendant admitted during the sworn statement that he "went around the side [of the car] and tried to put [Cooper's] legs back in the car" and shut the door. Bullock had given defendant the money for the gas. Defendant did not remember stopping behind the ShopRite but he had slowed down.
Defendant stated that Bullock had intended to rob Cooper with a third person, "Do," but Bullock could not find him. Defendant claimed that the only "proceeds" he got from the murder was "the change from the $10 bill at the gas station." Bullock purchased the baby wipes and wiped down the car by himself.
I meant to rob [Cooper], but I didn't know he was going to be killed by [Bullock]. I was cooperative and I have told the truth. [Bullock] killed him without me knowing that he was going to do it. I thought we were just going to rob him. [Bullock] is a fucked up individual, I didn't know he was going to do it -- to do that. That's about it.
The statement was executed at 3:10 a.m. There were no further discussions with defendant that morning.
On June 3, 2002, defendant signed yet another Miranda waiver form and gave a third sworn statement to Foley starting at 8:20 p.m. The statement was concluded at 9:18 p.m. and executed at 9:40 p.m. Foley obtained additional details as to where defendant lived, where he left the clothing he wore on the day of the murder, where Bullock lived, and how defendant had been treated by police during the investigation. Defendant indicated that he had "been fed, supplied soft drinks, given cigarettes, allowed to use the phone," and asked if he wanted his girlfriend to visit. Defendant did not ask for a lawyer because he "didn't need no lawyer, he didn't need a defense attorney for [him] to tell the truth." Foley described defendant as "very personable," "cooperative" and "congenial."
Based on defendant's statements regarding the location of the clothing he wore on the day of the murder, Satkowski went to 16 Peachtree Road in Maplewood, New Jersey, to meet with Samuel Poteat on June 6, 2002. Poteat consented to a search of his home, which corroborated information defendant supplied because the police found a "black military type jacket" and "baseball type camouflage hat." Poteat testified that the jacket and hat the police seized belonged to defendant. He related that defendant went to his house in April 2002 and left the jacket and hat. Poteat assumed that he left the items because "it was getting too hot for a jacket." Defendant went to Poteat's house again on June 1, 2002, and told Poteat that the police were looking for him and he did not know why. At the time, Defendant "was nervous" and "in a frenzy."
At the pretrial hearing the judge denied defendant's motion to suppress all three of these sworn statements. The judge found the testimony of Lawrence respecting the various Miranda waivers to be credible. He found that defendant was in good physical condition, lucid, cooperative, and free of any intoxicating substance. Defendant also did not manifest any physical, emotional or mental need, either by his demeanor or expression. He found the suggestion that defendant consider what the surveillance cameras saw on the afternoon of the murder nothing more than "good police work" and not at all improper. He found that defendant "had been given a cheeseburger, fries and soda" and he continued to be cooperative, congenial and candid during the second statement. Additionally, the judge found that the next day, when defendant was interviewed again by Foley, he was still cooperative, calm, and congenial. He indicated that he was voluntarily giving his third statement, just as he did with the first two. Defendant indicated in his own words that "he was treated nice" and that "he did not need an attorney because he wanted to tell the truth." The judge found: under the totality of the circumstances in this case that the defendant Mitchell did enter into this voluntarily, knowingly, and intelligently, and there was no coercion or undue force, either physically or psychologically, exhibited against this defendant.
The Court also notes that the defendant in addition to being or appearing to be cooperative, calm, and congenial, also is a man who is not a teenager. I do not know his age but I'm estimating his age to be around 30 years of age. He also has criminal experience having been through this process on at least two prior convictions.
Defendant raises the following issues on appeal:
POINT I --
MITCHELL'S CONVICTIONS FOR MURDER AND FELONY MURDER MUST BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY THAT IT NEED NOT REACH A UNANIMOUS VERDICT AS TO WHICH SPECIFIC CRIME OF MURDER, IF ANY, MITCHELL COMMITTED.
POINT II --
MITCHELL'S CONVICTIONS FOR MURDER AND FELONY MURDER MUST BE REVERSED BECAUSE HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, BY FAILING TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS, FAILING TO PROPOSE ALTERNATIVE INSTRUCTIONS, AND FAILING TO MOVE FOR DISMISSAL OF THE INDICTMENT.
POINT III --
MITCHELL'S CONVICTION MUST BE REVERSED BECAUSE IT WAS BASED ON AN IMPROPERLY ADMITTED RECORDING OF A CONVERSATION BETWEEN MITCHELL'S CO-DEFENDANT AND A GOVERNMENT WITNESS, STAGED BY THE STATE MONTHS AFTER THE MURDER.
