On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-09-1595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Carchman.
Following a trial by jury, defendant Zia Berisha appeals from his May 27, 2010 conviction on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of first-degree murder (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b) (count six).*fn1 After merging counts one, three and five with count two, the judge imposed on count two a thirty-year term of imprisonment, subject to a thirty-year period of parole ineligibility. On count six, the judge imposed a concurrent sentence of ten years imprisonment, with a five-year period of parole ineligibility. The judge ordered that the sentence would run consecutively to the Union County sentence defendant was currently serving and to any federal sentence that might be imposed.
We reject defendant's contentions that the judge erred by: denying his motion to sever the trial from that of his co-defendant; permitting the State to introduce evidence of prior bad acts through the testimony of the co-defendant; providing faulty instructions to the jury; and requiring that the present sentence be served consecutively to defendant's sentence on an unrelated matter. We affirm defendant's conviction and sentence.
On the morning of November 7, 2007, Michael Marro, Jr., was found dead in his Jersey City apartment by his friend Ashley Ryan. Marro's head was bloodied, and the apartment was in considerable disarray. A safe was sitting immediately behind the front door, and broken glass and broken wine bottles were strewn about.
A crime scene detective from the Hudson County Prosecutor's Office, Detective Michael Crowe, swabbed the apartment for blood stains and biological evidence, taking samples from the outside door handle, the hallway closet door, the hallway, a sliding glass door, the television and the glass table top. Crowe found a partially-burnt candle on the living room floor. After preparing his report, Crowe discarded his notes. Ultimately, the samples were not submitted for testing until ten months later, and only some of the swabs were tested.
Assistant Medical Examiner Dr. Lyla Perez testified about the autopsy findings, opining that the cause of death was blunt force trauma as well as a gunshot wound to the head. When asked for her opinion on the time of death, Dr. Perez explained that because the door to the balcony was open, and the body was not examined shortly after death, the specific time of death was difficult to determine.
On November 6, 2007, the day before Marro's body was found, two officers from the Elizabeth police department, Joseph Aliseo and James Chrysler, stopped a red Lincoln Navigator driving at an inordinately high rate of speed after the vehicle went through an intersection without stopping and made an illegal U-turn. After effecting a motor vehicle stop, the officers approached the vehicle, and detected a strong odor of marijuana emanating from the driver's window. Defendant was the driver. The passenger was identified as co-defendant, Agim Gjonbalaj. Because defendant was unable to provide either a driver's license or vehicle registration, the officers directed him to step out of the vehicle. As he did so, a bottle of percocet fell to the ground from his jacket pocket. Once defendant was out of the vehicle, the officers were able to observe his clothing, and noted that there was candle wax on defendant's jacket. Defendant was arrested for possession of marijuana. Four wrist watches found on defendant's person were seized.
Following Officer Aliseo's testimony, the judge issued a limiting instruction directing the jury to consider defendant's arrest for marijuana not as related to the charges for which defendant was on trial, but rather as background information pertaining to the circumstances under which defendant was taken into custody.
The State also called Vincent Desiderio, a forensic scientist with the New Jersey State Police, who offered expert testimony on trace evidence. He opined that the wax from the candle on Marro's living room floor was "similar" in "composition" to the candle wax taken from defendant's jacket. Another forensic scientist, Theresa Nezezon, opined that two of the blood swabs taken from defendant's jacket matched Marro's DNA profile. A third swab from defendant's jacket matched Gjonbalaj's DNA profile. Nezezon explained that she did not know why a "second batch" of evidence was submitted for testing six to eight months after the first batch or why only certain evidence was tested.
State's witness Jerry Hastaba had been a good friend of Marro's for more than ten years. Through Marro, he had met defendant, who he identified in court; Hastaba had seen defendant approximately twenty or thirty times, and had socialized with him as well. Hastaba testified that defendant came into his store in Manhattan at 3:00 p.m. on November 5, 2007, asking him to get in touch with Marro, because Marro was not returning his phone calls. Hastaba called Marro and told him defendant was looking for him, but when defendant asked, Hastaba purposely informed defendant that he had been unable to reach Marro. According to Hastaba, defendant was acting "fidgety."
