On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, C.L. Miniman and King.
Defendant appeals from a judgment of conviction for first-degree murder, N.J.S.A. 2C:11-3 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three), imposing an aggregate sentence of sixty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). We affirm in all respects.
On July 19, 2003, at 10:48 p.m., Rahway Police Officers Ferrer and Seiden were dispatched to investigate a report of a dispute at Capobianco Plaza, a public housing development. Ferrer and Seiden proceeded to an apartment in Capobianco Plaza, where they met with Stacey York, who was nineteen years old at the time, and her fifteen-year-old sister, A.T., who had called in the dispute. The young women lived with their mother, Carla T., sisters L.T. and M.T., and brother E.T. Stacey and A.T. told Ferrer that K.W. and some other "kids" were banging on their door and challenging them to a fight. K.W. was thirteen years old and lived with her mother, Traniece, in Capobianco Plaza directly across the street from Carla and her family.
Ferrer then met with K.W., who claimed Carla's daughters had started the argument and the girls in the two families had been fighting since November 2002. Ferrer and Seiden advised both parties of their rights and left without filing charges.
Meanwhile, Stacey called Carla, who was attending a family reunion in Newark, and told her about the incident with K.W. Carla and her husband, Stacy T., who lived in East Orange, drove Carla's white Ford Explorer to a housing project in Newark, where they picked up defendant, Anthony Jordan, and Jamal Peoples. Defendant was Carla's brother and Jordan's uncle; Peoples was Jordan's cousin. Defendant was wearing a white shirt and gray or white pants.
Defendant, Jordan, and Peoples sat in the backseat of the Explorer. Jordan heard defendant say, "Somebody gonna get it"; he was "tired of this shit." He also heard defendant say he had "his shank and he's ready to shank somebody."*fn1 Carla and Stacy also heard defendant mention his knife during the ride to Rahway. Carla saw "what looked like a pocketknife." Stacy heard defendant say "[n]o one better f**k with my nieces and nephews, and if someone does I'm going to f**k them up. If I got to shank someone I will. I don't give a f**k."
At approximately 11:16 p.m., the Explorer pulled into the Capobianco Plaza parking lot just as Ferrer was leaving. Carla and Stacy exited the vehicle and walked to Carla's apartment. A few minutes later, the other three men, who had left the car for a bathroom stop, walked into Capobianco Plaza.
K.W., who was outside by a fence near Carla's apartment, heard Carla and Stacy call their daughters A.T., L.T., and Stacey, downstairs and tell them to "kill that bitch," while pointing at her. Monique, who was Traniece's sister, also heard Stacy tell A.T. to "come outside and kick [K.W.'s] ass." Carla, however, said neighbors attacked her as soon as she left the Explorer, and Stacy went to tell the girls to help "mommy." Stacy testified "[a]ll hell broke loose" after they left the car and he yelled for the girls to come downstairs because people were jumping on their mother.
At that point, A.T. jumped on K.W., knocked her down, and choked her. Other girls then joined in the fight. Monique and Carla began fighting, and later Monique saw Carla fighting Traniece. According to Stacy, the fighting involved only the women and girls. Jameel Swint, who lived across the street from Capobianco Plaza and was "like a brother" to K.W., went to help her. After Swint pulled A.T. off her, K.W. said a man placed his right foot on her chest. She testified in court the man resembled defendant, except defendant looked older and had changed during the intervening three years, "[l]ike his facial hair and stuff, or like his weight." Defendant told Swint to mind his business. Swint replied, "that is my business. That's my little sister." K.W. saw defendant "pull his hands from behind" and saw "a glare, like that, a metal piece, and [it] went right into [Swint's] stomach."
