On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0305.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Fuentes, Gilroy and Simonelli.
On February 8, 2005, a Hudson County grand jury indicted defendant Rodney Johnson, charging him with: conspiracy to commit armed robbery in the first degree, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); three counts of first degree armed robbery, N.J.S.A. 2C:15-1; five counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; five counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1); five counts of second degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); three counts of third degree assault against a police officer, N.J.S.A. 2C:12-1b(5)(a); third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth degree knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; and second degree possession of a firearm by a person previously convicted of one or more of the offenses listed in N.J.S.A. 2C:39-7b.
That same grand jury indicted defendant Lee Johnson on the following charges: second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); three counts of first degree armed robbery, N.J.S.A. 2C:15-1; three counts of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; three counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1); three counts of second degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); third degree assault against a police officer, N.J.S.A. 2C:12-1b(5)(a); third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a; fourth degree knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; second degree possession of a weapon by a person who has been previously convicted of one or more of the crimes listed in N.J.S.A. 2C:39-7b; and third degree giving false information to law enforcement for the purpose of hindering apprehension, prosecution, conviction, or punishment, N.J.S.A. 2C:29-3b(4).
Defendants were tried together before the same jury. Rodney Johnson was convicted of the following crimes: second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); murder during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); two counts of first degree armed robbery, N.J.S.A. 2C:15-1; third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and second degree knowing possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.
Lee Johnson was convicted of the following crimes: conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); first degree armed robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; aggravated assault, N.J.S.A. 2C:12-1b(2); aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a); knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a; knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; and giving false information to law enforcement in order to hinder apprehension, prosecution, conviction, or punishment, N.J.S.A. 2C:29-3b(4).
The court sentenced both defendants to aggregate terms of life imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to sentences they are serving on unrelated matters. The court also imposed the required fines and penalties.
Based on the evidence presented before the trial court, and mindful of prevailing legal standards, we affirm.
On November 12, 2004, at approximately eleven o'clock in the evening, two men, subsequently identified as defendants, robbed the United Fried Chicken store located on the corner of Martin Luther King Drive (MLK) and Stegman Street in Jersey City. Several people were inside the store at the time, including David Ransom and his cousin James Ransom. David identified defendant Lee Johnson as one of the persons inside the store when he arrived. According to David, Lee was "acting rowdy" and pointing a handgun at a security camera located inside the store.
At one point, Lee and various other individuals left the store. As David and James waited for their food order, Lee and Rodney re-entered the store and demanded that the patrons turn over their wallets. David testified that Lee wore a tan jacket and brandished a handgun.
David threw his wallet onto the floor as directed. Rodney, who was wearing a hooded sweatshirt with "Pepe" on the back and "dark denim with red and white stitching," recovered the wallet. According to David, when Lee made a comment to James Ransom about being "the big dog" in the neighborhood, Rodney began "sucker punching" David in the face. David attempted to block the blows from striking his face. At this point, David heard what sounded like shots being fired; when he turned, he saw Lee shoot his cousin James. Both defendants then "sped out" of the store. After they left, David heard more shots, this time coming from outside the store. James Ransom was subsequently pronounced dead; his death was ruled a homicide.
On cross-examination, David admitted that he did not actually see a gun in Rodney's hand. Moreover, despite not having any doubt that Lee and Rodney had been in the fried chicken store that evening, David conceded that the first time he had positively identified either of the defendants was at the time of trial. In fact, he could not recall whether he gave the police a taped statement after the incident.
Defense counsel then played for the jury a portion of the taped statement David gave to the police on November 13, 2004. On the tape, David identified one shooter as a man in a tan jacket and a second individual who had "[d]reds." By way of explanation for these memory mishaps, David claimed that he was emotionally distraught when he was at the police station after the shooting.
Robert A. Hennigar manages the Closed Circuit Television Unit of the Jersey City Police Department. At the time of this incident, closed circuit television cameras (CCTC) were located in the vicinity of the store where the robbery and shooting had occurred; these cameras were operational on the evening of the incident. According to Hennigar, one camera was installed at the intersection of MLK Drive and Dwight Street and another camera was located at the intersection of MLK Drive and Stegman Street.
The morning after the incident, Hennigar became aware that portions of the robbery had been recorded by both cameras. Hennigar "removed the original VHS tapes that recorded the incident and placed them into evidence and then subsequently [gave] copies [of the tapes] to the homicide unit and the south detectives." He later copied the tapes onto a compact disc and printed his name on the bottom of it with the case identification information. These tapes were admitted by the trial court for the limited purpose of supporting and corroborating the testimony of several police officer witnesses. Portions of the tapes were played as particular police officers testified concerning what he observed when he arrived at the crime scene.
