On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant appeals his convictions and the sentence imposed stemming from charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (Count Two); first- degree robbery, N.J.S.A. 2C:15-1(a)(1) (Count Three); first-degree felony murder, N.J.S.A. 2A:11-3(a)(3) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); and unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six). We affirm the convictions but remand for the entry of an amended judgment to reflect that the robbery sentence shall be served concurrently with the sentence imposed on the murder conviction.
The evidence presented at trial pertinent to this appeal discloses that during the evening of March 13, 2005, around 9:00 p.m., defendant, along with two of his friends, wanted to rob someone, so they went outside where they encountered the victim, who was carrying a bag. Although defendant was not the first to strike the victim, he joined in the attack and pulled out a zebra-print knife that he used to stab the victim. He was unable to remove the knife, which was left in the victim's body and recovered by the police. When people in the neighborhood started to come outside in an apparent response to the victim's pleas for help, defendant and the other attackers fled in different directions.
One month later, defendant reported to police that he had been attacked by a friend, Richard Green (Green), who took his cell phone, and that another friend, Troy Keets (Keets), had witnessed the incident. Police had an opportunity to speak to Keets about defendant's allegations while he was being detained on an unrelated drug charge. When questioned about the alleged robbery of defendant, Keets blurted out that he did not understand why "Omar" was accusing Green of taking his cell phone when Omar "had a body on him," which the investigating officer understood to mean that defendant had killed someone. Keets told police that defendant and others had robbed a "Spanish guy" on Madison Avenue and, in the process, defendant had stabbed the man and left the knife sticking in his body. The investigating officer reached out to Plainfield Detective Jean Rene Calvin, who was investigating the stabbing, and he interviewed Keets.
Detective Calvin's investigation led him to other witnesses, including Marquice Ragland (Ragland), Elvis Offray (Offray) and Offray's then fifteen-year-old girlfriend, Johanna Torres (Torres). The investigation disclosed that on the evening of the stabbing, Offray and Torres were at the home of J.M. J.M., his mother's paramour, Keith Carson (Carson), and defendant were also present, discussing that they wanted to rob someone. The group went outside where Offray and Torres witnessed the attack upon the victim, but did not see the actual stabbing. Offray recalled seeing defendant kneeling over the victim and making a stabbing motion, but did not see a knife or the actual stabbing. According to both Offray and Torres, when they all returned to J.M.'s house, defendant told the group that he thought he had stabbed the victim.
Ragland, a former high-ranking member of the Bloods, testified that he ran into defendant within days of the stabbing while he was outside a local liquor store sitting in a Jeep. Defendant approached the vehicle and told him that he wanted to be a Blood and that he had "put in some work" a few nights before. Defendant told him that he had wanted to rob a Mexican guy and stabbed him.
Co-defendant J.M., who was fifteen years old at the time of the stabbing, testified at trial on behalf of the State in exchange for an agreement that he would be prosecuted as a juvenile. He received a six-year sentence for his role in committing the offenses. He testified that after returning to his home following the robbery, defendant told the group that he thought he had stabbed the victim.
Police subsequently arrested defendant, and once in custody, he waived his Miranda*fn1 rights. He told police that on the evening of the incident he was at Offray's home, along with Torres, and that they then went to J.M.'s house where they all talked about needing money. Carson came in and said he was going to the store and they should come with him. As they were walking on Madison Avenue, they saw a "Spanish dude" carrying groceries. Carson swung at the man, causing his groceries to spill. Carson got angry that the man did not fall, so Carson picked him up and slammed him into the ground four or five times. Defendant characterized the events that followed as "like follow the leader," with all of them beating on the man. Defendant told the jury that the victim was screaming in Spanish and "[t]hat is when I pulled my knife out and tried to get everyone off of him. I guess they were not focused on me. That is when I stabbed him by mistake." He explained that when he tried to pull the knife out of the victim's body, he lost his grip and could not pull it out. Defendant described the knife as "zebra-colored" with jagged teeth, and said that Offray and Torres knew he had the knife because they had been with him when he purchased it at the Plainfield Plaza two or three days earlier.
