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State v. Walker


May 9, 2008


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0824.

Per curiam.


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:








On the second appeal, he contends:












In a pro se supplementary brief, defendant also argues:


In its cross-appeal in A-5952-04T4, the State contends that:




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" two other guns, a .380 automatic and a .22 caliber handgun, at the Wilson apartment on Third Street.

According to Alejandro Valentin, on February 15, 2002, he saw an individual named "Calhoun" give defendant two handguns in a sock, a .22 and a .380 caliber handgun, in a hallway of 185 Fourth Street in Passaic. Valentin also saw Shahqueena with a .22 caliber handgun that day. He identified the handguns recovered from the searches involved in this case as the ones he saw that day. On another occasion, Valentin saw defendant carrying a chrome handgun while on the same block of Fourth Street.

"Calhoun" was identified as Shannon Byrd, a friend of defendant. Byrd testified that early in 2002 he was in a car with defendant and Shahqueena when he observed defendant purchase two handguns, one black and one chrome.

Corrections Officer Curtis Cohen testified that his residence was burglarized in January 2002, and numerous guns were stolen and never recovered. He identified one of the .45 caliber handguns and the .380 handgun as being his.

Defendant testified in his own behalf at trial. According to defendant, he saw James near midnight on February 18 while he was at his house on Fifth Street. James was looking for a place to spend the night. Defendant suggested Lakina's place. The two went to the 77 Henry Street residence, knocking on the door and entering Lakina's apartment at the same time. When they entered, Sabrina Dickerson commented on what she viewed as their failure to knock; in response, defendant told her to "fall back," meaning for her to mind her own business. Defendant denied saying "if you knew, you wouldn't ask any questions." Defendant observed James give two guns to Lee, similar to the ones introduced at trial. Lee put the guns in his closet. James told Lee that the guns were not "dirty." Defendant denied giving Lee a gun. Defendant stated that James was wearing a beige leather Avirex jacket, but borrowed Henry's jacket because of the cold.

After about a half hour, defendant and James left the apartment together. Defendant stated that he saw James smoke a dipped cigarette that night, and that James often acted violently while on the drug. The following day, defendant went to Shahqueena Wilson's apartment where James was staying, and James told him that he had "panicked," "fucked up and the guns went off." Defendant knew what James was referring to based on a conversation he had with Shahqueena and did not ask James for details or why it happened. Defendant did not tell the police after he was arrested about his conversations with James because he thought it was best to keep silent, and because James told him that he would tell the police that defendant had nothing to do with the shooting.

Defendant further testified that he did not obtain the guns he had in his possession when arrested on March 1 until after February 18. He acquired them while in a car with Shannon Byrd and Shahqueena.

Prior to trial, defendant sent a letter to Shahqueena which read, in part, as follows:

You . . . ain't in no big trouble. You got a weapon charge, that's it. . . . The time they scaring you with is light, three years. And I know you ain't no punk. . . . Don't help them send us away. Fuck it, don't testify at all. Just when they put your hand on the Bible and ask you to tell the truth, you say no. Don't be no punk bitch, you hear me. So you get nervous about testifying. I hear you baby girl. And truthfully when you get on that stand I want you to leave Tron and Nam name out of it. I want you to basically say I was home with you. If they ask well did you say Tron and Nam did [sic], you just gotta say no, I don't know nothing about that. . . .

[D]on't be no punk bitch you hear. Yeah, well so far it look pretty good for us.

Kina, Brina, Angie said they gonna hold us down when that time come.

Defendant denied telling Shahqueena to lie. He testified that his letter to her was in response to a letter she had sent him in which she threatened to kill herself rather than go to jail. Defendant was also concerned that Shahqueena would turn on him in return for a "get out of jail free card."


The critical evidence at the second trial revealed the following:

Patel was part owner of a coin-operated laundromat located on Gregory Avenue between Prospect Avenue and Broadway. On a typical night, Patel or his brother would take the proceeds from the day's business, usually $400 to $500, with them after closing the laundromat.

Corrections Officer Cohen testified similarly to the first trial regarding the burglary at his home in January 2002, and the resulting theft of the .380, .45 and .22 caliber weapons.