Jersey City Detective Victor Smith was working off-duty in uniform at a nearby recreational center when a woman reported that shots had been fired at the fried chicken store. As he walked towards the corner of MLK Drive and Stegman Street, Smith reported the alleged shooting to the appropriate precinct.
As he neared the store, Smith heard the sound of gunshots and saw simultaneous flashes from the store's window. He confirmed via radio that shots were being fired and requested immediate backup. When he was approximately fifteen feet away from the store, Smith saw defendants leaving the store and "brandishing weapons." By the time Smith arrived, "the gunshots had stopped;" it was at this point that Smith saw a man he recognized as Jamal Roach "just laying there lifeless" in the doorway of the store.
What occurred next can best be characterized as the real-life equivalent of a fictional police drama. According to Smith, Rodney Johnson began shooting at him "at almost point blank range;" Lee Johnson, who "had a gun in his hand as well," also fired at Smith. Rodney then ran across the street and began exchanging gunfire with Smith "for probably forty seconds or more." At this point, another Jersey City police unit arrived and engaged in gunfire with Rodney. Smith estimated that by the time Rodney fled the scene running toward Dwight Street, Rodney had fired "more than seven or eight shots at me and I had fired more than seven or eight shots back at him." In the midst of this harrowing chaos, Smith lost track of Lee Johnson's whereabouts.
As other officers were dispatched to pursue and apprehend Rodney and Lee Johnson, Smith and fellow officers Scott Rogers and Eddie Nieves went inside the store to assess the situation and protect the crime scene. Once inside, Smith saw James laying on the floor and bleeding from his mouth and head; David was also on the floor, crying and "very upset[.]"
According to Rogers, Roach, who was "laying right in front of the doorway," told him he had been shot in the leg. Rogers "briefly checked [James] for a pulse," but he "was in an apparently lifeless condition." Rogers also noted several shell casings surrounding James. The prosecutor played the Composite CD while Rogers testified and directed Rogers to demonstrate his course of action by referring to the scene displayed on the CD.
Officer Christopher Baker testified that as he and Officer Brian Glasser approached the store in response to Smith's radio call they heard shots being fired. According to Baker, he saw an African-American man with dreadlocks and wearing a black jacket, later identified as Rodney Johnson, step over a body laying in the doorway of the store. As he stepped out of the marked police car, he saw that Rodney "backed up a little bit" and began shooting at Smith. Baker then "immediately drew [his] weapon and [ ] discharged a round at him." Rodney continued firing at Smith and thereafter at Baker and Glasser.
While he was attempting to take cover from the gunfire, Baker saw a second African-American man wearing a dark jacket raise a handgun in Smith's direction; that individual was later identified as Lee Johnson. Baker fired two rounds at Lee, and the second round struck him in the area of his lower torso. Lee "flipped over himself and fell"; he then got up and started to walk eastbound on Stegman Street.
When the shooting between Rodney and Smith stopped, Rodney ran south on MLK Drive towards Dwight Street while shooting in the officers' direction. Pursuant to Smith's instructions, Baker and Glasser began to chase Rodney. From a distance of approximately four to five car lengths, Baker observed Rodney "discard a black object to the ground and then continue walking[.]" That object was later identified as David's wallet.
Baker also observed Rodney toss a second black object over a fence; Glasser went to recover this object while Baker continued chasing Rodney. Eventually, other officers arrived at the scene and took Rodney into custody. The prosecutor played a portion of the Composite CD to assist Baker in demonstrating the events he described in his testimony. Although Baker positively identified the jackets that both defendants were wearing, he conceded that the CD did not show Rodney stopping while he was being pursued. Glasser's testimony corroborated Baker's version of the events.
The State's account of the circumstances of Rodney Johnson's arrest came from the testimony of Officer Christopher Monaghan. According to Monaghan, while on duty on the night in question, he heard radio reports of shots being fired. As he and his partner, Officer Mark Minervini, were driving towards the scene of the incident, he heard a "radio transmission of a foot pursuit going south on MLK Drive now going west on Dwight" Street. Heading towards Dwight Street and Bergen Avenue, Monaghan "observed a black male standing on the . . . northeast corner of Dwight and Bergen" and "heard transmissions from officers that were coming west on Dwight that that's him on the corner."
