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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...