Alejandro Valentin testified that on February 15 he saw defendant with a black .380, and a chrome .45 caliber gun while Valentin was selling drugs in the hallway of a building on Fourth Street. Valentin was able to identify the recovered chrome weapon, but not the black. He claimed that defendant was with Shahqueena and Shannon Byrd, and that Byrd had the guns in a sock. Shahqueena fired one of the guns while in front of the building and the defendant "put it away." Shahqueena, however, claimed that she and defendant obtained the guns from Valentin while in a car with Byrd.

Angela Valenti and Saul Morfa testified similarly to the first trial regarding what they heard and saw regarding the shooting of Patel. Patel had gunshot wounds to the left arm and left chest, and he suffered a large amount of blood loss as a result of his wounds. He was taken to a hospital in Paterson where he was pronounced dead. A large wad of money was found in his pocket.

The testimony regarding the scene of the shooting was similar to the testimony offered at the first trial. Specifically, expert testimony related to the .45 caliber semi-automatic shell casings found at the scene, and the broken glass and blood found near Patel's vehicle. On February 22, Guzman went to the scene of the shooting and recovered a bullet from the sidewalk across the street where the shooting had occurred.

When Patel's vehicle was examined at police headquarters, a bullet was recovered from inside the car. Latent fingerprints were found on the vehicle but no matches were obtained. No fingerprints were found on the two shell casings and two projectiles recovered, and no workable prints were discovered on the weapons. Ballistic evidence indicated that three of the shell casings were fired from the same gun. According to Bergen County Sheriff's Officer Charles Mason, a firearms expert, the two bullets recovered and two other shell casings were fired from a .45 caliber semi-automatic weapon.

Shahqueena testified that at some point on February 19, James told her that he and Johnson had killed somebody. However, Shahqueena admitted lying to the police by telling them that defendant was with her on the evening of February 18.

As in the first trial, Lee testified that he was friends with defendant and that he lived in a room in Lakina's apartment. Lee testified that defendant and James came to his room on the evening of February 18, and James asked him to store their guns. Lee admitted that defendant and James each gave him one of the guns. Lee also admitted showing one of the guns to a friend.

The police had no suspects from the date of the crime until February 27. On that date, Sgt. Eduardo Dehais received information from Alex Valentin, who was in police custody on a domestic violence charge. Thereafter, Dehais also interviewed Markin Wilson.

The statements of Anjelicia Jackson and Sabrina Dickerson regarding defendant and James arriving at the apartment on 77 Henry Street on February 18 were read into the record. In addition, Jackson testified that defendant and James "bust through" the front door of the apartment while she was in the living room. They asked where Lee was. Sabrina then asked, "what did you all do," and defendant responded, "if you know what we did, don't ask no F'n questions." James was wearing a cream colored Avirex jacket, while defendant was wearing a green flight jacket. At some point, Henry arrived wearing a long winter coat. James and Henry exchanged coats.

Sabrina testified similarly to the first trial regarding what happened on the evening of February 18. She stated defendant and James "bust in the door" and entered the apartment together, and added that James and defendant left the apartment together.

Lakina also testified similarly to the first trial regarding the events of the evening of February 18. She added that between February 18 and February 27, when the guns were found, she "let [James] put a gun under [her] bed," but did not know about the guns in Lee's closet. A few days later, Lee took the gun away because there were children living in the apartment. Lakina testified that defendant wanted her to write a letter about what happened when the police searched her apartment.

Sgt. Luis Guzman testified similarly to the first trial regarding the search at 77 Henry Street, the "consent search" and the recovery of the two .45 caliber weapons.

Debra Wilson also testified similarly to the first trial regarding the search of her apartment and the guns found. The police recovered a .380 and a .22 caliber handgun from under Shahqueena's bedroom mattress. Debra added that defendant slept in her apartment "in the week" prior to the search.

Dehais also testified similarly regarding the Third Street searches, as did Detective Roy Bordamonte, who also participated in the search. At some point on February 28 or March 1, lead Detective Hershel Rawls received confirmation that the shell casings found at the crime scene matched the guns that were recovered. Based on obtaining a number from the caller display at the home of an acquaintance of defendant and Shahqueena, the police were able to trace the two to the Belleville motel, where they were arrested. Testimony was also offered regarding James' arrest.

