On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 01-10-4345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman, and Lyons.
Tried to a jury, defendant was convicted of two counts of murder, N.J.S.A. 2C:11-3(a)(1) or (2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); one count of attempted murder, N.J.S.A. 2C:5-1, 11-3; four counts of robbery while armed, N.J.S.A. 2C:15-1; one count of conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1; one count of aggravated assault, N.J.S.A. 2C:12-1(b)(2); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant's aggregate sentence was two consecutive life terms, each with a thirty-year period of parole ineligibility. Defendant has appealed his convictions and his sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On the evening of May 18, 2001, Christian Made, Juana Ozuna, Sofia Rodriguez, Sofia's sister Roseanna Rodriguez and Marisol Rosario went to a club in Jersey City. They stayed until closing time and Made drove the group home, as he had driven them to the club. He took the exit from Route 280 and at the bottom of the ramp, pulled his car over. Several witnesses said he did so because Ozuna was ill from drinking too much.
They all got out of the car. Roseanna Rodriguez lived approximately two blocks away, and she decided to walk home. Another car pulled up, with three occupants. The driver and rear-seat passenger were male, the front-seat passenger was female; all were African-American. The driver asked if everything was all right, and the group said yes. Marisol Rosario noticed the rear-seat passenger lean forward and whisper something to the driver, and she immediately sensed trouble and told Sofia Rodriguez they should leave. As she said this, she saw the man sitting in the rear passenger seat get out of the car, holding a small black gun. She walked quickly across the street and hid in a stairwell.
Sofia Rodriguez got into the driver's seat of their car and told Ozuna and Made they had to leave. She saw one of the two males from the other car strike Made, who got into the passenger seat next to Rodriguez and said they were being robbed.
One of the robbers was standing next to Sofia Rodriguez, who was in the driver's seat. Rodriguez gave her pocketbook to the assailant and realized he had a gun. He then reached across her into the car and took the keys from the ignition. He then shot her in the head and she passed out.
Marisol Rosario, who was hiding across the street, heard several shots. When she heard the other car drive away, she ran to a cousin's house, which was nearby. When Sofia Rodriguez regained consciousness, Made was leaning on her; he had been shot in the right temple. Ozuna was lying on the street, in a pool of blood. Sofia Rodriguez ran to the same house as had Marisol Rosario, saying she had been shot.
Later that morning, Newark police gave Marisol Rodriguez a series of books containing mug shots of African-American males and African-American females. After looking through them, she did not see anyone she could identify.
Police and emergency personnel responded to the scene. Four .380 caliber shell casings and a projectile fragment were recovered from the front passenger seat of the victims' car. These shell casings matched casings and a bullet fragment recovered approximately two weeks earlier from the scene of a May 6 shooting at 611 Martin Luther King Boulevard. Testing revealed that the bullets recovered at the autopsies of Ozuna and Made were fired from the same gun that had been used in the earlier shooting.
Latique Mayse was the victim of the May 6 shooting, and he was interviewed by Detective Vincent Vitiello of the Newark Police Department. Detective Vitiello testified that Mayse gave a statement in which he said he was "absolutely certain" that defendant was the person who had shot him. Mayse identified defendant as the shooter in a photo array and also identified Omar Auston as a person who was with defendant at the time of the shooting.
At defendant's trial, Mayse denied that defendant shot him on May 6, and said that he could not remember giving a statement to that effect and could not remember selecting defendant's picture. Mayse was then confronted with testimony he had given to a grand jury, in which he had said he met defendant on the street on May 6 and that defendant had a silver and black .380 caliber gun. Mayse had also told the grand jury that the earlier statement he had given to Detective Vitiello was accurate. In response, Mayse said he did not recall that testimony and that the grand jury transcript was inaccurate.
Investigator Robert Harris of the Essex County Prosecutor's Office learned of the ballistics match between the May 6 shooting and the killings of Made and Ozuna and that Mayse had identified defendant as the May 6 shooter. Based upon that, he prepared separate photo arrays including defendant's picture and Auston's picture and showed them to Sofia Rodriguez and Marisol Rosario. Neither could make any identification although Rosario indicated one picture might be that of the driver of the car.
Several weeks later, defendant and Omar Auston were arrested in New York City. Defendant had a .380 caliber gun and Auston a 9 millimeter at the time of their arrests. Ballistics tests linked that .380 caliber gun to the May 6 and May 19 shootings. Harris learned of these arrests and presented to Sofia Rodriguez and Marisol Rosario photo arrays that had been compiled by New York police. Rodriguez selected defendant's picture as the man who had shot her, and Rosario selected Auston's picture as the driver of the car. Defendant and Auston were arrested and charged with the May 19 shootings.
In October 2002, while defendant remained in jail awaiting trial, the prosecutor's office, in connection with an entirely unrelated matter, conducted a search of an apartment at 717 Martin Luther King Boulevard occupied by Narique Wilson. The search uncovered a letter addressed to Wilson. The envelope bore defendant's name, inmate number and cell number and the address of the Essex County Jail. The jury heard the following redacted version of the letter:*fn2
Little Bro, when me and O. was home we made some bad moves. This is where I need your help. That little bitch Ky is telling on me. If you got love for me, push her. That's the only person that's stopped me from coming home. Do that, Dog, I want to come home. Al.
According to the record, the word "push" means "kill" in street vernacular.
Omar Auston was tried before defendant and was convicted as an accomplice. Kysheal Ivery testified at Auston's trial that she had been in the front seat of the car on May 19, 2001, and that Auston had a 9 millimeter gun and defendant a .380 caliber gun. She said at Auston's trial that she had seen defendant shoot one of the victims and take some cell phones which he later discarded behind the Seth Boyden homes in Newark. She also said she had identified a photograph of defendant.
At defendant's trial, Ivery said she could not recall who she was with on May 19. Based upon that, she was confronted with her earlier testimony. At defendant's trial, she said she could not recall that testimony because she had been high on drugs when she testified at Auston's trial and that she was, while on the stand at this trial, also high on drugs. On cross-examination, she denied being at the scene of the shootings or acting as a lookout.
Defendant presented only one witness, Police Officer Darlene Young, who was the first to respond to the scene of the shooting. She interviewed Sofia Rodriguez and put in her report that Sofia Rodriguez said she had been shot by a "black Hispanic male." The defense argued from that statement that defendant had been misidentified. This was the first homicide in which Officer Young had been involved, and the State asserted that Officer Young had made a mistake in preparing her report.
On appeal, defendant raises the following arguments.
THE ADMISSION OF OTHER-CRIMES OR "WRONGS" EVIDENCE, THAT DEFENDANT WAS INVOLVED IN A PRIOR SHOOTING, CONSTITUTES REVERSIBLE ERROR
THE ADMISSION OF TESTIMONY REGARDING A LETTER PURPORTEDLY WRITTEN BY DEFENDANT, WHEREIN THE WRITER REQUESTED THAT A WITNESS TO THE INCIDENT BE KILLED, CONSTITUTES REVERSIBLE ERROR
THE TRIAL COURT'S FAILURE TO PROVIDE AN ADEQUATE JURY INSTRUCTION REGARDING A WITNESS'S PRIOR INCONSISTENT STATEMENT CONSTITUTES PLAIN ERROR; IN THE ALTERNATE, THIS MATTER MUST BE REMANDED FOR A GROSS HEARING REGARDING THE ...