On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-1004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant Jermaine Sanders appeals from his conviction and sentence for murder, felony murder, and multiple armed robberies and carjackings. Defendant challenges the validity of the warrantless search of defendant's girlfriend's apartment; the voluntariness of his self-incriminating custodial statement; the admission of various hearsay statements; and his sentence. We affirm the convictions, but remand for resentencing.
According to the trial evidence, defendant and two other men, Quawee Jones and Hafiz Josey, took part in a crime spree in the early morning hours of July 3, 2004 that followed the theft of a 1999 blue Jeep Cherokee from a Maplewood residence before 12:45 a.m.; then followed a robbery outside a Newark bar around 2:30 a.m.; a shooting at Sixteenth Avenue and Nineteenth Street; a carjacking of a Mercedes between 3:15 and 3:30 a.m.; a robbery and carjacking of a Lexus before 5:00 a.m.; a robbery and carjacking of an Acura at around 5:00 a.m.; a homicide at around 5:20 a.m.; a robbery of a cabdriver at about 5:45 a.m.; and a carjacking of a Lexus at about 6:30 a.m.
Thomas Jeron testified that his blue Cherokee with tinted windows was stolen while parked in Maplewood. He could not recall when he discovered it was missing, but recalled it was not later than 12:45 a.m. Defendant claimed in his statement that he did not participate in the theft.
At around 2:30 a.m., according to witness Kendall Blake, an "ice bluish" Cherokee with tinted windows pulled up alongside his vehicle in front of a Newark bar at Mount Prospect Avenue. Blake was with a friend, Damian Clark. Blake testified that two men with handguns left the Jeep, approached each side of Blake's car, and ordered the two men to lie face down on the ground. They stole the men's wallets. As police sirens approached, the robbers fled in the Jeep. Clark confirmed Blake's version, but recalled three men, rather than two. Neither victim could later identify the robbers, but Blake recalled one of the handguns used was like a black revolver in evidence that was seized from defendant's home.
Another victim, Andrew DeSousa, testified that in the early morning hours of July 3, he was sitting with a woman in his vehicle at Sixteenth Avenue and Nineteenth Street. A man approached pointing a handgun and ordered him out of the car. Fearing he would be robbed and killed, DeSousa fled and was shot in the buttocks. He saw a dark Jeep Cherokee with tinted windows. A shell casing was found at the scene. Defendant admitted he was present, but claimed a co-defendant shot DeSousa.
Tiking Wallace-Wilson testified about the Mercedes theft and carjacking. He said that between 3:15 and 3:30 a.m., he was in his Mercedes Benz 500, picking up a friend at West Runyon Street and Chadwick Avenue in Newark. An aqua blue Cherokee pulled in front of him; two men with guns exited and ordered Wallace-Wilson out of his vehicle; one drove off in his Mercedes, the other in the Cherokee. Wallace-Wilson testified one robber was about six feet tall, possibly with braids, and possessed a revolver. Defendant admitted he was present, but claimed his co-defendant carjacked the vehicle.
Just before 5:00 a.m., a six-foot tall man with a revolver, similar to the one in evidence but chrome, approached a black Lexus at Irvine Turner and Muhammad Ali Boulevards, according to the Lexus driver, Jacque Thelemaque, who was accompanied by his cousin. The gunman demanded the vehicle and "everything else." Within a minute, a Cherokee pulled up, blocked the Lexus, and a second man exited bearing a shotgun. The two men took Thelemaque's keys, cell phone, and drove off in the Lexus. Defendant admitted he was present, but claimed he remained in the Jeep.
The next incident occurred at around 5:00 a.m., according to victim Alejandro Okoraogu-Loren. He testified he was in his Acura Legend at a red light at Elizabeth and Meeker Avenues, when a greenish-blue Cherokee pulled up, two men exited, and one put a gun to his neck, demanding he and his passenger exit. He said a six-foot-two man with dreadlocks possessed a revolver like the one in evidence, although he admitted that in his statement, he described the gun as silver. The two robbers took Okoraogu-Loren's cell phone and DVD player, and drove off in the Acura. Defendant admitted he participated in that carjacking, and drove the Acura off. Jones drove the Cherokee.