A. The Lowe Tape Is Inadmissible Under N.J.R.E. 803(b)(5) Because The Declarant's Furtherance And Continuation Of The Conspiracy Was Solicited By Lowe, Not The Declarant.
B. The Lowe Tape Should Have Been Excluded Because Its Probative Value Was Substantially Outweighed By The Undue Prejudice To The Defendant, And The Trial Court Failed To Perform The Required Balancing Analysis.
1. The Absence Of Probative Value.
2. The Substantial Undue Prejudice.
C. By Admitting The Lowe Tape, The Court Deprived Defendant Of His Sixth Amendment Right To Confront The Declarant.
POINT IV --
MITCHELL'S CONVICTION MUST BE REVERSED BECAUSE IT WAS BASED ON AN INVOLUNTARY CONFESSION.
A. The Operative Legal Analysis.
B. When Viewed Under The Totality Of The Circumstances Mitchell's Confession Was Involuntary.
1. Use Of Deceit.
2. Length And Lateness Of Interrogation.
3. Questioning Mitchell's Belief In God.
4. Mitchell's Confession Was Involuntary Under The Totality Of The Circumstances.
C. The Trial Court Relied On Inappropriate Evidence To Establish Independent Proof Of The Trustworthiness Of Mitchell's Confession.
POINT V --
MITCHELL'S CONVICTION WAS TAINTED BY THE ADMISSION OF UNDULY PREJUDICIAL, HIGHLY INFLAMMATORY EVIDENCE.
POINT VI --
MITCHELL'S SENTENCE WAS EXCESSIVE.
We are satisfied that defendant's three confessions were properly admitted into evidence. A defendant's confession obtained during a custodial interrogation is admissible if the defendant was provided with a warning of his rights under Miranda, supra, and if the statement resulted from a voluntary, knowing, and intelligent waiver of those rights. State v. Knight, 183 N.J. 449, 461-62 (2005); State v. DiFrisco, 174 N.J. 195, 235 (2002); State v. Cooper, 151 N.J. 326, 354 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000). At a suppression hearing, the State bears the burden to prove the voluntariness of a confession beyond a reasonable doubt. State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Kelly, 61 N.J. 283, 294 (1972).
The issue of voluntariness involves judicial examination of the totality of the circumstances. State v. Galloway, 133 N.J. 631, 654 (1993). Relevant factors in the analysis include "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Ibid. Other relevant factors include the defendant's "previous encounters with law enforcement" and the time between the administration of the Miranda warnings and the confession. Knight, supra, 183 N.J. at 463.
Defendant contends that his confessions were not voluntary because (1) Lawrence deceived him with respect to the surveillance cameras prior to his second confession, (2) the interrogation was overly long and late, (3) Foley asked if he believed in God before he administered an oath in connection with his first confession, and (4) the first three factors as a totality rendered his confessions involuntary.
The police overstep the bounds of a lawful investigation when they fabricate evidence to elicit a confession. See, e.g., State v. Patton, 362 N.J. Super. 16, 48 (App. Div.), certif. denied, 178 N.J. 35 (2003) (police officer impersonated eye witness to murder on tape and fabricated tape was played to the defendant during the interrogation); State v. Chirokovskcic, 373 N.J. Super. 125, 134 (App. Div. 2004) (confession obtained after police presented defendant with a fabricated laboratory report). However, there is a "distinction between verbal trickery and the fabrication of false tangible evidence by police to elicit a confession." Id. at 133. The "police may make misrepresentations of fact or suggest that evidence exists that implicates a suspect." Ibid. (emphasis added). Here, Lawrence did not make a misstatement as she merely suggested that defendant should think about what the cameras saw on the afternoon of the murder. As the judge found, this suggestion was nothing more than good police work.
As to defendant's second concern, "the length of the interrogation is a critical factor, but it is only one of the many factors that must be evaluated in applying the totality of the circumstances test." Knight, supra, 183 N.J. at 469. We have found that a confession was voluntary even though it lasted nine-and-a-half hours since, during that time, "the interrogating officers apprised defendant of his rights on more than one occasion and offered him food and drink." State v. Morton, 155 N.J. 383, 450 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
In this case defendant was advised of his rights and signed forms waiving those rights on multiple occasions. In each of his three statements, he indicated that the police treated him well, gave him refreshments, breaks, cigarettes and even the opportunity to speak to his girlfriend. Defendant never invoked his right to remain silent, did not ask for a lawyer and never indicated that he was too tired or otherwise unable to continue. Furthermore, the third statement was given after many hours to rest. As the State notes, defendant "was cooperating freely with the police" because he had not "pulled the trigger" and "was not cognizant of the extent of his criminal liability." That lack of cognizance should not preclude the admission of his statements into evidence. The record supports the trial court's finding that the statements were freely and voluntarily given despite the length of the interrogation and late hours.
