On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-10-3378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Yannotti and LeWinn.
Defendant Ivan Anderson was charged under an Essex County indictment with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree attempted murder; N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Defendant was tried to a jury, which found him guilty of first-degree conspiracy to commit robbery on count one, and the lesser-included offense of second-degree robbery on count two. Defendant was found not guilty on the remaining charges.
The judge granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7.1b. Defendant was sentenced to two concurrent terms of twenty years of incarceration, both with periods of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate statutory fees and assessments also were imposed. Defendant appeals from the judgment of conviction dated January 27, 2005.
Defendant's convictions arise from the robbery of Stephen Beachum in the early morning hours of June 13, 2003 in Newark, New Jersey. Earlier that evening, Beachum had been at a "go-go" bar where his girlfriend Tylenicesa Davis was working as a barmaid. Beachum testified that at around 1:15 a.m., a friend drove him home.
Beachum arrived home and moved his car out of the driveway so that Davis could pull her car into the driveway when she returned from work. Beachum parked his car in the street facing his house. Beachum said that when he opened the driver's side door of his car and attempted to exit, two men appeared wearing masks. Beachum testified that one man was taller than the other man. The taller man placed his hand under his shirt and said, "you know what it is, you know the deal." Beachum identified defendant as the taller of the two men.
Beachum told the men that the "girls" at the "go-go" bar had his money. According to Beachum, the shorter man got into the back seat of his car, where a leather jacket was located. Davis pulled up in her car and asked what was going on. Beachum said that defendant looked back to see who was approaching. As defendant turned, Beachum jumped on him and caused him to fall to the ground. Beachum explained that while he had defendant on the ground, he pulled the mask off to see his face. Beachum said that the man had a large nose.
Beachum testified that defendant called out to the shorter man and stated, "[Y]ou [are not] going to do nothing [?] [Y]ou just want to stand there[?]" The shorter man then approached Beachum from behind and shot him in the head. Medical evidence established that the bullet entered Beachum's head behind his left ear and missed his brain by one centimeter. Beachum was taken to a hospital where he remained for nearly a month. As a result of the shooting, Beachum sustained nerve damage, which has resulted in certain physical limitations.
After being released from the hospital on July 7, 2003, Beachum went to the police station to view an array of photographs. Detective Marquise Carter of the Newark Police Department (NPD) testified that Beachum selected defendant's photograph from a six-photo array. Beachum identified defendant as the person who first approached him by the side door of his car. In court, Beachum testified that defendant's photo was the one that he selected from the array.
Davis' testimony concerning the incident differed to some extent from Beachum's testimony. Davis stated that when she arrived home on June 13, 2003, she noticed two man standing beside Beachum's car. One was taller than the other. Davis identified defendant as the taller man. She said that, when she arrived on the scene, the shorter man was already wearing the leather jacket. Davis said that defendant entered the rear of Beachum's car.
She asserted that, when she pulled up alongside the parked car and asked what was going on, the shorter man looked in her direction. At that point, Beachum charged the shorter man. The man did not fall to the ground but "tussled" and remained standing. According to Davis, the shorter man called for assistance. Defendant exited from the rear of Beachum's vehicle and shot Beachum. The two men ran from the scene after the shooting.
Detective Modesta Miranda of the NPD testified that on July 14, 2003, he arrested an individual, who was later identified as Malick Lowery, for possession of narcotics and a nine-millimeter handgun. Detective Frank Faretra of the NPD conducted various ballistics tests with the weapon. Faretra testified that a shell casing fired from the weapon matched the shell casing recovered at the scene of the Beachum shooting. Faretra stated that he was "[one] hundred percent" certain that the gun seized from Lowery was the gun used to shoot Beachum.
The police informed Lowery that the gun he had been carrying when he was arrested was used in a robbery and shooting. Detective Carter interviewed Lowery. Carter informed Lowery of his Miranda rights.*fn1 Carter told Lowery that he was being investigated in connection with the Beachum shooting. Lowery indicated that he wanted to give a statement. Lowery told Carter that he purchased the gun a few days earlier from a man known as "Champ." Lowery said that "Champ" was a drug addict who sold him the gun on behalf of an individual known as "G-Man."
According to Lowery, "Champ" told him that "G-Man" wanted $350 for the gun. Lowery told "Champ" that he only had $250, at which point "Champ" walked off and spoke to a man down the street. "Champ" returned and told Lowery that "G-Man" agreed to accept $250 for the gun. Lowery gave "Champ" the money and left with the nine millimeter handgun.
Lowery provided the police with a physical description of "G-Man" and he identified defendant as the person who sold him the gun from an array of photographs. Lowery testified that the man who gave "Champ" the gun was black, with braids in his hair. According to Lowery, the man was "close to six feet tall and he had a wide nose."
However, during a hearing conducted by the court to address the admissibility of Lowery's testimony, Lowery denied that he identified defendant as "G-Man." Lowery stated that he had spoken to defendant in the "bullpen" prior to the hearing, and Lowery disclosed his recent arrest for gun possession. Lowery asserted that defendant discussed the charges that were pending against him. Lowery said that defendant had a copy of the statement that he gave to Detective Carter. Lowery wrote to the court and said that certain portions of that statement were not accurate. The judge ruled that, although there were inconsistencies between Lowery's statement to the police and his testimony at the hearing, Lowery's testimony was admissible.
At trial, Lowery denied that he identified defendant as "GMan." Lowery said that his statement to the police and the record of his photographic identification had been "altered." Lowery asserted that the portion of his written statement where he discussed the identification of "G-Man" was not in the document when he signed it. In addition, Lowery claimed that he did not select defendant's photo in the photographic line-up.
In this appeal, defendant raises the following issues for ...