On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 2, 2008
Before Judges Cuff, C.L. Miniman and Baxter.
A jury found defendant Wayne Parker guilty of two counts of first degree kidnapping, N.J.S.A. 2C:13-1b(1) (Counts One and Three); two counts of third degree criminal restraint, N.J.S.A. 2C:13-2a (Counts Two and Four); one count of first degree robbery, N.J.S.A. 2C:15-1a(1) (Count Seven); one count of second degree robbery, N.J.S.A. 2C:15-1a(1) (Count Nine); one count of first degree conspiracy, N.J.S.A. 2C:5-2 (Count Ten); one count of second degree burglary, N.J.S.A. 2C:18-2 (Count Eleven); one count of second degree conspiracy, N.J.S.A. 2C:5-2 (Count Twelve); two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts Thirteen and Fourteen); and one count of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Count Fifteen).
At sentencing, after granting the State's motion for imposition of a discretionary extended term, the judge merged Count Two with Count One and imposed a life term of imprisonment subject to a NERA*fn1 parole ineligibility term. The judge merged Count Four with Count Three and imposed a thirty-year term of imprisonment subject to a NERA parole ineligibility term. After merging Count Ten with Count Seven, the judge imposed a twenty-year term of imprisonment subject to a NERA parole ineligibility term. On Count Nine, the judge imposed a ten-year term of imprisonment subject to a NERA parole ineligibility term. Count Twelve merged with Count Eleven and the judge imposed a ten-year term of imprisonment subject to a three-year period of parole ineligibility. Count Fifteen merged with Count Fourteen and the judge imposed a ten-year term of imprisonment with a three-year term of parole ineligibility. All terms are to be served concurrent to the sentence imposed on Count One. The appropriate fees, assessments and restitution were also imposed.
Between 1:30 and 2:00 a.m. on September 8, 2003, Anthony and Carolyn Young, ages 81 and 80, respectively, were awakened in their Vineland home by two masked intruders who entered their bedroom, bound them and covered their eyes. At the time, Mr. Young was confined to a wheelchair as a result of a previous injury.
One of the assailants, later identified as Keith Kenion,*fn2 placed a hood over Mr. Young's face, bound his hands, and hit him on the side of his head with a piece of ceramic fruit. Co-defendant Kenion struck Mr. Young in the left eye and cheek with another piece of ceramic fruit. Then, he dragged Mr. Young towards the window, stopped, and asked him where he kept his coin collection. All the while Mr. Young could hear his wife's moans and other expressions of pain as she was bound and struck by the other intruder.
Another intruder, identified by Mrs. Young as defendant Wayne Parker, forcibly led her downstairs. Defendant was the son of Thurman Parker, a recently evicted tenant of a house owned by the Youngs and located next to their house. According to Mrs. Young, Parker repeatedly struck her on the head and face, placed duct tape over her eyes, and led her to the Youngs' safe on the first floor of the house. When instructed to open the safe, Mrs. Young responded that she needed her glasses. After several trips up and down the stairs, her glasses were located and she proceeded to open the safe. Once opened, defendant led Mrs. Young into another room to retrieve the key to open interior drawers in the safe.
Mrs. Young opened the drawers and asked defendant for a glass of water. Defendant led her to the kitchen and gave her a glass of water. When she requested to use the bathroom, he told her to urinate on the floor and she did so. At that time, defendant instructed her to kneel and perform oral sex.*fn3 When she did as instructed, he led her to a couch and placed pillows on top of her head, causing her to feel like she would suffocate. Meanwhile, Mrs. Young heard the intruders rummaging through her house.
At some point, the Youngs' doorbell rang, which caused the intruders to run out of the house. Before leaving, defendant bound Mrs. Young with ripped clothing. One of the other intruders hit Mrs. Young on her rear as they fled.
After a while, Mrs. Young loosened her bonds and returned upstairs to Mr. Young. She found her husband unresponsive and feared he was dead. She used scissors to free him from his tape restraints, helped him to another room, and instructed him to use his breathing machine. Then she dialed 9-1-1.
At approximately 3:00 a.m. on the night of the intrusion, Dorothy Nelson, a newspaper delivery driver, pulled into the Youngs' U-shaped driveway to deliver their morning newspaper. She was unable to drive to the porch because a beige Honda was parked by the porch. As she waited, Nelson observed the vehicle backing up and then heard a crash which sounded like breaking glass. Next, she saw two men jump from the hedges next to the Youngs' home and enter the car on the passenger side before the driver of the vehicle drove out of the driveway. As Nelson dropped off the Youngs' newspaper, she observed that their porch door was slightly ajar.
At approximately 3:15 a.m., the Vineland Police Department dispatched Officer Steven Triantos to the Youngs' residence. He and Sergeant John Lauria were the first individuals to arrive at the scene and were met at the kitchen door by Mrs. Young. Triantos observed that the door was broken off the frame and hinges. Mrs. Young was very upset and visibly shaken. Triantos noticed that the elderly woman had a laceration to her lip and a bloody nose. Mrs. Young told the officers that her husband had been beaten and he was upstairs in the bedroom.