Debra Wilson discovered the letters defendant had sent Shahqueena in a box under her daughter's bed in November 2003. As in the first trial, defendant's September 2003 letter to Shahqueena and defendant's statement to the police were read into evidence. However, defendant did not testify at the second trial. The only evidence offered by the defense was Shahqueena's letter to defendant. James' statement was not read into evidence.


Defendant asserts that he has automatic standing to challenge the Henry Street and Third Street searches because he was charged with an offense relating to the evidence seized at those locations. He contends that Lakina's consent to search was not voluntary because an illegal search and seizure preceded the consent and Lakina was scared and intimidated into giving her consent. In addition, defendant maintains that Lakina did not have the authority, and the police could not reasonably believe she had the authority, to consent to the search of Lee's bedroom. Defendant further argues that the search at 220 Third Street was invalid because the police searched Shahqueena's bedroom before getting Debra's consent, and because Debra was intimidated into giving her consent.

In A-5769-03T4, defendant challenges both searches. In A-5952-04T4, which relates to the armed robbery and murder convictions, defendant challenges the validity of the Henry Street search.*fn10 In challenging that search, defendant claims he had standing and that the consent obtained in the search was not voluntary because the search was pretextual and the police lacked probable cause. Both Detective Guzman and Sgt. Dehais, respectively, testified about execution of the consent to search forms by Lakina Dickerson and Debra Wilson.

In denying defendant's motion to suppress the evidence discovered during the Henry Street search, the trial judge found, with respect to the question of standing, that defendant had: very very minimal expectations of privacy . . . with regard to something he turned over to someone else over a week before . . . and . . . obviously did not come back to retrieve it, and numerous people knew of this item being there and even a child. So if there is an expectation of privacy here, it has to be at the very least minute.

So for all of those reasons I find that the Defendant does not have standing to challenge the confiscation of these items from this room.

With respect to the search itself, the judge determined that the police may have had "enough time" to obtain a search warrant, but that:

Time was certainly of the essence in this context, so the police had to either do nothing or act quickly. And it appears from the evidence that the police decided to go to the apartment and see whether or not a consent to search could be obtained. They decided to use that tact and take that approach. That involved going to the apartment and seeing if they were able to recover these weapons with the hope that a consent to search would be given.

The judge further concluded that the police did not force open the front door notwithstanding their legitimate concern about safety. His determination included an evaluation of credibility.

The court also found that exigent circumstances existed to support the approach taken by the police. It cited the "high degree of urgency involved," a reasonable belief that the guns were about to be removed, the "high degree of danger" present, and the gravity of the offense in question. In assessing all the factors, the motion judge concluded that it was reasonable for the police to have proceeded the way they did "by seeking to gain an invitation into the apartment, . . . then temporarily securing the apartment in order to facilitate them learning whether or not a consent to search could be obtained."

Finally, the court found that consent was given for the search. The judge pointed to the consent form signed by Lakina Dickerson and found that the police could reasonably believe that she had the authority to consent to the search based on her name being on the mailbox and her declaration that she was the owner of the apartment. Therefore, the court concluded that, "under all the circumstances the police cannot be said to have acted in an inappropriate way that resulted in such a violation of the [d]efendant's Fourth Amendment right that the recovery of these guns should be suppressed."

With respect to the Third Street search, the judge concluded, based on the testimony of Debra Wilson, that she knowingly and voluntarily consented to the search of her apartment despite the fact that the search took place at "an unreasonable hour." The court also concluded that Wilson had the authority to authorize the search.

We affirm the denial of the motion to suppress relating to 77 Henry Street for the reasons stated in our opinion on James Walker's appeal. State v. Walker, No. A-3638-03T4 (App. Div. Oct. 26, 2006). We agree with defendant, as did the panel which reviewed co-defendant James Walker's appeal from the denial of his motion to suppress following the same hearing, that defendant has standing. See, generally, State v. Johnson, 193 N.J. 528 (2008). However, the search can be sustained, under our scope of review, based on either sufficient evidence of consent or exigent circumstances. We find no basis on which to depart from the conclusion of another panel of this court which was based on the record made at the same motion to suppress.

Cf. State v. Gonzalez, 75 N.J. 181 (1977); R. 3:5-7(c) (requiring motions to suppress filed by co-indictees to be heard simultaneously "except for good cause shown"). We incorporate herein our prior holding regarding the search of the Henry Street apartment:

In making a determination of the validity of the consent, the trial court reviews the facts in the light of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2042, 2047-48, 36 L.Ed. 2d 854, 862-63 (1973). We review the trial court's findings based on substantial credible evidence in the record standard. State v. Johnson, 42 N.J. 146, 162 (1964).

