On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Payne and Lyons.
Defendant Robert Cook appeals his conviction after trial by jury on an indictment charging him with first-degree murder, N.J.S.A. 2C:11-3a(1)(2), third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a. We affirm defendant's convictions, but because we find error in the sentencing judge's failure to merge count three (possession of a handgun with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a) into count one (murder, N.J.S.A. 2C:11-3a(1)(2)), we vacate defendant's sentence and remand the matter for resentencing. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On August 8, 2003, Reginald Taylor, the victim, and his friend Christopher Wannamaker met at 6:00 p.m. to pick up Taylor's motorcycle from a repair shop. Taylor, who was twenty-nine years old at the time, was employed as a corrections officer in Hudson County. Wannamaker was an electrical engineer. The two later rode their bikes into Irvington, where, at some point in the evening three other friends, Samuel Mason, John Tyler and Tyler's brother, joined them.
At approximately 10:30 p.m., the riders stopped on Springfield Avenue at Avon Avenue to wait for John Tyler, who had given a "young lady" a "short bike ride." Taylor wanted something to drink and asked Wannamaker if he wanted anything. Wannamaker responded that he did not, and Taylor walked over to a store that was closing for the night in order to buy a beverage. He was presumably turned away and he then proceeded to a Chinese restaurant located across the street. Wannamaker remained behind on his bike in the middle of the street with the motor idling, talking to the other bikers.
Vinton Blackwood, a fifty-year-old electrician who was residing in this country illegally, was in the Chinese restaurant with his girlfriend, Latrice (a/k/a Rasheedah) Brown when Taylor entered to buy his drink. While inside the restaurant ordering his food, Blackwood saw defendant enter and then immediately leave again. He recognized defendant from the neighborhood. After ordering food, Blackwood stepped outside while Brown remained in the restaurant. While standing outside, he saw defendant return after a few minutes with a gun. Before defendant reentered the restaurant, Blackwood observed him speak to a light-skinned fourteen or fifteen-year-old male, whom he told to keep a look-out for the police. As defendant went inside the restaurant, Blackwood immediately called for Brown to come outside.
After buying his drink, Taylor left the restaurant and stood on the sidewalk, waiting to cross the street, presumably to re-join Wannamaker and the other bikers. He was carrying a Snapple bottle. According to Blackwood, who was standing approximately fifteen feet away from Taylor, near a light pole, defendant "came beside [Taylor] and was talking and then he put the gun to his head and pull [sic] the trigger." Defendant then ran down Springfield Avenue.
Wannamaker's bike was not facing the Chinese restaurant, however, he had turned his head to look for Taylor. Wannamaker saw Taylor exit the restaurant and begin walking toward him. As Taylor prepared to cross the street, Wannamaker witnessed defendant come up to Taylor and pull on his shirt. As Taylor pulled away, defendant shot him point blank in the head. Wannamaker then observed defendant run directly in front of him, crossing in front of the headlight of his motorcycle.
Samuel Mason, one of the other riders accompanying Taylor and Wannamaker, had his back turned to the restaurant when Taylor exited, but heard a loud gunshot. He turned and saw someone laying on the ground and someone running across the street. While he could not describe the shooter in detail, Mason stated that he was slim, "kind of tall," with short dreadlocks.
Immediately after the shooting, Wannamaker road his motorcycle down the street in search of a police officer and found a police vehicle on Springfield Avenue, one block away. He followed the officers back to the scene of the shooting. Meanwhile, Mason and one of the other bike-riders walked across the street looking for Taylor. After looking in the restaurant and around the corner without success, they finally examined the victim of the shooting and discovered that it was Taylor.
Taylor was pronounced dead at the scene. The police did not recover a wallet or other identification, but found $768.42 in cash on his person.*fn1 He was not carrying his service weapon.
After witnessing the shooting, Blackwood went into the Chinese restaurant to get the food he had ordered. Brown began to cry and got into their car. After getting his order, Blackwood also got into the car and they drove away without speaking to the police, although the police had arrived before they left the scene.
Wannamaker remained at the scene of the shooting until 3:15 a.m., at which point he was taken to the Irvington police station and gave a statement. He described the shooter as wearing a long black t-shirt with a white t-shirt underneath and blue jeans. He further said that the shooter was between five feet nine inches and six feet tall and weighed between 130 and 140 pounds, was dark-skinned, and had short dreadlocks down to his collar. Wannamaker told the police that he would not be able to identify the shooter because he was in a state of shock and, therefore, the police did not attempt to have him make an identification from a photo array at that time. However, Wannamaker later tried to contact the prosecutor's office and the police station numerous times to tell them that he could, in fact, make an identification. His calls were never returned. He did not go to the police station in person in an attempt to make an identification.
