On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-01-0155 and 07-01-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Cuff, Waugh, and St. John.
Defendant Janean Owens appeals her conviction for first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a); third-degree conspiracy to commit theft by unlawful taking, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3; two counts of theft by unlawful taking, contrary to N.J.S.A. 2C:20-3; second- degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and fourth-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(a). She also appeals the resulting aggregate custodial sentence of twenty-five years, subject to an eighty-five-percent period of parole ineligibility, plus a consecutive aggregate sentence of imprisonment for four years. We affirm the conviction. We reverse the decision to make the four-year sentence for the theft offenses consecutive and vacate the sentence for the possession of a weapon for unlawful purposes, which should have been merged with the theft offense.
We discern the following facts and procedural history from the record on appeal.
On the evening of Thursday, October 19, 2006, Owens went to a bar in Carteret for drinks with Timisha Sanford, whom she had known for about ten years. Robert Funderberk, also known as "EZ," was at the bar and bought drinks for Owens. She knew Funderberk and told Sanford that "he liked her."
When the bar closed at 2:00 a.m., Owens and Sanford left together but headed in different directions. After Sanford had walked a few blocks, Owens "rode up" to her in a gray Suburban driven by Funderberk. Owens asked Sanford to ride with them to purchase cigarettes. Funderberk drove them to Owens' apartment to pick up co-defendant Keith McBride, also known as "Special" or "SP."
When they arrived at the apartment, Owens went upstairs to get McBride. They returned about six or seven minutes later. Owens and McBride then stood behind the Suburban talking "for a minute or two." Sanford exited the vehicle "to see what they [were] talking about. What was going on." McBride told Sanford "to handle it" and "[g]ave her something wrapped up in a red towel." Based on the weight, Sanford thought the towel contained a gun. She said that she "wasn't doing it," and Owens "snatched" the package from her and told her "she was going to get [Funderberk]." Sanford thought they were talking about a robbery.
Owens got back into the Suburban and sat in the back seat behind Funderberk, next to Sanford. McBride sat in the front passenger seat. While Funderberk was driving, Sanford saw that Owens "had a gun in the back of [Funderberk's] head and she asked [McBride] should she pull it." He said "trill," which, according to Sanford, is slang for "yes." Owens then pulled the trigger. Funderberk "[s]lumped to the side," "ran off the road," and the vehicle stopped.
McBride "said what the fuck did you do." Owens helped McBride move Funderberk to the front passenger seat. Owens and McBride then got in the back seat, and McBride told Sanford to drive to Newark. According to Sanford, Owens was acting "[l]ike herself" and was "[n]ot really too bothered."
After they arrived in Newark, McBride told Sanford to stop the Suburban near a building because it was a "good place" for the body. Owens assisted McBride in getting the body out of the vehicle and placing it next to a dumpster. They drove away, but eventually abandoned the Suburban and walked to the home of Owens' aunt.
Later that night, Sanford noticed that McBride had a necklace with "a big medallion on it," which he told her belonged to his uncle. Owens told her "something about [Funderberk's] chain." However, Sanford did not see Owens or McBride take anything from Funderberk.
Funderberk's body was found on October 20, 2006. His Suburban was not found until early the next morning, in a residential area approximately a five- or ten-minute drive from where his body was recovered.
Funderberk typically carried large sums of cash on Thursdays, which was his payday. The night he was killed, he had been wearing his usual jewelry, which included two gold chains, one with a scorpion medallion. When his body was found, however, there was only one necklace, a ring, and some small change. The scorpion necklace was never recovered.
On October 24, 2006, Tamika Brown, Funderberk's fiancee, received a telephone call from an unidentified individual who told her what had happened to Funderberk. Brown reported the information to the Newark police. After some investigation, the police located Sanford and brought her to the police station for questioning.*fn1
Based on Sanford's interview, Carteret Police Officer Matthew Failace and two other officers conducted a surveillance of Owens' home. The officers were told that a possible homicide suspect lived at the residence. They observed Owens and four others enter a vehicle and drive away. Failace stopped them for speeding. Because Owens and the others had outstanding warrants, he brought them to headquarters at approximately 12:55 a.m. on October 25.
