On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-1782-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Ashrafi.
Defendant Eduardo McLaughlin appeals his conviction for felony murder, robbery, and related charges. He contends the trial court committed reversible error in admitting hearsay statements of a co-conspirator. Although we agree that the disputed statements were not admissible under the hearsay exception for co-conspirator statements, we conclude that the admission of one hearsay statement was not plain error and that the remaining statements were admissible under a different hearsay exception.
Defendant also contends that the trial court committed plain error in its instructions to the jury on accomplice liability. We find no reversible error in the jury instructions.
We affirm defendant's convictions.
On the night of June 3, 2004, police in Camden found a Mazda van burning in a wooded area. Through the license number, they contacted the owner, who told them that her brother, Thong Hyunh, 20, had borrowed the van earlier that day. She was unable to contact Thong by cell phone. Six days later, Thong's decomposed body was found in brush near a highway in Camden.
Within days, the State identified Miguel Serrano as a suspect and arrested him. About three weeks after the murder, defendant Eduardo McLaughlin, along with his older brother, Pablo McLaughlin, were also arrested and charged. Defendant was a close friend of Miguel Serrano and an acquaintance of the victim.
On June 24, 2004, the police obtained a recorded confession from Pablo in which he named Miguel, defendant, and himself as the persons who committed the murder in the course of a robbery. Later, the State entered into a plea agreement with Pablo by which he agreed to cooperate and testify in exchange for a plea of guilty to robbery and a sentence of eighteen years in prison with eighty-five percent to be served before parole.
A grand jury charged all three men with purposeful murder, in violation of N.J.S.A. 2C:11-3a(1); felony murder, in violation of N.J.S.A. 2C:11-3a(3); first-degree robbery, in violation of N.J.S.A. 2C:15-1; aggravated arson, in violation of N.J.S.A. 2C:17-1a(2); second-degree burglary, in violation of N.J.S.A. 2C:18-2; two counts of hindering apprehension, in violation of N.J.S.A. 2C:29-3b(1); and conspiracy, in violation of N.J.S.A. 2C:5-2. Defendant was tried separately over nine days in July 2006. The State presented evidence to establish the following facts.
On June 3, 2004, the victim Thong drove to Philadelphia in his sister's van to cash checks at a check cashing store. He was doing this task in place of his older brother, who cashed between $10,000 and $30,000 in checks each week at the same check cashing store. On June 3rd, Thong left the store sometime before 2:00 p.m. with about $17,000 in cash.
Defendant and Thong had known each other in school and had resumed contact recently. Thong's cell phone records revealed calls on various dates to and from a cell phone belonging to defendant's mother and used by defendant. Several calls had occurred the night before and on the morning of June 3rd, with the last call occurring at 11:30 a.m. When questioned several days after the crimes, defendant said he was supposed to meet Thong for drinks on June 3rd but Thong had not called him as planned.
In his recorded statement to the police, Pablo said that Miguel, defendant, and he had discussed committing the robbery and killing of Thong for about a week before the date it happened. Defendant and Miguel knew Thong would be carrying a large amount of cash. Defendant brought Thong to Pablo's house on the afternoon of June 3rd. Pablo and Miguel were already there. Thong and defendant sat at a table counting cash when a struggle ensued. Miguel held a pillow over Thong's face while defendant held him down and took cash from his hands as Thong was struggling and screaming. After Thong stopped moving, defendant and Miguel carried him into the basement, where they wrapped duct tape around his face, neck, legs, and arms and wrapped his body in sheets. After Thong was placed in the basement, defendant borrowed Pablo's car to go buy an all terrain vehicle, an ATV. Later, defendant and Miguel left to dispose of Thong's van. They came back together on an ATV carrying a small gasoline can, and Pablo saw burn marks on defendant and Miguel. Sometime that night, defendant and Miguel moved Thong's body out of Pablo's house. According to Pablo, Miguel took about $10,000 and defendant about $6,000. Pablo denied getting any money himself.
At trial, Pablo recanted parts of his statement, claiming he had lied to police to protect himself because the police had told him that either Miguel or defendant had made statements that he was the one primarily responsible. He later learned that his brother, the defendant, had not confessed or implicated him. In his trial testimony, Pablo said that Thong had come alone to his house and that defendant was not there. After his recantation on the witness stand, Pablo's recorded statement was played for the jury.
Pablo's statement was supported in part by the testimony of his fiancée, Michele Rivera. She testified that she lived with Pablo. In June 2004, she came downstairs out of the shower when she heard people fighting, but she did not see who was fighting. Pablo ordered her to leave, and she went back upstairs. She also said she did not know whether defendant was there.
Ervin Gonzalez, a close friend of Pablo who was facing drug charges at the time, also testified pursuant to a plea agreement. He said that he knew defendant and occasionally socialized with him as well as Pablo. He testified that defendant and Miguel had attempted to enlist his help in robbing a "Chinese guy" who carried a lot of money. They offered him a couple of thousand dollars. He was interested until he heard that they would have to kill the victim because he was acquainted with defendant. At that point, Gonzalez backed out.