Here, the judge found that the police did not badger Dickerson to consent. To the contrary, the judge found the police account to be credible. The judge credited the testimony that the police had no knowledge of Dickerson's illiteracy, and that she made no indication when reviewing the consent form that she could not understand its contents. Furthermore, although police had secured the premises until her return from the liquor store, there is no indication, based on the officers' testimony, that any force was involved in obtaining her consent. The judge did not credit testimony that force or coercion was used by the officers.

We reject defendant's argument that Dickerson did not consent to a search of Lee's room. It is clear that:

Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent. [State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted).]

"It is 'appearances of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,' that must be used to assess the validity of the officer's search." State v. Farmer, 366 N.J. Super. 307, 313-14 (App. Div.), certif. denied, 180 N.J. 456 (2004) (citing State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)).

Here, the police had a reasonable belief that Dickerson had the authority to consent to a search of the entire apartment. Therefore, they acted properly in searching Lee's room based on her consent.

We also reject defendant's contention that the judge erred by finding that the exigent circumstances justified securing Dickerson's apartment before obtaining her consent. The exigent circumstances exception to the warrant requirement is limited to instances where there is a probability that a legitimate law enforcement goal will be thwarted. That exception requires that both exigent circumstances and probable cause exist. State v. DeLuca, 168 N.J. 626, 632 (2001); see also Kirk v. Louisiana, 536 U.S. 635, 637, 122 S.Ct. 2458, 2459, 153 L.Ed. 2d 599, 603 (2002). Circumstances are exigent when they "preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear or both."

State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). This is a fact-sensitive inquiry. State v. Cooke, 163 N.J. 657, 676 (2000). In State v. Valencia, 93 N.J. 126 (1983), the Supreme Court identified some of the relevant factors to consider to determine whether exigent circumstances exist: 1) degree of urgency and time needed to obtain a warrant; 2) reasonable belief that contraband is about to be removed; 3) possibility of danger to police officers guarding the site; 4) information showing that the owners of the contraband know the police are "on their trail"; 5) "the ready destructibility of the contraband" and "the knowledge that efforts to dispose of [the contraband] and to escape are characteristic behavior of persons engaged in this [type of crime]." Id. at 137 (citing United States v. Manning, 448 F.2d 992, 998-99 (2d Cir. 1971)).

Here, the judge found that the police reasonably conducted an initial inspection of the apartment before consent was granted, because there was probable cause that the occupants were engaged in criminal conduct. The judge found that the occupants of the Henry Street apartment knew of the police presence and could have removed the evidence before consent was obtained, if the apartment was not secured. The police had information that this apartment was a meeting place for members of the Bloods gang. These findings are supported by the proofs presented at the hearing. Therefore, we must defer to these findings. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 470-71 (1999). [Walker, supra, slip. op. at 12-15.]

We add only that Sgt. Guzman testified he went over the consent form, including the right not to consent, with Ms. Dickerson.

He explained "if she wanted to refuse the search she could refuse the search." Moreover, there was no indication at the time of the search that the room in which the guns were found was occupied by her cousin, Sahim Lee.*fn11 We recognize that the search followed the shooting by more than a week. But even if there were no exigent circumstances, the judge found a voluntary and knowing consent. In any event, there is no basis on which to reject the motion judge's fact-finding after the evidentiary hearing. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Alvarez, 238 N.J. Super. 560, 564-65 (App. Div. 1990).

As to the search of 220 Third Street, the motion transcript reveals that a "confidential informant" advised Detective Dehais on the evening of February 27 or early morning of February 28 that defendant's girlfriend, Shahqueena Wilson, lived in an apartment at 220 Third Street in Passaic. Dehais, Guzman, and another detective, Miguel Cruz, went to the apartment at about 2:00 a.m. on February 28, 2002, looking for defendant. The detectives had neither a search warrant nor an arrest warrant, but they proceeded "about five minutes" after receiving the information.

