August 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES JOHNSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010
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 five); theft, N.J.S.A. 2C:20-3 (count six); and receiving stolen property, N.J.S.A. 2C:20-7 (count seven).
Evidentiary hearings were held on defendant's motions to suppress the shotguns seized and to exclude evidence of statements made by co-defendants Yasin and Watson to Daniels and Whitsett. Both motions were denied. Defendant also made a motion prior to trial to exclude Boyd's statements as substantive evidence in the event that his testimony at trial was inconsistent with those statements. At trial, Boyd testified that he did not recall making the prior statements. Following a hearing conducted pursuant to State v. Gross, 121 N.J. 1 (1990), the trial court permitted the admission of the prior statements as substantive evidence.
Defendant did not testify at trial. He was acquitted on the first count, which charged purposeful murder, and convicted on all other counts.
At sentencing, the trial court merged counts two and four into count three, the felony murder charge, and merged count seven into count six, the theft charge. Defendant was sentenced on count three to fifty-two years imprisonment with a minimum parole ineligibility period of 85% of that term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to concurrent terms of four years on counts five and six. All terms were to be served concurrent to the sentence defendant was serving on other charges. Appropriate fines and penalties were imposed.
In this appeal, defendant raises the following issues:
THE WARRANTLESS SEARCH RESULTING IN THE RECOVERY OF SHOTGUNS CONSTITUTED A VIOLATION OF THE DEFENDANT'S RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES, NECESSITATING SUPPRESSION AND REVERSAL. U.S. CONST., AMENDS. I, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
A. THE PURPORTED CONSENT TO SEARCH WAS COERCED, AND THUS INVALID.
B. THE PURPORTED CONSENT TO SEARCH THE BASEMENT WAS UNAUTHORIZED AND THUS INVALID.
C. THE FLAGRANT MISCONDUCT OF THE POLICE PRECLUDES APPLICATION OF THE "INEVITABLE DISCOVERY" DOCTRINE.
THE TRIAL COURT ERRONEOUSLY ADMITTED HIGHLY PREJUDICIAL TESTIMONY UNDER THE CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE, DEPRIVING DEFENDANT OF HIS DUE-PROCESS RIGHT TO A FAIR TRIAL AND NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT'S ADMISSION OF HIGHLY PREJUDICIAL TESTIMONY CONCERNING ALLEGED PRIOR POSSESSION OF A GUN SIMILAR TO THAT USED IN THE INCIDENT WAS ERRONEOUS AND DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.
A. ADMISSION OF A WITNESS' PRIOR STATEMENT AS TO DEFENDANT'S ALLEGED POSSESSION OF A SIMILAR GUN VIOLATED THE STANDARDS OF STATE V. GROSS.
B. THE TRIAL COURT FURTHER ERRED IN HOLDING THAT BOYD'S PURPORTED STATEMENT CONCERNING A GUN PREVIOUSLY POSSESSED BY THE DEFENDANT WAS ADMISSIBLE PURSUANT TO N.J.R.E. 404(b), AND IN FAILING TO DELIVER AN APPROPRIATE LIMITING INSTRUCTION.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL ON THE BASIS OF THE STATE'S DELIBERATE VIOLATION OF THE COURT'S ORDER RESTRICTING TESTIMONY CONCERNING SHOTGUN WADDING.
In his pro se supplemental brief, defendant raises the following arguments:
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF N.J. CONST. (1947), ART. 1, PAR. 10 AND U.S. CONST. AMENDMENTS VI AND XIV WHEN THE TRIAL COURT ERRONEOUSLY ADMITTED INTO EVIDENCE HIGHLY PREJUDICIAL HEARSAY UNDER THE CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW, IN VIOLATION OF N.J. CONST. (1947), ART. 1, PAR. 9 AND U.S. CONST. AMENDMENTS VI AND XIV WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY IN REGARDS TO THE AFFIRMATIVE DEFENSE TO ACCOMPLICE LIABILITY (NOT RAISED BELOW).
CUMULATIVE ERRORS BY THE TRIAL COURT AMOUNTED TO A DENIAL OF DEFENDANT'S CONSTITUTIONAL RIGHTS, IN VIOLATION OF N.J. CONST. (1947) AND THE U.S. CONST.
After carefully reviewing the record and the briefs of counsel, we are satisfied that none of these arguments have merit.
