On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-1043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 27, 2010
Before Judges Cuff, Fisher and Simonelli.
A jury found defendant Antwan Shannon guilty of first degree murder, N.J.S.A. 2C:11-3a(1), and N.J.S.A. 2C:11-3a(2) (Count One); first degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); first degree armed robbery, N.J.S.A. 2C:15-1 (Count Three); two counts of third degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Four and Eight); two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Counts Five and Nine); two counts of second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Counts Six and Ten); and second degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Seven). Counts One through Six involve the victim Fidelina Claros; Counts Seven through Ten concern victim Jorge Luiza.
After merging Counts Two and Four with Count One, Judge Kevin Callahan sentenced defendant to a term of life imprisonment, subject to thirty years parole ineligibility. On Count Three, the judge sentenced defendant to a term of twenty years imprisonment subject to a No Early Release Act (NERA)*fn1 85% parole ineligibility term. On Counts Five and Nine, the judge imposed a five-year term of imprisonment. Count Ten merged with Count Six and defendant received a ten-year term of imprisonment, subject to a five-year period of parole ineligibility. Count Seven merged with Count Eight, and the judge imposed a ten-year term of imprisonment, subject to a Graves Act*fn2 five-year period of parole ineligibility. All sentences are concurrent to each other for an aggregate term of life imprisonment with a thirty-year period of parole ineligibility. The appropriate fines, penalties and assessments were also imposed.
On October 30, 2006, defendant called Richard Salsado*fn3
and asked to see him. Salsado drove to defendant's apartment
on Academy Street and picked him up. The two took a ride. While
stopped at a light on the corner of Webster and Ferry Streets,
defendant left the vehicle, entered a neighborhood convenience store
known as G & P Deli, and bought a bag of chips. He returned to the
vehicle and asked Salsado if he wanted something from the store.
Salsado pulled the car over, and defendant reentered the store.
Jorge Luiza lived near the scene of the crime in Jersey City. He knew the store owner, Fidalina Claros, because she often let Luiza use the phone in her store. Sometime after midday, Luiza entered the open store. Luiza called out to Claros but received no answer and noticed the emptiness of the store. Luiza saw a male behind the register, thought he was one of Claros' sons, and began to thumb through the newspapers on the rack. Then Luiza saw the male approaching him quickly with a gun in his right hand. The man hit Luiza with the gun across his face, and Luiza fell to the floor. The incident happened quickly; Luiza "barely got to see" the man. Luiza was able to notice that the man was African-American and was wearing a dark parka. When Luiza rose, he noticed Claros on the floor behind the counter with blood streaming down her face. Luiza called 9-1-1.
A patrol police officer responded to Luiza's 9-1-1 call within minutes. Detectives then arrived and took over the scene. After determining that the victim had no pulse, police processed the crime scene. They recovered two shell casings, swabs of blood stains, and some latent prints from the convenience store. Sergeant Efrain Diaz, a ballistics expert, identified the bullet removed from the victim as a .22 caliber bullet. The police also recovered a video tape from a security recorder, but the tape was not recording during the murder.
After October 30, 2006, the detectives followed several leads but did not develop a meaningful case until January 2007, when Madeline West filed a second domestic violence complaint against defendant. She noted that she filed the first domestic violence complaint after "he had beat me up bad." The second complaint followed another beating. After West filed the second complaint, she informed police that defendant may have been involved in the robbery and shooting at the G & P Deli.
At trial, West testified that she lived with defendant in October 2006. She also testified defendant returned to the apartment on October 30, 2006, and banged on the door. She let defendant in because "he scared [her]." When defendant entered the apartment, West noticed blood on his boots and pants. Defendant threw money on the bed and told West to count it. West recounted that defendant told her he had just committed a robbery, and thought he had "killed the bitch because I had to shoot her again." Defendant seemed "shook up" and paced about the room. He told West to look out the window and see if Salsado was still parked outside. Defendant counted the money, claimed he had to go outside and share it, and changed his clothes.
West provided police with Salsado's name and told them she saw Salsado seated in a car outside their apartment after defendant returned to change his clothes.
The police went to Salsado's apartment on January 9, 2007. While Salsado hid on the roof of his apartment building, the police searched Salsado's apartment pursuant to consent given by Salsado's wife. The police recovered .22 caliber ammunition, .40 caliber ammunition, and a .40 caliber handgun.
Salsado surrendered either later that day or soon thereafter. He gave the police no information about the October 30, 2006 crime, and he was charged with possession of the .40 caliber handgun found in his apartment. Salsado was in jail for a few days before he posted bail. He claimed he was later contacted by defendant, who was in the Hudson County Correctional Facility, and defendant left him messages telling Salsado to "lay low." On March 21, 2007, Salsado was arrested and charged with felony murder in connection with the October 30, 2006 murder of Claros ...