Debra Wilson, Shahqueena's mother, answered the door and told the detectives that Shahqueena and defendant were not there The detectives asked if they could search the apartment; Debra agreed and signed a consent-to-search form at 2:05 a.m. The detectives asked who lived in the apartment, and Debra responded that she and her daughter did, and that the lease was in her name. Debra also told them that defendant "sometimes" stayed there. The detectives explained to Debra that they were looking for defendant and that there may be a gun in her apartment.

They further told her that she had the right to refuse the search, prior to Debra agreeing to it. According to Sgt. Dehais, Debra was "very concerned" about guns because "[t]here was a child in the house," and she gave permission for the search after Dehais told her "that she has the right to refuse."

During the search, Detective Cruz discovered a .380 caliber automatic and a .22 caliber handgun under a mattress in Shahqueena's bedroom. The detectives also found narcotics believed to be crack in the coat pocket of a jacket apparently belonging to defendant. After the search was completed, Debra was "transported into police headquarters" where she gave a statement.

According to Debra, she was asleep when the police, two men and a woman in uniform, knocked on her door. They asked her whether Shahqueena or defendant were in the apartment, and Debra replied that they were not. The police then asked whether they could search her daughter's room, and told her she could refuse; Debra agreed and signed the consent form. According to Debra, she "had no reason not to let them search my apartment so that's why [she] was willing to let them search." However, she also claimed that the officers told her that if she did not agree to the search, they would come back and would not be "so nice" but let them conduct the search because she had "nothing to hide." Debra "[v]aguely" read the consent form and the police did not read it to her.

Defendant claims that the search was invalid because Debra did not have the authority to consent to a search of her daughter's room. To determine whether a valid consent to search was given in the parent-child context, the State must prove that Debra the parent possessed "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed. 2d 242, 250 (1974). "[A] police officer need not be factually correct; the officer need have only a reasonable belief that the consenting party has sufficient control over the property to consent to it being searched," State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998), and that is so even in cases where the room is occupied by an adult child. Id. at 243-44.

Debra told the police that the lease was in her name, agreed to the search, and signed a consent to search form. We can find nothing in the record to indicate that Shahqueena paid rent for the room or that the police were so advised.

Therefore, there is enough in the record to conclude that the police had a reasonable belief that Debra had sufficient control over the property to consent to the search of Shahqueena's room. There was also sufficient evidence to sustain the finding of consent by a person who the police reasonably believed had authority to give consent. See State v. Maristany, 133 N.J. 299, 305 (1993); State v. Locurto, supra; State v. Johnson, supra.


Defendant argues that the verdict sheet at the first trial was inadequate because it did not specify the gun he was accused of possessing for an unlawful purpose. In addition, he claims that the judge's instructions on this point were confusing and contradictory because at one point they referred to the two .45 caliber firearms with respect to count two, but at another time did not. The State acknowledges that the count had to relate to the .45 caliber firearms used in relation to the shooting of Patel. In light of that fact and our disposition regarding the conviction of possession for an unlawful purpose, we need not address this issue at length.


Defendant maintains that the verdicts of guilty on possession of a weapon for an unlawful purpose and the "nonverdicts" on murder, felony murder and robbery at the first trial were inconsistent because the jury failed to find an unlawful act which would sustain the possession for unlawful purpose verdict. Defendant was not found guilty of any substantive crime related to the shooting at the first trial and that the unlawful possession and permit violations of which he was convicted at that trial were for the two firearms found at the Third Street address and not related by any evidence to the scene of the shooting. Hence, the defendant was convicted of possessing firearms for an unlawful purpose, necessarily .45 caliber handguns, that he was not found guilty of possessing without a permit.

Inconsistent verdicts are normally permitted so long as the evidence was sufficient to establish guilt beyond a reasonable doubt on the offense on which defendant was convicted. State v. Banko, 182 N.J. 44, 54-55 (2004). The elements of possession of a weapon for an unlawful purpose are: (1) the object possessed was a firearm; (2) the defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) the defendant intended to use it in a manner that was unlawful. Id. at 56-57. While the verdict at the second trial (at which defendant was convicted of the shooting death of Patel) cannot be used to support the verdict at the first, the record supports no unlawful purpose beyond the armed robbery (the conviction for which we hereinafter reinstate) and murder. See, e.g., State v. Banko, supra; State v. Grey, 147 N.J. 11 (1996); State v. Petties, 139 N.J. 310, 319 (1995); State v. Lopez, 213 N.J. Super. 324, 328 (App. Div. 1985), certif. denied, 103 N.J. 480 (1986). In fact, in charging the jury on the possession for unlawful purpose at the first trial resulting in the conviction on that count, the judge stated that the purpose had to be "against the person of another, namely Javid Patel." Accordingly, we need not explore whether that conviction can stand if there were no second trial. We order that the conviction on count two be merged into the conviction on count one in light of the convictions we sustain after the second trial.