Manuel Johnson, who was at Capobianco Plaza that night visiting his girlfriend, testified he saw an individual wearing a white shirt and white pants, with his hair in "dreads," come out of a building and stab Swint. Johnson identified defendant in court as the person he saw stab Swint. Jordan heard Swint say, "You stabbed me" and "saw blood on his shirt, around his chest, and my Uncle [Clarence] by him with a knife in his hand." Stacey, on the other hand, saw defendant with a knife, but did not see him stab anyone.
Shantae Hill, who testified for the defense, saw a man with a knife that night and described him as "180, 195 pounds," wearing a white T-shirt with his hair in "short dreads" and a head-band. Although she told police his face would "always stick in my mind," she was unable to identify him in two police photographic arrays or in court. On cross-examination, however, Hill acknowledged she was probably "10, 12, 15 feet" away from him at the scene and did not get a look at his full face during the confusion.
Stacy saw defendant "fist fighting" with another man and two minutes later he heard Jordan yell, "Hey pop, we gotta go. Okay?" Defendant then said, "I shanked the mother f**ker. We got to hurry up and get the f**k out of here." Jordan asked Stacy for the keys to the Explorer, drove defendant and Peoples to Newark, and dropped the car at a commercial garage owned by Clarence York, Sr., who was defendant's father and Jordan's grandfather. Jordan told his grandfather about the fight and gave him the car keys.
After the stabbing, K.W. got up, saw "a lot of people around," and noticed a man--whom she later identified in a photo array as Jordan--standing nearby. She saw Jordan strike her mother Traniece with a metal baseball bat, after which someone else picked up the bat and hit her in the head. K.W. suffered a fractured skull and a laceration, which required stitches. While Monique was waiting for the ambulance to arrive, she saw a body lying on the ground, and recognized Swint with blood on his white T-shirt. She noticed the Explorer was gone.
At approximately 11:20 p.m., Ferrer received a second dispatch to return to Capobianco Plaza to investigate a disturbance. Upon arrival, he saw a crowd of approximately twenty-five people dispersing over the parking lot and into all areas of the apartment complex. Seiden was there, along with three or four other patrol cars. As Ferrer got out of his car, people ran towards him saying someone was hurt. He saw K.W. near her apartment, crying and bleeding from a gash on her forehead. Seiden stayed with K.W., and Ferrer went to investigate a report of a stabbing. Ferrer found a black male in his early twenties lying motionless on the ground with "a lot of blood on his shirt, and also on the grass underneath him." An ambulance transported Swint to the hospital, where he died. An autopsy determined that his death resulted from a stab wound to the chest and abdomen.
After receiving information about a vehicle of interest, Ferrer sent a radio dispatch to headquarters regarding a white Explorer with New Jersey license plate NWN-39B registered to Carla. Ferrer searched the area but did not find any weapon. The police also reviewed a video surveillance of the area, which showed the Explorer entering and leaving the Capobianco Plaza parking lot at the relevant time.
That evening, Sergeant Marcantonio was the on-call detective in the homicide unit of the Union County Prosecutor's Office when it received notification from the Rahway Police Department about the homicide. Marcantonio arrived at Capobianco Plaza at approximately 12:30 a.m. on the morning of July 20, 2003, where he met Rahway Detective Stefanick. Marcantonio proceeded to interview witnesses at the scene.
The police arrested Stacy at the scene and later charged him with obstruction of justice. After his release the next morning, Stacy and Carla met defendant in Newark. Carla thought defendant was "shocked" and "looked like he was going to faint and throw up" after Stacy told him someone had died. Stacy related defendant said, "Oh shit, I didn't mean to do that, but they came at us." All three talked about what they would say to the police and agreed to tell them defendant, Jordan, and Peoples were never at Capobianco Plaza that night.
