On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0824.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Stern, A.A. Rodríguez and C.L. Miniman.
Defendant appeals from his convictions entered following two jury trials. The second trial was necessitated by the jury's inability to reach a verdict on the principal counts at the first trial. Defendant ultimately was convicted of purposeful or knowing murder, armed robbery, felony murder, receiving stolen property and various weapons offenses. We affirm the convictions, reverse the merger of the armed robbery conviction,*fn1 order merger of the possession for unlawful possession conviction, and remand the matter for resentencing on all of the convictions.
Defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:2-6 (count one); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count three); felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count four); certain persons not permitted to have weapons, N.J.S.A. 2C:39-7 (count six); unlawful possession of a .22 caliber handgun, N.J.S.A. 2C:39-5(b) (count seven); receiving stolen property, a Colt .380 firearm and a Colt .45 handgun respectively, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2(a) (counts eight and nine); unlawful possession of a Colt .45 firearm, a Colt .380 handgun, and a .45 caliber automatic handgun, N.J.S.A. 2C:39-5(b) (counts ten, eleven and twelve); possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count thirteen); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count fourteen); and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count fifteen).*fn2 The first four counts allege crimes related to a shooting on February 18, 2002. The balance, resulting from subsequent searches of two apartments, were alleged to have occurred on February 28, 2002.
After defendant's motion to suppress was denied, the first trial was conducted. The jury found defendant guilty of possession of a handgun for an unlawful purpose (count two), unlawful possession of a CDM .22 caliber and a Colt .380 caliber handgun (counts seven and eleven), and receiving stolen property (the Colt .380 handgun) (count eight). However, the jury was unable to reach a verdict on the other counts and a hung jury was declared. The jury was thereupon instructed on count six (persons not permitted to have weapons), and found defendant guilty of that charge.
Defendant filed a motion for a new trial with respect to count two. The motion was denied, and defendant was sentenced to an aggregate sentence of twenty years with ten years to be served before parole eligibility on counts two and six. (Consecutive sentences of ten years with five years of parole ineligibility were imposed on the convictions for possession for unlawful purpose and certain persons not allowed to have weapons. Concurrent sentences were imposed on the other weapons offenses for which he was convicted.*fn3
A retrial was subsequently held on the remaining counts.*fn4
The jury found defendant guilty of murder, armed robbery, felony murder, receiving stolen property (the Colt .45 handgun) and unlawful possession of the Colt .45. The jury found defendant not guilty of unlawful possession of a separate automatic .45 caliber handgun.*fn5
After the second trial, as the first, the trial judge denied the State's motion for an extended term. On the murder count, defendant was sentenced to sixty years in the custody of the Commissioner of the Department of Corrections with an eighty-five percent parole ineligibility term under the No Early Release Act (NERA), to run consecutive to the sentence previously imposed on count six, and concurrent to the other sentences. The court merged the armed robbery conviction into the felony murder conviction which, in turn, was merged into the murder conviction. Defendant was sentenced to concurrent terms on the balance of the convictions.*fn6
Defendant subsequently pled guilty to count thirteen, possession of a controlled dangerous substance, in exchange for dismissal of counts thirteen and fourteen, the remaining CDS offenses. He received a concurrent five-year sentence thereon.*fn7
On the first appeal, defendant argues:
POINT I DEFENDANT HAD STANDING TO CHALLENGE THE SEARCH[E]S AT 77 HENRY STREET AND THE SEARCH AT 220 THIRD STREET.
POINT II THE SEARCH AT 77 HENRY STREET WAS INVALID.
POINT III THE SEARCH AT 220 THIRD STREET WAS INVALID.
POINT IV THE VERDICT SHEET WAS INADEQUATE AND THE JURY CHARGE WAS CONFUSED WHICH MAY WELL HAVE LED TO THE INCONSISTENT VERDICTS HERE.
POINT V THE VERDICT ON COUNT TWO IS INCONSISTENT WITH THE NON-VERDICTS ON COUNTS ONE, THREE, AND FOUR.
