On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Payne and Waugh.
Following the denial by Judge Ravin of his motions to suppress evidence and bar the use of his confession, defendant Johnnie Davila entered a conditional plea of guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier.*fn1 On appeal, defendant challenges the judge's evidentiary rulings. He argues:
THE RULING THAT POLICE ENTRY INTO THE APARTMENT AT 730 M.L.K. BOULEVARD WAS LAWFUL MUST BE REVERSED, AND THE PHYSICAL EVIDENCE SEIZED MUST BE SUPPRESSED.
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAIVED HIS RIGHT TO SPEAK WITH AN ATTORNEY PRIOR TO GIVING HIS STATEMENT, THE COURT'S RULING FINDING THE STATEMENT ADMISSIBLE WAS ERRONEOUS AND MUST BE REVERSED.
Judge Ravin found, for purposes of the motion, the following background facts:
[O]n November 13th, 2003, witnesses reported that white Jeep Cherokee with the letter "G" on the driver's side, occupied by several young African-American males, approached 30 Lenox Avenue in the city of East Orange. The masked front passenger of the Jeep Cherokee approached victim [Shanfidine] Sutton and shot him. The . . . occupants of the Jeep Cherokee then fled the scene in that car. Sutton was taken to the hospital and pronounced dead.
A short time later, victim Alonzo Brown, age 15, was also shot and killed in an attempted robbery. Witnesses at the scene described the same car [being] used in the Sutton murder also occupied by several young African males. Witnesses claimed that the front seat passenger exited, demanded Alonzo Brown's black leather jacket, and shot him. Alonzo Brown was pronounced dead at the scene.
Law enforcement located and recovered .40 caliber shell casings at both scenes. And a ballistics examiner later determined that both casings were fired from the same firearm, which was not recovered. Also, witnesses at the scene of the second shooting memorized a portion of the license plate number of the car.
Further investigation revealed that David Cataneo, the owner of the Jeep Cherokee, had reported it stolen a few hours prior to the first shooting. He also reported that he had left his Nextel cellular phone inside the Jeep. At 8:00 P.M. on November 13th, 2003, law enforcement recovered the car in front of 93 Alexander Street in Newark. The cellular phone, however, was not recovered.
On November 14, law enforcement obtained a communications data warrant for records of calls made to and from the Nextel phone. On November 15, investigators determined that, among other calls, eight calls had been made from the phone to 730 Dr. Martin Luther King Boulevard, apartment 1-G, in Newark ...