On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In a sixteen-count indictment, a grand jury indicted defendant, Al-Tariq Wardrick, and his brother, Jamil McKinney,*fn2
on robbery, assault, terroristic threats, resisting arrest, burglary and weapons offenses. Defendant appeals from his conviction and sentence for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (Count Two); second-degree burglary, N.J.S.A. 2C:18-2 (Count Fourteen); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (Count Fifteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Seventeen). The jury was hung on the remaining offenses, including third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b, and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. On appeal, defendant challenges several evidentiary rulings, including the denial of a Wade*fn3 hearing; the denial of his motion to set aside the verdict on the robbery charge because it was inconsistent with the jury's inability to reach a verdict on the weapons offense; the court's failure to question a juror regarding bias; and the court's failure to properly conduct a charge conference. While we find there were a number of trial errors, we conclude, neither separately nor collectively, do the errors warrant reversal of defendant's conviction and the sentence imposed. We therefore affirm.
The salient facts the State presented to the jury are as follows. In the early morning hours of April 9, 2007, around 1:30 a.m., three armed men forcibly entered a second-floor apartment of a three-family house located on South 10th Street in Newark, where Christopher Jones resided with his nieces, Tiara Parker and Lakesha Bell, and his niece's friends, Shontae Lewis and Latanya Carter.*fn4 Two of the men were wearing masks and were armed with handguns. They kicked in the door to Lewis's and Parker's bedroom, pointed guns at them, asked where the money was, and told them to go into the living room. Lewis and Parker complied. One man remained with the two females, while the other man, who was later joined by the third armed intruder, walked toward Christopher's bedroom. Neither Lewis nor Parker could identify the men. However, they recalled that one of the men was wearing a white t-shirt and had a silver automatic handgun, while the other two had black handguns. Lewis also recalled that the men were wearing jeans and that one of the men was wearing a black shirt.
Christopher, who had been asleep, awakened when he heard dogs barking and a banging noise. He saw two masked men armed with guns standing in his bedroom. He was unable to identify either man. One of the men pointed a black gun at him and demanded money and jewelry. Christopher responded that he did not have any money or jewelry and one of the men grabbed him. He tussled with them until one of the men struck him in the head with a gun and the other man pointed a gun at him. The men took his wallet containing $150, his watch, and the keys to his mother's green Honda Accord. They also took Lewis's Gucci purse, containing approximately $100 in cash, various credit cards and other forms of identification. None of the items stolen were ever recovered.
As events were unfolding in Christopher's apartment, his brother, Melvin Jones, who resided in the first-floor apartment, awakened when he heard what sounded like "scuffling" coming from his brother's upstairs apartment. He opened his apartment door and saw a man standing in the foyer with a stocking cap over his face. The man pointed a black gun at him and told him to go back into the apartment, which he did. Melvin then called 911 and told the dispatcher that one of the men was wearing gray jeans, a light gray sweatshirt, and a doorag.*fn5 While Melvin was talking to the dispatcher, he heard "a lot of commotion going on upstairs," and from his vantage point by the front window, he saw three men exit the house, stop to talk on the front porch, and then "start going down the street." As he saw a police car driving toward his house, he told the dispatcher that the men "leaving the house" were the robbers, that one of the men entered a burgundy Pontiac Grand Am, and the other two men ran down the street.
Newark Police Officers Orlando Andujar and Lawrence Brown, Jr., who had been patrolling approximately five to six blocks from the area, responded to the dispatch of the reported home invasion on South 19th Street. As the officers turned their marked vehicle, with their lights and siren activated, onto South 10th Street, they saw a dark-colored vehicle with tinted windows driving south at a high rate of speed. The officers were unable to determine the license plate number of the vehicle. They also saw two men, whom Officer Brown identified in court as defendant and McKinney, running from the house, then across the street directly in front of his patrol car, and then run south on 10th Street. Officer Brown observed that the two men were carrying handguns and that one of them wore a ski mask. He exited the patrol car, yelling "police, stop, stop." On foot, he chased the two men down an alleyway. While in pursuit, Officer Brown observed the men throw what appeared to be guns and a ski mask over a fence. He then saw them climb over another fence. Officer Brown stopped his pursuit at that point and reported the direction in which the two men were running to the dispatcher. He then located two black handguns and a black ski mask in the adjacent yard, and remained at that location until the crime scene technicians arrived.
Sergeant Austin Jackson picked up the chase on South 9th Street based on information provided by Officer Brown via radio transmission. He saw two men, whom he identified at trial as defendant and McKinney, running north along the rear yards of the homes on South 9th Street. Sergeant Jackson exited his vehicle and chased the men through backyards and over fences, while maintaining radio contact with other officers in the vicinity as to the direction in which the two men were running. Eventually, one suspect climbed through the window of what appeared to be an abandoned house located at 181 South 9th Street. Sergeant Jackson continued to pursue the other suspect who was running north, "jumping fence after fence," until the suspect became entangled while attempting to climb over a barbed wire fence. He stopped pursuing the suspect because he heard Officer William Golpe on the other side of the barbed wire fence. Officer Golpe, who had been monitoring the radio transmissions, saw a man wearing "torn or ripped blue jeans, a black [t]-shirt[,] and . . . a long white[-]colored thermal top" become entangled in the barbed wire fence. Officer Golpe placed the man, whom he was unable identify at trial, in custody.
Meanwhile, Sergeant Jackson and another officer returned to 181 South 9th Street and gained entry to the abandoned house. They found defendant crouched at the top of the stairs and placed him under arrest. After both suspects were apprehended, they were handcuffed and seated in the rear of separate patrol cars and transported back to the scene, where police arranged a showup identification with Melvin. Melvin positively identified the suspects as the men who were involved in the robbery, indicating that defendant was the man who had told him "to go back inside the house[,]" and that McKinney had "the big black gun[.]"