At about 3:00 a.m. on July 20, 2003, Bernard Sasser and Anguel Knight asked Michael York for a ride home. York, who was defendant's nephew, got the Explorer from his grandfather's garage. At approximately 4:30 a.m., Officer Cockinos of the Elizabeth Police Department was operating a marked patrol unit when he received a radio transmission to look for a white Explorer heading south into Elizabeth from Newark. Cockinos observed the vehicle, with no occupants, parked in front of Hollywood Chicken, a fast-food restaurant. A black male, later identified as Knight, walked out of the restaurant towards the Explorer where Cockinos and his partner, Officer Leonard, detained him. A few seconds later, Sasser and York left the restaurant and were detained. The men were taken to Rahway police headquarters where Marcantonio and Stefanick took their statements. Knight said he heard defendant and Jordan talking about the fight when he and York picked up the Explorer, and heard defendant say he stabbed a "guy" and hoped he did not die.
Also on July 20, 2003, Stacy gave his first statement at the Rahway Police Department. Two days later, Carla gave her first statement to the police. They both told the police and the prosecutor's detectives that defendant, Jordan, and Peoples were not in Rahway on the night of the fight.
On July 22, 2003, Jordan and York, Sr., went to the Roselle Police Department where Jordan offered to speak with officers. Rahway police officers drove Jordan from Roselle to the Prosecutor's Office where he met with Marcantonio and Stefanick. Before taking his statement, the detectives talked with him for a "little over an hour." Although Marcantonio and Stefanick did not consider Jordan a suspect, they advised him of his Miranda*fn2 rights prior to the interview because of his potential involvement. After giving his statement, Jordan reviewed and signed it. Also on July 22, 2003, Peoples gave a statement at the prosecutor's office.
On July 24, 2003, Marcantonio and Stefanick reinterviewed Carla and Stacy after telling them they had new information about the case, taking second statements from each of them. A secretary employed by the prosecutor's office was present to type their statements.
After admitting she had lied in her first statement, Carla described the car ride from Newark to Rahway with defendant, Jordan, and Peoples. She also described the fighting at Capobianco Plaza and her subsequent meeting with defendant. Stacy also admitted he did not initially tell the complete truth because he was trying to protect family members, including defendant, Jordan, and Peoples. In his second statement, Stacy essentially corroborated his wife's revised version of events. Defendant was arrested on August 8, 2003.
On January 4, 2006, the judge entered a material witness order under the Material Witness Statute, N.J.S.A. 2C:104-3, and Rule 3:26-3(c) directing Carla to appear at a hearing. At the hearing on January 9, 2006, the judge found probable cause to believe she was a material witness and ordered her to appear for trial. Between January 11 and 20, 2006, the case was tried before a judge and jury.
At trial, several witnesses gave testimony that was inconsistent with their prior written statements. For example, Jordan denied hearing defendant say anything in the backseat of the Explorer during the trip to Rahway. He also did not remember seeing defendant standing near the victim during the fight. Instead, he testified he only saw his aunt and cousins fighting.
Carla also recanted portions of her second statement, claiming she did not hear defendant talking in the Explorer about a knife and did not see one in his hand. She denied seeing defendant during the fight, or getting a call from him later that night asking if someone had died.
While Stacy recalled conversations in the car, he similarly testified at trial he never heard defendant mention a knife or say he was going to "shank someone." He also denied seeing any fighting by defendant or hearing any admission of guilt. During cross-examination, Stacy admitted he did not want to testify.
Unlike Jordan, Carla, and Stacy, Knight did not deny his prior statements but, instead, said he had been drinking and taking drugs and did not know if he was in the "right state of mind" when he gave his statement. Knight did not recall telling detectives he overheard defendant and Jordan talk about a fight or defendant say he stabbed "a guy" and hoped the individual did not die. Defendant did not testify.
On January 20, 2006, the jury returned a verdict convicting defendant on all three counts. At sentencing on March 17, 2006, the judge merged count three (unlawful possession) into count two (possession for an unlawful purpose). The judge then sentenced defendant as follows: on count one, to sixty years in state prison with a thirty-year period of parole ineligibility, subject an eighty-five percent NERA disqualifier; and on count two, to five years in prison with a thirty-month period of parole ...