Defendant argues that "Foley invoked the specter of divine authority in [an] effort to apply further pressure to" him. That argument, however, completely misconstrues the record. Defendant had already given his first statement to the police, it had been typed and defendant reviewed and corrected it. Foley merely inquired if he believed in God just before administering an oath, presumably to determine which oath to administer. N.J.S.A. 41:1-5, -6. The confession was not given as a result of this inquiry but rather, as defendant stated, "[b]ecause it's the truth and [he] didn't kill [Cooper]." We have found no case which has excluded a confession from evidence based on facts like those before us and are satisfied that such a holding is not justified. As a consequence, the totality of the facts provided ample support for the judge's determination that defendant made a voluntary, knowing, and intelligent waiver of his constitutional rights under Miranda and that the statements were admissible in evidence.
Defendant's contention that there was insufficient independent corroborative evidence to permit the State to use the confessions at trial because Bullock's statement was not admitted at trial is equally without merit. Of course, "[a] defendant cannot be convicted solely on the basis of a confession without independent proof of the trustworthiness of the confession and independent proof of the injury." State v. Maben, 132 N.J. 487, 502 (1993). See also State v. DiFrisco, 118 N.J. 253, 271 (1990); State v. Lucas, 30 N.J. 37, 62 (1959). The test for "lack of corroboration is . . . 'whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy.'" State v. Krieger, 193 N.J. Super. 568, 579 (App. Div. 1983) (Michels, J., dissenting) (quotation omitted), rev'd on dissent, 96 N.J. 256 (1998).
Although Bullock's statement was not admitted during defendant's trial, defendant's statements about his clothing on the day of the murder, the use of baby wipes, the location of the body, the route driven before and after the crime, were all corroborated by other evidence, as were the nature of the wounds and the struggle between Bullock and Cooper. No more corroboration was required to admit these statements into evidence.
Defendant urges that his conviction must be reversed because the judge erroneously admitted a transcript of a tape-recorded conversation between Bullock and Lowe which took place after the murder. Defendant contends that (1) the tape recording was not admissible under N.J.R.E. 803(b)(5) because it was not "made in furtherance or continuation of the alleged conspiracy," (2) the judge failed to balance its probative value against the undue prejudice to defendant, and (3) defendant was deprived of his right to confront the witnesses against him. We must determine whether the co-conspirator statement satisfied the three-prong test under State v. Phelps, 96 N.J. 500, 509-10 (1984).
Although hearsay testimony is generally not permitted, N.J.R.E. 803(b)(5) provides that "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and . . . made in furtherance of that plan" is admissible.
Three distinct conditions must be met for statements to qualify under [this] rule. First, the statement must have been in furtherance of the conspiracy. Second, the statement must have been made during the course of the conspiracy. Lastly, . . . there must be evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant's relationship to it. [Phelps, supra, 96 N.J. at 509-10.]
The last requirement reduces the fear that a defendant might be convicted solely on the basis of evidence that he has no opportunity to rebut. Id. at 510-11.
Defendant argues that the tape should not have been admitted because any alleged conspiracy was completed substantially prior to this conversation. However, a statement regarding past events can still be "in furtherance of a conspiracy if it serves 'a current purpose such as to promote cohesiveness'" or prompts a stranger to the conspiracy to act in ways that further the conspiracy. State v. James, 346 N.J. Super. 441, 457 (App. Div.), certif. denied, 174 N.J. 193 (2002) (quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 187 (1997)). The mere completion of a criminal act does not necessarily end the conspiracy for purposes of this exception to the hearsay rule. Rather, "'[a] statement is considered to have been made in the course of a conspiracy even when the crimes have been completed, as long as all of the conspiracy's objectives and goals have not yet been met.'" Id. at 458 (quoting State v. Soto, 340 N.J. Super. 47, 62 (App. Div.), certif. denied, 170 N.J. 209 (2001) (quotations omitted)).
