On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-3008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern, Rodríguez and Waugh.
Defendant Joseph Wallace appeals his conviction for murder, N.J.S.A. 2C:11-3(a)(1), possession of a handgun without a permit on June 15, 2005, N.J.S.A. 2C:39-5(a), possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of a handgun without a permit on July 1, 2005, N.J.S.A. 2C:39-5(b). He was sentenced to an aggregate of forty-years incarceration, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
The following facts were presented at trial. On the evening of June 15, 2005, David Ortiz walked out of a grocery store on Third Street and Central Avenue in Newark. He saw Wallace, whom he said is commonly known as "Jay Jerk," across the street arguing with James McMillon. Wallace appeared angry and told McMillon that he should not be selling drugs on that block and that he was taking away his sales. Wallace was with someone known to Ortiz as "Jay Jay," who was later identified as John Boyd. Ortiz noted that Boyd had a cast on his arm. Wallace pulled out a black gun from his waist and shot McMillon twice; once in the stomach and once in the head. Boyd went through the victim's pockets before he and Wallace walked away.
Terrence Matthews, age sixteen, who had known Wallace for three or four years, also witnessed the shooting. He saw Wallace, who wore his hair in dreadlocks, arguing and acting aggressively toward McMillon, who was selling drugs. Wallace then shot McMillon with a black revolver. Matthews heard two shots and ran away. Matthews also recalled that Wallace was with a man who had a cast on his arm.
A third eyewitness, Adrienne Davis, drove up to the laundromat on the corner and saw a group of men. She pulled up and was talking to a friend on her cell phone. Davis heard two pops and then saw the victim fall to the ground. After the shooter shot the victim, he walked right in front of Davis's car and then started running, making a right turn at the first corner, as people yelled for him to stop. According to Davis, the shooter was very dark-skinned, wore his hair in dreadlocks, and was dressed in a white t-shirt, jeans, and black baseball hat. Davis left the area without going to the laundromat. She called 9-1-1 to report the shooting, but did not provide her name.
A fourth eyewitness, Maneerah Munoz, was going to the grocery store on the corner when she observed the shooting. Munoz saw four men standing together. One of them, using a black gun, shot the man standing in the middle twice, and then ran away. The shooter was wearing a white t-shirt, blue jeans, and a black hat. Munoz saw Matthews, whom she had known for eight to ten years, running away with the shooter.
Immediately after the shooting, Officer Ceasar Estella of the Newark Police Department received a call of shots fired and a man shot and injured. He drove to the scene with his partner, Officer Joe Tavares. The officers found the victim lying on his back with blood coming from the back of his head. The victim's wallet was next to him.
The next day, June 16, 2005, the police contacted Munoz, who gave a statement at police headquarters. Munoz told police that Matthews was at the scene and had run away with the shooter. She identified a photograph of Matthews.
Having received a phone call from Matthews' mother, the police located Matthews on June 17, 2005, and brought him to headquarters for questioning. Before beginning the interview, Matthews' mother was also brought to headquarters and given the option of being in the interview room. She opted to remain in the outer room while her son was questioned.
That same day, after reading Matthews the photograph display instructions, Detective Raul Diaz showed an array of six photographs to Matthews. According to Diaz, because Matthews was a juvenile, his guardian was present, although at trial Matthews could not recall that his mother was there and thought that she had not arrived until they called her to pick him up. Matthews selected Wallace's photograph and signed and dated the back of it. On the photograph selected, Diaz noted that Matthews was "relaxed and confident." On a form he signed, Matthews wrote that the person identified in the photograph, Wallace, was the person who "killed the guy" and "shot at the guy with a handgun." Matthews described the shooter as wearing a white t-shirt, pants, and Timberland boots. At trial, Matthews testified that he was not forced to pick out Wallace's photograph, and he identified Wallace in court as the person who had shot and killed McMillon.
On June 18, 2005, Ortiz met with the police. They showed Ortiz an array of six photographs. When he was shown a photograph of Wallace, Ortiz got very excited and said, "that's him." Ortiz signed and dated the back of Wallace's photograph. Ortiz identified Wallace as the person he had seen arguing about drug sales with "the boy that got killed on Central Avenue." In his statement prepared the same day, Ortiz did not tell police that he saw Wallace shoot anyone, but said only that he saw Wallace arguing with the victim. However, when Ortiz met with police the next day, on June 19, he said that he actually saw Wallace shoot McMillon. At trial, Oritz testified that there was no doubt in his mind that Wallace was the person who shot and killed McMillon.
On June 20, 2005, the police asked Munoz to return to the station because they had developed suspects and wanted to show her a photo array. Police showed Munoz an array of siX photographs, and she selected Wallace's photo as that of the shooter and signed and dated the photo. At trial, Munoz identified Wallace and testified that she was one hundred percent sure that he was the shooter.