On the way upstairs to the bedroom, Officer Triantos noticed that the house had been ransacked. He spoke briefly with Mr. Young, who was having difficulty speaking; the elderly gentleman's face was swollen and he appeared to be in pain.
Subsequently, police recovered evidence outside the Youngs' home. EMS personnel gave Triantos the duct tape which had been used by the intruders to cover Mrs. Young's face.
Detective Christopher Brunetta interviewed Mrs. Young at the hospital for approximately one and one-half hours while she was treated for her injuries.*fn4 Brunetta observed that the woman had suffered multiple injuries and that she appeared shaken and scared. Mrs. Young provided Brunetta with physical descriptions of three individuals who committed the crimes against her and her husband. In addition, she informed the officer that she thought her neighbor and former tenant, Thurman Parker, was involved in the break-in and that he had a son, Wayne. Although Mrs. Young initially stated that there were two assailants in her home, she later told Detective Brunetta that there were three.
By September 12, 2003, based upon information received, police sought two suspects in the home invasion, Wayne Parker and John Palmer. Detectives Scott Collins and Steve O'Neill of the Vineland Police Department conducted an interview with Lena Bricker, grandmother of Parker's girlfriend, Lena Wilson. Thereafter, Collins and O'Neill traveled to Cumberland County College to locate Wilson, who was transported to police headquarters for an interview.
After meeting with Wilson, the police executed a search warrant on her automobile. Inside the vehicle, police discovered a mirrored serving tray which belonged to the Youngs. A search warrant executed at Wilson's home recovered coins belonging to the Youngs.
The next step in the investigation led police to the home of Thurman Parker, where Wayne Parker also resided. There, the officers executed a search warrant and recovered proceeds from the burglary in the bedroom used by Wayne Parker.
During the search of the Parker residence, Sergeant Vincent Solazzo observed a blue Honda Civic automobile driven by John Palmer pass the Parker residence. Solazzo noticed two other individuals riding with Palmer. After the car drove by a second time, Solazzo and Detective Francine Webb followed the vehicle and instructed a marked patrol vehicle to perform a motor vehicle stop of Palmer's car.
Solazzo approached the front passenger-side door, ordered Parker to exit the vehicle, and noticed co-defendant Kenion in the backseat. Initially, Parker was uncooperative and appeared ready to flee. Solazzo observed Parker throw a coin book to the ground as he exited the vehicle. In addition, the officer recovered a fabric bag containing coins from Parker's pocket.
Solazzo also identified the driver of the vehicle as John Palmer.
Webb removed Palmer from the vehicle, handcuffed and performed a pat-down search, and ordered him to the ground. In Palmer's back pocket, she discovered a coin enclosed in a glass case.
Once Palmer was secured and searched, Webb proceeded to remove Kenion from the vehicle. The detective performed a visual inspection of the back seat for weapons and noticed a bag on the floor from which several two-dollar bills and coins had spilled. In addition, Webb observed a paper money guide and a coin book on the seat next to the one occupied by Kenion.
Patrolman Kirchner performed a pat-down search of Kenion. Kirchner recovered a roll of money containing thirty-eight two-dollar bills from Kenion's right front pants pocket. Thereafter, Kirchner transported him to police headquarters. Palmer and Parker were also transported for questioning.
At the station, Palmer signed a consent form to search his car. Numerous coins, jewelry and books on coin values were recovered from the vehicle, as was a woman's vanity with the initials "CGM."
Detectives Collins and Webb interviewed Palmer, after which he provided a handwritten statement of the events which occurred in the early morning of September 8, 2003. Next, Palmer took the police to Parker's aunt's house, where they recovered a plastic storage container which held various items stolen from the Youngs' home. In addition, Palmer accompanied the police to an auto parts store where he claimed Kenion discarded sneakers worn during the burglary. From the store's dumpster, police recovered a pair of sneakers which contained carpet fibers matching the uncommon carpet fibers found at the Youngs' home.
Two months after his initial interview and handwritten statement to Detectives Collins and Webb, Palmer provided a second interview with Collins and submitted two additional recorded statements. Following their interview with Palmer, Detectives Collins and Shane Harris interviewed Parker, who provided a recorded statement to the detectives.
Kenion also provided a recorded statement to Detectives Webb and Ed Ramos. In his statement, Kenion admitted participating in the home invasion, binding Mr. and Mrs. Young, and stealing items from the residence. He denied ever striking either of the victims.
When the three suspects were transported to the Cumberland County jail, they were placed in the same holding cell. While there, Kenion attempted to attack Palmer, but was restrained by Parker.
Subsequently, Palmer negotiated a plea agreement with the State whereby he pled guilty to two counts of first degree robbery with a ten to twenty-year period of incarceration on each count, to run concurrently, subject to an 85% period of parole ineligibility under NERA, in addition to a five-year period of parole supervision. All other charges against Palmer were dismissed pursuant to the plea agreement.