The police found Blackwood at his place of employment by contacting Latrice Brown. On August 9, 2003, the police took him to the police station, where he gave a statement. Blackwood told the police that he thought he could identify the shooter from a photograph because he had seen him in the neighborhood before. He described the shooter as a dark-skinned male, seventeen or eighteen years old, weighing between 150 and 160 pounds, and wearing dark jeans and a black t-shirt.
The police called Blackwood back to the station on August 12, 2003, in order to show him a photo array. Blackwood identified defendant from a selection of photographs. The police also showed him a second set of photographs, from which he identified a young male, R.B., as the individual defendant had employed as a look-out.
Police arrested defendant and R.B. on August 13, 2003. Detective Paul Sarabando, the Essex County prosecutor's detective, testified that defendant, on the day of his arrest, was five feet eight inches, 160 pounds, had a dark complexion and had his hair in braids.
In early 2004, Blackwood testified against defendant before an Essex County Grand Jury. On March 24, 2004, the Grand Jury returned Indictment No. 04-03-1113, charging defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)(2), third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun, with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a.
In late November or December 2005, Wannamaker finally spoke with the Assistant Prosecutor and explained that he was in shock immediately after the shooting but he would "never forget that face" and could now identify the shooter. As such, Wannamaker was shown a photo array, in which he calmly identified defendant. He stated that he was one-hundred percent certain of his identification.
On June 23, 2006, the police interviewed defendant via video conference at the Essex County Correctional Facility. When asked to provide his own version of the night of the shooting, defendant stated "I'm not the person who killed this man. The person who killed him was 'Cake' and he was killed in 2004."
Defendant was tried by a jury between May 3 and May 15, 2006. Wannamaker and Mason both testified to the facts set forth above. Vinton Blackwood also testified, describing the events of the evening of August 8, 2003, consistently with the statement he gave on August 9, 2003. Blackwood further described how he selected a picture of defendant from a photo array on August 12, 2003.
In addition, Blackwood testified regarding a surveillance video the State presented to the jury. The police had acquired the video, which showed the shooting, from a camera positioned on the corner of Springfield and Avon Avenues. In his testimony, Blackwood used the video to identify himself, Latrice Brown, Taylor carrying the Snapple bottle, and the shooter at the scene.
During direct examination, Blackwood also testified that he had "a complaint pending" against him "for using some false documents to obtain a driver's license." He attempted to use the forged documents in either 2004 or 2005 and was indicted*fn2 in March 2006 on three counts of forgery. However, his statement and photo identification in August 2003, and his testimony in early 2004 before the Grand Jury, pre-dated his indictment. Blackwood further stated that after giving his testimony before the Grand Jury, he had no contact with the prosecutor's office until two weeks before defendant's trial. The prosecutor's office attempted to contact him months before defendant's trial date, but Blackwood eluded them because he "didn't want to get involved."
Unbeknownst to the prosecution, Blackwood was scheduled to appear in court for a pre-arraignment conference on his indictment on April 10, 2006. He failed to appear and, as such, the court issued a bench warrant for his arrest. That warrant was still outstanding during Blackwood's direct examination at trial.
On cross-examination, the defense sought to question Blackwood about his immigration status, the indictment, and his outstanding bench warrant. Specifically, defendant wanted to suggest to the jury that Blackwood received favorable treatment in exchange for his testimony, citing the fact that he had been residing in the United States illegally with no repercussions and he had not yet been arrested on the bench warrant. The prosecutor argued that he was not aware of the warrant or Blackwood's indictment and stated that, to his knowledge, Blackwood also knew nothing about the warrant. Defendant did not make any offer to prove that Blackwood had such knowledge. The State agreed to allow questioning on Blackwood's forgery indictment but objected to any questions regarding his immigration status or the issuance of the bench warrant.
The trial court held a hearing outside the jury's presence, where Blackwood testified that he had missed his court date because he had moved and never gave the court his new address. As such, he never received notice that he was due to appear in court.*fn3 Based on this, the trial judge allowed the defense to question Blackwood on his immigration ...