Although Davis had not provided her name when she called 9-1-1 after the shooting, the police eventually located her through her phone number, having subpoenaed the cell phone company. On June 24, 2005, Davis described the shooter as very dark-skinned, wearing his hair in dreadlocks, and dressed in a white t-shirt, jeans, and a black baseball hat. An officer attempted to have Davis look at photographs of potential suspects for identification, but Davis refused.
Based on the identification of Wallace as the shooter by Ortiz, Munoz, and Matthews, the police obtained a warrant for his arrest. On July 1, 2005, at about 6:45 a.m., the police went to 225 Hunterdon Street, Apartment 4N, in Newark for the purpose of arresting Wallace. The officers knocked on the apartment door and waited for about ten to fifteen minutes. Eric Murphy opened the door. As the police entered the small apartment, they saw Wallace, wearing only pants, and Boyd, who had a cast on his arm, walk out of a back bedroom together. Wallace and Boyd were arrested and secured.
The officers then entered the bedroom the men had just left. Through an open, accordion-type closet door, they saw a gun on top of a pile of clothes. The gun, a .357 caliber magnum revolver, was fully loaded with six rounds of ammunition. There was also a live bullet on the floor in the bedroom. The police allowed Wallace to get dressed and put on shoes, and then transported him to police headquarters. Wallace had two tattoos: one that said "Jay-Merk," and the other said, "Jay Jerk," the nickname by which Ortiz had known him.
An autopsy revealed that the victim died of gunshot wounds to the head and chest. Both bullets passed completely through his body. No spent bullets or casings were recovered at the scene of the shooting.
Detective Louis Alarcon of the Newark Police Department, an expert in the field of ballistics examination and firearms identification, examined the .357 caliber magnum revolver that had been seized from the apartment at which Wallace was arrested. He fired two test shots from the gun and determined that it was completely operable and in good working order. Because it was a revolver, spent shell casings remained inside the cylinder until manually removed. When asked why he referred to the finish of the gun as blue, Alarcon explained that the gun had a finish applied to it that is called "bluing," which is a color between blue and black, but depending on how much polish is used, the gun could appear bluish or blackish.
In June 2006, Wallace moved to sever count four of the indictment, which charged defendant with unlawful possession of a handgun on July 1, 2005. Decision on the motion was deferred.
In September 2006, Judge Betty Lester denied Wallace's request for a full Wade*fn1 hearing on the admissibility of the pretrial identifications, holding that Wallace had not made the required threshold showing that there was some evidence of impermissible suggestiveness in the identification process. Wallace also renewed his motion to sever count four. Judge Lester held that, although she was "not prepared to sever this count from the trial," she would revisit the issue based on the evidence presented.
Wallace moved to suppress the handgun seized from the apartment at which he was arrested on July 1, 2005. On October 18, 2006, Judge Lester held a pretrial admissibility hearing on the motion to suppress the gun, reserving decision at the conclusion of the proceedings. The following day, October 19, 2006, she issued an oral opinion denying the motion. The judge also revisited Wallace's motion to sever count four, but did not change her ruling.
After the jury had been selected, but prior to opening statements, the trial judge and counsel learned that a relative of the victim had made the following statement in the hallway outside of the courtroom in the presence of some of the jurors: "He's guilty, he killed my brother." Judge Lester questioned each juror in the presence of counsel, asking what, if anything, they heard. She allowed counsel to ask follow-up questions. Defense counsel requested that a new jury be chosen. Judge Lester denied that request, stating that she was satisfied the jurors would follow her instructions and decide the case without reference to the relative's statement.
The trial was held over several days in October 2006. The jury rendered a verdict, finding Wallace guilty on all four counts.
Wallace was sentenced on December 15, 2006. Judge Lester merged count three, second-degree possession of a weapon for an unlawful purpose, into count one, first-degree murder. On count one she imposed a sentence of forty years, with a parole ineligibility period of eighty-five percent of the sentence and a five-year period of parole supervision upon release pursuant to NERA. On counts two and four, third-degree unlawful possession of a gun without a permit, Judge Lester imposed five-year sentences, to run concurrently with the sentence imposed on count one. She imposed the required fines and penalties. This appeal followed.
On appeal, Wallace raises the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF THE GUN FOUND IN A WARRANTLESS SEARCH OF AN APARTMENT BELONGING TO HIS FRIEND'S GIRLFRIEND.
COUNT FOUR OF THE COMPLAINT, CHARGING UNLICENSED POSSESSION OF THE GUN FOUND IN THE APARTMENT, ...