On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-122.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa, Baxter and Alvarez.
Following a ten-day jury trial, defendant Maurice Turner was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); and first-degree robbery, N.J.S.A. 2C:15-1 (count four).*fn1 After merging count two with count one, Judge Delehey imposed a sentence of life imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA),*fn2 and imposed a concurrent twenty-year sentence, subject to NERA, on count four.
We reject defendant's claim that: portions of a detective's testimony included inadmissible hearsay; the prosecutor's summation improperly relied on facts not in evidence and usurped the function of the jury; the jury charge on theft incorporated facts not in evidence; the written outline of the elements of the offenses, which was distributed to the jury, arranged the crimes in a sequence that emphasized the most serious charges, thereby increasing the likelihood of conviction; trial counsel provided ineffective assistance by failing to move for a new trial; and the sentence imposed was excessive, especially when compared to the sentence imposed on a co-defendant who was convicted of felony murder and robbery. We affirm.
In the early morning hours of May 24, 2003, a 9-1-1 dispatcher for the City of Trenton received a call describing an assault in progress. Upon arrival, police entered through the unlocked front door and observed a large blood stain on a wall in the front room and leading up the stairway. On the second floor, officers found a woman, later identified as co-defendant Karla Freeman, seated on a bed, crying and upset, covered in blood and holding a telephone. Freeman directed the officers to the rear of the residence, where they observed blood-soaked clothing on the floor and blood on the walls. In the bathroom, they found a male lying face down in a pool of blood. The male, later identified as William Goldware, was clothed only his underwear. The glass in the bedroom window was shattered and shades covered in blood were protruding through the shattered glass.
Detective Timothy Thomas testified that the bedroom was in a state of disarray, showing signs of a considerable struggle. Thomas recovered two cell phones on the floor, one of which was determined to belong to Freeman. The other was registered to one Kandis Queen, defendant's girlfriend, but was used by defendant and bore a sticker reading "Young Reese."
Observing Freeman, Thomas concluded that her depiction of an unknown intruder forcing his way into the residence did not comport with the evidence at the scene because there was no sign of forced entry and Freeman herself was covered in blood even though she claimed not to have been involved in any way in the incident. Police photographed Freeman's hands after observing two broken fingernails, dried blood on her fingers and palms and a bite mark on her back. Police processed the scene for fingerprints and took samples of blood from numerous locations throughout the house.
Three days after the murder, as part of the investigation, police stopped an Infiniti Q45 driven by Queen, who was wanted on an outstanding arrest warrant. Queen lived with defendant. In an informal statement provided to police, Queen stated she was the owner of the car, as well as the silver cell phone, which she had lent to defendant hours before the murder and which was recovered at the scene. She testified that defendant left their shared apartment at 8:00 p.m. on the night before the murder, taking the Infiniti Q45 and the silver cell phone with him, and did not return for five or six hours.
A custodian of records for Sprint-Nextel testified that on the morning of the murder, between approximately 1:30 a.m. and 2:18 a.m., eleven phone calls were exchanged between Goldware and Freeman, and five phone calls were exchanged between Freeman and the cell phone Queen loaned to defendant. The testimony from the Sprint-Nextel representative established that both defendant and Goldware were on the phone with Freeman at the same time on the morning of the murder.
In the early morning hours of May 27, 2003, police executed a search warrant for the apartment Queen and defendant shared, and located a black t-shirt in the back of the closet. Close analysis of the t-shirt showed a blood stain on the back of the shirt near the bottom hem. Later that morning, police arrested defendant and observed lacerations on his arms.
The State produced the testimony of a forensic scientist, who offered expert opinion on the blood stains recovered from defendant's t-shirt, throughout Freeman's home and from the gas pedal of the Infiniti. The expert opined that, to a reasonable degree of scientific certainty, the blood recovered from defendant's t-shirt belonged to Goldware. He also opined that the blood recovered from the gas pedal of the Infiniti driven by defendant likewise belonged to Goldware. Defendant was identified as the source of the blood recovered from the Infiniti steering wheel and dashboard, as well as the blood found on the front door, the top of the stairwell and the bathroom doorknob of the crime scene.
A deputy medical examiner testified that an external examination of Goldware's head and cheek bone showed numerous contusions consistent with a beating, as well as twenty-four stab wounds on his upper extremities, chest, back and armpit. He opined that the stab wounds, particularly to Goldware's lungs and heart, were the cause of his death.
The State did not call Freeman as a witness at trial, and consequently the taped statements she had provided to police implicating defendant were not presented to the jury. During Thomas's testimony, he was asked on cross-examination why he did not believe Goldware had been involved in a struggle in the bathroom of Freeman's home, to which Thomas replied:
[THOMAS:] I believe the struggle, most of the struggle happened in that back part of the bedroom area, because of the blood, the damage to the walls and the cell phone recovery and the ironing board.
[THE DEFENSE:] And that certainly explains why there was blood throughout the entire bathroom, is that correct?
[THOMAS:] That's where he went into. He closed the door and started bleeding, and [defendant] was trying to get in. He kept bleeding. [Defendant] was trying to get in, and that's where he lost most of his blood.
[THE DEFENSE:] That's your theory, huh?
[THOMAS:] That's the information I have, yes. [(Emphasis added).]
Defendant did not object to the "that's-the-information-I-have" remark.
The next day, defendant moved for a mistrial, arguing that Thomas's testimony was taken "almost verbatim" from the statements Freeman provided to police. Judge Delehey denied the motion, reasoning that because the defense asked Thomas for "his theory about what happened," defendant had essentially opened the door to the complained-of testimony. The judge also concluded there was no prejudice because the jury was unaware that Thomas's testimony conformed to one of Freeman's statements. Finally, the judge ruled that there was sufficient scientific evidence in the record to support Thomas's theory.
During cross-examination, Thomas was also asked why the drawer in the kitchen, from which the knife was presumably taken, had not been sent to the crime lab for fingerprint analysis. Thomas began his response by stating, "Because [defendant] was a frequent visitor to that house, and --." The defense then objected, cutting off the balance of Thomas's answer. At sidebar, the State withdrew the question. Once the sidebar discussion was concluded, the judge instructed the jury that "[t]he question is withdrawn," after which the State asked a different question. Defendant did not seek a curative instruction.
In summation, among other arguments, the State maintained that defendant's blood was found on the doorknob of the bathroom because defendant was injured in the struggle, and that his blood was on the doorknob because he tried to prevent Goldware from leaving. The prosecutor argued, "[a]n injured [defendant] tries to open the door or he tries to hold the door shut preventing . . . Goldware from leaving. Either way it still explains how his DNA gets on the exterior doorknob. He proceeds to finish off Goldware with Freeman in whatever form."
In the course of his closing, the prosecutor commented that he had "been living with this case for a number of years . . . .
[A]nd . . . [had] been looking at these [phone] records for a long time . . . ." The prosecutor continued by explaining that a detective looked at the records, and upon first glance realized that Freeman was on her cell phone with Goldware and her landline with defendant at the same time, 2:10 a.m.
The State's closing also presented an explanation of why the t-shirt with Goldware's blood was still in defendant's closet and had not been discarded. The prosecutor stated, "[t]he reason that shirt was still in there, in [defendant]'s closet, as opposed to all the other bloody clothes that he had on that night, which I'll prove to you, is because it is a black shirt and ...