On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0789.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Parrillo, Grall and Alvarez.
Tried to a jury on a multi-count indictment, defendant Andrew Swinton was convicted of second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count eight); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1 (count ten); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:18-2 (count eleven)*fn1 ; and third-degree possession of a prohibited weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count thirteen). He was acquitted of two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2).*fn2 After merging the second-degree conspiracy to commit burglary with the attempted burglary, the judge sentenced defendant to seven years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), concurrent, on all second-degree crimes. He imposed a consecutive sentence of four years, subject to a Graves Act term of parole ineligibility of three years, on the third-degree possession of a sawed-off shotgun count, for an aggregate term of eleven years.
Defendant appeals, and we affirm the convictions. We remand for resentencing on count eight, however, because in sentencing defendant, the court applied a section of the Graves Act which went into effect after the date of the offense. On resentencing, the trial judge shall also consider the question of whether the possession of a weapon for an unlawful purpose conviction, count eight, should merge with the second-degree attempted burglary, count five.
According to the State's proofs, Kenny Bartee and Albert Blackshear had a disagreement which resulted in a fistfight. In retaliation, Blackshear set fire to Bartee's grandmother's home. To exact revenge, Bartee solicited defendant and others to assist in burglarizing Blackshear's home. Defendant did not join in on the first occasion the burglary was attempted. But defendant accompanied Bartee and his friends the second night, September 12, 2005, when the men returned to Blackshear's home. That group, traveling in three separate cars, included Brian Baldwin, Archie Perry, Charles Clark, Jerome Farnville, William Rothmaller, and defendant.
When interviewed, defendant told police that the group's purpose was to burglarize the home, rob Blackshear, and "beat him up." He described how, upon arrival, Clark and Bartee exited their vehicle. Defendant and Farnville, both carrying sawed-off shotguns, approached the side of the house through a wooded area. Rothmaller also exited his vehicle, but Baldwin and Perry did not leave their car. When Hamilton Blackshear, the intended victim's father, walked out of the back door carrying a cable box, Farnville fired twice, mortally wounding him. On the sound of the shots, everyone ran back to their respective vehicles and drove away.
Officer Joseph Camp testified that he and other officers from the Bridgeton Police Department were in the area on unrelated business, and as a result were able to respond immediately. After their arrival, Camp spoke with Blackshear, who kept repeating that his father had been shot. The victim died at the scene.
Blackshear explained to Camp that his father had been helping him repair the damage from the prior night's burglary and that they "were gathering some items from inside the house." He also said that he and Bartee had fought recently, and that Bartee could have been involved in the shooting.
Detective Sergeant Rick Pierce, one of the responding officers, received a phone call from an off-duty State trooper familiar with the house and its occupants. The trooper told Pierce that Blackshear was a suspect in an arson and that the shooting might be connected. When Blackshear was "confronted" with this information, he admitted to the arson, explained the dispute and named a cadre of possible suspects. As a result, the investigating officers developed a list of names of persons to be interviewed.
More than three weeks elapsed before defendant was interviewed on October 5, 2005. Pierce testified that when defendant was first read his Miranda*fn3 rights and interrogated at 6:49 a.m., he waived his right to remain silent but initially said very little. Because defendant was not interested in talking to the officers, they left him alone in the interview room while they spoke to other suspects for several hours. Pierce occasionally checked in on defendant, and offered him bathroom breaks, food, and drink. When the officers returned at approximately 12:52 p.m., defendant again waived his right to remain silent. This time, however, after a pretaping interview, defendant gave a taped statement fully detailing his role in the incident. He also told the officers the location of both his and Farnville's sawed-off shotguns, hidden in a closet at his sister's home.
In his statement, which was played to the jury, defendant readily acknowledged that the intent of the visit was to burglarize Blackshear's home, rob, and assault him. During the interview, defendant was asked open-ended questions regarding the dispute with Blackshear and he responded with a detailed narrative. Officers interjected occasionally only to ask questions such as the full names of individuals defendant referred to by nicknames, the ownership of a car, and similar points.
Defendant explained that the men all donned masks upon arriving at Blackshear's house. Defendant's sawed-off shotgun was hidden in his pants; Farnville's sawed-off twelve-gauge shotgun, unlike defendant's weapon, was a pump-action model. Once Bartee informed the group that he had seen Blackshear loading his car, they saw their opportunity to "snatch him up, scare him, . . . have our way with him." Defendant had been told that because Blackshear was a drug dealer he would have both cash and drugs on hand. The men surreptitiously approached the house. He described seeing Farnville kneel down on the ground to take aim at the person coming out the back door and seeing him fire. Once the gunshots rang out, defendant headed back towards the car, everyone "loaded up[,]" drove to the corner of the street, turned on their headlights, and sped away.
Defendant described himself as the "muscle" of the operation organized to rob and assault Blackshear. He denied any purpose to murder anyone, insisting they went to Blackshear's home solely to scare him and get some money, and that the weapons were brought solely to frighten Blackshear. Defendant went along with the group because he "could use a couple extra dollars . . . ."
At trial, defendant repudiated his statement. He admitted planning to assault Blackshear, but said he never intended to rob him or burglarize the home. Furthermore, he claimed that he made the taped admissions about intending to rob or burglarize Blackshear solely to avoid being charged with murder.
At trial, Camp testified about Blackshear's statements: that Blackshear admitted fighting with Bartee and had suggested that Bartee could have been behind the shooting. Camp described Blackshear as being "under the heat of the event . . . ." Before the testimony, defendant's trial attorney acknowledged that Blackshear's initial statement was going to be admitted as an excited utterance; Blackshear himself did not testify.
In his opening statement, the prosecutor told the jury that "[w]e have something called [f]elony [m]urder, that can actually make you responsible for the acts of another person." He said in closing, responding to similar comments by defense counsel, "Like [defense counsel], I also believe in justice and I also love my job because I get to come here as an officer of the [c]court and fairly and accurately present a case to you, and back it up with evidence."
Before trial, defendant filed several motions, including a motion to suppress his Mirandized statement. The trial court denied the Miranda motion, relying heavily upon the fact that defendant's second interview occurred only when he indicated that he wanted to speak to the officers, and that on tape defendant said he was treated fairly, and offered food and bathroom breaks. The judge observed that defendant spoke in a conversational tone during the entire recording.
On appeal, defendant raises the following issues:
DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO POLICE SHOULD HAVE BEEN GRANTED.
POINT 2 THE ADMISSION OF HEARSAY STATEMENTS VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL (PLAIN ERROR).
POINT 3 THE ATTEMPTED BURGLARY CONVICTION STANDS ON INSUFFICIENT EVIDENCE AND IMPROPER JURY CHARGES (PLAIN ERROR). POINT 4 IMPROPER COMMENT AND USE OF DEMONSTRATIVE AIDS BY THE PROSECUTOR BEFORE THE JURY INFECTED THE FAIRNESS OF THE TRIAL AND ...