On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-01-0034.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant appeals from his convictions for felony murder, robbery, theft, receiving stolen property and weapons offenses arising from the murder of a motel clerk during a robbery. We affirm.
The robbery and homicide took place in the early morning hours of July 14, 2002 at the Clinton Manor Motel in Union. Two people responding to the sound of a loud boom found Sikander Mizra lying behind the front desk, bleeding. An employee, Vidula Patel, called 9-1-1. She also noticed that the cash drawer was empty and that $150 was missing from the purse she had left near the desk. A motel guest, Ahmed Tarver had earlier observed three black individuals driving by the motel slowly in a car; the next day, when shown a stolen vehicle belonging to Thomas Mix, he identified it as the same vehicle.
When Sergeant James Foster of the Union Township Police Department arrived at the motel, Mirza was awake but breathing with some difficulty. He saw a "small hole about the size of either a .38 or .45 caliber bullet" in the front of Mirza's shirt and asked him who had done this. Mirza replied, "three black guys in their twenties." Detective Foster also observed a sneaker print on the front desk counter.
Mirza died after surgery as the result of a shotgun wound to the abdomen. Bird shot pellets and wadding, the magazine for shotgun pellets, were removed from his body.
On the day after the shooting, Mix's car was found on the 700 block of South 20th Street in Newark, not far from the residence of co-defendant Courtney Watson. A resident of that street was able to testify that the car had not been there at 2:00 a.m. A latent fingerprint was lifted from the inside driver's door handle that matched defendant's fingerprints. A second latent fingerprint lifted from the car's trunk lid matched co-defendant Akhir Yasin's fingerprints.
Jasmine Whitsett testified that she had spent several nights in hotels with Watson, Yasin and Yasin's girlfriend, Terry Brown, in the weeks following the murder. From the beginning, she knew that Yasin and Watson were trying to avoid the police. They appeared scared and nervous. During that time, Watson told her that he was being investigated for a homicide; that he, Yasin, and defendant had gone to a party at the Clinton Manor in a stolen car; and that defendant "shot the guy and he didn't know if the guy was dead or alive."
Yasin's brother-in-law, Rashaun Daniels, was in the Navy, stationed in Norfolk, Virginia at the time of the robbery-murder. On July 19, 2002, five days after the shooting, Yasin telephoned Daniels and told him that "he got hisself into some trouble that could give him 25 years to life." At Yasin's request, Daniels asked his wife to wire Yasin five hundred dollars.
On the following day, Daniels traveled with a friend from the Navy for a previously planned visit to New Jersey. He went to Yasin's residence at 31 Finley Place. No one answered the front door bell until he called Yasin on his cell phone. When he entered the house, he saw Yasin, Watson, and defendant with Latasha Towns and Terry Brown. Daniels asked if his Navy friend could take a shower. While his friend was showering, Yasin asked Daniels to come to the front of the apartment. Watson went with him. Yasin told him once again that "he did something that got him 25 to life." He told Daniels that they went to the Clinton Manor Lodge to rob the place. Watson told him that "they had to kill the guy because he saw his face." Yasin then gave Daniels a newspaper article about the robbery. Daniels asked "who killed the guy" and Watson answered that defendant did. Yasin asked Daniels for one or two thousand dollars but Daniels replied that he did not have that amount of money.
On the following morning, Daniels returned to Yasin's house. Both defendant and Watson were there as well. Yasin asked Daniels to take defendant, Watson and him back to Virginia. Daniels declined despite repeated requests from Yasin. He went to his mother's house, picked up his Navy friend and left for Virginia. After Daniels was back in Virginia, he spoke to his chain of command to inform them of what had happened and called the police.
On July 24, 2002, ten days after the robbery-murder, police arrived at 31 Finley Place in Newark with arrest warrants for defendant, Yasin and Watson. Yasin resided on the first floor. The property was owned by Latasha Towns, who did not reside there. She arrived there between 4:30 and 5:30 p.m. with her mother, Doris Towns. At the hearing on defendant's motion to suppress the evidence seized that day, the evidence presented by the State and the defense conflicted regarding the interaction between the police and Latasha. According to Doris and Latasha, the police were abusive, threatened Latasha with arrest and prevented her from leaving the premises. Latasha asked the officers if they had a warrant. They said they did not but could get one. According to Sergeant Kevin Foley of the Union County Prosecutor's Office, Latasha stated that she wanted to call a lawyer before she would consent to a search. Doris called two lawyers and Latasha spoke to one of them. Latasha testified that she told the police that they needed a search warrant to search the house. The search was delayed for two hours while the officers obtained a search warrant for the first floor of the house.*fn1
Sergeant Foley stated that Latasha then gave her consent to the police to search her "things." Sergeant Foley asked what was behind a closed door in the kitchen. Latasha told him that the door opened to the basement stairs. She stated that all the residents had access to the basement and that, as landlord, she had access as well. Sergeant Foley testified that he asked for her consent to search the basement; that she was "very cooperative," and gave consent for the search. After the search was completed, Latasha signed a consent form for the search and gave a statement to the police in which she stated that she had given such consent. However, she testified that she did not remember if she gave consent. At the suppression hearing, Latasha testified that she knew that she had the right to withhold her consent.
Latasha accompanied the officers to the basement where Sergeant Foley saw the black barrels of two Mossberg shotguns sticking out of a container with a duffel bag wrapped around them. Latasha stated that she had never seen the guns before and that someone must have put them there without her knowledge.
The container belonged to a second-floor resident who testified that she had not seen the duffel bag or guns there; that if she had, she would have called the police; and that she did not give anyone permission to put the green duffel bag in the container.
Prior to trial, defendant's friend, Rahmone Boyd, gave two statements to the police. In the first, he stated that a day or two before the shooting, he saw defendant with a Mossberg shotgun with air holes on the part where the bullets come out. Boyd also stated that he had seen Yasin with defendant in an alley, where Yasin was showing defendant how to use, load and unload the shotgun. After the shotgun was seized from 31 Finley Place, Boyd gave a second statement in which he identified a photograph of the seized weapon as the one defendant had prior to the shooting.
Defendant was arrested on July 28, 2002. He was indicted along with Yasin and Watson*fn2 for purposeful murder, N.J.S.A. 2C:11-3(a)(1) or (2) and N.J.S.A. 2C:2-6 (count one); robbery, N.J.S.A. 2C:15-1 (count two); felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); unlawful possession of a weapon, N.J.S.A. 2C:39-5(c) (count ...