In the taped conversation, Bullock told Lowe to lie to the police about to whom he had given the cell phone in order to "help cover up the crime." Thus, Bullock's statements prompted a stranger to the conspiracy, Lowe, to act in ways that furthered the conspiracy by hindering the police investigation and concealing evidence. James, supra, 346 N.J. Super. at 457. Indeed, our Supreme Court has recognized that statements that included a request for help in avoiding apprehension are admissible under R. 803(b)(5). State v. Savage, 172 N.J. 374, 406 (2002).
Defendant contends that the rule applies only to statements initiated by the conspirator. However, in Taccetta, supra, 301 N.J. Super. at 252, we found the fact that a witness was "working at the time for law enforcement authorities" "of no moment" and concluded that the tape of the conversation recorded by that witness was admissible under N.J.R.E. 803(b)(5). Thus, defendant's argument that Lowe's cooperation with the police somehow negates the conspiracy or "induce[d]" Bullock to continue the conspiracy is without merit. Therefore, the judge did not abuse his discretion in ruling that Bullock's conversation with Lowe was in furtherance of the conspiracy between defendant and Bullock.
Neither did the judge err by failing to exclude the taped conversation under N.J.R.E. 403, which provides that otherwise admissible evidence may be excluded if the judge finds that its "probative value is substantially outweighed" by certain enumerated factors including the risk of "undue prejudice" to defendant or of "misleading the jury." Once a trial judge determines that there is logical relevancy between the evidence offered and a consequential issue in the case, the admissibility of such evidence falls largely within the judge's discretion. State v. Nelson, 173 N.J. 417, 470 (2002). "To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)). Only where there has been "a clear error of judgment" should an N.J.R.E. 403 determination be overturned. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989).
It is undisputed that Bullock did not name defendant as his accomplice in the robbery during the conversation with Lowe. However, Bullock did give certain details of the robbery that are corroborated by defendant's own statements and by others, and thus Bullock's account is highly probative. In finding the tape to be admissible, the trial court appropriately considered whether the probative value of the evidence was outweighed by any undue risk of prejudice under N.J.R.E. 403. In light of the details of the crime it provided, the court did not abuse its discretion in ruling that the tape would be admissible so long as certain portions were taken out.
Furthermore, defendant was not deprived of his Sixth Amendment right to confront the declarant. "That the co-conspirator exception does not offend the Sixth Amendment's guarantee of a defendant's right to confront the witnesses against him is well-established." Savage, supra, 172 N.J. at 402. The United States Supreme Court recently found that co-conspirator statements are "clearly non-testimonial," even where the statements were "made unwittingly to a Government informant." Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2275, 165 L.Ed. 2d 224, 239 (2006) (citation omitted). Thus, the admission of the redacted tape recording of the conversation between Bullock and Lowe did not deprive defendant of his constitutional right to confront the witnesses against him.
Defendant contends that the charge on murder and felony murder were plainly erroneous and that the assistance of his defense attorney was ineffective in that he failed to object to the jury instructions, failed to propose alternative instructions, and failed to move for dismissal of the indictment.*fn6 Because we conclude that the charge was not erroneous, the claim of ineffective assistance of counsel with respect to a failure to object to the charge lacks merit.*fn7
Defendant first argues in his brief that his convictions for murder and felony murder should be reversed because the trial court committed plain error when it instructed the jury that "it need not reach a unanimous verdict as to which specific murder crime, if any, [defendant] committed -- i.e., purposeful murder, knowing murder, or felony murder -- so long as all jurors agreed that he committed at least one of those crimes." Defendant contends that the trial court "confused and conflated the three very separate and distinct types of murder" and that this instruction "created the very real danger that the jury failed to reach a unanimous verdict on any murder offense for which [defendant] was convicted."
Because defendant raises this objection for the first time on appeal, we consider the issue under the plain error rule. R. 2:10-2. "[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court may reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[Torres, supra, 183 N.J. at 564 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)) (alteration in original).]
"The charge must be read as a whole in determining whether there was any error." Ibid.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). When the error complained of involves the elements of the crimes charged, the court must reverse unless the instruction as a whole adequately conveyed the essential elements for the defendant's conviction. State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993).
Specifically, defendant contends that the trial court failed to distinguish between purposeful and knowing murder, which have "separate mental elements" and the charge was therefore erroneous. It is clear that the judge used the model jury instructions applicable to first-degree murder. The model charge, Model Jury Charge (Criminal), "Murder and Aggravated/ Reckless Manslaughter" (2004), as given by the judge contained the following language:
All jurors do not have to agree unanimously concerning which form of murder is present so long as all believe that it is one form of murder or the other.