Defendant's challenge to the denial of his suppression motion lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
Because the guns were plainly visible, obtruding from the duffel bag in the container, the police did not have to search the container and we need only focus on whether their search of the basement was lawful. As the landlord of the building, Latasha had the requisite authority to consent to a search of the basement. See State v. Suazo, 133 N.J. 315, 320 (1993). It was the State's burden to prove that her consent was voluntarily given, not the result of expressed or implied coercion, Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed. 2d 854, 875 (1973), and that Latasha knew that she had the right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975).
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We "should defer to the trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. M.A., 402 N.J. Super. 353, 364 (App. Div. 2008) (quoting Locurto, supra, 157 N.J. at 474). The fact that the trial court resolved all conflicts in favor of one side does not provide a basis for rejecting the trial court's findings. Id. at 365. It is only when a trial court's findings are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction," that we should evaluate the record anew to make our own findings and conclusions. Ibid.; Elders, supra, 192 N.J. at 244.
In an extensive written opinion, the motion judge noted various inconsistencies in Latasha's testimony at the hearing, in her testimony before the grand jury, and in her statement to the police and concluded, in part:
This court is convinced that Ms. Towns gave consent to search the basement. She was a sophisticated citizen, who after seeing the police at her home had the presence of mind to speak with an attorney and also told the police that she was going to withhold her consent until a warrant was received. She knew she had the right to withhold consent. She eventually gave consent for the search of her own items on the first floor. No doubt she was concerned that she was involved with the police as were her tenants and indeed could be charged with a crime. She was very much afraid for her fiance's brother. But this concern was not sufficient to compel her to act against her own desires. This court found her to be a strong willed and determined woman. She went to the internal affairs department to file a complaint while this action was pending. She then changed her mind and withdrew the complaint. Her own father used much the same words in describing her. It is only after the fact, realizing the gravity of the situation that the defendants face[d], that she has decided she was not treated fairly. The court finds as credible that she told Lt. Foley a search could be conducted of the basement. The defense witnesses contradicted themselves in critical areas of testimony. Mrs. Towns testified that her daughter was pinned to the wall by two police officers yet Latisha never testified to this fact. Mrs. Towns and Latisha testified that she was threatened with arrest at least 50 times, called a bitch and generally bullied. Mr. Towns said they were treated cordially and with respect. Mrs. Towns said she was not free to leave but admitted she did not try to leave. Her testimony appears to be embellished as she left the house to greet her husband on the lawn, [and] called family members and attorneys from the porch. The police willingness to allow the increasing caravan of Towns family members to accompany her to the police station during an active murder investigation lends credence to the fact that the police were not restraining the Towns family.
We are satisfied that the motion judge's findings are supported by sufficient credible evidence in the record and that her credibility determinations are entitled to our deference. The motion to suppress was properly denied.
In Point II, defendant contends that the trial court erred in admitting evidence of co-conspirators' statements to Rashaun Daniels and Jasmine Whitsett that he was involved in the robbery and was, indeed, the shooter.
Pursuant to N.J.R.E. 803(b)(5), evidence is admissible against a defendant when it is "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." To fall within this exception, co-conspirator statements must satisfy three conditions: (1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it. State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div.), certif. denied, 152 N.J. 187 (1997).
Defendant concedes that the statements attributed to Yasin and Watson concerning the crime satisfy these criteria and further concedes that statements seeking assistance with concealment or flight are statements made in furtherance of the conspiracy. He argues, however, that the exception should not apply because, when Yasin and Watson made the statements, they had "begun to cease acting on the defendant's behalf." This is a variation of an argument, which ultimately fails on the facts here, that the co-conspirators had ceased to be members of the conspiracy when they made the statements.
Each member of the conspiracy is presumed to continue in the conspiracy "until either the object of the conspiracy has been established or there is proof of an affirmative act of withdrawal as to one or more members thereof." State v. Farinella, 150 N.J. Super. 61, 67 (App. Div.), certif. denied, 75 N.J. 17 (1997); see also State v. Cherry, 289 N.J. Super. 503, 523 (App. Div. 1995). The fact that Yasin and Watson took steps that were more obviously in their own interest does not divorce them from the conspiracy because there was no "affirmative act of withdrawal" on the part of either of them. See N.J.S.A. 2C:5-2(f)(3) ("If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.").
