On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Defendant Arthur Tiggs appeals from a judgment of conviction and sentence. Tried to a jury, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The judge merged defendant's convictions for murder and possession of a firearm with an unlawful purpose, imposed the appropriate fines, penalties and assessments and sentenced defendant as follows: for first-degree murder, to a term of incarceration for life that is subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; for unlawful possession of a handgun, to a five-year term of incarceration that is concurrent with his sentence for murder.
We reject defendant's claim that a mistake in the judge's description of the identification evidence warrants reversal; reverse and vacate his conviction for unlawful possession of a handgun because the judge instructed the jury on the elements of a different weapons offense not charged in the indictment; and affirm defendant's sentence for first-degree murder.
Lance Pettiford was shot and killed shortly before 3:00 a.m. on April 9, 2006, outside the Cave Lounge on Halsey Street in Newark. Defendant was at the Cave to attend his own birthday party; he had arrived between 1:15 and 1:45 a.m.
The Cave is a bar owned by Vanessa and Charles Walker. El Raqib Poole, a/k/a Namiel, who is a friend of defendant's and worked for the Walkers, helped arrange the party. Not all of those present were guests; the Cave was also open for regular business.
Vanessa Walker and her cousin, Cynthia Boggs, arrived before defendant, and Vanessa met him at the door and took his coat. Although there were two men stationed outside the entrance to check for weapons and identification, Vanessa did not know whether defendant was searched. Several others who were there said they had not been searched, including Poole; Boggs; Hodges Sears, who is a friend of the Walkers' son Brad; Sean Williams, a regular patron who arrived at about 2:00 a.m.; and Timothy Williams, who came with Sean Williams. Pettiford went into the Cave with Sean and Timothy Williams. There is no evidence of any disturbance, fight or altercation inside the Cave that night.
During the course of the party, defendant, Sears and Poole went outside to smoke. According to Sears, his companions shared a cigar filled with marijuana rather than tobacco. While they were smoking, Pettiford and Sean Williams left the Cave and crossed the street. Timothy Williams joined them and had a bottle of liquor.
According to Poole, Timothy Williams cursed at his group from across the street. Poole was not threatened, but he noticed that defendant seemed to be upset. Poole heard defendant say, "I had a vision that somebody - somebody got shot - I popped somebody for my birthday." He told defendant to think about his son and "leave it alone."
Sears heard defendant say he wanted to "push" somebody, which Sears understood to mean that defendant wanted to shoot someone. Sears ignored the comment because he did not think defendant would do such a thing, but he also said that defendant was mildly intoxicated and appeared to have something on his mind.
Poole left. From his car he noticed defendant standing by the door of the Cave and did not see him with a gun. At 2:53 a.m., Sears went back into the Cave to find his girlfriend; defendant remained outside. After Sears found his girlfriend, they left the Cave and walked toward his truck. Defendant crossed the street.
Sean Williams, still outside with Timothy Williams and Pettiford, heard one loud pop in his left ear, turned around and saw Pettiford falling into Timothy's arms. Defendant ran past Sean. As defendant passed, Sean saw that he had a gun in his right hand.
Sears, still walking to his truck, also heard a gun shot. He turned and saw defendant running in the middle of the street, yelling something and holding a black "357 revolver" in his right hand.
Vanessa Walker and Boggs had left the Cave just before the shooting. Both women heard but did not see the shot fired. Boggs heard someone yell, "Oh my God. Lance got shot in the head"; she looked across the street and saw defendant with a gun in his hand, and she retreated into the Cave with Vanessa.
Videotapes from the Cave's four surveillance cameras were retrieved by the police who responded to the scene. The tapes from the camera mounted outside depicted some of the comings and goings of the patrons described above, including defendant's crossing the street just prior to the shooting. The shooting was not captured by the camera.
The police took statements from the witnesses and compiled a photo array. Sears, Poole, Boggs and Sean Williams all selected defendant's photo from an array and identified him in court. Sears identified him as the person who ran away with a gun after the shooting. Poole identified him as the person who said "I had a vision I popped somebody on my birthday." Boggs said defendant was the person she saw with a gun in his hand, and Sean Williams said he was the person he saw with a gun on the night of the shooting and the one who killed his cousin. Timothy Williams could not make an identification.
Later that day, defendant called Sears. He asked Sears to talk to Brad Walker so that Brad could get the Cave's surveillance tapes from his father, Charles Walker. Defendant also gave Sears his new telephone number. On another occasion defendant called Sears and threatened, "[people] better get money up for my lawyer or I'm ...