According to homicide detective Christopher Smith, Marquise Carter, Jr. was shot to death at around 5:20 a.m. while sitting in the rear seat of a Chevrolet Cavalier in front of 263 South Orange Avenue in Newark. Defendant admitted that he and Hafiz Josey pulled up behind the Cavalier in the stolen Acura, while Quawee Jones pulled in front in the Jeep. As defendant and Josey approached, two occupants fled. The Cavalier then began to pull away, and defendant fired one shot with a .45 caliber revolver from a distance of about half a car-length. Josey fired two shots with a .40 caliber semi-automatic handgun. The police found nearby two .40 caliber casings that matched the casing found at the Carter shooting. A .45 caliber spent projectile was recovered from the Cavalier's floorboard. Ballistics testing revealed it was fired from the revolver defendant admitted he owned, which police seized from his girlfriend's apartment where he lived. The medical examiner testified that Carter was hit by two fatal bullets to his head and neck, and one to his lower back.
After the homicide, the crimes continued. Cabdriver Andre Rossignol testified that at about 5:45 a.m., a tall man with dreads exited a Cherokee parked in front of him on Lyons Avenue in Newark, opened his cab door, pointed a gun at him that looked like the revolver in evidence, and demanded money. After taking the cabdriver's money, the man returned to the Cherokee and drove off. Rossignol picked a photo of defendant, wearing dreads, from a photo array on July 13 and affirmed his prior identification at trial, but was unable to make an in-court identification.*fn1
At about 6:30 a.m., according to Josefina Rosa, a tall thin man with what she called "twists" of hair exited a nearby Jeep, approached her with a revolver, and demanded money while she sat in her Lexus at Second Street and Seventh Avenue. After she said she had no money, the gunman ordered her out of her car, took her license and cell phone, and drove off. Defendant admitted he carjacked Rosa's vehicle and stole her key, cell phone, and what appeared to be a license or identification card.
Later that morning, a citizen spotted a Jeep Cherokee that matched the description and license plate number announced in a police alert he heard on his police scanner. Police recovered the blue Jeep Cherokee at about 6:45 a.m. at Avon and Ridgewood Avenues.
After obtaining a communications data warrant ("CDW"), police learned
calls from Okoraogu-Loren's stolen phone had been made to an apartment
on Elizabeth Avenue. Essex County Prosecutor's Then-Lieutenant John
Melody spoke to the apartment's resident, Debra Sanders.*fn2
She stated her son sometimes called her at her home, he was
not there, but could be found at his girlfriend's first floor
apartment at South Tenth Street. Lt. Melody and Det. James Wright
proceeded to the apartment, while Det. Michael Lally went to the rear
of the building.
The officers knocked and heard noises inside. They knocked again, announcing they were police officers, and heard a male and female voice talking. Eventually, a woman allowed the officers inside. Lt. Melody conducted a protective sweep to locate the male he heard. He found no one, but saw the rear bedroom window was open. Defendant admitted he fled out of the window when the officers arrived. Police ultimately seized a loaded .45 caliber revolver, as well as cell phones, Rosa's license, the vehicle registration for the stolen Mercedes, and Thelemaque's vehicle registration and insurance card.
Defendant was arrested on July 9, 2004. He gave police two statements, which we have already referenced.
Defendant was indicted, along with Jones and Josey, in a twenty-seven count indictment charging defendant with one count of first degree murder, N.J.S.A. 2C:11-3a(1)-3(a)(2), count four; one count of first degree felony murder, N.J.S.A. 2C:11-3a(3), count five; four counts of first degree robbery, N.J.S.A. 2C:15-1, counts two, eight, ten, and twelve; five counts of first degree carjacking, N.J.S.A. 2C:15-2, counts three, fourteen, sixteen, eighteen, and twenty; one count of second degree conspiracy N.J.S.A. 2C:5-2, 2C:15-1, -2, count one; nine counts of second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, counts seven, nine, eleven, thirteen, fifteen, seventeen, nineteen, twenty-one, and twenty-three; one count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), count twenty-two; two counts of third degree possession of a handgun, N.J.S.A. 2C:39-5b, one pertaining to possession on July 3, 2004, count six, and the other charging possession on July 7, 2004, count twenty-four.
