On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-12-1458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez, Grall and LeWinn.
Defendant was indicted, along with co-defendant Antwan Mitchell, for purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) - (2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1(a)(1); carjacking, N.J.S.A. 2C:15-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun with unlawful purpose, N.J.S.A. 2C:39-4(a). Mitchell's charges were severed and defendant was tried alone. A jury convicted defendant of all charges. He was sentenced to an aggregate term of life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant was also required to pay $7761.41 in restitution.*fn1
The trial testimony may be summarized as follows. The victim of the carjacking, armed robbery and homicide was Christopher Cooper. He was a highly successful drug dealer and Mitchell, also known by the nickname "Rell," was one of his customers. In 2001, a friendship began to develop between Cooper and Rell. According to Kimberly Harris, Cooper's fianceee, Rell was aware that Cooper kept as much as $65,000 in cash in his apartment.
During the afternoon of March 26, 2002, after they had worked out at a gym together, Rell and Cooper were driving in a gray Ford Taurus. They picked up defendant and shortly thereafter stopped at an Exxon gas station in Clark. The station attendant, Joga Singh, saw a man in the front passenger seat with his legs hanging out of the car, "trying to shout." The driver, whom Singh described as a young African-American male, was "trying to push . . . [the passenger] back inside the vehicle." The car then left the gas station at a high rate of speed, heading towards a near-by Shop-Rite; the passenger's legs were still hanging outside the door on his side.
A customer at the Exxon during this incident, Susan Schwartz, described a similar scene, adding that the car's windows were tinted. She heard the passenger yell, "[c]all the police, they're going to kill me." She called 9-1-1 and gave the dispatch operator the license plate number of the Ford Taurus.
Another individual, Stuart Reiter, was driving in the area of the Exxon at this time. He noticed what he described as a light blue Ford Taurus run a red light on Valley Road near the entrance to the Garden State Parkway. Just before entering the ramp to the Parkway, a large-framed, tall man wearing a hooded sweatshirt threw a flip cell phone from the car. Reiter did not see the man's face. He reported this information to the Clark Police Department two days later after hearing a news report asking for assistance in a murder investigation. The police retrieved the phone and subsequently determined that it was registered to Rassoull Abdullah.*fn2
Clark Police Officer Pasquale Delvecchio was dispatched to the Shop-Rite in response to Schwartz's 9-1-1 call. He found an individual, later identified as Cooper, lying in a "prone position" behind the supermarket. Delvecchio observed a gunshot wound in the back of Cooper's head and detected no pulse. Cooper's boots were scuffed at the toes. He wore no jewelry and had no money on his person.*fn3 No shells or spent cartridges were found by his body.
A forensic pathologist testified that Cooper received three gunshot wounds to his head and one to his right shoulder; the three head shots likely occurred within quick succession of each other and Cooper's shirt was over his head when he was shot.
The day after the incident, Officer George Gyure of the Union County Sheriff's Office located the Ford Taurus at a bank in Union. Title to the vehicle was in Harris' name. Sheriff's Officer Nicholas Cadigan, "processed" the vehicle, taking external and internal photographs and collecting evidence. He retrieved numerous items from the Taurus, including a cell phone charger, clear plastic wrap and containers of baby wipes and "All Armor" wipes.*fn4
The cell phone retrieved by the police based on the information provided by Reiter revealed that on the day of Cooper's murder several calls had been made between that phone and one registered to Quinton Lowe. The police thereupon questioned Lowe, who explained that he maintained that phone for defendant's use. Because he wanted to "clear [his] name," Lowe agreed to cooperate with the police and allow them to listen in on a conversation with defendant.
Lowe called defendant from police headquarters on his cell phone. He told defendant that he was being questioned by the police about a murder in Clark. Defendant responded that he did not want to discuss the matter over the phone; therefore, Lowe agreed to meet him in person. Lowe wore a body wire during that meeting and a detective from the prosecutor's office monitored the conversation from a remote vehicle.
A tape of Lowe's conversation with defendant was played for the jurors who also received a transcript to follow along. As the tape played, Lowe was asked to explain various terms and expressions defendant used.
In that conversation, Lowe stated that the police had identified defendant on a surveillance tape. Defendant, however, told Lowe he was not on tape because he "was in the car the whole time and had gloves on. [He] had a mask on. The windows w[ere] tinted" and no one saw him get out of the car. Lowe claimed his cell phone arrangement with defendant had implicated him in the murder. Defendant advised Lowe to tell the police that the phone belonged to a dead person.
When Lowe asked defendant about the gun used in the murder, defendant said it was "history," and explained that he had picked up the spent shells "with the glove. Everything [he] touched with a glove." Defendant stated he did not do anything that would put him "in the midst" of things. He added that the shell casings were disposed of in a sewer and the car was wiped down with baby wipes.
Lowe suggested that Rell might have implicated defendant in Cooper's murder. Defendant responded:
Word is bond this nigga, he a official, I'm telling you if not I'd have burned this nigga right after that shit went down. Word is bond this nigga, and I made the nigga put some other work in the other day that can link him. So if you trying to put me away for one nigga, I got you.
Lowe explained that "official" meant that Rell would not cooperate with the police, and "work" meant that defendant had compelled Rell to commit another crime so that he would not then cooperate with the police investigation of Cooper's murder.
Defendant was arrested about two months after the murder. After being advised of his Miranda*fn5 rights, he gave a statement, which was admitted into evidence at trial. Defendant told the police:
When R[ell] came and picked me up that morning, they [Rell and Cooper] were coming from a gym from working out. He called me on my phone and told me to come downstairs. I get downstairs, I open up the car door and get into the car with him, in the back seat.
[Rell] had a pair of gloves in the back seat and told me to put them on. Mufee*fn6 was already shot in the arm . . . . [H]e was shot prior to me getting in the car. We were leaving Newark, getting on the parkway going south. We got off at exit [sic] and pulled up to the . . . gas station, in . . . Clark. R[ell] told me to hold Mufee's shirt so he couldn't run out of the car. Somehow Mufee got the door open and tried to jump out. R[ell] grabbed his legs and pushed him back into the car. As I was holding him R[ell] was pu[ll]ing off, his legs were still out of the car. Coming out of the . . . [g]as [s]tation we made a quick right, we were in the back of the Shop-Rite. R[ell] told me [to] release Mufee's shirt and he shot him in the back of the head. We left straight out the [sic] back of Shop-Rite, we got to the parkway going north, we got off at the town we left the car at, I don't know the name. We got out of the car, R[ell] told me to go over to the store and get some baby wipes, to wipe the car down. Told me to make sure I pick up all the shell cases. I picked them up, pulled my gloves off. He had the gun, I had the shells to throw away when we got closer to Newark.
I witnessed [three] shots behind Shop-Rite but he was also shot in the shoulder before they picked me up.
After [Rell] shot [Mufee], the shell casings were on the front seat of the car, they started to roll out of the car and I picked up the shell casings from the front seat.
I threw them away . . . down the sewer . . . .
R[ell] disposed of the gun.
When asked about Rell's motive for shooting Cooper, defendant stated that Rell "owed Mufee money for a drug transaction. R[ell] said he was tired of giving Mufee his money. Mufee told R[ell] that he had $65,000 in his house. ...