On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Lintner and Alvarez.
Tried by a jury, defendant, Virgil Mitchell, was convicted on an Essex County indictment of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (2), as a lesser included offense of count one; felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). Anthony Clark, his co-defendant, was acquitted of charges of hindering prosecution, tampering with physical evidence as well as unlawful possession of a weapon. This appeal followed. We affirm.
On May 9, 2005, defendant was sentenced on the felony murder count to a term of thirty years of imprisonment subject to thirty years of parole ineligibility. The aggravated manslaughter and first-degree robbery of Serge Guerrier and the first-degree robbery of Joseph Medlin, were merged into count two, felony murder. The fourth-degree aggravated assault as to Joseph Medlin, and the second-degree possession of a weapon for an unlawful purpose, were also merged into count two. On count six, the unlawful possession of a weapon charge, defendant was sentenced to four years in prison to run concurrent with the sentence on count two. Appropriate fines and penalties were imposed as a result of these offenses.
During the evening of September 27, 2002, Shaniqua Jones drove defendant and his friend, Duwan Jeter, from an abandoned house where the men had been drinking and smoking marijuana, to a White Castle restaurant. While there, defendant briefly spoke to an acquaintance, Isaac Eason, a policeman working a second job at the White Castle as a security guard. After leaving the restaurant, Jones dropped Jeter off.
Hours later, in the very early morning of September 28, Joseph Medlin, Serge Guerrier, Kenny Guerrier, and Serge and Kenny Guerrier's uncle, Illich, decided to visit a strip club around the corner from the home of Kenny's then girlfriend. Kenny headed in one direction to the strip club, while Medlin, Serge, and Illich took a different path. A maroon or burgundy car was driven past the three men as they walked. As it passed by, Serge shouted at the young woman who was driving the vehicle.
Shortly thereafter, the driver pulled over, and a man Medlin later identified as defendant exited the vehicle. He approached and offered to sell marijuana to the three men. Serge asked him what he had. Defendant said he had bags for fifteen dollars, and Serge asked if he could see them. Defendant left to retrieve the marijuana and Illich walked back to Kenny's girlfriend's home. Medlin and Serge remained on the corner waiting for defendant, who returned and showed them the marijuana. The men began to negotiate over the price.
Serge offered to take two bags for ten dollars. Defendant laughed at the offer and demanded fifteen dollars per bag. Serge asked to examine the marijuana more closely and to smell it. As he opened the bags, defendant circled around in back of him and pulled out a gun. Defendant demanded Serge's gold chain and said, "[G]ive me everything you got." Serge became argumentative, and told defendant he was not going to give him anything. At that point Medlin heard a gunshot, and saw Serge "buckle back" and stagger to the ground. Defendant knelt down, took the chain from the prone victim and started going through his pockets.
When he finished searching Serge's pockets, defendant looked up at Medlin, who immediately threw his hands up into the air. Defendant patted Medlin around the waist, searched his pockets, took his cell phone and money and headed back across the street. Medlin ran back to Kenny's girlfriend's house, yelling that Serge had been shot and that they needed to call 911. Serge was pronounced dead a few hours later at the hospital. Medlin was able to identify defendant's photo from mug shot books and, based on that identification, an arrest warrant was issued.
According to Jones, that same morning, defendant called together several of his friends. At the meeting, he allegedly told Jones that he wanted her to "lie on the stand." Defendant also admitted shooting someone, and robbing the victim of $800 and a chain. Defendant actually gave the chain to Jones, who passed it on to another person. Jones said that in later conversations with defendant, he denied having killed anyone. Jones did not come forward until March 2003.
The arrest warrant, based on Medlin's identification, issued for defendant on September 28, 2002. On October 2, 2002, at approximately 5:00 a.m., defendant turned himself into the Orange Police Department where he was arrested and placed in a holding cell. He refused to give a formal statement and would not sign a Miranda*fn1 waiver. Defendant did, however, inform the investigating officers that he had gone to a White Castle with Jones and Jeter on the night of the shooting, and had seen Eason there that night. Eason later arrived at the station at defendant's request and spoke to defendant. Defendant then completed a written Miranda waiver, but denied any wrongdoing.
He only told the investigating officers to speak to Jones and Jeter because they would corroborate his innocence.
Defendant raises the following points ...