Defendant contends that he was denied his Sixth Amendment right to compulsory process at the second trial as a result of the trial court's refusal to permit him to introduce James' statement to the police. The State contends that defendant's argument should be rejected because he never sought to admit James' statement into evidence. We agree with the State.

As previously noted, James' statement was admitted into evidence at the first trial during the State's case. Subsequently, in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed. 2d 177, 203 (2004), the United States Supreme Court held that where testimonial evidence is at issue, such as statements made during police interrogations, the Sixth Amendment requires unavailability and a prior opportunity for cross-examination before such evidence may be admitted against a defendant at trial. See also, e.g., State v. Buda, 389 N.J. Super. 241 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007).

At the second trial, the State again sought to introduce James' statement. The court noted that, although the statement exculpated defendant, it was deemed inadmissible under Crawford because James was unavailable*fn12 and there was no prior opportunity for cross-examination. In addition, defendant objected to the introduction of the statement on hearsay grounds. In making its ruling against admissibility, the judge "assume[d] that the Defense is not going to offer th[e] statement in their case." He added:

On the State's offer it is not admissible. Before I make that ruling, I would want to know from you if the Defense is going to offer it and let you know that I don't think I would tolerate that.

To object to it being allowed in on the State's offer, and then . . . when the Defense case starts, you put it in as a statement against penal interest that doesn't implicate the Confrontation Clause.

We are not playing that game.

Defense counsel indicated that she was "prepared with the case law" to argue the ruling. The court responded:

If I'm making that ruling, I would make it with the understanding that the Defense is not going to come forward, having raised an objection of putting that statement in, to then put the statement in. . . . [T]he Defense . . . wants to have the Court rule on the State's evidence when they finish and then go ahead with their evidence. I'm not dealing with that situation anymore or some argument based on that situation.

If you want to be heard and argue your law to me that the jury shouldn't hear that statement and then come back in your case and offer the statement, that's a whole different matter. I don't think this should be made a game of.

Defense counsel then stated she did not "ever play games in front of the Court," and indicated that she wanted "to wait until the close of the State's case" and speak with her client before determining whether the defense would present the statement. Subsequently, she told the court: "[I]f your ruling is that the State can't put it in, I'm not going to sit here and argue that the State can't put it in." Counsel further indicated that she understood the court's ruling that the defense could not object to the introduction of the statement and then turn around and introduce it during its case. However, the court then "sustain[ed] the defense's objection" to the admission of the statement in the State's case. While noting his concerns about fairness, the judge said he was not holding "the Defense couldn't bring it on its case, and I'll rule on that when" the issue was presented by the defense. However, defendant did not later seek to introduce James' statement.

During the colloquy between defendant and his counsel regarding the defense "strategic decision" not to present a case, the following took place:

MS. SUTNICK: You also understand that I . . . could try to call people as witnesses in this case?


MS. SUTNICK: And I can try to put in some of the evidence that I asked to be precluded during the State's case. Do you understand that?


MS. SUTNICK: But we have decided together that that is not in your best interests as far as your defense goes; is that true?


MS. SUTNICK: Do you agree with that decision?


It is apparent that counsel's initial reluctance and ultimate decision not to seek to introduce James' statement was part of the defense's trial strategy. Although James exculpated defendant of the shooting in his statement, the statement also indicated that James discussed the shooting, in general terms, with defendant, and may have been deemed to implicate defendant with respect to the weapons at 77 Henry Street.

Defendant claims that he was denied his constitutional right to present a meaningful defense inasmuch as James' statement was admissible as a declaration against interest under N.J.R.E. 803(c)(25). It is undisputed that a defendant has a constitutional right to a meaningful opportunity to present a complete defense by way of compulsory process. State v. Garron, 177 N.J. 147, 168-69 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). However, as noted, trial counsel made a "strategic decision" not to seek admission of James' statement. Therefore, defendant was not denied his constitutional right of compulsory process.