POINT VI THE SENTENCE IS ILLEGAL.
POINT VII THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
On the second appeal, he contends:
POINT I THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN PRECLUDING THE DEFENDANT FROM ADMITTING INTO EVIDENCE THE WRITTEN STATEMENT OF CO-DEFENDANT JAMES WALKER BECAUSE THE DEFENDANT FAILED TO WAIVE HIS SIXTH AMENDMENT RIGHTS UNDER CRAWFORD V. WASHINGTON.
POINT II THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM 77 HENRY STREET.
(A) THE DEFENDANT HAD STANDING TO CHALLENGE THE SEARCH.
(B) THE "CONSENT" OBTAINED BY THE POLICE WAS PRETEXTUAL AND WITHOUT LEGAL JUSTIFICATION.
POINT III THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FIFTH AMENDMENT DOUBLE JEOPARDY RIGHTS WERE VIOLATED (NOT RAISED BELOW)
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AAT THE END OF THE STATE'S CASE ON COUNTS THREE AND FOUR CHARGING ROBBERY AND FELONY MURDER.
POINT V THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE STATEMENTS MADE BY THE PROSECUTOR BEFORE AND DURING THE TRIAL.
(A) PRETRIAL COMMENTS ATTRIBUTED TO THE PROSECUTOR PREJUDICED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY.
(B) COMMENTS MADE BY THE PROSECUTOR IN SUMMATION PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT VI THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL MADE AFTER THE DEFENDANT'S SCARF WAS DESCRIBED AS BEING "THE TYPE THAT THE GANG PEOPLE WEAR."
POINT VII THE SIXTY (60) YEAR SENTENCE WITH A NO EARLY RELEASE ACT (NERA) PAROLE DISQUALIFIER OF 85% IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
In a pro se supplementary brief, defendant also argues:
POINT I DEFENDANT WAS DENIED BOTH HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS, TO DUE PROCESS OF LAW AS GUARANTEE[D] UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 PARAGRAPH 1, TO [THE] NEW JERSEY CONSTITUTION.*fn8
In its cross-appeal in A-5952-04T4, the State contends that:
THE TRIAL COURT INCORRECTLY MERGED DEFENDANT'S ROBBERY AND FELONY MURDER CONVICTIONS.
The relevant evidence relating to the convictions at the first trial was developed as follows:
On February 18, 2002, at about 10:50 p.m., Angela Valenti, who lived on the third floor of a building on Grove Street, between Passaic Avenue and Broadway in the City of Passaic, heard a noise, looked out the window, and saw two people running together towards Broadway. Javid Patel had been shot while sitting in his parked car on Grove Street.
A bystander, Saul Morfa, attempted to get Patel out of the car by kicking in the window, while another turned off the engine and took Patel's foot off the accelerator. The police and an ambulance arrived at 10:59 p.m. The emergency medical personnel did not detect a pulse and began resuscitation efforts. Patel had bullet-shaped holes in his left arm and chest and there was a large amount of blood on the ground. Shattered glass was also on the ground near the car. Shell casings from a semi-automatic weapon were found nearby. A large amount of money was found in Patel's pants pocket.
The exterior of the vehicle was examined for fingerprints at police headquarters. The police were able to obtain latent fingerprints from the driver's door, which excluded Patel, co-defendant James and defendant. A computer search did not come up with a match for any of the latent prints. The physical evidence recovered from the scene included four .45 caliber automatic shell casings, one .45 caliber projectile from near the car, and one .45 caliber projectile from the body of the car. The projectile outside the car was found four days after the shooting on the ground near where the car had been.
The State introduced ballistics evidence which indicated that the .45 caliber bullets and shells were discharged from the same gun and that the bullets were fired from "the Auto-Ordinance handgun."