Since the crime that was the object of the conspiracy had been committed, the question becomes whether the statements were made to serve a purpose of the conspiracy that survived the commission of the crime. Some examples of such a continuing purpose are concealment of weapons, enlistment of false alibi witnesses and flight to avoid apprehension. See State v. Savage, 172 N.J. 374, 403 (2002), Cherry, supra, 289 N.J. Super. at 523-24. "Moreover, statements relating to past events may be admissible if they are 'in furtherance' of the conspiracy and 'serve some current purpose, such as to provide cohesiveness, provide reassurances to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy.'" Savage, supra, 172 N.J. at 403. See also State v. Hunt, 115 N.J. 330, 367-68 (holding that a statement by a co-conspirator that defendant had just killed someone made at the time the co-conspirator was seeking the assistance of the person in disposing of evidence of the crime was made in furtherance of the conspiracy), reconsideration denied, 117 N.J. 152 (1989); State v. Soto, 340 N.J. Super. 47, 63, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001) (statements about past events may be admissible as in furtherance of the conspiracy if they were made as part of an attempt to avoid apprehension); Taccetta, supra, 301 N.J. Super. at 253.
Therefore, contrary to defendant's argument, "to provide cohesiveness" is but one example of statements made after the objective of the conspiracy has been fulfilled that may be admissible; it is not a prerequisite to admissibility. What is required is that the statements be made "in furtherance" of the conspiracy and "serve some current purpose."
The statements made to Daniels were made during the period from July 19 to July 21. On the last of these days, all three co-conspirators were present and apparently ready to leave immediately when Yasin asked Daniels, repeatedly, to take all of them with him to Virginia. It is evident, therefore, that as late as July 21, all three co-conspirators remained invested in the common goal of fleeing to avoid apprehension. Defendant was arrested one week later, on July 28, 2002. According to Whitsett, she stopped helping Yasin and Watson after August 2, after she learned that they were being sought for homicide. As of the last day that Whitsett assisted Yasin and Watson, none of the co-conspirators had broken ranks to cooperate with the police. The mere fact of defendant's arrest did not terminate the conspiracy. It remained in the interest of all co-conspirators for Yasin and Watson to elude capture and the possibility that the police would obtain additional evidence that could be used against any or all of them. See Taccetta, supra, 301 N.J. Super. at 252-53; see also State v. James, 346 N.J. Super. 441, 457-58 (App. Div. 2002).
We are therefore satisfied that the trial court did not abuse its discretion in admitting these statements into evidence. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006); State v. Morton, 155 N.J. 383, 453 (1998). We further note that, even if the admission of these statements were error, defendant was convicted of felony murder and acquitted of purposeful murder. Because proof that he was the shooter was wholly unnecessary for his conviction, see N.J.S.A. 2C:11-3(a)(3), he was not prejudiced by the introduction of these statements.
After carefully reviewing the record and briefs, we are satisfied that defendant's arguments in Points III, IV, and in his pro se brief, lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
In Point III, defendant argues that the trial court erred in permitting Boyd's prior inconsistent statement to be admitted as substantive evidence. At trial, Boyd claimed that he did not recall stating the facts recited in his statements to the police and denied that they were true. As a result, the court conducted a Gross hearing to determine whether the preponderance of evidence supported the reliability of his prior statements. Gross, supra, 121 N.J. at 15. See State v. Brown, 138 N.J. 481, 544 (1994) (concluding that "constitutional confrontation guarantees are not violated by a witness's lack of recollection regarding an introduced prior statement or the events described in such a statement"), overruled on other grounds by State v. Cooper, 151 N.J. 326, 361 (1997). The trial court rejected Boyd's testimony; found that he was feigning a lack of recollection and that the statements made to the police were believable. The court made further findings regarding the admissibility of the statements pursuant to both N.J.R.E. 803(a)(1) and N.J.R.E. 404(b). The court concluded that the evidence that defendant possessed the shotgun described by Boyd prior to the robbery-murder was relevant to a material issue in the case; that the incidents were similar and close in time; and that the probative value of the evidence outweighed its potential for prejudice. We are satisfied that the trial court did not abuse its discretion in admitting this evidence. See State v. Burns, 192 N.J. 312, 340 (2007); State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008).
Moreover, the court gave a limiting instruction at the time the evidence was presented and again in the general charge. The court identified that the only permitted use of this evidence was "to help you decide the specific question, and the purpose being that the defendant possessed a weapon at a prior time that was similar to the weapon that was used in the shooting to show that defendant possessed a weapon at a later time." Defendant did not object to this instruction at the times when it was given. His argument, raised for the first time on appeal, that the court erred in failing to state explicitly that the permitted purpose for this evidence was to determine the identity of the shooter, lacks merit and did not constitute plain error. See R. 2:10-2.