However, for a defendant to be guilty of murder, all jurors must agree that the defendant either knowingly or purposely caused the death or serious bodily injury resulting in the death of Christopher Cooper.
Defendant's argument that the charge confused the jury is without merit. The Supreme Court has approved the use of the same jury charge that was given in this case. See, e.g., Torres, supra, 183 N.J. at 566 ("Pursuant to the murder statute, the State was required to prove that defendant purposefully or knowingly intended the killing."). Indeed, pursuant to the plain language of N.J.S.A. 2C:11-3(a), "a criminal homicide constitutes murder when" the actor purposely or knowingly "causes death or serious bodily injury resulting in death." Further, it is well settled that "courts must instruct juries that to convict one of murder that is not death-eligible they need not unanimously agree on the form of murder, provided that they agree unanimously and beyond a reasonable doubt that the defendant is guilty of murder." State v. Harris, 141 N.J. 525, 546 (1995).
"As an accomplice to murder, the State had to convince the jury that defendant shared the purpose of causing death or serious bodily injury resulting in death, either purposely or knowingly." Torres, supra, 183 N.J. at 566 (quotations omitted). Thus, contrary to defendant's assertions, there is no requirement that the jury must be unanimous as to whether the murder was knowing or purposeful. The jury was properly instructed that it had to find that defendant either knowingly or purposely caused the death of Cooper in order to be guilty of murder. The charge included the elements of murder and the trial court specifically defined purposely or knowingly in accordance with the law. Accordingly, there was no error, let alone plain error, in the jury charge on murder.
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments not herein addressed specifically "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are that the felony-murder charge was plainly erroneous and that the conviction was tainted by the admission of unduly prejudicial, highly inflammatory evidence, to wit, Cooper's blood-stained shirt and photographs of his body in the lot behind the ShopRite. We add the following brief comments. The felony-murder charge given in this case also mirrored the model charge, Model Jury Charge (Criminal), Felony Murder-Non-Slayer Participant (2004). The trial court instructed the jury that it first had to find defendant guilty of robbery, and if it did so, the jury then had to determine whether Cooper was killed during the commission of that crime. Contrary to defendant's assertions, the court did not instruct the jury that its verdict did not have to be unanimous, just that it did not matter whether the act which caused the death of Cooper was reckless, unintentional or accidental. Defendant himself admitted that he intended to rob Cooper and that Cooper died during the robbery. There was no error, much less plain error, in the felony-murder charge.
We comment only briefly on the allegedly inflammatory evidence. "The admission of photographs of the victim of a crime rests in the discretion of the trial court, and the exercise of its discretion will not be reversed in the absence of a palpable abuse thereof." State v. McDougald, 120 N.J. 523, 582 (1990). See also State v. Micheliche, 220 N.J. Super. 532, 544-45 (App. Div.), certif. denied, 109 N.J. 40 (1987). Such palpable abuse exists where the relevance of the photograph will unquestionably be overwhelmed by the inherently prejudicial nature of the particular photograph. Moore, supra, 122 N.J. at 466-67. We find no palpable abuse of discretion here. The photograph is not gruesome and is independent evidence corroborating the confessions made by defendant.
The blood-drenched undershirt corroborated the testimony of the Medical Examiner as to the manner in which the wounds were inflicted. It also corroborated defendant's confession, which was critical to the State's case. DiFrisco, supra, 118 N.J. at 273. Even if the judge improperly exercised his discretion in admitting the undershirt into evidence, the error was harmless because the evidence of defendant's guilt was overwhelming. Any error in admitting the undershirt was not clearly capable of causing an unjust result under R. 2:10-2.
We turn briefly to defendant's sentence. Defendant contends that the aggregate sixty-year sentence is excessive. After fully considering all of defendant's contentions and supporting argument, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
However, as the State correctly points out, a remand for resentencing is required because the trial court erred in merging the kidnapping and robbery counts with the felony-murder count and also erred in failing to merge the felony-murder count with the first-degree murder count. The felony-murder charge should have merged with the first-degree murder charge and the kidnapping and robbery convictions should have survived for sentencing purposes. State v. Brown, 138 N.J. 481, 560-61 (1994). We, therefore, remand to correct the sentence to merge first-degree murder with felony murder and to impose separate, concurrent sentences on kidnapping and armed robbery.
Affirmed. We remand for resentencing.