On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0687.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Messano, Yannotti and Kennedy.
The opinion of the court was delivered by YANNOTTI, J.A.D.
Defendant was tried before a jury and found guilty on four counts of first-degree murder and other offenses. Defendant appeals from the judgment of conviction dated September 19, 2008. He challenges the convictions and the sentences imposed. For the reasons that follow, we affirm.
We briefly summarize the facts, based upon the evidence presented at trial. With money provided by the Federal Bureau of Investigation (FBI), Lorenzo Gonzalez (Gonzalez) operated an after-hours club called "Kings Court" in Paterson. The club was intended to attract certain "high-level" gang members who the FBI was tracking and investigating.
On the evening of December 13, 2005, Beatriz Hernandez (Beatriz) went to a club in Passaic with Debbie Aponte-Tovar (Aponte-Tovar) and two men. Defendant was at the club with Hamid Shabazz (Shabazz) and Reginald Barris (Barris). Beatriz told them that there would be gambling and a lot of money at Kings Court and they should rob that establishment. Between 1:55 and 2:30 a.m., Beatriz and Aponte-Tovar left and drove to Kings Court.
When they arrived there, Beatriz and Aponte-Tovar found Gonzalez and two men playing pool. A short while later, defendant arrived with Shabazz, Barris and Maurice Fabor (Fabor). Others were present at Kings Court, including Michael Almonte (Almonte), Ralph Hernandez (Hernandez), Jesus Gonzalez (Jesus), John Melendez (Melendez) and Tara Woods (Woods).
After a while, Beatriz moved to the dice table. She observed about $5000 on the table. Beatriz left the table and confirmed with defendant and Shabazz that the robbery was going to take place. Barris became very intoxicated and went outside. Defendant and Shabazz followed. Beatriz thereafter opened the back door and defendant and Shabazz came back inside. They were both wearing black masks and defendant had a gun.
Gonzalez was standing at the gaming table with Hernandez and Beatriz. When Gonzalez stood up to count his money, he heard a loud bang. Defendant had shot Jesus. Defendant then walked over to the pool table where Woods was playing. She asked defendant not to kill her, but he told her to "[s]hut the fuck up" and shot her in the head. Beatriz asked defendant what he was doing. Defendant did not respond. He then shot Melendez and Hernandez. Beatriz and Aponte-Tovar ran out the back door of the club, met Fabor who was already outside, and got into Beatriz's truck and drove away. Beatriz headed towards the highway but stopped to pick up defendant and Shabazz. Shabazz told her to drop them off near a store in Paterson. According to Beatriz, during the drive, defendant and Shabazz joked about the shooting and talked about dividing the money. Defendant and Shabazz offered Beatriz some money but she refused to accept it.
Officers of the Paterson Police Department (PPD) were dispatched to Kings Court. Emergency personnel confirmed that all four victims of the shootings were dead. Gonzalez told the police that he believed the suspects were associated with the Bloods gang. The police showed Gonzalez photographs of certain known gang members, and Gonzalez identified Barris, Hernandez and Aponte-Tovar as persons who were present at the club that evening. Gonzalez testified that he told the police defendant was the shooter.
Beatriz thereafter spoke on the phone with the PPD detectives. Later, she went to police headquarters and provided the detectives with a statement denying that she conspired to commit the robbery. The detectives showed Beatriz certain photographs and she identified defendant, Barris and Shabazz as persons involved in the incident. She identified defendant as the shooter. Beatriz also told the detectives that Fabor was present at the club on the night of the shootings.
Aponte-Tovar left the state after the shootings. She returned after she was told that the PPD knew she was at Kings Court at the time of the shootings and knew where she could be located. Aponte-Tovar identified photographs of defendant, Barris, Shabazz and Beatriz as persons involved in the incident. In addition, Almonte informed the police that he was a witness to the shootings. He was shown photographs of gang members and he identified Barris as one of the perpetrators of the robbery.
On December 16, 2005, criminal complaints were filed against defendant, Barris and Shabazz. Shabazz was arrested in Passaic on December 18, 2005. At the request of the Paterson police, Shabazz phoned defendant, who told Shabazz that the police had been at his house. The police overheard the conversation. On December 20, 2005, defendant turned himself in at police headquarters and he was arrested.
Defendant was informed of his Miranda rights.*fn1 He agreed to waive those rights and give the detectives a statement. Defendant acknowledged that he had been at Kings Court on the night of the shootings. He said that he went to the restroom and when he returned, he heard gunshots. The detectives asked defendant why three people would "point the finger" at him, and he responded that it was "[b]ecause I'm Blood, I'm Blood and I have respect within this Blood thing."
Defendant said that Kings Court was a "gang place" but he denied seeing any members of the Bloods gang in the club on the night of the shootings. In addition, defendant denied that Fabor was a member of the Bloods. He stated that he was willing to "take the weight" for the shootings because he had "no choice."
The grand jury charged defendant with four counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (counts one, four, seven, and ten); four counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two, five, eight and eleven); four counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (3) (counts three, six, nine and twelve); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirteen); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen); and certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count fifteen). Shabazz, Barris and Beatriz also were charged with various offenses.
Defendant was found not guilty on counts six and twelve (charging the robberies of Woods and Melendez, respectively) and thirteen (charging unlawful possession of a weapon) but guilty on all other charges. After merging certain offenses, the court imposed four consecutive life sentences without parole for the murders; two concurrent twenty-year sentences for the robberies, with periods of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2; and a consecutive ten-year term for certain persons not to have weapons, with a five- year period of parole ineligibility. The court filed a judgment of conviction dated September 19, 2008.
Defendant appeals and raises the following issues for our consideration:
THE DEFENDANT'S VIDEOTAPED STATEMENT WAS THE PRODUCT OF PSYCHOLOGICALLY COERCIVE INTERROGATION DURING WHICH THE DETECTIVES FAILED TO HONOR DEFENDANT'S ASSERTION TO STOP TALKING.
A. The Defendant Was Subjected To Psychological Manipulation and Coercion.
B. The Defendant Asserted His Right To Stop The Interrogation.
THE JURY INSTRUCTIONS WERE REPLETE WITH ERRORS ON KEY PRINCIPLES OF LAW, MISSTATEMENTS, AND OMISSIONS, RESULTING IN A DENIAL OF THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below).
A. The Omission Of Key Principles.
C. The Court Failed To Give A Prior Contradictory Statement Charge.
THE ADMISSION OF DEFENDANT'S ORAL STATEMENT BLATANTLY VIOLATES N.J.R.E. 403 WHICH SPECIFICALLY PROVIDES FOR THE EXCLUSION OF HIGHLY ...