On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant was convicted, after a trial, of being an accomplice to the murder and felony murder of Charles Mosley in 1997. In this appeal, we consider among other things whether defendant's right to a fair trial was prejudiced by the admission of an indictment, which charged him with the attempted murder of Mosley on an earlier occasion. Finding no error, we affirm.
The jury heard testimony that defendant was incarcerated in July 1995 awaiting trial on an indictment which charged him with the attempted murder and robbery of Mosley. At that time, defendant befriended another inmate, Larry Graves.
Graves testified in this matter that defendant offered him "[a]bout $2,000 or $3,000" and "some drugs to sell" to kill Mosley. According to Graves, defendant provided him with Mosley's address in Franklinville, as well as his phone number and a description of Mosley's appearance. Defendant told Graves that Mosley sold cars, and instructed Graves to talk to Mosley about a vehicle in order to get into Mosley's office where the murder should take place.
Graves was released from jail in November 1997. He testified that on the day he was released he took a bus to Franklinville and telephoned Mosley. Learning Mosley was not home, Graves left Franklinville. He later received a collect call from defendant, who asked whether Graves had "sold the car" -- code for killing Mosley.
Graves went to Franklinville the next day. He made another call to Mosley's home. There was no response and Graves departed. Again, Graves received a call from defendant who seemed concerned that Graves had not yet "sold the car."
The next day, Graves found Mosley at home. He told Mosley he wanted to discuss one of the trucks on the lot. Mosley invited him into his office. After some conversation about the truck, Graves suspected that Mosley had suspicions because Mosley directed Graves's attention to a broken window and told Graves that the person who tried to break into his home was now "in the cemetery." Graves started to leave, but Mosley "jumped up and grabbed a crow bar or a lug wrench" and swung it at Graves. During the ensuing struggle, Graves struck Mosley on the head, causing a fracture and lacerations. At the end of the encounter, Graves choked Mosley for "[a] few minutes," until Mosley was dead. Graves later called defendant to advise that he had "sold the car."
Following discovery of Mosley's death, the pending charges against defendant were dismissed and he was released from jail.
A few months later, the police arrested Salvatore Puglio on drug distribution charges. As part of their investigation, the police came to learn that Puglio could obtain information into Mosley's death. Puglio agreed to wear a body wire to intercept his conversations with defendant.
On February 8, 1998, Puglio and an undercover officer posing as Puglio's girlfriend, while wearing body wires, engaged defendant in a conversation. Defendant indicated he had someone "knocked off" in order to avoid spending "my life... behind bars." A week later, Puglio and the undercover officer picked up defendant and drove through Franklinville; when they passed Mosley's residence, defendant gave Puglio a "thumbs up" sign. They again passed Mosley's residence a few days later, and, according to Puglio, defendant "performed a digging motion like he was shoveling and also a thumbs up sign."
Defendant was arrested and, following a waiver of his Miranda*fn1 rights, he acknowledged he was Graves's cellmate but denied asking Graves to approach Mosley. Defendant admitted he knew Mosley from past drug transactions, but denied any involvement in Mosley's murder. In fact, defendant told the police that Graves approached him and admitted "he did in fact murder [Mosley], robbed him, and that he thought he was doing me a favor after he robbed him by murdering him." Defendant offered to wear a body wire and meet with Graves. The police agreed and dropped off defendant, while wearing a body wire, at his home so that he could obtain Graves's phone number. Defendant never approached Graves and the police later found the wire in defendant's backyard.
Despite these events, and the fact that the police had located Graves's fingerprint at Mosley's home, nothing occurred with the investigation until 2005, when the police interviewed Graves regarding Mosley's murder. Graves denied any involvement, but after hearing defendant's taped statements and after being informed his fingerprint was found in Mosley's office, Graves acknowledged his culpability and informed the police about defendant's involvement as well. Pursuant to an agreement, Graves pled guilty to aggravated manslaughter and promised to testify against defendant.
Defendant was indicted and charged with murder, N.J.S.A. 2C:11-3(a)(1), and felony murder, N.J.S.A. 2C:11-3(a)(3); N.J.S.A. 2C:2-6. At the conclusion of the trial, defendant was found guilty on both counts and later sentenced to a forty-five year ...