At trial, Palmer testified on behalf of the State. Palmer testified that he received a call from Parker to come to Vineland. He drove to Vineland in his girlfriend's gold or light brown 2002 Honda with the intention of smoking marijuana with Parker and helping him move some things from the house Parker used to occupy with his father. When he arrived, he met Parker's cousin from North Carolina, co-defendant Keith Kenion.
The trio purchased marijuana and Palmer drove to a 7-11 where Parker bought blunts and duct tape. After they smoked the marijuana, Palmer took Parker and Kenion to Parker's former house and left them there. About an hour later, Palmer received a call from Parker. He noted that Parker seemed rushed and excited. Palmer drove directly to the former Parker house. When he arrived, he noticed Parker gesturing to him from the porch of the Youngs' house. He drove the car into the Youngs' driveway, parked it, and Parker started to hand him bags.
When he first entered the Youngs' house, Palmer noticed that it had been ransacked. He observed a broken door frame. Kenion was rummaging through the safe. Parker was running around gathering various items and placing them in bags. Kenion was wearing a mask over his face; Parker wore a mask only partially covering his face. Parker gave bags to Palmer and he took them to the car.
When he entered the house the second time, Palmer noticed Mrs. Young bound and gagged on the couch. As items were being placed in bags, Parker thought he heard an alarm. Mrs. Young testified that it sounded like the doorbell. At this sound, Parker, Palmer, and Kenion picked up their pace. They grabbed bags and rushed from the house into the waiting car. Palmer drove away but returned when Parker realized that he left his cell phone in the house. Parker re-entered the house and grabbed additional bags. The newspaper delivery woman observed the second departure from the Youngs' house.
Palmer drove the men to Parker's girlfriend's home. During the ride, Kenion discarded his mask and gloves. After they arrived at Parker's girlfriend's home, the three men carried bags of stolen property into the residence. Once inside, Parker and his girlfriend began to argue. Thereafter, Palmer and Parker's girlfriend left to get something to eat at Wawa, before returning to her home. Kenion and defendant remained at the girlfriend's home. On his return, Palmer noticed that Kenion and defendant had changed clothes and discarded their clothing in a trash bag, which was later disposed of in a dumpster. While in the home, Palmer also noticed many of the stolen items from the Youngs' home, including old coins, coins wrapped in plastic, two-dollar bills, liquor, and jewelry. In addition, he observed an old wooden record player with a large horn on top.
Palmer testified that he went along with the robbery because he was afraid he would end up tied up on the couch like Mrs. Young if he did not. In addition, he thought that by keeping quiet, he would be rewarded.
The next morning, Palmer drove himself, Parker and Kenion to the Cumberland Mall to purchase a book about coins to determine the value of those stolen from the Youngs. Palmer purchased two coin books at the mall and Kenion bought a new pair of sneakers. One of the coin books, in addition to a book given to the three men by a South Street vendor in Philadelphia, was recovered by police inside Palmer's vehicle on the day the three men were arrested. Palmer then dropped off Kenion and defendant at Parker's girlfriend's home and went to his girlfriend's apartment. Subsequently, Palmer purchased two additional coin and currency books at the Deptford Mall.
At some point, Palmer returned to Vineland to drive Kenion and Parker to a store in Richland to sell some of the stolen jewelry. Once in Richland, Kenion and Parker went into a store called Antique Depot and "g[o]t rid of some of the watches [and] . . . pocket watches," while Palmer waited in the car. From there, Palmer drove to Parker's home.
Carolyn Bailey, owner of Antique Depot, testified that Parker and Kenion came into her store in September 2003, seeking to sell several items that were later determined to have been stolen from the Youngs' residence. Bailey explained that she was familiar with Parker prior to that occasion. Bailey agreed to purchase some of the items from the two men, however, she did not have cash to pay them on the spot; nonetheless, they left the merchandise with her.
Approximately two to three days after Parker and Kenion visited Antique Depot, a police officer stopped by the store and discussed the robbery with Bailey. Following their conversation, Bailey turned over the items left by the two men. In addition, Bailey identified Parker and Kenion from photographs provided by the officer as the two individuals who had come into her store seeking to unload the stolen merchandise.
On September 16, 2003, Palmer drove Parker and Kenion to Jeweler's Row and South Street in Philadelphia in a further attempt to sell the stolen items. A vendor on South Street agreed to purchase some of the merchandise and the three men returned to New Jersey to retrieve additional items. Once the stolen items were retrieved, Palmer drove the men to Parker's parent's residence. At this time, they observed what they believed to be unmarked police vehicles in front of the home. At Parker's instruction, Palmer drove around the block. While doing so, Parker telephoned his parents but no one answered. When making a second pass in front of the residence, the men were recognized by a detective and subsequently pulled over by a marked patrol unit.
On appeal, defendant raises the ...