On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
An Atlantic County jury on May 4, 2009 found defendant guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a firearm, N.J.S.A. 2C:39-5b; endangering an injured victim, N.J.S.A. 2C:12-1.2; automobile theft, N.J.S.A. 2C:20-3; hindering apprehension, N.J.S.A. 2C:29-3a(3); disturbing or desecrating human remains, N.J.S.A. 2C:22-1a; and possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. For the murder, the trial court sentenced defendant to sixty-five years, eighty-five percent of which had to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a consecutive ten-year sentence, with five years of parole ineligibility, for the certain person not to possess a firearm offense, and a concurrent five-year term for the automobile theft. The court merged the other convictions into the murder conviction. We reverse the convictions because the trial court did not clearly and unequivocally instruct the jury to begin deliberations anew after substituting two alternate jurors for two deliberating jurors who were unable to continue.
According to the State's proofs, on June 13, 2006, Delrico Herring was shot four times in the head, at point blank range, outside Phillip Schwartzbeck's Egg Harbor residence.
Schwartzbeck and Preston Milbourne (Preston)*fn1 discovered Herring's body on the front lawn when they returned to the house during their lunch break. They had been doing carpentry work at Guy Salani's house nearby. Salani noticed their arrival at his house between 9 and 9:15 a.m. Salani's wife noticed they were present all morning.
Preston testified he drove his car to Schwartzbeck's house the morning of June 13, with defendant, Louis "BL" Williams, in the passenger seat. Preston asserted he let defendant borrow his gold Ford Taurus to run errands. In contrast, Schwartzbeck testified Preston was in the passenger seat when he arrived, apparently driven by his sister.
Meanwhile, the victim dropped his daughter off at school in Galloway Township at 8:51 a.m. while driving a gray Mercedes SUV. Although he planned to return to pick up his daughter after school, he failed to appear.
Preston testified he knew the victim since they were children. The victim supplied Preston with five to eight pounds of marijuana a week, which he resold for roughly $1300 a pound, yielding $300 to $400 in net profit. Preston testified the victim called him shortly after he arrived at the Salani home, asking him if he wanted to be resupplied, which he did not. Defendant then "chirped" Preston at work around 9 a.m., asking him "where's your boy at," referring to the victim. Preston testified the victim had supplied cocaine to defendant, who, defendant maintained to Preston, sold less than he represented.
Shortly before 10 a.m., a witness, Marie Conover, observed defendant in a silver Mercedes SUV, like the victim's, on her block in Pleasantville. According to a pre-trial Wade*fn2 hearing, a detective uninvolved in the homicide investigation presented Conover with a six-photo array eight days after the homicide. The array consisted of African-American males born between 1974, defendant's birth year, and 1978, consistent with Conover's statement that the man she observed had shoulder length hair and was wearing a white t-shirt. All men had braids or dreadlocks, ranging from ear-length to shoulder-length, in defendant's case. After her fourth review of the array, Conover identified defendant with "99.9 percent" confidence, stating his eyes were a distinguishing characteristic.
Around 11 a.m., Preston testified, defendant "[c]alled me and said that he got with Rico Herring and said that shit went bad and he had to twist his cap back," which meant, shoot him in the head. Defendant advised Preston not to return to Schwartzbeck's house for lunch as he and Schwartzbeck usually did, but Preston could not dissuade Schwartzbeck from returning.
After they discovered the victim's body and Preston's own car parked in the driveway, Preston said, "I know this cat. I think he's my dealer." Although Schwartzbeck wanted to call the police, Preston dissuaded him. Schwartzbeck also helped Preston put the body in the car's trunk. Preston then drove to his mother's home, where he lived and defendant was waiting. Defendant then told Preston that he got into an argument with the victim and shot him while they both were sitting in Preston's car, and defendant then pulled the victim out of the car and shot him again.
Preston and defendant cleaned out the car. Defendant attempted to burn the victim's belongings - his cell phone, hat and sandals - in the barbecue, but charred remnants of those items remained. After dark, defendant and Preston disposed of the body in a wooded area in Egg Harbor Township.
