On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Following a seven-day jury trial, defendant was convicted of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); felony murder, N.J.S.A. 2C:11-3a(3), (count two); armed robbery, N.J.S.A. 2C:15-1, (count three); second degree burglary, N.J.S.A. 2C:18-2, (count four); first degree conspiracy, N.J.S.A. 2C:5-2, (count five); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, (count six), second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count seven); and two counts of third degree hindering apprehension or prosecution by giving false information to law enforcement, N.J.S.A. 2C:29-3b(4), (counts nine and ten). Defendant appeals from the judgment of conviction, alleging the trial judge erred in instructing the jury and by denying his motion for a mistrial. On appeal, defendant argues:
THE COURT ERRED IN REFUSING TO CHARGE THE NON-SLAYER PARTICIPANT DEFENSE TO FELONY MURDER.
THE VERDICT OF GUILT AS TO AGGRAVATED MANSLAUGHTER MUST BE VACATED BECAUSE THE JURY WAS IMPROPERLY CHARGED AS TO THE STATE OF MIND REQUIRED FOR AN ACTOR TO BE AN ACCOMPLICE TO A RECKLESS ACT. (Not Raised Below.)
THE ABSENCE OF A BIELKIEWICZ CHARGE ALSO FATALLY TAINTED THE CONVICTIONS FOR ARMED ROBBERY AND ARMED BURGLARY. (Not Raised Below.)
THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL AFTER DETECTIVE MIRANDA TESTIFIED THAT JORDAN TOLD HIM HE "RECENTLY HAD CAME [sic] HOME FROM JAIL."
These facts are taken from the trial record. On April 14, 2008, around 9 p.m., Glenn Hunter, accompanied by his friends Leah Dudley and Korey Watson, arrived at Hunter's home on Woodland Avenue in South Plainfield, which he shared with his brother, Al Mustafa Rodriguez. When Hunter reached the front door, he found it unlocked. Inside he saw the house was "tossed," with clothing, paperwork, and furniture strewn everywhere. Hunter saw "blood everywhere" and found Rodriguez lying on the floor of his bedroom with his head covered by his bedroom closet door. Hunter, Dudley, and Watson "ran out [of] the house" and called the police.
Patrolman Antonio Grasso of the South Plainfield Police Department (SPPD) was on patrol when he heard the radio call regarding an "[u]nresponsive male." SPPD Officer Lloyd McNelly also responded. Both officers arrived within minutes and attempted "preservation of life" measures on the victim who lay "on the ground face down." However, Rodriguez was dead.
A third SPPD officer arrived and assisted Patrolman Grasso in checking and securing the house. Paul Miller, an investigator with the Middlesex County Prosecutor's Office (MCPO), Homicide Unit, was also called to the crime scene.
The MCPO also contacted Investigator Cheryl Dato of the Crime Scene Investigation Unit, who arrived and began collecting evidence, including samples of blood found on numerous objects and surfaces throughout the house. Investigator Dato recovered two shell casings, one next to Rodriguez and another underneath him; recorded two bullet holes in the bedroom, one in the ceiling and another in the outside wall of the bedroom; and recovered a bullet fragment from the attic, but could not recover the bullet, which traveled outside the building. Investigator Dato gathered fingerprints and searched for illicit narcotics when a narcotics dog reached to several spots throughout the house.
Doctor Alex Zhang, an Assistant Medical Examiner in the Middlesex County Medical Examiner's Office, performed Rodriguez's autopsy. He concluded Rodriguez was shot from a distance of more than three feet and the cause of death was a bullet, which entered through his back, puncturing his left lung.
That same day, Officer George Castro, assigned to the University of Medicine and Dentistry, was stationed outside the ambulance/emergency room entrance at the hospital's Newark campus. At 10:10 a.m., a hospital employee informed Officer Castro that a man, later identified as defendant, was found lying on the side of the road, bleeding from the neck. Officer Castro, along with medical personnel, went to defendant's aid. Defendant told Officer Castro someone attempted to rob him on Muhammad Ali Boulevard in Newark and he was shot while resisting.
Officer Castro contacted the Newark Police and relayed the information defendant had supplied. Detective Emanuel Miranda from the Major Crimes Division dispatched a unit to the Muhammad Ali Boulevard area to canvas for ballistics evidence and witnesses. He also called central communication to inquire whether "anybody had called in any shots fired[.]" After defendant was stabilized, he told Detective Miranda he was meeting a woman at the Felix Fuld Housing Projects and was approached and shot as he ascended the stairs. "He believed the female had set him up because [she] knew that he had carried a lot of cash on him."
Detective Miranda confronted defendant with the lack of evidence uncovered from the Muhammad Ali Boulevard area search. Miranda stated defendant "ended up admitting that . . . he wasn't shot in Newark, that he was actually shot in Plainfield, somewhere on Third Street." Detective Miranda contacted Officer Mahasin El-Amin of the Plainfield Police Department Ceasefire Unit. Officer El-Amin interviewed defendant, then searched the area in Plainfield where defendant claimed he had been shot. The investigation uncovered no evidence or witnesses suggesting a shooting had taken place. Shortly thereafter, Officer El-Amin learned of the Woodland Avenue shooting and conferred with the SPPD, prompting Investigator Miller to speak with defendant.
Before questioning him, Investigator Miller read defendant his Miranda*fn1 rights because "whoever [wa]s responsible for Mr. Rodriguez's death had themselves bled[.]" Defendant agreed to speak to Investigator Miller and denied he knew Rodriguez or what happened on Woodland Avenue. Defendant also consented to provide a buccal swab, a method of collecting DNA from the cells on the inside of a person's cheek, which Investigator Miller administered, logged into evidence, and transported to the New Jersey State Police forensic science center for DNA testing. Defendant's DNA sample matched the DNA of the blood taken from the crime scene.
Investigator Miller prepared an arrest warrant and served defendant on May 28, 2008, at 5:30 a.m. At the SPPD, defendant was placed in an interview room equipped with video and audio recording devices. Investigator Miller confronted defendant with the DNA evidence, which conclusively established he was at Rodriguez's home. Defendant repeatedly stated he did not kill Rodriguez, but ultimately acknowledged it was "possible" he knew what happened. Defendant explained he and Rodriguez planned to go fishing, but when defendant arrived at Rodriguez's home, the cable television, internet, and phone service were out of order. Later, there was a knock at the door and the individual announced he was a Comcast repairman. Defendant saw Rodriguez opened the door and "[t]wo guys came blazin' through." After a scuffle, Rodriguez "got hit first" and defendant "got hit second." Defendant stated he watched the men search the home for something, but they left without taking anything. Defendant acknowledged he "ran through the house lookin' for what they was lookin' for." Defendant suggested he had not previously volunteered this information because he believed he would be accused of the crime. Defendant consented to a search his home, vehicle, and girlfriend's residence, if she agreed.
Defendant's girlfriend was simultaneously questioned by the SPPD. Defendant was later told she offered information, which conflicted with his story. At that point, defendant admitted he and co-defendant Antoine Williams went to Rodriguez's home to rob him. The two, in "desperate need of money[,]" chose Rodriguez because defendant heard he was "heavy into sellin' drugs."
Defendant had followed Rodriguez home the week before. On April 13, 2008, around 7:30 p.m., he cut the cable wire that ran into Rodriguez's house with a pair of pliers. Defendant overheard Rodriguez call the cable company. He and Williams waited about twenty minutes then left. The following morning, defendant and Williams returned to Rodriguez's home. Williams "knocked on the door and said Comcast." Rodriguez stalled then answered the door, allowing Williams to charge into the home, armed with a gun. Defendant followed.
Defendant asserted he heard a gunshot as Williams pushed his way into the home and also heard Rodriguez say, "I'll give you everything, I'll give you everything." Rodriguez also was armed with a gun. When defendant began struggling with Rodriguez, he fired, hitting defendant in his right hand and neck. Williams disappeared during the scuffle, leaving defendant to "tussle" with Rodriguez. As defendant "bear hugged him from the back[,]" Rodriguez managed to get up onto his knees. Rodriguez was almost standing when Williams returned and shot him. With Rodriguez incapacitated, defendant and Williams tore the house apart looking for drugs and money, but found only "five or six" small bags of marijuana on the kitchen counter. Defendant noticed Rodriguez was still breathing, but it "[s]ounded like he was chokin[g] on his blood[.]" Williams removed both weapons from the house, but defendant did not know what he did with them.
Defendant and Williams were indicted and tried separately. In addition to the State's witnesses, who related the facts set forth above, the defense called Sean Belus, a corrections officer assigned to the Middlesex County Adult Corrections Center. Belus conveyed a conversation he had with Williams in the summer of 2008. Belus stated Williams reported his intention that "he wasn't going to help [defendant] . . . . He was going to let [him] kind of hang, burn himself, because [defendant] was a punk and he wasn't ...