After the stabbing, they ran in different directions but all returned to J.M.'s house. Although defendant did not see anyone go through the victim's pockets, he recalled Carson saying that the victim "didn't have anything," which he took to mean he did not have any money. Defendant told the others that he had stabbed the man "by mistake." The next day, Carson said that if he got "locked up" because any of them had talked about the incident, he was going to "call his people and send them on us."
Defendant admitted in his statement that in a conversation in front of the liquor store, he told Keets and Green that he was scared because he had stabbed someone and that he had left the knife in the body. After giving the oral statement, the officers videotaped defendant reading the statement. In addition to what he said in the oral statement, defendant said on tape, "I want to apologize to his family that I didn't mean -- I ain't mean to do it. It was just an accident. If y'all could just please forgive me." At this point during the questioning, defendant cried. Defendant signed a photograph of the knife recovered from the victim's body, identifying it as his.
Defendant testified on his own behalf and denied stabbing the victim or being present at the scene on March 13, 2005. He recalled that March 13 had been a special day because he was home with his family decorating the house and fixing his computer. His family ate pizza and watched a movie together, which was something they had done for the first time in many years. He told the jury that when he was arrested, he had "no clue" what it was about. At the police station, the police told him that they had five people who told on him so he might as well confess, and then in two weeks, he would be able to go home. The police told him he had better talk or they would "F him up." He repeatedly requested his mother or the presence of a lawyer, to no avail. The police wrote little notes about what he was supposed to say, he read them, and then the typist typed his words. The police made him read the statement on videotape, as the detective whispered in his ear what to say. The police told him to say it was an accident to make him look better. He complied with all of these directions because he had heard about detectives hitting and beating people and planting drugs, and he was scared. He cried on the tape because the police forced him to tell lies and because someone had died. He was forced to sign the photograph of the knife.
The jury convicted defendant of all charges in the indictment except possession of a weapon for an unlawful purpose. At sentencing, the court merged the conspiracy to commit armed robbery into the first-degree robbery, and then imposed the following sentence: (1) life imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder conviction;*fn2 (2) a twenty-year term with a seventeen-year period of parole ineligibility pursuant to NERA on the robbery conviction, to run consecutive to the sentence for the murder conviction; (3) a concurrent thirty-year term on the felony murder conviction; and (4) a concurrent eighteen-month term of imprisonment for the unlawful possession of a weapon conviction. The present appeal followed.
Defendant raises the following points for our consideration:
THE REFERENCES TO DEFENDANT'S MEMBERSHIP IN THE BLOODS STREET GANG WERE IRRELEVANT AND HIGHLY PREJUDICIAL AND ADMITTED IN VIOLATION OF N.J.R.E. 404(b). ALSO, THE FAILURE OF THE JUDGE TO DELIVER A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL.
A) THE EVIDENCE OF DEFENDANT'S ASSOCIATION WITH THE BLOODS STREET GANG SHOULD NOT HAVE BEEN ADMITTED.
B) THE COURT'S FAILURE TO GIVE A LIMITING CHARGE ON THE USE OF THE N.J.R.E. 404(b) EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE PROSECUTOR VIOLATED THE WITNESS-ADVOCATE RULE AND IMPROPERLY VOUCHED FOR AND BOLSTERED THE CREDIBILITY OF THREE OF THE STATE'S KEY WITNESSES. (NOT RAISED BELOW).
BECAUSE THE JURORS HAD ALREADY REACHED AN ADVANCED STAGE OF DELIBERATIONS, THE REPLACEMENT OF A DELIBERATING JUROR WITH AN ALTERNATE JUROR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, [¶] 1, 9, 10. (NOT RAISED BELOW).
THE JURY INSTRUCTION ON DEFENSE OF OTHERS COMPLETELY OMITTED ANY REFERENCE TO THE BURDEN OF PROOF, THEREBY REQUIRING REVERSAL OF DEFENDANT'S ...