After Preston left Schwartzbeck's house, Schwartzbeck claimed he returned to work alone at Salani's house, and still did not alert police. Schwartzbeck informed Salani about the discovery of the body. Salani initially didn't believe Schwartzbeck, but ultimately, Salani conferred with an attorney, and then notified police that evening what he learned from Schwartzbeck. Also during the evening, Schwartzbeck met Preston at a Wawa to return to Preston belongings he had removed from the trunk when he loaded the body, and a Home Depot bucket with marijuana Preston had kept at Schwartzbeck's house.
Informed by Salani, Egg Harbor police officers went to Schwartzbeck's home to investigate and found blood and other evidence. Schwartzbeck was arrested.*fn3 He informed police of Preston's involvement and the police began to search for him. The police located Preston's Ford Taurus in his mother's driveway. Eventually, police identified one of defendant's finger prints on the trunk. Police also recovered other items of tangible evidence at Preston's mother's house, including a gold cross the victim wore, a piece of bone or tooth, and the burnt items. After police asked Preston's mother where her son was, she called to speak to her daughter Shartega, who lived with defendant. However, Preston's mother spoke to defendant, who said, falsely, he was unaware of Preston's whereabouts.
Defendant and Preston's sister then drove to Preston's wife's house in Galloway Township, where Preston was staying for the night. Defendant told Preston the police had located his car and he needed to flee. So, Preston's sister drove Preston to New York City. Defendant accompanied them and gave Preston a thousand dollars to flee to California.
Sitting in his hotel room in Harlem, Preston decided to return to New Jersey, testifying, "I ain't have nothing to do with it. I ain't kill him and I wanted to do the right thing." He contacted his mother, and then a police detective he knew on the Pleasantville Police Department, who advised him to turn himself in. His wife drove to New York and brought him back to New Jersey. He returned for questioning by Egg Harbor Township police.
Preston gave at least four different versions of what happened the previous day. He initially asserted falsely that after he discovered the body, he hitched a ride and then walked to his mother's house. He also initially claimed ignorance of where the victim's body was discarded and asserted that defendant drove off with the body by himself. He denied the victim and defendant did business.
He submitted to a lie detector test and was deemed to be deceptive when he responded in the negative to three questions: "Did you kill Rico?"; "Regarding Rico, did you kill him?"; and "Do you know for sure where Rico is now?" However, after police informed Preston he failed the polygraph, he told them where the body was located, alleged defendant's involvement, and led police there in the early morning hours of June 15. He testified that he was entirely truthful after he was confronted with the polygraph results and continued to insist he did not kill the victim.
Defense counsel had moved pre-trial to admit the polygraph evidence, "not to show that he [Preston] was lying, not the reliability, but the fact that he changed his stories." Defense counsel relied on State v. Castagna, 187 N.J. 293 (2006), and argued admission of the polygraph evidence was essential to defendant's ability to assert third-party guilt.
The court agreed to permit general reference to the polygraph to raise questions about Preston's credibility, but barred defendant from eliciting the specific questions Preston reportedly answered deceptively. The court explained it was balancing defendant's right to confront witnesses against him, with the settled rule that polygraph evidence was inadmissible absent a stipulation of the parties to the case. The court charged the jury in the midst of trial after reference to the polygraph, and, as discussed below, at the close of evidence, that polygraph evidence was inadmissible as proof that a person was truthful or untruthful absent a stipulation, which was absent in this case, and the evidence that Preston submitted to a polygraph and then changed his story was admitted for the sole purpose of assessing Preston's credibility.
The victim's vehicle was found on Marie Conover's block on June 17, after her brother Art matched it to the vehicle described by police in public announcements. After Art identified the vehicle, his sister Marie came forward. She was interviewed June 21 and described what she had noticed June 13. Art Conover testified the vehicle had remained in the same place near his house for days. Marie Conover, by contrast, testified that she saw the vehicle come and go other days during the week, after she saw defendant leave the car, although she did not see who was driving it on those other days.
