On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1151-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Stern, Rodríguez and Payne.
Defendant Lance Bean appeals from his convictions, following a jury trial, for murder, N.J.S.A. 2C:11-3(a)(1)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The judge merged the first two convictions and imposed a forty-five year term with a NERA*fn1 parole disqualifier to run consecutive to a sentence which defendant was already serving. On the unlawful possession conviction, the judge imposed a concurrent five-year term. We reverse, concluding that the replacement of a deliberating juror for non-personal reasons was plain error.
This is a summary of the evidence. On April 16, 2003, at approximately 11:00 p.m., Donald Sanders died of multiple gunshot wounds. The shooting took place at the 1300 block of Lakeshore Drive in Camden. Dr. Ian Hood, the Deputy Medical Examiner for Camden County, testified as an expert in forensic pathology and wound ballistics. Dr. Hood's examination revealed at least ten gunshot wounds, and more than twenty "superficial" wounds from fragments of bullets and/or concrete. Dr. Hood opined that there were several fatal gunshot wounds. One bullet entered the top of Sanders' head, entering his right frontal scalp, traveling through his skull and brain, and then exiting through his jaw. From the nature of this wound, with the bullet going almost straight down through Sanders' head, Dr. Hood concluded that the shooter must have been shooting down on Sanders, with the victim's head tilted forward toward the shooter.
Another bullet entered the top of Sanders' right shoulder and proceeded "down a long way," through Sanders' rib, lung, heart, diaphragm, stomach, several loops of the small bowel, ending in the front of Sanders' pelvis. From the bullet's downward trajectory, Dr. Hood concluded that Sanders must have been "bent right over at the waist and fired at by a shooter on much the same level as him."
A third bullet entered the bottom end of Sanders' right shoulder blade and traveled diagonally across his body, exiting out his left lower back, fracturing some of the spinous processes. Given the angles of the various wounds, Dr. Hood concluded that Sanders was shot, started to fall and was hit with the fatal bullets while falling. Sanders then fell to the ground. The shooting continued while Sanders was lying on the concrete sidewalk.
New Jersey State Police Lieutenant James Storey, of the ballistics unit, was qualified by the court as an expert in firearms identification. Based upon everything submitted to him, including bullets, fragments, metal jackets, and discharged shells, Storey concluded that at least two different firearms were involved. Storey testified that the eight .45 automatic caliber Speer shells were discharged from the same firearm, and that the nine .40 S&W caliber Winchester shells were discharged from the same firearm. No weapons were recovered. The police found $1,000 in cash in Sanders' pocket.
There were three eyewitnesses to the murder. Nieith Potter, an admitted drug dealer, had known defendant for ten years and was related to Sanders. Potter used to sell drugs with Sanders and had sold drugs every night in March and April 2003 in the 1300 block of Lakeshore Drive. According to Potter, defendant was also a drug dealer in that area. He described the 1300 block of Lakeshore Drive as a high narcotics trafficking area, where drugs were openly bought and sold. Two days before the murder, Potter saw Sanders in Camden for the first time in six years because Sanders had been incarcerated in New York. Potter told Sanders that he was operating on Lakeshore Drive. Potter told Sanders that, earlier in the day, he had a fight with a drug dealer nicknamed "Itchy" over money. Defendant intervened, stopped the fight, and told Potter to "stay off the block until [he] simmer[ed] down." Potter admitted being mad at defendant for stopping the fight.
About one hour before the murder, Potter called Sanders and agreed to meet in another area of Camden. Potter waited for about twenty minutes. When Sanders did not show up, Potter went to Lakeshore Drive. There he saw defendant standing with "Slick" and others. About ten minutes later, Sanders drove up. Potter spoke briefly with him. Sanders then crossed the street to where defendant was standing.
Sanders approached defendant and said he wanted to talk. They did so for five minutes while Potter and Slick were talking about eight feet away. Potter heard defendant start to scream at Sanders, "Nah, nigger, fuck that . . . ." Potter turned around and saw defendant stand right in front of Sanders and shoot repeatedly. After the third shot, Potter saw Sanders fall. Potter took off running from the area. While running, Potter met up with a relative who gave him a ride to his uncle's house in Lindenwold. Once in Lindenwold, Potter called 9-1-1.
Gerome DeShields knew defendant. He testified that, at the time of the shooting, he lived on the 1300 block of Lakeshore Drive with Sonji Carter. DeShields saw defendant selling drugs on Lakeshore Drive on a daily basis. The following exchange occurred during DeShields's direct examination:
[ASST. PROSECUTOR]: So you would see him on Lakeshore Drive?
Q: And what would he be doing?
A: Making traps, selling drugs.
Q: Okay. What do you mean -- if you could explain what making traps means for the jury.
A: He would have young people come out and sell and he would give it to them to sell and he would walk away and collect the money afterwards.
Q: Did you see that occur?
A: Yes, quite a few times.
On the afternoon of the murder, DeShields recalled hearing an argument between defendant and Sanders. Defendant told Sanders that he needed permission from defendant to sell drugs on that block and proceeded to call him a snitch. Shortly before 11:00 p.m., DeShields was in Carter's second-floor apartment. DeShields went to the open window overlooking the street as he heard "steady arguing down there." DeShields looked out and saw defendant arguing with someone he later learned was Sanders. As the argument grew louder, DeShields left the window to tell Carter, "[defendant] is out there acting crazy." As he was heading back to the window, he heard a shot. He looked out and saw defendant still shooting in the direction of the ground. Defendant continued to shoot at the ground as he was walking away. DeShields recalled hearing eleven shots fired "rapidly . . . right behind each other." DeShields testified that he was "100 percent" positive in his identification of defendant.
Carter had known defendant for thirteen years. She testified that she saw defendant almost everyday selling drugs in the 1300 block of Lakeshore Drive. At times, Carter would even hold defendant's drugs for him. On the afternoon of the murder, Carter recalled seeing defendant in the street at about 5:00 p.m., telling someone, who Carter later recognized as Sanders, that he needed defendant's permission to sell drugs on Lakeshore Drive.
Around 11:00 p.m., Carter was in her bedroom when DeShields called her to come to the window. Before she got up, she heard the first gunshot. In the seconds it took her to get to the living room window, she heard as many as six gunshots. She looked out and saw only defendant standing over a guy lying dead on the ground holding a bottle against his chest "as if he was drinking it." Defendant appeared to be putting a gun in his waistband. Carter watched as defendant turned, walked across the street to the end of Lakeshore Drive, and started running away.
Five days after the murder, Camden County Prosecutor's Sergeant Frank Falco, went to Deptford to interview defendant. Defendant agreed to talk to the police. He also consented to a search of the apartment where he was staying and of his vehicle, which was parked in front of the apartment building. Drugs were found in the vehicle. Defendant was not charged with possession of the drugs.
According to Falco, after receiving Miranda*fn2 warnings, defendant admitted that he had stopped by Lakeshore Drive the night of the murder, after dropping some friends off in Philadelphia. Defendant confirmed that he regularly drove his girlfriend's burgundy 1997 Buick Royal. He also acknowledged that he had seen Sanders on the corner. He shook Sanders' hand and spoke ...