This individual, later identified as Rodney Johnson, was the only person on the street. Monaghan and Minervini stepped out of their marked police vehicle, drew their weapons, and ordered Rodney to show his hands. Instead of doing so, however, Rodney "nonchalantly just walked across Bergen Avenue to the other side never taking his hands out of his pockets" and informed the officers that he was "just here to see [his] son . . . in front of the building." Monaghan walked across the street and, because the suspect had refused to show the officers his hands, Monaghan "kicked the individual in his chest, put [his] service weapon away" and "turned him over on his stomach and  started to pat him down."
Rodney was then transported to the Jersey City Medical Center where he was treated for a gunshot wound. The State and both defendants stipulated that "in [the] early morning hours of November 13, 2004[,] Rodney Johnson was treated at the Jersey City Medical Center for a gunshot wound. He was treated and released after stitches were applied."
In a fenced-in backyard nearby, Officer Carlos Lugo found the handgun tossed by Rodney as he was being pursued by the police. Officer Minervini stayed at the scene of the incident to assist the other officers in recovering items which they observed Rodney discard during the pursuit. On Dwight Street near Bergen Avenue, Minervini "observed a wallet next to a chain link fence." He noted that "[i]t didn't look like it had been out there for long because it was raining and the wallet was dry." He picked up the wallet, placed it in a bag and "secured it on [his] person." The wallet contained an identification card in the name of decedent James Ransom.
The State also presented evidence that two handguns, matching the ballistic characteristics of the weapons used by defendants, were recovered. Specifically, the police recovered a black forty caliber Baretta handgun from the fenced-in yard; seven shell casings were also recovered inside the fried chicken store next to the victim's body. The police also found a loaded Glock 17 nine millimeter handgun laying in the street on the southeast corner of Stegman Street.
At approximately 2:00 a.m. on November 13, 2004, City of Newark Detective Richard Warren received a phone call from central command advising him that Beth Israel Hospital in Newark had reported that "[a] person just arrived at the hospital and  was a victim of a gunshot injury." At the hospital, Warren interviewed the individual who identified himself as Duval Williams.*fn1 He told Warren that while walking home from the bus "he was approached by two unknown black males and somehow they started asking him questions." He alleged that a verbal altercation ensued and that one of the males "pulled out a gun . . . and he was shot in the back area or the buttocks area as he was fleeing from the two individuals."
Warren also interviewed Lola Williams, the woman who had brought "Duval Williams" to the hospital and identified herself as his girlfriend, "Lola Powell." According to Warren, Ms. Williams said that they had been at Duval's grandmother's house before he was shot. When Warren went to the scene of the purported incident, he did not find any evidence to support Duval's version of events. When Warren went to the address where Duval's grandmother allegedly lived, a man answered the door, identified himself as Duval's uncle, and said that Duval's last name was Johnson, not Williams. Both the uncle and grandmother denied that Duval lived at the house and neither could remember the last time that they had seen him. When Warren re-interviewed Lola Williams, she admitted that Lee Johnson, a/k/a Duval Williams, had been shot in Jersey City.
Jersey City Detective Kevin Wilder testified that he collected the clothing worn by Rodney and Lee Johnson when they were both hospitalized and received treatment for gunshot wounds. Wilder collected a "red, black, white and yellow warm [-]up jacket" and a "red, white and blue warm[-]up jacket" from the Jersey City Medical Center both of which were taken from Rodney Johnson.
Lee was treated for his wounds at Newark Beth Israel Hospital Medical Center. Wilder collected from this medical facility the following items of clothing worn by Lee when he was admitted to the hospital under the name "Duval Williams": a pair of brown boots, a white thermal long sleeve shirt, a grey hooded sweatshirt, a pair of black and blue gym shorts, boxer shorts, and a pair of blue jeans with a black and white leather belt. Wilder confirmed that Lee was not wearing a jacket when he first reported for treatment of his gunshot wound.
On November 13, 2004, Jersey City Detective Timothy Kaminski received a phone call from a woman who resided across the street from the fried chicken store, claiming to have found certain suspicious items on her property. When Kaminski reported to the property he saw "two jackets and some drug paraphernalia on the ground which were hanging on the fence of the property." Kaminski described the items of clothing as brown Carhart jackets, "one with a hood, one without." Officer Smith identified one of the jackets as the one worn by Lee during the incident.
The State also presented expert testimony concerning James's manner of death and identification of the handguns and spent shell casings recovered from the scene. According to the State's firearm expert, the handgun Glock model 17 recovered by the police on the street next to the fried chicken store was the weapon used to kill James. This handgun also matched two spent casings found on the floor of the store. The expert also opined that the third bullet removed from James's body was fired from the forty caliber Baretta, the ...