Sergeant Jackson testified that Melvin, who appeared calm but "kind of excited still from the experience[,]" was "very positive" about his identifications. In a written statement given to Detective Douglas Marshall at 4:10 a.m., less than three hours after the incident, Melvin again identified the two men in custody as the men involved in the robbery. Melvin told the detective that he "recognized" one of the suspects he saw running out of the house as his "upstair[s] neighbor'[s] cousin, and they call him Rico. He is the one in the hallway with the gun." Melvin stated that "Rico and one of the males ran down the street[,]" and "[t]he other male jumped into a burgundy Pontiac Grand Am and left. Then the police came and caught . . . the guys they showed me, both males, and they were [the] same males that I saw running out the house, and they had Rico." When asked if he had anything else to report, Melvin added that one of the men was "Rico, and the other, they call him 'Homey.'" Detective Douglas Marshall testified that Melvin appeared calm, voluntarily gave his statement, and that Melvin reviewed the written statement prior to signing it.
At trial, however, Melvin, while acknowledging he voluntarily provided a statement to police, claimed Detective Marshall had not accurately written the statement because Marshall inserted defendant's and McKinney's names into his responses. Melvin said that he only knew the names of defendant and McKinney "because [he] saw them back in the [patrol] car[,]" and claimed he had not recognized them as the men involved in the robbery. Melvin also said that he had only "skimmed" the written statement before he signed it.
Meanwhile, Christopher was taken to the hospital shortly after the police arrived at the scene. He received eighteen staples to close the lacerations to his head, and was prescribed Ibuprofen and Tylenol. Later that day, he went to the police station where he gave a written statement to Detectives Marshall and Levi Holmes. In his statement, he indicated that he could not identify the man who hit him with the gun because the man was wearing a black mask covering his face. When asked, however, whether he could identify the second man, he responded, "He didn't have a mask on. He [was a] black male, around five-feet-seven, light skin." The detectives testified that Christopher, who had a large cut on his head, appeared calm, did not appear to be under the influence of drugs, gave the statement willingly, and reviewed the written statement prior to signing it.
Thereafter, Detective Anthony Lima of the Newark Police Department showed Christopher a sequential array of six photos and gave him instructions regarding selection. Christopher selected defendant's photo and wrote on it, "[p]erson who pointed the gun at me and rob [sic] me." However, at trial, he recanted that identification, claiming he had been unable to clearly see the man he identified as defendant because his "vision was messed up" as a result of his injury and because he had lost consciousness earlier while at the hospital.
Officer Curtis L. Dorch, a crime scene investigator, testified that he photographed the apartment and collected evidence for analysis shortly after police arrived at the scene on April 9. He found no usable fingerprints on the black .40 caliber automatic weapon and the black .38 caliber revolver recovered from the nearby yard. He submitted the ski mask and swabs of what appeared to be blood found on the handle of the .40 caliber automatic weapon to the laboratory for analysis. DNA analysis confirmed that blood found on the .40 caliber automatic weapon belonged to Christopher, and the hairs found on the ski mask belonged to McKinney. There was no forensic evidence linking defendant to the crime.
Prior to trial, defendant moved for a Wade hearing, arguing that Melvin's out-of-court identification was unduly and impermissibly suggestive. The judge, based on the parties' written submissions, found only that defendant and McKinney had been taken back to the scene of the crime for a showup procedure after they were apprehended. The judge made no findings as to the manner in which the identification procedure was conducted or the length of time that elapsed between the crime and the identification. Moreover, although the judge found that Melvin had identified defendant "as the man who pointed the gun at him and ordered him into the apartment[,]" the judge did not make clear whether she was referring to Melvin's identification of defendant at the showup or his subsequent identification of defendant in his written statement. Adding to the confusion, the judge found that Melvin had recanted his identification because he could not "clearly see the face of the person who had pointed a gun at him because [that person] was wearing a ski mask[,]" and further that "a neighbor" had called defendant "by the name Rico and Homey." Nonetheless, the judge concluded that there was "no suggestibility by Law Enforcement[,] which is the bare bones of a Wade [h]earing. So as to Melvin . . . the
[c]court does not find an issue that would rise to the request by the defense of a Wade [h]earing of any evidence of any impermissibility or suggestiveness."
The jury reached a partial verdict, convicting defendant of Counts One, Two, Fourteen, Fifteen and Seventeen, acquitting him on Count Three, and failed to reach a verdict on the remaining counts. The jury likewise convicted McKinney of Counts One, Two Fourteen, and Sixteen, acquitted him on Count Three, and was unable to reach a verdict on the remaining counts. The State subsequently moved to dismiss all of the charges against defendant for which the jury was unable to reach a verdict. At sentencing, the court imposed an aggregate custodial sentence of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A WADE HEARING CONCERNING THE OUT-OF-COURT IDENTIFICATION PURPORTEDLY PROVIDED BY MELVIN JONES.
THE TRIAL COURT ERRED IN PERMITTING CHRISTOPHER JONES'S OUT[-]OF[-]COURT STATEMENT TO BE ADMITTED AS SUBSTANTIVE EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO QUESTION A SITTING JUROR ABOUT THAT JUROR'S FAMILIARITY WITH A STATE'S WITNESS (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A CHARGE CONFERENCE ON THE RECORD, PRIOR TO CLOSING ARGUMENTS, AND IN [DEFENDANT]'S PRESENCE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SECOND[-]DEGREE ROBBERY.
THE TRIAL COURT ERRED IN FAILING TO SET ASIDE [DEFENDANT]'S CONVICTION FOR FIRST-DEGREE ROBBERY.
CUMULATIVE ERROR DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW). POINT VIII
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BY FINDING UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER ...