On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1332 and 04-11-1333 for Timyan Cabbell; Indictment Nos. 04-11-1332, 04-07-880 and 04-07-881 for John Calhoun.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Stern and Collester.
These back-to-back appeals by defendants Timyan Cabbell (Cabbell) and John Calhoun (Calhoun) arise from the homicide of Paul Lecaros on April 2, 2004. On that date, Louis Lecaros (Mr. Lecaros) was working at his LaBamba Restaurant and Bar in Plainfield. His son Paul was acting as DJ for the evening. After closing time at 2:00 a.m., Mr. Lecaros gave three waitresses (Sandra Narvarro (Ms. Narvarro), Thelmy, and Alba) a ride home in his pickup truck. Mr. Lecaros was driving the truck while Ms. Narvarro was sitting beside him. Paul was in the front seat nearest to the passenger door. Themly and Alba were sitting in the back seat of the cab.
After dropping off Thelmy, Mr. Lecaros started driving towards Dunellen to drop off Ms. Narvarro when he was reminded that he needed to drive Alba home first. He then drove onto Plainfield Avenue in order to turn around. A small dark car in front of him made the same turn. The car signaled to make a turn onto Second Street with Mr. Lecaros following. Suddenly, the car stopped, and Mr. Lecaros' truck slid into the back of the car and pushed it up on the sidewalk. Immediately thereafter, the men from the car started shooting at Mr. Lecaros' truck. Shots were fired through his windshield and rear window. The car then backed up, slammed into the front of the truck and raced down Plainfield Avenue. Both Mr. Lecaros and Ms. Narvarro had ducked down during the shooting. Ms. Narvarro saw that Paul was not moving and as she touched him, she got blood on her hands. Mr. Lecaros quickly got out of the truck and ran to the passenger side to check on his son. Paul did not respond.
9-1-1 was called and Plainfield Patrolman James Stillman (Officer Stillman) was the first to arrive at about 3:20 a.m. He saw Mr. Lecaros leaning over the center passenger area holding his son, who had suffered a gunshot wound to his chest and was in and out of consciousness. There were bullet holes in the front windshield of the truck, and the passenger side window and back window were shattered. Officer Stillman also saw a black bumper about five to ten feet from the pickup truck. When the paramedics arrived, it was determined that Paul was dead from a gunshot wound to the chest. After his body was taken away, Mr. Lecaros and the other occupants of the car were driven to police headquarters to be interviewed.
Police identification officers examined the area that had been cordoned off. It was determined that at least eleven separate shots were fired. Two bullets entered the front grill of the truck, three penetrated the front windshield, five entered a nearby residence, and one was found on the second floor of a nearby funeral home. Subsequent police analysis revealed that at least two separate weapons were involved.
Attention was focused on the black bumper found at the scene. Examination revealed a vehicle identification number (VIN) on the bumper that was placed on a Honda Accord. The following day the police found out that the vehicle matching the VIN number on the recovered bumper was sold by Hofs Auto Sales, located on Route 22 in North Plainfield. The owner of the dealership told officers that the Honda Accord had been sold to Shantell Thomas a month earlier, on March 4, 2004.
Detective William Mannix of the Union County Prosecutor's Office visited several addresses in an attempt to locate Ms. Thomas. He finally found her mother and she gave him Ms. Thomas' current home address in North Plainfield, and added that she worked at Cablevision in Newark. Unable to find her at the apartment, Detective Mannix went to Cablevision and spoke to Ms. Thomas at about 1:30 p.m. He told her that her car had been involved in an accident, was missing a bumper, had some rear-end damage and was believed to have a shattered back window. Ms. Thomas insisted that she had parked her car in the apartment parking lot about midnight and had driven it to work that morning. She denied there being any damage to the car. She said that she parked the car that morning about four blocks away on Halsey Street.
Detective Mannix was unable to find Ms. Thomas' car on Halsey Street and called Ms. Thomas who said she was positive that was where she parked her car. Subsequently she called Detective Mannix and told him that the police took her car. Later that day Detective Mannix was contacted by the Newark Police Department, who told him that Ms. Thomas made a police report at 5:10 p.m. claiming that her car had been stolen between 9:45 a.m. and 3:00 p.m. that day.
Meanwhile, when Officer David Canica of the North Plainfield Police Department started his shift on the morning of April 4, he saw a notice from the Plainfield Police Department that a black Honda with a missing bumper and a blown-out rear window was involved in a fatal shooting. While on duty at about 4:30 a.m., he had responded to a call from Daniel Tullo (Tullo), the superintendent of the 405 Grove Street Apartments in North Plainfield, about a car burglary in progress. Tullo said he was awakened by loud voices shortly after 4:00 a.m. Looking out the window toward the parking area of the building, he saw three men standing near a car that was missing its back window. Tullo said he could not hear what the men were talking about and could not identify them because their backs were to him. Thinking that they may have broken into the car, Tullo called the police.
Officer Canica went to the parking lot of the apartment complex. No one was there, but he saw a black car missing its rear window parked with the rear of the vehicle facing the building. He then went back to Tullo's apartment. While talking to Tullo, the door to apartment 2A opened, and a heavy-set African-American man came out. He was followed by another African-American man who started to leave the apartment, but quickly stepped inside and shut the door after seeing the officer. As Officer Canica walked back to his police car, he saw the man who left apartment 2A get into a Crown Victoria parked on the street. He called police headquarters to trace the Crown Victoria, and the motor vehicle check disclosed a Corey Balmer owned the vehicle. Officer Canica reported this information to his superiors and returned to the apartment parking lot where he observed that the black car was gone.
