On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-10-1460.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Skillman and Roe.
Originally slated as a capital trial, when New Jersey abolished the death penalty in 2007, the capital charges against defendant Edward McDonald and co-defendant Hamilton Sanchez were dismissed and a jury trial proceeded on murder and related charges stemming from a home invasion during which a family of four - the parents Amal Garas and Hossam Armanious and their daughters, nine-year-old Monica and sixteen-year-old Sylvia - were bound with duct tape and stabbed to death. Following eleven days of trial and an equal amount of time in deliberations, the jury convicted defendant of the felony murder, either by his own conduct or as an accomplice, of all four victims based on the burglary of their home armed with a handgun, for which he also was convicted. Defendant also was convicted of felony murder based on robbery of Sylvia, Amal, and Hossam, as well as the predicate offense, but the jury was unable to reach a verdict on those charges with respect to Monica.
Defendant was acquitted of purposeful or knowing murder and the lesser-included aggravated and reckless manslaughter charges for Sylvia, Amal, and Hossam. The jury was unable to reach a verdict on murder or the lesser-included manslaughter charges for Monica.
With respect to the weapons charges, defendant was convicted of possession of a handgun without a permit, and of possession of a gun for an unlawful purpose with respect to each of the victims, including Monica. He also was convicted of possession of a knife under inappropriate circumstances. He was acquitted of possession of a knife for an unlawful purpose with respect to Sylvia, Amal and Hossam, but the jury was unable to reach a verdict on that charge with respect to Monica.
Finally, defendant was convicted of attempted theft by deception, theft by deception and wrongful impersonation. After the verdict, defendant waived his right to a jury trial on the charge of certain persons not to have weapons, of which he was subsequently found guilty.
Defendant was sentenced to four life terms for the felony murder charges and concurrent terms for the other crimes. Defendant appeals, and we affirm.
The Armanious family lived in the first-floor apartment of a two-story, two-family house at 85 Oakland Avenue in Jersey City. Hossam worked in a hotel in Princeton and Amal worked at the post office.
According to the State's proofs, on January 13, 2005, Amal's brother, sister and parents went to 85 Oakland Avenue and knocked on the door, worried because they had been unable to contact her by telephone. After receiving no response, at midnight they contacted the police, who returned to the home with them.
With a flashlight, Sergeant Mark Cavanaugh was able to see through a porch window that the contents of a drawer in the front room were strewn around the floor. He entered the home through the window and, in the dining room, observed Amal's lifeless body in a puddle of blood, partially hanging off an upended chair, her arms, legs, and head duct taped. A bloody kitchen knife was on the living room couch.
Cavanaugh opened the front door for the other officers. In the bedroom, they found Sylvia's body lying on the bed, "hands duct taped above her head, hands and feet duct taped, covered in blood." A large bloody butcher knife was found on the bed next to her body. They found Monica's body "crouched in the bathroom with her neck slit, drenched in blood." She was in her pajamas, duct tape across her mouth and eyes.
Hossam's body was in the front bedroom, "arms and legs duct taped, arms behind his back, head duct taped, covered in blood." Protruding from his left shoulder was a wooden-handled butcher knife. His pockets had been pulled out. The apartment showed no sign of forced entry, and both the front and rear doors were locked with a dead-bolt. Closet doors and drawers were open.
Autopsies later showed that Hossam had a three-and-a-half-inch deep wound on his neck that was fatal. He also had three facial wounds that were consistent with torture. Amal had two knife injuries to her throat, one of which injured her trachea, and another that injured one of her main arteries and one of her main veins. Her right jugular vein and carotid artery had been cut.
Sylvia had eleven knife injuries. Most of the injuries were to her neck area and one stab wound was in her breast. Her right jugular vein and carotid artery also had been cut. Monica had a total of nineteen injuries. Eleven of the knife injuries were inflicted on her neck, chest and face. She had an additional eight defensive injuries on her arms, wrist and hand. Both sides of Monica's jugular vein and the left side of her carotid artery had been cut. The neck injuries on all of the victims "contribut[ed] significantly to their cause of death."
After discovering the bodies, the officers knocked on the locked door of the second-floor apartment. When they received no response, the police kicked in the door. Inside they found defendant, his girlfriend, Stephanie Torres, and three young children, who all lived there. Defendant was "very calm" as the police questioned him and Torres, both of whom said they had not heard or seen anything unusual. Cavanaugh described defendant's demeanor as "just surprisingly not excited about us kicking in his door," never inquiring why the police had kicked in his door in the early morning hours or what had happened downstairs.
Defendant agreed to accompany the police to the Hudson County Prosecutor's Office, where at approximately 6:30 a.m., he gave a formal statement, which was audiotaped.*fn1 Thereafter, defendant was transported to a relative's home because he was not permitted to return to the crime scene.
Upon further investigation, the police determined that neither Hossam nor Amal had gone to work on January 12, 2005, and that their daughters had not been to school. A supermarket receipt found in the Armanious's kitchen trash was dated January 11, 2005, at 7:12 p.m. A security videotape from the Princeton hotel where Hossam worked showed that he left there at 8:40 p.m. on January 11, 2005.
The police also obtained a January 18, 2005 letter sent to Hossam by the Bank of America that advised him of "unusual activity" with his ATM card between January 14 and 16, 2005. Bank records indicated that Hossam's Bank of America ATM card had been used in transactions or attempted transactions twenty-one times between January 12, 2005, at 8:45 a.m. and March 3, 2005. A total of $2907 had been withdrawn. A video surveillance photograph at a Bank of America drive-through several blocks from Oakland Avenue showed that the driver of a 1990 Buick LeSabre used Hossam's ATM card on January 12, 2005, at 8:45 a.m.
