On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Fisher, Alvarez and Waugh.
Tried by a jury, defendant Antoine Dennis was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count six); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1) (count seven).
On August 27, 2010, the trial judge sentenced defendant to life imprisonment subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a),*fn1 on count three, murder. On count seven, the certain persons not to possess, defendant was sentenced to a consecutive ten years, subject to five years of parole ineligibility. The remaining counts were merged. Thus the aggregate sentence was life plus ten years. Finally, the judge made the sentence consecutive to the sentence on a negotiated plea agreement that defendant was then serving on a Hudson County charge of aggravated manslaughter, N.J.S.A. 2C:11-4(a). Defendant was assessed appropriate fines and penalties, and now appeals. We affirm, except for a remand to address improperly merged charges.
Saahron Jones' (Saahron) brother Jaashawn Jones (Jaashawn), while dressing for New Year's Eve, realized he left a medallion imprinted with a globe on a gold and white chain, which he wanted to wear, at Saahron's apartment. Jaashawn's cousin, Prince Young, waited in the car after driving him over. When Jaashawn knocked, the door was opened by a man dressed in black, later identified as defendant's brother and co-defendant, Andre Dennis, who pointed a gun in Jaashawn's face. Another individual, also wearing black, came to the door carrying an automatic weapon. Jaashawn eventually identified this person as defendant. After the men pulled him into the apartment, Jaashawn saw his brother on the ground "laying face first with his hands tied behind his back" while a woman wearing a red coat, co-defendant Angela Pizzarelli, stood over him.
Andre forced Jaashawn onto his knees, threw him onto the floor in the hallway, and straddled him, gun pointed at his head. Jaashawn kept looking towards the living room to see Saahron until Andre told him not to move or he would kill him. Andre removed Jaashawn's cufflinks from his shirt.
The men asked Jaashawn if he knew where his brother kept his money and whether his brother was a hustler; Jaashawn responded that he did not know. His Nextel direct-connect phone, which operates like a walkie-talkie, was taken from him, as was his cell phone.
Jaashawn overheard defendant in the living room, asking Saahron where his money was located, and demanding that he open his safe. When Saahron said he only had $400, defendant said to Pizzarelli, "I thought he had money[,]" to which she responded "I don't mess with no broke n------." (sic). Pizzarelli insisted that Saahron had $30,000 somewhere in the apartment although Saahron said that he had let his friend Preem hold his money, and that Nitty, Preem's cousin, had stolen it. Pizzarelli said she already knew about that.
Andre eventually put a coat over Jaashawn's head so he could not see. He heard the three assailants repeatedly pressing Saahron about the whereabouts of his money and his safe. Saahron told them the location of the key and combination, but when they opened the safe, it was empty. As a result, defendant struck Saahron with his gun.
Defendant directed someone to turn up the television, and Jaashawn heard a gunshot. He then heard a voice he believed to be defendant's telling the others to "get the bags." Jaashawn was told not to move for ten minutes, and he heard the doors close. He waited a few seconds, locked the door, and "ran in the living room because [he] heard Saahron gagging." Jaashawn tried to untie him and roll him over, but he was too heavy. He removed the pillow that was over Saahron's head and saw that he was throwing up. Jaashawn ran out of the house and told Young to drive home. By the time police and an EMT squad arrived, Saahron was already dead of a single gunshot wound to the back of the head.
Sheazel Collins, a family friend, upon learning the details of the incident, suspected the woman at the scene of the crime was a person known to him as Star, with whom Saahron had also been acquainted. About two weeks before the homicide, Collins had a conversation with her during which she asked for Saahron's phone number because she wanted to borrow money from him. At some point thereafter, the woman, Pizzarelli, phoned Collins from Saahron's apartment, and told him that Saahron had "left $16,000 in his house, could she take his money?" Collins told her not to take anything and just leave, and later reported the conversation to Saahron. The day of the murder, on December 31, 2005, Saahron had called Collins to tell him that Pizzarelli was coming over to pay him back his money. Because he knew the woman, Pizzarelli, had been "locked up," Collins located her photograph on a Department of Corrections website.