We thus find no reversible error in the failure to admit James' statement into evidence at the second trial. However, defendant's argument that James' statement, which could be considered to be against his penal interest and exculpatory of defendant (and not subject to Crawford if offered by the defendant), should have been admitted into evidence, is of concern. Our affirmance is without prejudice to an application for post-conviction relief, based on the strategy used, or motion for new trial based on newly discovered evidence based upon the availability of James Walker because his conviction was affirmed, and his matter became final, after the second trial. See State v. Allen, 398 N.J. Super. 247 (App. Div. 2008); State v. Robinson, 253 N.J. Super. 346 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992).


Defendant contends that his convictions in the second trial should be reversed because his constitutional right against double jeopardy was violated. In support of this argument, defendant claims that the State failed to offer sufficient evidence at the first trial with respect to the counts tried in the second trial. That is, he contends the court at the first trial should have granted his motion for judgment and acquitted as to those counts.

The State argues that defendant failed to raise this claim prior to trial as required by R. 3:10-2(c) and, in any event, double jeopardy does not bar retrial of those counts on which the jury could not reach a verdict and as to which no judgment of acquittal was ever entered.

The defense of double jeopardy must be raised by way of motion before trial; failure to present the defense in this manner constitutes a "waiver," but relief from the waiver may be granted upon "good cause shown." R. 3:10-2(c). Our Supreme Court has noted:

Requiring defense counsel to file a timely motion to preclude a second trial on double jeopardy grounds promotes judicial economy and efficiency by preventing the waste of time and resources of judges, counsel, and juries. Asserting the double jeopardy defense before trial promotes order in the judicial process . . . and saves both the State and the defendant the expense of a trial. [State v. Allah, 170 N.J. 269, 282 (2002).]

The record contains a pro se motion to dismiss the indictment on double jeopardy grounds that apparently was never ruled on. However, the basis for that motion apparently had to do with evidence proffered from Debra Wilson, a "conflict of interest" on the part of his original attorney who represented her, and prosecutorial misconduct. Defendant seems to confuse "mistrial" and "hung jury" cases. The present contention does not appear to have been raised. Therefore, we believe that this issue was waived.

In any event, while defendants are constitutionally protected by both the United States and New Jersey Constitutions, as well as by statute, from being tried twice for the same offense, Allah, supra, 170 N.J. at 279, double jeopardy does not apply where the counts in the first trial ended in a hung jury. State v. Cruz, 171 N.J. 419, 426 (2002); State v. D'Amato, 218 N.J. Super. 595, 602 (App. Div. 1987), certif. denied, 110 N.J. 170 (1988). See also N.J.S.A. 2C:1-9d(2). Here, there is no dispute that the jury in the first trial could not reach a verdict on the counts which were retried in the second trial. Therefore, the double jeopardy principle does not apply.

Defendant further argues that double jeopardy should apply because his motion for judgment of acquittal in the first trial should have been granted. The judge denied defendant's motion in that trial, finding that the State established a basis for the murder and the robbery charges, as well as the weapon possession counts. However, in A-5769-03T4 defendant did not appeal from the denial of that motion, and we in any event reject defendant's double jeopardy claim based on insufficiency of the evidence. See, e.g., Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 2d 652 (1982); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed. 2d 1 (1978).


Defendant asserts that the trial court in the second trial abused its discretion by denying his motion for a mistrial based on testimony that the scarf defendant was wearing on the evening of February 18, was the type "gang people wear."

During Anjelicia Jackson's direct examination, she testified that when defendant came into the apartment at 77 Henry Street he was wearing a yellow scarf. The prosecutor proceeded to ask Ms. Jackson how large the scarf was. Jackson replied, "It was like a scarf that they wear, the gang people wear, whatever, a scarf." Defense counsel objected to this remark, and the questioning continued. At the conclusion of Jackson's testimony, defendant moved for a mistrial based on this remark. Counsel stated she did not take action at the time because there was "no way to cure that without highlighting it." The court denied the motion by noting that nothing in the answer was suggested by the question, and stating:

There's nothing in the evidence that involves the State making any claim that this was somehow gang activity.

And while we've had quite a number of cases . . . that involve gang activity, this is a total stranger who was killed and it is not a gang killing. The State is not alleging that. The evidence . . . doesn't suggest that.