According to motor vehicle registration records, defendant's mother owned a 1990 Buick LeSabre. Police surveillance photographs of her car showed decals and objects in the front and back windows that appeared to be the same as in the Buick that was used at the ATMs. In addition, the images of the individual seen on the bank transaction videos were consistent with photographs of defendant. As a result, defendant was placed under surveillance and wiretaps were placed on his home and cell phones.
On March 3, 2005, at 8:30 a.m., detectives stopped defendant on the street and he agreed to accompany them for additional questions. Defendant was taken to FBI headquarters in Newark. He was "[v]ery calm and cooperative." At 9:35 a.m., defendant was read his Miranda*fn2 rights and agreed to waive them.
Defendant initially was interviewed by Detectives Kenneth Kolich and Jeffrey Marsella. When asked about the ATM transactions, defendant first said he knew nothing about them. But when confronted with a video photograph that showed his mother's car at the bank drive-throughs, defendant admitted that he had used Hossam's ATM card. He claimed that, several days prior to the murders, he had intercepted the Armanious's mail and found the card, and that he had a friend who hacked into the bank's computer and obtained the pin number.
However, after being shown additional bank photographs of the car and an individual using the card after the murders, defendant gave yet another account, telling police that his friend Hamilton Sanchez had given him the card. He further explained that on Tuesday, January 11, 2005, he had arranged with Sanchez that he would unlock the front door at 7:30 or 8:00 p.m. and return upstairs so that Sanchez could rob the Armanious family; that Sanchez called him later that night and told him where to meet the next morning so Sanchez could give him the pin number; and that defendant's job was to withdraw as much money as possible from the ATM machines.
That interview, which was not recorded, continued until 3:00 p.m., when detectives took a formal audio and videotaped statement wherein defendant reiterated what he had told police that morning. The day of the murders, he went to work and met Sanchez at lunchtime, when Sanchez told defendant he intended to rob the family that night. As planned, defendant went home and, at 6:00 p.m., unlocked the front door, checking it again at 7:30 p.m. Although defendant did not know the exact time Sanchez entered the apartment, Sanchez called him later that night and they arranged to meet the next morning. When they met at 8:30 a.m. on January 12, 2005, Sanchez handed defendant "a card and a pin number" and said "use this." Defendant was to give some of the money to Sanchez and keep some.
Because Kolich "was not totally convinced [defendant] was telling the truth," he arranged for defendant to be interviewed by special agent Edward Holloman of the Federal Bureau of Investigation, who "ha[d] a lot of experience interviewing people." That interview lasted a couple of hours and, in accordance with FBI policy, it was not recorded and Hollomon took no notes.
Defendant told Holloman that he had assisted Sanchez in robbing the Armanious family because defendant owed money to a loan shark. Defendant initially claimed that he left when the robbery "went bad" and Sanchez killed Monica, saying "he didn't want to have anything to do with any killing."
When Hollomon expressed disbelief, defendant eventually admitted killing Monica after she had loosened her blindfold because he was afraid she would recognize him. He also admitting killing Hossam by stabbing him in the neck with a knife from the apartment, but denied torturing him. Defendant also said he had a handgun that was secreted in a dryer at his residence.
Kolich observed Holloman's unrecorded interview of defendant from another room. At 8:30 that evening, the detectives took a second videotaped statement from defendant wherein he said he had arranged to meet Sanchez at the house at 7:30 p.m. on January 11, 2005. Defendant wore a mask and a hoodie and carried a 9 millimeter gun that he owned. He brought duct tape with him. Sanchez also wore a mask.
When Amal answered the door, defendant threatened her with the gun. Then he and Sanchez tied up Amal and the girls and searched the house for money and "everything." When Hossam came home, they tied him up and put him in the bedroom with the other family members. Hossam gave them his debit card and its pin number.
Defendant panicked when Monica pulled the blindfold off her face and Sanchez said "that she noticed us and that everybody had to die." After defendant put Monica's blindfold back on her, Sanchez "dragged" Monica into the bathroom and told defendant to kill her. Defendant killed Monica with a knife from the kitchen and walked back to the living room "in shock." Defendant never explained why it became necessary to kill Monica given that he and Sanchez wore masks the entire time.
Contradicting his statement to Holloman in which he admitted also killing Hossam, defendant now told the detectives that Sanchez killed the other three people. Defendant said he took a small knife from the house and, after the killings, went upstairs to his home and went to bed. He had "[a] little bit" of blood on his clothes and threw them and the knife into the garbage at his grandmother's house. He told his girlfriend he had robbed a store. Sanchez kept a hundred dollars that they found in Hossam's pocket and defendant kept the ATM card.
On March 3, 2005, the police also searched the apartment defendant had moved into at 18 Charles Street in Jersey City. There, inside the control panel of the clothes dryer, they found a 9 millimeter semi-automatic pistol with one bullet in the chamber, a sock with nine bullets inside, and a black knit cap. The magazine area of the gun was empty and its serial number was scratched out.
The police found no fingerprints, blood, DNA, hair or other fibers that linked defendant to the scene. All of the bloody knives found in the apartment had been part of the family's kitchen cutlery.
On appeal, defendant raises the following arguments for our consideration:
I. THE TRIAL WAS IRREPARABLY TAINTED BY SERGEANT KOLICH'S TESTIMONY THAT DEFENDANT SAID HE "DOESN'T WANT TO GO BACK TO JAIL," AND THE COURT ERRED IN ...