On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Number 00-06-0764.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Lyons.
Following a jury trial that he did not attend, defendant Shariff Ingram was convicted of felony murder, conspiracy, robbery, and theft. He appeals his convictions on numerous grounds. Although we find most of his arguments without merit, we reverse the convictions and remand for a new trial because the jury instructions on issues of accomplice liability did not adhere to the requirements of State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).
This case arises out of a shooting and other events that took place in an apartment in Woodbridge on February 15, 2000. The apartment was situated within a complex of over a hundred units. The complex consists of several two-story walk-up buildings, each housing eight to ten units. The apartment where the shooting took place served as the residence of a man named Sean Taylor, whose sister actually leased it. Taylor apparently used the apartment to distribute narcotics.
Several facts are undisputed. On the evening of February 15, defendant drove two men to the apartment complex. At about the same time, another individual, Salaam Brown, drove a second vehicle to the scene. After the two vehicles arrived, the victim, Corey Maddox, was shot inside the apartment. At the time of Maddox's shooting, defendant was not present in the room. After the shooting, defendant drove back to Newark with the same two men he had taken to Woodbridge. Later on, defendant was paid a sum of money by Brown. Brown had been inside the apartment at the time of the incident. The following day, February 16, Maddox was pronounced dead at a local hospital. Shortly after these events, Brown himself was killed.
The remaining facts are substantially contested. We now summarize the relevant additional proofs offered by the prosecution and by the defense at trial.
Earlier in the day on February 15, 2000, Brown encountered Lynn Anthony Smith*fn1 on the street. Smith had met Brown three years earlier, and he knew that Brown was a drug dealer.
After their street encounter, Brown drove Smith home in his silver Mercedes. Brown asked Smith how to get to the Woodbridge Mall, allegedly because he needed money. Smith responded that he wanted to go to the mall with Brown in order to so some shopping. Brown temporarily left Smith, and returned to his residence about an hour later.
At that point defendant was sitting outside in his burgundy car, also waiting to go to the mall. Brown instructed Smith to travel with defendant. Defendant and Smith followed Brown to pick up Christopher Moore, another co-defendant, in Orange. According to Smith's testimony, during his ride in defendant's car they discussed going to the mall, but there was no discussion about guns.
Moore joined Smith in defendant's car, and the three of them proceeded to the Garden State Parkway. Brown also traveled the same route. Along the way, Smith noticed that there were two women in Brown's car.
At about 5:30 p.m., defendant pulled his car into the mall parking lot. Brown then arrived, still with the women. Defendant, Smith and Moore went into the mall, while Brown remained in the parking lot. Ten minutes later, the three men came out of the mall. By this point, the two women were out of sight. Brown told them that he needed to go to the apartments across the street in order to pick up his money. Defendant, Smith and Moore then followed Brown to the apartments. The four men were admitted to the building by another person who was arriving at the same time.
Smith contends that he was the last person up the stairs. When he entered the apartment, Smith saw Brown, wearing a black trench coat and holding an old "military type gun." This allegedly was the first time that Smith saw the gun that was used to shoot Maddox. Smith also noticed Moore in the apartment, along with the two women (who he later learned were Fatima Harris and Jasminé Hampton*fn2 ), as well as two other men situated on the floor. Moore, Smith, Brown, and defendant all had rags on their faces. Smith did not see defendant, but assumed that he was in the kitchen because defendant had been ahead of him on the stairs.
While in the apartment, Smith observed that Moore also had a gun and was asking about the money. The gun was an automatic, "probably" a nine-millimeter caliber. Moore pointed his gun at another man, who was a little taller than him, and directed him into the bedroom.
Moore went into the bedroom and Smith assisted him in removing a metal safe. The safe was a few feet high and wide. Smith held the door open while Brown took the safe and left the apartment with it. According to Smith, this whole process took about three minutes. Loud and continuous music played the entire time.
When Smith and Brown got outside, the women were already in the Mercedes. They popped open the Mercedes' trunk for Brown to put the safe in it. Defendant was already in his own car. Smith got back in the car with defendant and Brown returned to the apartment. Smith and defendant then waited for Moore, who came down with Brown about five minutes later.
Smith claimed that, during the entire episode at the apartment, he did not possess a gun. He also claimed that he never saw or heard anyone get shot.
Brown and defendant each drove from the scene in their respective vehicles. Defendant drove Smith and Moore, and Brown drove the two women. According to Smith, when Brown reached the Parkway, he began to drive erratically. Defendant was driving normally. Eventually, Smith lost sight of Brown's Mercedes.
Defendant dropped Smith off when they returned to Newark. According to Smith, this was the last time that he saw defendant.
Smith then went to the Livingston Mall. When Smith got back home to his cousin's apartment, Brown, Moore, and the two women were there. Brown then apologized for what happened that day and gave Smith $800. The stolen safe was also there. Smith claimed that he did not know at that point that anyone had been shot. Two days after the incident, Brown gave Smith a brand new leather jacket with $500 in the pocket.
About four days after the incident, Smith heard that someone had been shot. He asked Brown about it, to which Brown allegedly responded: "yeah, we did it. I have nothing to lose.
I got to pay for these lawyers. I'm not going back to jail . . . ." Moore was also present during the conversation. When Smith started to argue with Brown, Moore interceded, allegedly saying, "nothing we could do about it now, we did what we do so f*** it . . ."
The State also presented testimony from Appolon Noel, who was present in the apartment during the shooting. Noel was a sound recording engineer who knew Sean Taylor as a client. He was aware that Taylor was a drug dealer. Noel met the victim, Maddox, at Taylor's apartment in Woodbridge.
By Noel's account, when he arrived on February 15, 2000, the apartment was occupied by a pair of black twin males*fn3 that he had seen before, along with Taylor and Maddox. At the time, Taylor and Maddox were recording music. After 2:00 p.m., Taylor left with one of ...