Later that day, he went to the Plainfield Police Station, and after viewing a photo array, he identified Corey Balmer as the man he saw leaving apartment 2A.
At about 9:00 a.m. the same morning, Tullo was awakened by the sound of a flatbed tow truck in the apartment parking lot taking away a black Honda. He noticed that the vehicle had rear-end damage and might have been missing its bumper. He also recognized it as the same car he had seen parked in the space for apartment 2A, the apartment rented in the name of Shantell Thomas.
Ms. Thomas' black Honda Accord was later found in the back parking lot of an apartment complex in Newark. Officer Kevin Buckley of the Union County Sheriff's Office Crime Unit and other unit officers examined the vehicle. It was missing its rear bumper, and the back window was shattered. Officer Buckley said it appeared that the inside of the Honda had been wiped down. Inside the glove box was a tuition receipt in the name of defendant Cabbell.
Other police officers and detectives interviewed persons living in the area of the shooting. Carmen Salgado told one of the detectives that she lived in an apartment at the intersection of Plainfield Avenue and Second Street and that at about 3:00 a.m. or 4:00 a.m. on April 3, 2004, she heard sounds as if something hit the side of her building. When she looked out the window, she saw a person in the middle of the street crying and screaming about someone being shot. Subsequently, officers examined the outside of Ms. Selgado's building and discovered that five bullets had struck the outside of her apartment.
Tyshara Shockley told police that she lived a short distance from the scene of the shooting and that she and a friend, Tiffany Berry, had returned from a club to her apartment at about 2:30 a.m. When they heard gunshots, they looked outside. Ms. Shockley saw a gray truck and a black car at the intersection of Plainfield Avenue and Second Street. She said two people from the car, each with one hand up, were shooting. She said one was on the driver's side about half way out of the car, and the other was standing near the trunk on the passenger side. She saw fire flashes from the gun held by the individual standing at the rear of the car. She was unable to tell the police what the individuals looked like, what clothes they were wearing or if the man on the driver's side of the car was shooting. Ms. Berry said she also saw "the fire coming out of the gun," but was not able to see anything other than that the person shooting was near the dark car. She called 9-1-1 to report the incident.
Diane Gentles also lived near the intersection of Plainfield Avenue and Second Street. She was awakened by the sound of gunshots in the early morning of April 3 and found debris in her home caused by the impact of a bullet. The police came into her home the next morning and recovered a bullet in the wall.
Joseph Washington, a tenant at 405 Grove Street in North Plainfield, saw the damaged Honda in Ms. Thomas' parking space at approximately 4:00 a.m. He also observed several individuals around the dark car. One was wiping the sides of the car. Washington heard a second car arrive while the men were still around the damaged car in the parking area.
A search warrant was issued for Ms. Thomas' apartment on April 14, 2004. When the police informed her about the search warrant, she telephoned defendant Cabbell. He arrived at the apartment and signed a "permission to search" form as a resident of the apartment. Letters and other documents found in the apartment confirmed that defendant Cabbell and Thomas occupied the apartment.
When Corey Balmer was interviewed, he said he was a long-time friend of Cabbell. He admitted going to the apartment at about 4:00 a.m. on April 3, 2004 which confirmed the identification made by Officer Canica of the man leaving apartment 2A. Balmer added that Cabbell drove a black Honda and that only Cabbell and his girlfriend drove it.
Charles Seals told police that he had lived in Plainfield and had known defendants Cabbell and Calhoun for many years. He said that shortly after the April 3 homicide, he heard Cabbell and Calhoun arguing. Cabbell repeatedly told Calhoun to keep his mouth shut and not say anything to the police. Calhoun responded that he did not talk to the police.
Seals also said he was interviewed at his home a few days after the homicide. Subsequently, Cabbell came to Seals' house and asked him what the police said to him. Seals told Cabbell that they had questioned him about the murder. Cabbell told Seals not to say anything to the police, and Seals agreed because he did not know anything about the shooting.
On April 5, 2004, Plainfield Sergeant Lawrence Brown took a statement from Karine Martin after she told police that she had witnessed the homicide. She said she saw Cabbell in his girlfriend's black four-door Honda along with Calhoun and two other men, whom she identified as Dante Harris and Michael Cofield. Martin knew all four men and said she saw them before the shooting at a fast food restaurant when she had a brief conversation with Cabbell.
After leaving the restaurant with a friend, Martin walked down Plainfield Avenue. She saw Cabbell driving the Honda "all over the road" and a pick-up truck rear-end the car. She said that Cabbell, Calhoun, and Harris got out of the car while "the Spanish guy" who had been driving the truck got out and tried to talk to them. She said Cabbell pulled out a gun and said, "[M]otherfucker, you hit my girlfriend's car." He then walked to the back of the car, bent down to look at the damage, and, after standing up, fired at least three shots. Martin said Calhoun then started firing, but Martin said it did not appear that he hit anything because his arm "was kind of like going around when he fired." She saw Cabbell aim and fire at the truck and also saw a passenger inside the truck fall over. She stated "I saw Timyan [Cabbell] fire and the kid slumped over. The kid was slumped over before John-John [Calhoun] got out of the car."
Martin added that after the shooting, Cofield got out of the car and ran away. Harris yelled, "man, you killed somebody," before he got back in the car with Cabbell and Calhoun and drove away. Martin said she was certain of the ...