On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-0153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Winkelstein and Yannotti.
Defendant Stacey Faulcon appeals from an order entered on February 23, 2006, which denied his petition for post conviction relief (PCR). For the reasons that follow, we affirm in part and reverse in part.
Defendant was charged with conspiracy to commit murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (count one); murder, N.J.S.A. 2C:11-3a(1) or (2) (count two); attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (counts four and six); aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (counts five and seven); unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (counts eight and ten); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (counts nine and eleven).
At the trial, the State presented evidence that on December 29, 1998, at about 10:40 p.m., Phillip Satterfield (Satterfield), Devon Boyd (Boyd), and Willie Graves (Graves) were standing near a pay phone on Pero Street in Orange, New Jersey. Two men, later identified as defendant and Maurice Franklin (Franklin), approached. According to Boyd, both men opened fire. Graves sustained four gunshot wounds and he died as a result of the shot in the back of his head. A bullet entered Boyd's side but passed completely through his body. Satterfield was shot in the lower left leg.
At the time of the shootings, Audrey Dunwoody (Dunwoody) was in her car, stopped at a traffic light, near the intersection where the shootings occurred. Dunwoody testified that she observed a "young man" in a white jacket with his arm extended. She heard a "popping sound" and saw the man run to a white car and get in. Dunwoody saw another young man get into a brown car. She wrote down the number of the license plate of the brown car. The police later determined that the brown car was registered to Franklin.
Mary Ann Lasenberry (Lasenberry), defendant's ex-girlfriend, and the mother of his daughter, testified that on December 31, 1996, two days after the shooting, defendant told her that Tyrone Ingram (Ingram) had been "jumped" at Gregory's nightclub. Defendant said that, as a result of that incident, he drove Ingram and Franklin in Franklin's brown car to a place near a phone booth, where Ingram and Franklin got out and began shooting. Lasenberry testified that when defendant told her this, he was wearing black jeans, a black shirt, and a black "skully." Lasenberry stated that defendant left his jacket at her apartment, which she later turned over to the police.
Defendant was arrested on January 28, 1997. Defendant was advised of his Miranda rights*fn1 and he agreed to give a statement to Arnold Valentin (Valentin), an investigator in the office of the Essex County Prosecutor, in the presence of Detective Aric Webster of the Orange Police Department. In his statement, defendant admitted he was involved in the shootings, along with Franklin and Ingram.
Defendant said that, the day before the shootings, he called Ingram and learned that Ingram and Hakin Johnson (Johnson) had been "jumped" at Gregory's nightclub several days before. On the day of the shootings, Franklin called him and said that he wanted to check on Ingram. Franklin picked up defendant in Franklin's brown automobile. They drove to the house where Ingram's girlfriend resided. They watched television for about an hour and, at around 8:00 p.m., defendant, Franklin, and Ingram left in Ingram's car.
The three men drove to meet Johnson, who was at his girlfriend's house in Newark. The four men discussed the incident at Gregory's. Ingram told the others that they were going to go "up there" and "get" the persons involved. He asked the other men whether they were going to "handle this business or what[?]" Defendant and Franklin responded, "Yes." Ingram lifted his shirt and showed the others two guns. Ingram gave Franklin the .357 and he gave defendant the .38. Defendant said that Johnson had his own gun. Defendant observed the handle of the weapon tucked into the waistband of Johnson's pants. Defendant asked Ingram who was going to get shot and Ingram replied, "whoever is out there."
Defendant, Ingram and Franklin left in Franklin's brown car. Defendant was driving. Franklin was in the front passenger seat and Ingram was in the back. Johnson followed in his white car. They drove on Route 280 to Orange and pulled up in front of a high-rise housing complex. Ingram told defendant to pull over to the curb because he saw three "kids" sitting on a wall next to a phone booth. Ingram told defendant and Franklin to "get them three right there." Defendant and Franklin got out of the car and started shooting. Defendant said he and Franklin both fired four shots.
Defendant stated that the "kids" started to run. He and Franklin got back into the car. Defendant had the gun in his right-hand coat pocket. Defendant said that, after the shootings, everyone in the car was quiet. Defendant told Valentin that on the night of the shootings, he had been wearing "a black skully, beige goose [coat], dark pants, and white sneakers." Defendant said that his "baby's mother" had the beige goose coat. He gave Valentin permission to obtain the coat. Defendant stated that he drove onto Route 280 and exited at First Street, where he stopped the car. Defendant and Franklin gave Ingram the weapons, and Ingram gave the weapons to Johnson. Johnson drove off. The three men went to a bar, where they drank and played pool. They left the bar at 2:00 a.m.
Defendant did not testify at trial. Defendant called Trinette Williams (Williams) as a witness. She testified that she was with Lasenberry a month before the trial and Lasenberry said "she was going to burn [defendant]." On cross examination, Williams said that she referred to Ingram as her brother, even though they were not related. Williams also said that she was "seeing" Franklin at the time of his separate trial on charges arising from the shootings.
Defendant was acquitted on counts eight and nine but convicted on the other counts. The judge sentenced defendant to an aggregate term of life imprisonment, with a fifty-year period of parole ineligibility. Defendant filed an appeal in which he raised the following issues:
THE ACCOMPLICE-LIABILITY INSTRUCTION WAS ERRONEOUS, FAILING TO INFORM THE JURY CORRECTLY HOW VERDICTS FOR LESSER-INCLUDED OFFENSES MIGHT BE RETURNED UNDER STATE v. BIELKIEWICZ, 267 N.J. Super. 520 (APP. DIV. 1993). (Not Raised Below).
THE JURY INSTRUCTION ON CONSPIRACY TO MURDER WAS ERRONEOUS IN THAT IT FAILED TO CONFINE CONSPIRACY TO MURDER TO INSTANCES WHERE THE DEFENDANT'S INTENT WAS TO KILL, NOT MERELY INJURE, THE VICTIM. (Not Raised Below).
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We affirmed defendant's convictions and the sentences imposed. State v. Faulcon, No. A-6455-97 (App. Div. Sept. 29, 1999). The Supreme Court thereafter denied defendant's petition for ...