The day after the murder, Jaashawn's sister had Pizzarelli's picture, to which she had been directed by Collins, displayed on her computer screen as Jaashawn walked by. He immediately recognized her as the woman in the red coat and subsequently identified photographs of defendant and Andre.
At trial, while the State was engaging in redirect examination of Jaashawn, he referred to a January 12, 2006 statement not previously provided to defense counsel. As a result of the discovery omission, the trial judge granted defendant's request for an overnight postponement so that counsel could review the statement, portions of which had been read into the grand jury record, with his client. Counsel was permitted to resume cross-examination based on the statement before the State resumed its redirect.
Young testified that as he waited for Jaashawn in the car outside Saahron's apartment, he saw two men and a woman wearing a black North Face jacket come down the steps of the building, and walk across the street to their car. He too was able to identify Pizzarelli.
When officers searched Pizzarelli's residence, they found a red North Face jacket. David Gamble, a Monmouth County Prosecutor's Office detective, searched Pizzarelli's vehicle, locating a box containing a 9 mm semi-automatic handgun, two black knit gloves, a black ski mask, and a black head rag.
Gamble and other detectives, from the Monmouth County Prosecutor's Office and the Asbury Park Police Department, seized a blue shirt having "yellow metal cufflinks on" from the Dennis residence. They also found a black ski mask, a black knit glove, and a Sprint cell phone. Four fingerprints were lifted from items in the Dennis residence that matched Saahron's fingerprints.
In addition to testifying as to the cause of death, Dr. Frederick DiCarlo, an assistant medical examiner, agreed that it would have taken "a little bit of time before [Saahron] ultimately passed away . . . ."
The State's expert in DNA analysis was Robin Schwartz, a DNA unit supervisor at the state forensic lab. Mary Kite, a State forensic laboratory scientist who was not produced as a witness, actually conducted the testing and wrote the narrative reports while supervised by Schwartz. Defendant's DNA was found on the black glove and ski mask located in Pizzarelli's car. Defendant was not excluded as a contributor to the DNA on the head rag.
Detective Javier Toro of the Hudson County Prosecutor's Office, while conducting an unrelated taped interview of defendant on January 3, 2006, noticed defendant was wearing a gold globe medallion. When defendant was eventually asked about the item by the Monmouth County officers, he initially denied having the medallion in his possession but later directed them to it.
Monmouth County Prosecutor's Detective Michael Meany interviewed defendant about this incident, which videotaped interview was shown to the jury. In the interview, Meany deliberately presented defendant with false information, including that Pizzarelli had accused defendant of being the shooter.
During summation, the prosecutor twice referred to the incident as "an execution." He also said, mistakenly, that "Meany was told that . . . Pizzarelli did this with a guy named Ant from Jersey City. This  [defendant]." In addition, when referring to a gun entered into evidence, the prosecutor said that although it was not the murder weapon itself, which was never recovered, it "is as much the murder weapon as the murder weapon itself. Because without [it] . . . that other gun, the murder weapon cannot do its job. Cannot subdue Jaashawn You saw how big he was. You saw Saahron . . . ."
On appeal, defendant raises the following claims:
FAILURE OF THE COURT TO EXCLUDE PREJUDICIAL AND IRRELEVANT EVIDENCE PURSUANT TO N.J.R.E. 403 WAS ERROR.
THE FAILURE OF THE STATE TO MAKE TIMELY DISCLOSURE OF THE JANUARY 12, 2006 STATEMENT OF JAASHAWN JONES VIOLATED THE RULES OF DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR TRIAL.
THE DENIAL OF DEFENDANT'S MOTION FOR CHANGE OF VENUE WAS ERROR.
THE TESTIMONY OF NEW JERSEY STATE POLICE DNA ANALYST, ROBIN SCHWARTZ, REGARDING THE WORK PERFORMED BY ANOTHER FORENSIC SCIENTIST VIOLATED DEFENDANT'S SIXTH AMENDMENT ...