Failace read Owens her Miranda*fn2 rights. She signed a rights card at approximately 1:00 a.m. Failace described Owens as "very calm" and not under the influence of any substances. She was detained on the outstanding warrants.
Owens was brought to an interrogation room at approximately 1:30 a.m. The entire interrogation was video recorded. Sergeant George Trillhaase read Owens the Miranda rights, and she initialed each right before signing the second rights card. Trillhaase, Prosecutor's Detective William Krowl, and Prosecutor's Detective Sergeant Ivan Scott took turns questioning Owens. There were no more than two of them in the room during the majority of the interrogation.
After almost three hours of questioning, during which Owens was given water to drink, the officers informed her that Sanford had spoken with them. She expressed disbelief and eventually asked to see her. Owens was given an eighteen-minute break, during which she was allowed to leave the room, use the facilities, have some food, and smoke a cigarette. During the break, Owens saw that Sanford was, in fact, at the station. After the questioning resumed, Owens confessed to shooting Funderberk and provided details about her actions on the night of the shooting.
According to Owens, McBride told her that Funderberk was "about to get robbed" while they were at her apartment. She claimed that "it wasn't supposed to be a homicide" because she knew Funderberk and his family, but McBride was high and "ratchet happy." Owens admitted that she sat in the back seat of the Suburban behind Funderberk, had the gun, and shot him: "So then I was like[,] 'If you pull this trigger' . . . 'is it really gonna go off?' McBride was like, 'Yup, yup[.]' Then it . . . just happened." She demonstrated how she held the gun. She told the officers that the gun "just really went off" after McBride said, "'Trills[,]' like do it." According to Owens, McBride took Funderberk's money, chain, and the gun. She described the chain and said that McBride sold it in Newark.
Owens signed consent-to-search forms for her mother's home, where she used to live, and for her apartment. The police recovered a white bag with clothing in a garbage can at her mother's home. Owens accompanied the police to her apartment and showed them the pair of sneakers she had worn the night Funderberk was killed and the ceiling vent where McBride had stored the gun prior to the shooting. McBride was eventually arrested in New York City.
On January 19, 2007, Owens and McBride*fn3 were indicted and charged with first-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:11-3(a)(1), (2), and 2C:5-2 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count two); second-degree conspiracy to commit armed robbery and theft, contrary to N.J.S.A. 2C:15-1, 2C:20-3, and 2C:5-2 (count three); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count four); two counts of third-degree theft, contrary to N.J.S.A. 2C:20-3 (counts five and six); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count seven); second-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count nine); and third-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(a)(3) (count ten). Sanford was charged in count ten.
In a separate one-count indictment, Owens was charged with fourth-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(a).
Owens moved to suppress her statement to the police. She argued that "on no less than 15 instances . . . [she] asserted [the] right to remain silent and needless to say it was not honored." She also argued that her statement was involuntary.
A Miranda hearing was held over three days in May and June 2008. Failace testified about Owens' arrest. Trillhaase testified and chronicled the investigation leading up to the interrogation. He described Owens as reluctant and not forthcoming prior to the break in her interview, but disputed defense counsel's assertions that "[s]he seemed to indicate" or "repeated that she wanted to terminate the discussion." According to Trillhaase, Owens was more forthcoming after the break because, once she saw Sanford, she knew that the police officers had not lied about having spoken to her.
Dr. Gerald Cooke, a clinical and forensic psychologist, testified as an expert on Owens' behalf. According to Cooke, Owens had a borderline personality disorder with antisocial and paranoid features, alcohol and drug dependency, and "adjustment disorder with mixed anxiety and depressed mood." He opined that Owens was "very susceptible to being manipulated by others, though she can also manipulate others as well." He also described her as "easily distracted," and as having "very great difficulty sustaining her attention." He testified that, if Owens wanted to terminate questioning, she "doesn't know how to go about actually doing that, to be assertive to follow through on what she wants."
Cooke outlined the results of IQ testing, which placed Owens in "the borderline range of intellectual functioning," "at about the fifth percentile of the population." But because she had a tendency to "give up almost before she starts," Cooke concluded that the IQ score "really underestimate[d] her ability" and that she was "brighter than that." He estimated Owens' intellectual function as in the low average range.
On August 18, 2008, the motion judge delivered an oral decision in which he concluded that Owens had not invoked her right to remain silent and that her statement was voluntary.
In a subsequent motion, Owens moved to exclude portions of her statement, including references to McBride's gang affiliation and his prior criminal activity. On April 3, 2009, a new judge told counsel that he was "sympathetic" to redaction and to providing a curative instruction to the jury. However, he later ruled that the entire statement was relevant and admissible. As a result, no limiting or curative instructions were given at trial.
The trial took place over ten days from April through May 2009, before the second judge and a jury. During opening remarks, the prosecutor described how the police initially came to focus on Owens:
So, now, we're going to Tuesday, the 24th. . . . Brown has lived in Carteret for a while. [Funderberk] has lived there for ten years. [Brown] is from Carteret longer. Someone calls her up, and, basically, gives her a statement of what occurred. She was told that there were three people in the car when [Funderberk] was shot. A male by the name of Special or SP. A female named Janean. And a female named Misha or Timisha.
. . . Brown contacts the Carteret Police Department. She gives them this information. . . . They told her to contact Newark. So, on the 24th, this is Tuesday, . . . Brown is directed to get a hold of the people in Newark. And that information, for whatever reason, did not get to the Newark Detectives. . . .
It's not until that afternoon, that they get that information from Carteret, from . . . Brown. These three females, they come down to Newark Police. They come down to Carteret. The Carteret guys are familiar with them. It's a small town. They know Special, SP. His full name is Keith McBride. They know Janean as Janean Owens.
And Misha as Timisha Sanford. So, with that information, now, they get some addresses on these folks. They go over to . . . Sanford's house. She is there. They ask her to come back with them. They take her back with them to Newark.
After finishing his own opening, Owens' defense counsel objected to the quoted portion of the prosecutor's opening and moved for a mistrial, or at least a curative instruction. The trial judge instructed him to develop an instruction "to
[e]nsure that [the jury] understand[s] that no negative inferences may be drawn by the fact that a police officer may know somebody in the community. That's the only inference I get from the statement." The judge subsequently charged the jury:
[I]n connection with the [p]rosecutor's opening statement, I want to advise you, that you may make no negative inference. No negative inference may be drawn from the fact that the [p]rosecutor mentioned that the police in Carteret knew . . . Owens.
The [p]rosecutor indicated it was a small town. They might have known her from high school, elementary school. You may not make any inferences from that, that they might know who . . . Owens was.
Sanford testified and provided a detailed account of what occurred on the night of the shooting. Sanford also testified that when she and Owens were held together at Middlesex County Jail, Owens told her that "[s]he wanted [Sanford] to say [McBride] did it."
Lisa Johnson, Owens' cellmate for about two weeks in March 2007, testified that Owens "was going on about her case." Specifically:
[s]he told me the circumstance. She was there about this guy named Funderberk. And she described to me what happened. And what happened, what she told me was that, she met up with this guy, her and her boyfriend and some girl named Misha. They went out to rob him. Then things got bad. Dude got shot. She told me he had a van. It was at night. It was a gray van. They took the body to somewhere in Newark.
Brown also testified for the State. Despite a defense objection, the trial judge permitted the prosecutor to ask her about the telephone call she received on October 24, 2006, but not to elicit details about its contents. Brown stated that she called the police after receiving a call concerning Funderberk, which "gave [her] a lot of details about what had occurred to [him]."
Detective Vincent Vitiello then testified that he received information from Brown, which ultimately led to the questioning of Sanford. Failace testified about the surveillance of Owens' home after Officer Freeman had been "notified to stand by Locust Street in an unmarked vehicle because [a] possible suspect in a homicide resided there."
A DNA expert testified that Owens and McBride could not "be excluded as partial contributors to the mixed DNA profile" obtained from Funderberk's pants. An expert in biological stain analysis testified that items of Owens' clothing tested positive for Funderberk's blood. His DNA was also found on her sneaker.
Gary Charydczak, an investigator with the Middlesex County Prosecutor's Office, identified a surveillance video taken from the site where Funderberk's body was discovered, which depicted "individuals taking a body out of an SUV." The tape, which was played for the jury showed McBride pulling Funderberk's body from the truck, after Owens and McBride went behind the dumpster where they left the body. McBride returned to the vehicle before Owens.
The entire video of Owens' interrogation was played for the jury. Krowl testified that, during the eighteen-minute break, Owens went to the lobby, used the facilities, smoked, and had a snack. According to Krowl, Owens was able to view Sanford through a glass divider, make eye contact with her, and wave.
Following the charge conference and summations, the prosecutor asked the judge to charge accomplice liability for theft and armed robbery, citing defense counsel's argument during summation that Owens "had nothing to do with the theft." The judge agreed to give the charge, despite defense counsel's objection to such a change in the proposed jury charge after summations had been completed.
During their deliberations, the jury asked to rewatch the video of Owens' statement and requested written copies of the charges and a definition of theft. The jury found Owens guilty of the lesser included offense of aggravated manslaughter on count two; conspiracy to commit theft on count three; theft on counts five and six; and the weapons offenses on counts eight and nine. The jury acquitted Owens on counts one (conspiracy to commit murder), four (armed robbery), and ten (hindering apprehension), and did not consider count seven (felony murder), because of her acquittal for armed robbery. The judge then asked the jury to consider the separate charge of certain persons not to possess weapons. The jury returned a guilty verdict.
Prior to sentencing on June 26, 2009, the judge denied Owens' motion for a new trial. He sentenced her to a twenty-five-year term on count two, subject to the eighty-five-percent parole ineligibility of the No Early Release Act (NERA), N.J.S.A. 2C:7.2; four-year sentences on each of counts three, five, and six (the theft offenses), to run concurrent to each other but consecutive to the term for count two. Finally, he imposed a ten-year term on count eight and a five-year term on count nine, to run concurrent to each other and to the sentence for count two. As to the certain persons offense, the judge imposed a sentence of eighteen months, to run consecutive to the sentences for aggravated manslaughter and the theft offenses. The judge also imposed the required penalties, fines, and assessments. This appeal followed.
Owens raises the following issues on appeal:
POINT ONE: THE TRIAL COURT'S ADMISSION OF MS. OWENS' INCULPATORY STATEMENTS VIOLATED HER CONSTITUTIONAL RIGHT TO REMAIN SILENT. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, p. 1.
POINT TWO: THE TRIAL COURT ERRED IN FINDING THAT MS. OWENS VOLUNTARILY WAIVED HER RIGHTS.
POINT THREE: THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PORTIONS OF MS. OWENS' STATEMENT THAT WERE IRRELEVANT, CONFUSING, PREJUDICIAL, AND INFLAMMATORY. POINT FOUR: THE TRIAL COURT ERRED BY
CHARGING THE JURY ON ACCOMPLICE LIABILITY IN RESPONSE TO THE STATE'S REQUEST FOR THE CHARGE AFTER SUMMATION.
POINT FIVE: THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON COUNT THREE, CONSPIRACY TO COMMIT THEFT, DEPRIVING MS. OWENS OF DUE PROCESS. U.S. Const. Amend. XIV; N.J. Const. Art. I, para. 1. (Not Raised Below). POINT SIX: THE INTRODUCTION OF HEARSAY DEPRIVED MS. OWNES OF HER RIGHTS TO DUE PROCESS OF LAW AND CONFRONTATION AND ERRONEOUSLY CIRCUMVENTED THE LIMITATIONS OUTLINED IN STATE V. BANKSTON, ...