David Mercado, a watchmaker who rented space in a local pawn shop, testified that he had known Marro for "six to eight years" and Marro had sold him watches. Mercado identified two of the watches seized by police from defendant as belonging to Marro, including the "Petite [sic] Philippe lookalike" that Mercado told Marro was not authentic, the Concord watch that he had repaired for Marro before, and the Cartier watch that he had sold to Marro and seen him wear often.
After the State rested, co-defendant Gjonbalaj took the stand in his own defense and testified to the events surrounding Marro's death. His testimony began with an explanation of how he met defendant. Gjonbalaj testified that he sold marijuana "[o]ff and on" ever since graduating from high school in 1995, but started selling "full-time" in early 2005. Gjonbalaj met defendant, whom he called "Zee," at a nightclub in 1999, through one of defendant's relatives named "Bash." Gjonbalaj and defendant remained in contact for the next eight years. Notably, Gjonbalaj and defendant saw each other again in August 2007, after Gjonbalaj called defendant looking for marijuana to sell. Gjonbalaj made a similar inquiry in early November.
On November 5, 2007, Gjonbalaj called defendant, who confirmed that the shipment would arrive either that night or the next morning. The shipment arrived on November 6, 2007. Defendant and Gjonbalaj met at a gas station in Elizabeth. Over defendant's objection, Gjonbalaj testified that he "could tell like [defendant] was on something." Again, over defendant's objection, Gjonbalaj said he "could tell" defendant was under the influence of oxycontin because defendant's "face was a little droopy" and defendant's fingers were stained purple, which Gjonbalaj attributed to touching the purple coating on oxycontin pills.
Although Gjonbalaj expected defendant to drive to the Bronx, then to Brooklyn and then home to Staten Island as the two had earlier agreed, defendant informed him that he needed to make a stop in New Jersey to deliver some of the marijuana to a buyer. Defendant and Gjonbalaj arrived at an apartment building, which Gjonbalaj later learned was in Jersey City. When they arrived, defendant told Gjonbalaj to "come upstairs with me" and "grab that bag [of marijuana] for me." When they arrived upstairs at Marro's apartment, it was clear to Gjonbalaj that defendant and Marro -- whom he had never met -- knew each other.
Gjonbalaj remained in the living room while defendant and Marro went outside to the balcony to discuss the details of defendant's sale of the marijuana to Marro. When Marro walked back in, according to Gjonbalaj, "he seemed like he was upset. He seemed pissed off." Almost immediately, defendant and Marro began fighting. "[T]hey started tussling and you could hear their feet shuffling on the floor." The argument soon escalated.
Gjonbalaj described how Marro grabbed defendant's arms as the two began "pulling each other side to side a little bit and . . . Zee lunged forward, [pushing] the guy backwards and it looked like [Marro] tripped as he was going back, and he fell and crashed into the coffee table." According to Gjonbalaj, although defendant fell to the floor as well, "the guy Marro got the brunt of it because he fell straight back and he didn't have the protection of his hands because he was holding on to Zee's hands." When Marro's body "smacked" the back of the coffee table, "[t]he table came flipping up," hitting Marro in the head and breaking the glass. The lit candle that had been on the coffee table flew into the air.
Even though Gjonbalaj did not believe Marro was able to stand, Marro stood up and began throwing what Gjonbalaj described as "sloppy punches" at defendant, not hitting him.
Defendant pushed Marro, causing Marro to hit the wine rack that was against the wall. Gjonbalaj heard a "loud crash," after which "bottles went flying everywhere[.]"
As Marro began crawling on his knees toward defendant, Gjonbalaj heard a gunshot. He could not see what was in defendant's hand during the struggle, but, after hearing the gunshot, Gjonbalaj looked back and saw "something that looked like a revolver in [defendant's] hand." Fearing that the police would arrive in response to the sound of the gunshot, Gjonbalaj left the apartment alone, and walked to defendant's truck. Gjonbalaj concluded his direct examination by stating that he did not go to Marro's apartment with the ...