On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-0028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Axelrad, Sapp-Peterson, and Ostrer.
Defendant, Richard Green, appeals his conviction, following a jury trial, for felony murder, N.J.S.A. 2C:11-3a(3) (Count One); second-degree armed robbery, N.J.S.A. 2C:15-1a(1), as a lesser-included offense of first-degree robbery (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Four). Defendant also appeals the forty-year aggregate prison sentence imposed. We affirm.
The evidence presented to the jury upon which the convictions were based disclosed that during the early morning hours of May 9, 2005, Plainfield police were dispatched to the area outside an apartment building located at 709 West Front Street after Central received a report of a gunshot. Upon their arrival, police found the victim, Manuel Perez, lying face down and bleeding from the right side of his head. Paramedics arrived shortly thereafter and pronounced Perez dead within moments of their arrival. They noted, however, that his skin was cool and surmised that Perez had been dead for "some time." No witnesses came forward to the scene at that time.
The investigation into Perez's death led police to defendant, whom Detective Francis Wilson was already interviewing in connection with an unrelated matter. After taking a statement in the unrelated matter, Detective Wilson asked defendant whether he would be willing to answer questions related to Perez's death. Based upon information Detective Wilson received from defendant at that time, Detective Wilson called Detective Harvey Barnwell, the case investigator from the Union County Prosecutor's Office. After Detective Wilson summarized for Detective Barnwell the information given by defendant, Detective Barnwell suggested they re-advise defendant "of his constitutional rights so that [they] could separate the two cases." After re-administering Miranda*fn1 warnings and after defendant waived his rights, Detective Wilson proceeded to take a written statement from defendant about what, if any, involvement he may have had in the shooting.
Defendant initially told Detective Wilson he and a man named Ronald Cherry were involved in the incident, but it was Cherry who actually shot Perez. During the course of this statement, Detective Wilson learned Cherry was incarcerated at the time of the shooting and he confronted defendant with this information. Defendant was then asked if he was still aware of his Miranda rights, to which defendant respondent affirmatively. At that time, another written statement was taken in which defendant stated that his friend, Troy Keets, was really the person with him the night Perez was shot. Defendant told Detective Wilson when he and Keets saw Perez looking to purchase drugs, Keets ordered defendant to get "the other" gun, which was broken. He admitted they planned to rob Perez. Defendant told the detective he struck Perez on the back of his neck with the broken gun, forcing Perez to bump into Keets, which caused Keets's gun to go off, fatally wounding Perez. Keets then repeatedly told defendant that he "didn't mean to do it."
Witnesses from the neighborhood, who knew defendant and Keets, testified. Carol Spann, a resident of 709 West Front Street, testified that she saw defendant and Keets sitting together outside 709 West Front Street the night of the murder, she heard a "pop," and she believed she heard Keets saying, "Let's get out of here." Jamice Purnell, who lived at 705 West Front Street, testified that defendant and Keets were in her house prior to the shooting but eventually left. She did not hear a gunshot, but her grandmother did. She went to her grandmother's room to look outside, and when she returned to her room, defendant and Keets were already there.
Purnell's aunt, Antoinette Whitley, who also lived at 705 West Front Street, testified that she saw Keets take a gun outside prior to the shooting. She heard a gunshot shortly after the two men left. Defendant and Keets then returned to the room afterwards. Keets said the shooting was an accident and defendant remarked that Keets did "something stupid."
Damian Brown told police that "a few days after" Perez's death, he received a call asking him to pick up a man who wanted to sell a gun. He gave a physical description of the man he picked up that fit Keets's description, but was unable to pick out Keets's picture from a photo array. At trial, however, he testified the gun was his, and Keets and defendant were doing him a favor "to sell it." He claimed his statement to the Prosecutor's Office "was different" than reported, but when confronted with his statement, he agreed that nowhere in the statement did he say the gun belonged to him.
Dwayne Fleming, a former county jail inmate, testified that defendant visited his cellmate on June 27, 2005. According to the cellmate, defendant said he shot a Mexican individual at 709 Front Street because the individual had "stepped on his toes selling drugs."
Defendant did not testify, nor did any witnesses testify on his behalf. Defense counsel argued before the jury that police coerced the statements he gave to them, that felony murder was not a possible charge because Keets only intended to collect money he was owed, and, therefore, there was no robbery.
The jury convicted defendant on all counts except the first-degree robbery charge, finding defendant guilty of only second-degree robbery. Defendant thereafter moved for a judgment notwithstanding the verdict or, alternatively, a new trial. The court denied the motion. At sentencing, the court imposed a forty-year aggregate prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
BY PROVIDING THE JURY WITH A FLAWED AND MISLEADING EXAMPLE OF ACCOMPLICE LIABILITY IN ITS INSTRUCTIONS, THE COURT CREATED THE POSSIBILITY THAT DEFENDANT WOULD BE WRONGLY CONVICTED AS AN ACCOMPLICE TO ROBBERY, AND, ...