Defendant fled to Texas after the homicide, traveled to Georgia, and moved to Philadelphia. On July 8, 2007, defendant was arrested in Philadelphia for a traffic violation. He initially escaped from custody in Philadelphia, but was recaptured soon after.
In a Mirandized*fn4 statement to police on July 9, defendant denied killing Herring and only admitted to helping Preston clean the Ford Taurus.
At trial, the defense argued Preston committed the murder, and defendant only helped clean the car after Preston called him for help. Defendant argued that Preston, as well as other key State witnesses were not credible, pointing out inconsistencies in their prior statements, and inconsistencies between their testimony and that of other witnesses. The defense argued it was implausible that defendant would have killed the victim at Schwartzbeck's house, and then left his body at Schwartzbeck's house out in the open; and it was much more plausible that Preston killed the victim.
Defense challenged Schwartzbeck's credibility by eliciting on cross-examination that when police first questioned him at his house, he feigned ignorance. In his first sworn statement to police, he denied helping to load the body into the trunk, and denied seeing Preston again after he left his house, but admitted doing those things in a second statement two days later. Schwartzbeck also denied Salani advised him to call the police. He claimed he returned to work that afternoon without mentioning his discovery of a dead body to any other contractors working at the house. Salani testified that to his knowledge, Schwartzbeck did not return to work, but spoke to him by phone at around 3 p.m., and then came by at around 5 p.m. Salani also testified that Schwartzbeck told him that he had nothing to do with anything. Schwartzbeck also conceded on cross-examination that when he met Preston at the Wawa, Preston told him that he "going MIA," which was before defendant allegedly suggested he flee to New York City. In his third statement to police shortly before trial, Schwartzbeck asserted Preston sold cocaine to persons in the housing project where he lived, but he overheard Preston argue on the phone about someone looking for his supplier and an amount that was "short."
The defense also attempted to suggest in cross-examination that Ms. Salani may have been mistaken in recalling that Preston and Schwartzbeck were present all morning June 13, 2006, eliciting that she did not provide a statement regarding her observations until 2009. The defense also suggested she was engrossed in her own work in her home office and she may not have noticed their whereabouts.
Defense also elicited in cross-examination of a telephone company witness that there were no recorded calls between the victim and a phone that defendant used. However, there were multiple "chirps" the morning of June 13 between Preston and an unknown user. The defense also suggested Marie Conover's identification of defendant was mistaken, as defendant did not have shoulder length hair in June 2006, according to defense proofs, and was not wearing a white t-shirt according to Preston.
Defendant also called four witnesses. Shartega, who had been defendant's girlfriend for five years and was pregnant with his child, testified she was with defendant from 7:00 a.m. on June 13, 2006 until she dropped him off at her mother's house, where Preston was already cleaning the car. Shartega disavowed a sworn statement she gave to police on June 14, 2006 that she had not seen defendant for three days, until she saw him late in the afternoon of June 13, 2006 at her mother's house, where he was already washing the car with Preston. Shartega claimed she gave the false statement out of pique over defendant's perceived infidelity.
Shartega testified that early the morning of June 14, 2006, she drove her brother Preston to New York City, with defendant along for the ride. She disavowed her prior statement that she did not drive her brother to New York. She testified that after defendant relocated to Texas, she reunited with him there about a month after the homicide. They eventually moved to Philadelphia.
A fellow county inmate of Preston, Victor Marrero, testified he overheard Preston tell his cousin and uncle, who were also incarcerated, "he didn't mean to shoot the guy."
Another witness, Umar Abdullah, who had an extensive prior criminal record and used multiple aliases, testified he knew Preston by the nickname "Vengeance." Abdullah asserted Preston agreed to help him get a job doing maintenance at an apartment building, and when Abdullah questioned whether his prior record would be an impediment, Preston answered that he got the job, even though he "beat a body," which Abdullah said meant that he had "beat a murder."
A records custodian from the Borgata casino authenticated an employment-related photograph of defendant from December 2005, which displayed his hair length at that time, to call into question the accuracy of Conover's identification six months later.
Before the close of evidence, the court dismissed juror number seven because of medical reasons.
At the outset of the trial, the court informed the jurors that they would be ...