Gonzalez also testified that Michele Rivera had told him after Pablo's arrest that defendant, Miguel, Pablo, and the "Chinese guy" were in her home the day she heard the fighting. Concerning his plea agreement, Gonzalez testified that he had been facing a prison term of up to ten years on drug charges and that he received a sentence of probation and 364 days house arrest in exchange for his cooperation. He admitted that he was testifying for his own benefit.
Gonzalez's testimony was supported by Camden County Senior Investigator Martin Wolf, who testified that Miguel's girlfriend, Jessica Pabon, told him that Miguel had told her that he and defendant had approached Gonzalez about the robbery. At trial, the defense did not object to this brief testimony from Investigator Wolf, but defendant raises it on this appeal as a ground for reversal because it was inadmissible hearsay.
Jessica Pabon also testified at the trial. She said that she lived with Miguel and they had a child together. Defendant was Miguel's friend and often stayed at their house. Sometime before the homicide, Miguel told her that he and defendant were "planning on robbing an oriental young man" because he would be "an easy target." On one morning, Miguel told her that he and defendant were going to observe the movements of the victim. Defendant objected to the part of this testimony from Pabon that included reference to defendant. The court overruled the objection, agreeing with the prosecutor that it was admissible under the hearsay rules as statements of a co-conspirator.
The State presented additional circumstantial evidence linking defendant, Pablo, and Miguel to Thong's robbery and murder. A witness observed three men in vehicles matching general descriptions of those owned by defendant and Michele Rivera drive without lights onto her street on the night of June 3, 2004. Two of the men got out, opened the trunk of one vehicle, and dumped what appeared to be a body on the side of a highway in Camden. The witness went out the next morning and saw that it was a body with duct tape and sheets wrapped around it, but she did not report her discovery to the police for siX days because she did not want to be involved and become a witness. Eventually a friend convinced her to call the police because the body had still not been discovered by others.
Another witness testified that on the afternoon of June 3rd Miguel bought a used ATV from her paying $1,000 in cash and taking over the remaining payments. She also testified that defendant was at her house with Miguel for about an hour when he bought the ATV.
A witness who lived with her family in two abandoned school busses in the woods observed a van followed by an ATV drive into the woods where the Mazda van was found burning. Five minutes later, the witness saw smoke coming from that area of the woods. She did not see either of the two men driving the van and ATV well enough to be able to identify them.
The State presented testimony from a detective that he found a bracelet in a basket in Miguel Serrano and Jessica Pabon's residence. Thong's sister identified the bracelet as belonging to Thong. In her testimony, Jessica Pabon denied that Miguel was ever in possession of the bracelet, but she said that she had seen defendant with it.
A search of Miguel's mother's home turned up $1,000 in cash in $100 bills hidden in a shoe box in the attic. Miguel's sister said that the money was his. The sister and other witnesses testified that defendant and Miguel made several large purchases shortly after June 3rd. Defendant bought a used Honda Accord, a DVD player, a television, and a cell phone. In addition to the ATV, Miguel bought a television and some new clothes.
Miguel's teenage sister testified that she had become friendly with defendant and talked to him regularly on the phone or in person. Defendant had introduced her to Thong on one occasion and she had seen Thong a few other times with defendant. When she heard news reports that Thong was missing, she mentioned it to defendant, and he told her never to talk about it again. She asked him why, and he said he could not tell her.
The jury deliberated for two and a half days. After asking for further instructions on accomplice liability several times, the jury convicted defendant of aggravated manslaughter as a lesser included offense of murder, felony murder, robbery, hindering apprehension, and conspiracy. It acquitted him of purposeful murder and aggravated arson. The burglary charge had previously been dismissed by the judge.
At sentencing, the judge merged the aggravated manslaughter, robbery, and conspiracy charges into felony murder and sentenced defendant to forty years in prison with eighty- five percent to be served before parole. He also sentenced defendant to four years in prison on each of the two hindering charges to run concurrently with each other but consecutively to the forty year sentence.
Defendant contends that the trial court erred in admitting over defense objection testimony of Jessica Pabon about Miguel Serrano's statements to her. Pabon testified as follows:
Q: (Prosecutor): Did Miguel ever speak to you regarding a robbery that he was involved in planning in June of 2004?
Q: Who was the victim? Who was --who was he planning to rob?
A: They were planning on robbing an oriental young man.
Q: Okay. Why -- why were they planning on robbing that specific person? A: Because supposedly he would have been an easy target.
Q: Did Miguel tell you who - was he planning this robbery with someone else?
DEFENSE COUNSEL: Objection, your Honor.
PROSECUTOR: It's a statement of a co-conspirator and they are free to call him.
DEFENSE COUNSEL: Well, it's a - it can be used for whatever the co-conspirator said, not who else he was going to do it with.
PROSECUTOR: It's also a statement of ...