On the same evening as the murder, Anjelicia Jackson, who lived on the first floor of 77 Henry Street, was sitting in the hall on the second floor when she saw defendant and co-defendant James Walker run up the stairs, "bang the door open," and ask where Lee was. Jackson described the two men as looking upset and breathing hard. According to Jackson, Sabrina Dickerson, the sister of the tenant, Lakina Dickerson, asked defendant and James, "What did ya do," to which defendant responded, "If you know what we did, don't ask no fucking questions." Sabrina claimed that defendant's response was "you don't need to know." Defendant and James then proceeded to the bedroom occupied by Sahim Lee, and knocked on the door. Jackson stated that the two were acting nervous, walking back and forth. James was wearing an Avirex cream jacket, with a red shirt and blue pants. Defendant was wearing a green flight jacket, with a red shirt and blue jeans. After exiting Lee's room, defendant and James had Lakina call Jakish Henry, her boyfriend and defendant's cousin, who came to the apartment and exchanged jackets with defendant about ten to fifteen minutes later.
Lee, who had been living at 77 Henry Street with his cousin Lakina since January 2002, and who was friendly with defendant, testified that James and defendant came to his room in the back of Lakina's apartment late on the evening of February 18. James asked Lee to hold two guns; Lee inquired as to whether there were "any bodies on the gun," meaning whether the guns had been used to shoot anyone. Defendant and James replied in the negative. James and defendant then each gave Lee a gun and a clip. James and defendant told Lee that they would come back for the guns the following day; however, they never returned for them. Lee described one of the guns as "chrome" and the other one as "black." He put both guns on top of his closet. Lee described the black and chrome .45 caliber firearms that were introduced at trial as looking like the same guns he stored in his closet.
On the night of February 27, 2002,*fn9 the police recovered two .45 caliber handguns, one an automatic and the other a Colt, and their magazines, from a compartment in Lee's closet at Lakina's apartment at 77 Henry Street. Statements were taken from Lakina and Lee. Early on February 28, two handguns, a silver .22 caliber and a black Colt .380 semi-automatic, were also recovered around the same time under a mattress during the search of Debra Wilson's apartment on 220 Third Street in Passaic. Wilson was the mother of defendant's girlfriend, Shahqueena Wilson.
James was arrested on February 28, 2002. Defendant and Shahqueena were arrested at a motel in Belleville on March 1, 2002. Shahqueena subsequently pled guilty to gun possession.
The following day, March 2, defendant gave a statement to the police. In the statement, defendant indicated that James told him that he did the shooting because he panicked: "I fucked up, I panicked. The guns went off." Defendant also stated that James had guns with him when he arrived at 77 Henry Street on the evening of February 18. Defendant stated that James was wearing "a hoody with a beige leather Avirex," but that he changed jackets before he left. At a subsequent point that night, James told Sergeant Herschel Rawls that he was with Dayron Johnson, also known as "Nam," at the time of the shooting. Defendant admitted that "the .22 caliber and .380 automatic," found at the Wilson apartment at 220 Third Street, were his.
James has also given a statement to the police, which the State introduced at defendant's trial. James stated that he was on Third Street getting high on "dip" cigarettes (cigarettes dipped in embalming fluid), when he met up with Johnson. The two smoked a dip cigarette and discussed doing a robbery. The plan was to rob a drug dealer. The two drove to Grove Street where they saw a man sitting in a car. They parked their car and walked up to the man's car, knocked on the front passenger window, and told the man to open the window. The man started the car and rolled down the passenger window, whereupon James stuck his gun, a black .45 automatic, inside the car and told the man to get out. The man then put the car in reverse and slammed on the gas pedal. At this point, James fired a shot inside the car. He then heard two or three more shots fired by Johnson, who was carrying a chrome colored .45, and who was standing near the driver's side window; James then fired another shot at the hood of the car. Johnson and James then ran away.
James went to 77 Henry Street, where he asked Lee whether he could leave his gun in Lee's room until the following day. About twenty minutes later, defendant and Jakish Henry arrived at the apartment. James gave defendant the cream colored Avirex jacket he had been wearing, while he borrowed Henry's heavier jacket. James told defendant that he thought he had hurt somebody. James "stashed" ...