On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 07-01-0159 and 09-12-2112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant, Keith McBride, was charged with a litany of offenses including attempted murder, robbery, and unlawful possession of a weapon. Defendant was convicted, under Indictment 09-12-02112, of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-a (Count 3); armed robbery, N.J.S.A. 2C:15-1 (Count 4); theft of an automobile, N.J.S.A. 2C:20-3 (Count 6); felony murder, N.J.S.A. 2C:11-3a(3) (Count 7); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 8); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count 9); two counts of hindering apprehension, N.J.S.A. 2C:29-3a(3) (Counts 10 and 11); and two counts of disturbing human remains, N.J.S.A. 2C:22-1a(1) and 1b (Counts 12 and 13). Under Indictment 07-01-00159, for which he was tried separately, defendant was convicted of certain persons not to have weapons, N.J.S.A. 2C:39-7b.
He was sentenced to an aggregate term of thirty years imprisonment, to be served without parole for the convictions arising from Indictment 09-12-02112. For the convictions arising under Indictment 07-01-00159, defendant was sentenced to twenty years imprisonment, with a ten-year period of parole ineligibility, to be served consecutive to the thirty-year term imposed on Indictment 09-12-02112.
Defendant appeals his conviction and sentence, alleging that prosecutorial misconduct and trial court errors deprived him of a fair trial, and challenging the propriety of his sentence. We affirm defendant's conviction but remand for correction of the judgment of conviction (JOC) to merge the conspiracy conviction with the robbery conviction, and the court's reconsideration of the imposition of consecutive sentences.
At trial, the State presented the following evidence to the jury. After work on October 19, 2006, the victim, Robert Funderberk, went with friends to a restaurant in Rahway. He later drove his friends home and then drove to Brother's Bistro in Carteret, where he encountered co-defendant, Janean Owens, and her friend, Timisha Sanford. Owens knew the victim and sat with him at the bar and had a drink.
The bar closed at 2:00 a.m., at which time Sanford left the bar without Owens. As Sanford walked from the bar, the victim pulled up in his truck with Owens, who was seated in the front passenger seat. Owens told Sanford to get into the truck and accompany her to purchase cigarettes at a nearby BP gasoline station. Sanford complied. Owens then told the victim she needed to pick up defendant, Keith McBride, nicknamed "Special" or "SP," who Owens was dating at the time and who resided with her at an apartment a short distance from Brother's Bistro.
The victim drove to Owens' apartment. Owens exited the truck and went inside the building for a few minutes while the victim and Sanford waited in the truck. Eventually, Sanford heard Owens' voice at the back of the truck and got out to see what was going on. When she got to the back of the truck, she saw defendant and Owens. Defendant handed Sanford an object wrapped in a red rag and told her "to handle that." Sanford took the package and got back into the truck. When she realized the rag concealed a firearm, she exited the truck and told both defendants she was not "doing that shit." Owens snatched the gun from Sanford and declared she would "get the nigger." Defendant then told Sanford to "get in the fuckin' truck." Defendant got into the front passenger seat while Sanford got into the back seat behind him. Owens got into the backseat behind the victim.
As the victim drove the truck, Owens pointed the firearm close to the back of his head and pulled the trigger. After Owens shot the victim, defendant asked her "what the fuck did you do that for?" When the victim's truck came to halt, defendant, with Owens' help, moved the victim's body into the front passenger seat. Owens tried but was unable to drive the truck, so defendant ordered Sanford to drive. Defendant and Owens got into the back seat. At defendant's direction, Sanford drove the truck to Newark. When they neared a building in an industrial zone, defendant told Sanford to pull into an area near a dumpster. Defendant and Owens exited the car and pulled the victim's body out of the truck.
After abandoning the body, defendant took over the wheel and drove around the city in an attempt to find a "chop shop".*fn1
The search was unsuccessful and all three eventually abandoned the truck. Before leaving, Owens used the red rag to wipe down the truck.
A few hours after the victim's body was abandoned, a security guard, who worked at one of the warehouses in the area, discovered the body and called the police. The victim was found lying on his back with the left pocket of his pants pulled out. An autopsy revealed the cause of death as a single gunshot wound to the head.
The weekend following the murder, the victim's girlfriend received information about his killing and relayed this information to the Newark Police Department. Acting on this information, the police located Sanford, who agreed to accompany them to the police station. Sanford confessed to what happened and was subsequently arrested. Sanford identified Owens and defendant from photographs.
Owens was arrested on October 25, 2006, and consented to a search of her apartment. The police seized a pair of sneakers. Owens' mother also consented to have her home searched. During that search, the police discovered a plastic bag containing clothes in a garbage can. Defendant, the last to be arrested, was apprehended eight months later in New York City.
Police obtained the surveillance tape from the warehouse where the victim's body was abandoned. The tape showed defendant looking over the area around the dumpster before motioning to Sanford to drive the truck up to it. The tape then showed defendant dragging the victim's body out of the truck with Owens emerging from the truck to help him.
The State submitted several items for forensic testing, among them, the sneakers seized from Owens' apartment. The sneakers were subjected to DNA testing, and a stain on one shoe provided a DNA profile matching the victim. The police never recovered the murder weapon.
During summation, the prosecutor commented that even absent testimony from Sanford, who had a prior criminal conviction, there was still sufficient evidence to support the State's case. He then remarked: "I don't write the Rules of Evidence. Defense counsel didn't write them. Even [the trial judge] didn't write them. [They] [c]ome down to us from Trenton, Washington, from those judges. I cannot play her DVD. Defense counsel can't point out inconsistencies. I cannot play her prior testimony[.]"
Defense counsel promptly objected. The court admonished the prosecutor and directed him to move on. The prosecutor then proceeded to recount the events of the evening in question, noting:
Now they're going to go pick up SP. SP is Owens' boyfriend. SP is not Sanford's boyfriend. There's nothing between SP and Sanford. It's SP and Owens. Why are they going to get SP? He wasn't at the bar all night. Think about that. Why go pick up SP? Why is it Owens' idea to go get SP? So now they drive however far it is, half a block, a block. She doesn't know where she was, where she went to. Owens goes upstairs to get SP. There's no gun. There's no gun anywhere at this point. Owens and SP are alone for[,] I believe she testified[,] five minutes. They go up in the apartment. Behind the SUV. What are they doing behind the SUV? What are they doing up in the apartment? That's why I put it to you. They decide. They agree to rob and kill EZ. At that point EZ is a dead man.
Defense counsel did not object to this comment. After the prosecutor's summation, the court charged the jury:
Arguments, statements, remarks, openings, summations, what counsel says is not evidence and must not and cannot be treated . . . as evidence. . . . Whether or not the defendant has been proven guilty beyond a reasonable doubt is for you to determine based on all the evidence presented during the course of this trial as you find that evidence to be and any comments by counsel are simply not controlling.
During deliberations, the court received a note from the jury stating "[p]lease fully explain [C]ount 4, armed robbery." The judge brought the jury in and indicated there was an error on the verdict sheet. The defective verdict sheet charged armed robbery as follows: "Keith McBride did use force upon Robert Funderberk and/or inflict bodily injury upon Robert Funderberk, and/or commit the crime of murder upon Robert Funderberk while armed with and/or by use of a deadly weapon[,]" omitting the phrase "in the course of committing a theft." The judge re-charged the jury on armed robbery and replaced the verdict ...