On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Cuff, Payne and Waugh.
A jury found defendants Lamar Alford and Ziair T. McDaniels guilty of first degree murder, N.J.S.A. 2C:11-3a(1) (Count 1); first degree felony murder, N.J.S.A. 2C:11-3a(3) (Count 2); first degree robbery, N.J.S.A. 2C:15-1 (Count 3); first degree conspiracy/murder/robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1; N.J.S.A. 2C:11-3a(1) (Count 4); second degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 5); and third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count 6). Alford and McDaniels were also found guilty of second degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (Counts 7 and 8, respectively).
After merging Counts 1, 3 and 5 into Count 2, each defendant was sentenced to life imprisonment with an 85% No Early Release Act (NERA)*fn2 period of parole ineligibility. On Count 4, each defendant was sentenced to a concurrent term of twenty years imprisonment with a ten-year period of parole ineligibility. On Counts 7 and 8, respectively, each defendant was sentenced to a term of ten years imprisonment with five-year periods of parole ineligibility consecutive to Counts 2 and 4. In short, each defendant is serving life plus ten years in prison subject to a parole ineligibility term of 68.75 years.*fn3 The appropriate penalties and assessments were also imposed.
On May 22, 2005, Salvador A. Martinez, known as Twin by some and Alex by others, was shot and killed. The victim was in an alley on Merriel Avenue in Camden at about 9:30 p.m. when two men dressed in dark clothing, one tall and one short, entered the alley and pushed the victim to the ground. Lillian Davis heard one of the men say, "don't move, just stay there," and the victim ceased his attempts to stand. She observed the men stand over the victim and rifle through his pockets. Then she saw the taller man run from the alley, and "[the shorter one] was getting ready to run, but he turned back around like . . . pulled it out and shot one time." Then the shorter assailant ran from the scene. Davis could not identify either man because, as she stated numerous times at trial, "I didn't see no faces."
Carol Lofland, standing near the alley with Davis and a man known as Beans, saw the shorter man rifle through the victim's pockets and saw both men start to run. Lofland then saw the shorter man stop, turn, return to the victim, and fire one shot. Thia Kim, sitting in the park across from the alley, saw both men run from the alley, cross the street, run through the park, and across nearby railroad tracks. Kim testified that he saw the faces of both men and recognized both men. Kim recognized Alford because "I seen [him] around." He testified he recognized McDaniels as a person who hung around his middle school. Kim also stated he had seen McDaniels in the neighborhood but had not seen him with Alford. The victim was pronounced dead at the hospital.
Carol Lofland identified Alford, known on the street as Bling and by some as Blaze, as the taller of the men. She did not identify McDaniels as the shorter man. She, unlike Kim, gave inconsistent testimony about seeing McDaniels, known on the street as Sugar Hill, with Alford on a regular basis. Initially, she testified that she saw them together rarely. When confronted with her statement given about a month after the shooting in which she stated she saw them together often, she changed her testimony.
Jacob Eller testified he knew the victim and Alford because he was a drug user and had purchased drugs from both men on numerous occasions. He also recounted an encounter with defendants earlier on May 22, when he went to a street corner in Camden to buy drugs.
According to Eller, as he awaited his turn to purchase drugs, someone arrived in Alford's car. Eller heard the driver say to Alford, "you're not getting your money he owes you," and he heard Alford respond, "go get my gun, I'll get my fg money." Eller said someone obtained a gun, and gave it to Alford, who entered the passenger seat of his car and drove away. Eller also testified that Alford had an "associate," who he identified as McDaniels. He stated he had seen them together "a hundred times."
On appeal, defendant Alford raises the following arguments:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING DEFENDANT'S ALLEGED DRUG DEALING WITH HIS CO-DEFENDANT VIOLATED N.J.R.E. 404(B) AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10.
THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY FROM INVESTIGATOR GREER, WHICH BOLSTERED THE TESTIMONY OF THE STATE'S THREE IDENTIFICATION WITNESSES, AND NECESSITATES REVERSAL. U.S. CONST., AMENDS. VI, AND XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).
THE TRIAL COURT ERRED IN CHARGING THE JURY THAT LOFLAND HAD "IDENTIFIED THE [CO-DEFENDANT] BY BUILD AND STATURE AS THE PERSON WITH [DEFENDANT] AT THE SCENE," WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10.
THE JURY'S EXPOSURE TO JUROR 7'S COMMENT THAT DEFENDANT'S TWO TEARDROP TATTOOS MEANT HE KILLED TWO PEOPLE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
BY IMPROPERLY IMPOSING CONSECUTIVE TERMS, THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In a pro se supplemental brief, Alford raises the following points:
SUPPLEMENT TO OTHER-CRIMES/ACTS ISSUES RAISED BY COUNSEL.
SUPPLEMENT TO TAINTED-JURY ISSUES RAISED BY COUNSEL.
SUPPLEMENT TO CUMULATIVE-ERROR ISSUES RAISED BY COUNSEL.
On appeal, McDaniels raises the following arguments:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING CO-DEFENDANT'S ALLEGED DRUG DEALING WITH HIS DEFENDANT VIOLATED N.J.R.E. 404(B) AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE 404(B) EVIDENCE WITHIN THE ...