It may be that people who associate with gangs wear certain apparel and other people imitate that. That doesn't mean that they have a gang affiliation because they imitate that.

The judge then indicated that he would give a curative charge to the jury. However, defense counsel told the court that she did not want such an instruction because that would only "highlight" the remark. The court rejected this request and stated, based on his independent "responsibility" as the trial judge, that he would give such an instruction which he reviewed with counsel. After Ms. Jackson completed her testimony, the judge gave limiting instructions which included the following:

There was a point at which the witness was answering questions about what has been referred to as a scarf or bandana and she used the language a scarf like gang people wear.

I'm directing you to disregard that characterization about it being a scarf like gang people wear; that means it must not be considered by you in any way at all.

First of all, this is not a case where it's alleged that this killing is gang related. Nobody has any issue about the fact that . . . the people who are alleged to have done the killing and the person who was killed, that they were strangers to one another.

And while people who are part of groups or gangs and particularly in inner cities may wear certain kinds of identifying clothing . . . lots of other people wearing the same clothing have nothing at all to do with gangs. So there is no allegation of that kind in this case.

It happened. It is an unfortunate reference. But it must not be considered by you in any way at all. As I said, there are no allegations of that kind in the case. And from what you already know about the case, you know neither side of this case is suggesting any kind of killing that involves gang activity.

The judge then asked the jury if there was "any problem accepting those instructions" and hearing no response, the judge said "[o]kay. Thank you."

The decision as to whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires a mistrial, is one that is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). Thus, a motion for a mistrial is addressed to the sound discretion of the trial court, and the denial of such a motion is reviewable only for an abuse of discretion. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S.Ct. 645, 98 L.Ed. 1097 (1954).

The trial court did not abuse its discretion in denying a mistrial. This was an isolated remark in the context of a lengthy trial, and the experienced trial judge gave a fair curative instruction. It cannot be assumed that the jury did not faithfully follow that instruction. State v. Manley, 54 N.J. 259, 271 (1969).

However, defendant maintains that such an instruction should not have been given over his objection. Cf. State v. Brown, 138 N.J. 481, 535 (1994) (rejecting a defendant's claim that the trial court should have given the curative instruction even though trial counsel made a "calculated decision to waive it.") As the trial judge noted, central to his responsibility was the responsibility to ensure that the jury remains fair and impartial throughout the proceedings, State v. Loftin, 146 N.J. 295, 365 (1996). Thus, as noted, when the jury's impartiality is threatened by extraneous influences, the determination of whether the curative instruction was an appropriate response is within the discretion of the judge who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting. Id. at 365-66. We do not believe the trial court abused his discretion in denying defendant's motion for a mistrial and in giving a curative instruction over defendant's objection.


The issue concerning identification of the informant, raised pro se by defendant, was not raised in the trial court, and we decline to address it. Moreover, it is clear from the trial testimony and defendant's pro se brief that defendant knew who supplied the police with information concerning location of the guns. There was testimony that Alex Valentin gave the information about the guns at the Henry Street apartment to Sgt. Dehais shortly before the search.


We remand for resentencing. The State acknowledges that resentencing is required under State v. Natale, 184 N.J. 458 (2005), for all counts except the murder conviction. See also State v. Abdullah, 184 N.J. 497 (2005). Moreover, the consecutive sentences must be reconsidered in light of the aggregate number of convictions. The two sentencing hearings cannot be considered as isolated events once the jury returned its verdicts at the second trial. The appropriate aggregate sentence must be considered in light of all the convictions. While the sentence on the murder conviction might well be sustainable, it should be reconsidered in light of the necessary remand of the other sentences and sentence as a whole. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); State v. Miller, 108 N.J. 112, 122 (1987).

As defendant's felony murder conviction was properly merged into defendant's purposeful and knowing murder conviction, the armed robbery conviction should not have been merged into the felony murder. See State v. Brown, 138 N.J. 481, 560-61 (1994); State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991).


We find no need to address the other contentions raised by defendant. R. 2:11-3(e)(2). We affirm defendant's convictions, reverse the merger of the armed robbery conviction, and merge the conviction for possession of a firearm for unlawful purpose. We also remand for resentencing, which shall be limited to the aggregate sentence already imposed. See, e.g., State v. Rodriguez, 97 N.J. 263 (1984).

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