On appeal from Superior Court of New Jersey, Law Division, Camden County, 03-06-2075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern, Payne and Waugh.
Tried to a jury, defendant was convicted of two counts of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); attempted murder, N.J.S.A. 2C:5-1, 2C:11-3a(1) and (2) (count three); conspiracy to commit murder, N.J.S.A. 2C:5-2 (count four); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count six); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (count eight). Defendant was sentenced to consecutive terms of life imprisonment for the murder convictions, with "85% of [each] sentence" to be served "before being eligible for parole." The other convictions resulted in concurrent sentences or were merged.
On this appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE PROSECUTOR'S ELICITATION OF TESTIMONY DURING CROSS-EXAMINATION OF THE DEFENDANT INDICATING THAT A NON-TESTIFYING INDIVIDUAL WHO HAD BEEN INVOLVED IN THE SHOOTING INCIDENT IN QUESTION HAD GIVEN A STATEMENT TO THE POLICE WHICH INCULPATED THE DEFENDANT.
POINT II: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S ORAL STATEMENTS ALLEGEDLY MADE SINCE IT ONLY REFERENCED THE STATE'S CONTENTIONS AND OMITTED ANY REFERENCE TO THE DEFENDANT'S CONTENTIONS RELATING THERETO. POINT III: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING CONSPIRACY TO COMMIT PURPOSEFUL/KNOWING MURDER INTO COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER. POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, ESPECIALLY WHEN VIEWED IN CONJUNCTION WITH THOSE SENTENCES RECEIVED BY EQUALLY CULPABLE CO-DEFENDANTS.
We affirm the convictions, but merge the unmerged conspiracy to commit murder conviction on count four into the murder convictions, and remand for resentencing on the murder convictions.
According to the State's proofs, defendant and co-defendants Angel Mendoza and Juan Salas were involved in an attempt to "clear the block" around Sixth and Vine Streets in Camden of competing drug dealers. Defendant took a gun from the car trunk of his Uncle Willie Perez and told his friend, Joseph Quinones, to "just get out of here." Within three minutes after leaving the scene, Quinones heard gunshots behind him.
A total of fifty-seven shells were discovered at the scene. Defendant, Mendoza, and Salas all had firearms. Quinones identified defendant as being in possession of a Smith & Wesson pistol linked to eight of the shells were found at the scene. As a result of the shootings, Jabbar Lee and Richard Williams were killed and David Williams was critically injured.
The following day, defendant went to the prosecutor's office "as the result of the conversation" he had with the guard at his building. According to defendant, who testified at the trial, he was told that someone at the prosecutor's office was interested in speaking to him. He waited about an hour and a half and no one came to question him, so defendant left the prosecutor's office. On cross examination, the prosecutor elicited testimony that he really went to the prosecutor's office because he was under the impression that his "Uncle Willie" had implicated him in the shootings. The following day, representatives of the Prosecutor's Office went to defendant's apartment and asked him if he wanted to come in for questioning voluntarily. Defendant testified that he agreed to go, but only because he felt that "I had to go down there or it was going to be forcible and that was it."
Defendant gave two recorded statements to representatives of the Prosecutor's Office. In the first, he testified that he and Quinones "were in front of North Gate apartments... and they heard the gunshots and didn't know anything more about it other than that." The investigators believed that defendant knew more than he was revealing and continued to question him. In his second statement, defendant admitted that he was part of a "plan" to "clear the block" of rivals in the drug trade, and "get them off the corner" by "trap[ping]... to kill as many of them" as possible and that he was involved in the shootings, but that Richard Williams, one of the victims, fired first.
We reject the contentions addressed to the convictions, and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).
Defendant argues that the following exchange with the prosecutor during his cross examination improperly prejudiced him and that the trial ...