Additional evidence about the seizure of the gun was presented in a pre-trial suppression hearing. Lt. Melody testified that defendant's mother stated her son might be found at the apartment of his girlfriend, Wyjeeah Cooper on South Tenth Street. The police then considered him a suspect in the homicide.
Lt. Melody and Detectives Wright and Lally proceeded to the South Tenth Street apartment on July 7, 2004, at about 8:35 a.m., "to ascertain some information . . . and to . . . talk to Ms. . . . Cooper to see if she knew the whereabouts of Sanders or whether or not Sanders was, in fact, in that residence with his girlfriend." Lt. Melody testified he observed a black Lexus that police later learned was registered to Thelemaque. As Lt. Melody and Det. Wright approached the front door, Det. Lally remained outside, near the rear of the building, "just in case our suspect, Mr. Sanders, was inside and attempted to flee the location."
Lt. Melody testified he heard noise within, one male, and two female voices. "We knocked numerous times, we were announcing ourselves as police[.]" He heard the male talking and continued to hear movement within the apartment. He knocked "a little harder" and "command[ed]," "[O]pen up the door, this is the police." Then, a woman opened the door. Lt. Melody admitted he was "forcefully calling - asking those people within to open up that door[.]" He acknowledged that in his report, he wrote that he "demand[ed] they open the door."
The police officers said they were from the homicide squad and were looking for Jermaine Sanders, and she allowed the officers inside. Lt. Melody did not have his gun drawn, but could not recall if his partner did. A second woman, Cooper, told the officers defendant was her boyfriend and had just left.
Although the transcript is not clear, Lt. Melody apparently testified that the police intended to detain defendant if he were found. When the trial judge asked why he was looking for defendant, Lt. Melody said, "Basically for the questioning, he was [a] suspect in that homicide . . . and we were basically trying to ascertain [sic] him for questioning at that also." (emphasis added). Whether a transcription error, or a misstatement, it appears the witness intended to say "to detain him for questioning."
Lt. Melody testified that he then conducted a search, to determine whether the male speaker he had heard remained in the apartment, particularly based on information he might have been armed. After looking in closets and under beds, he found no one else in the apartment.
After Lt. Melody finished his sweep of the apartment, Det. Lally entered and reported he saw a man exit the apartment by the rear window. He tried, but failed to apprehend him.
Cooper told the officers defendant had spent the previous night with her in the rear bedroom. Lt. Melody testified he stated, "I'm going to go back and take a look," and Cooper responded, "Go 'head." Lt. Melody testified,
I went to the rear bedroom, and at that point I saw the window was opened. It appeared that there were miscellaneous items that were in disarray on the floor, which to me indicated that, you know, someone was trying to flee that location.
As I looked closer, I observed a black handgun, a .45 caliber I believe, from underneath the bed in plain view.
Lt. Melody explained that he did not see the gun under the bed during his initial search because his "first focus was to see if the body was there. . . . I looked real quick, I didn't see the body, and I just wanted to make sure that our safety was secure at that point[.]"
The additional items included four cell phones, vehicle registrations, insurance cards, and perhaps a drivers license. Those items were seized after crime scene unit personnel responded. After those items were seized, Cooper signed a consent to search, but police seized no additional items thereafter.
Lt. Melody was the sole witness before the parties submitted post-hearing briefs. However, the court thereafter asked the State to re-open its presentation, because factual allegations in the State's brief were not supported by hearing testimony.*fn3 The State then presented Det. Smith and recalled Lt. Melody.
Det. Smith testified that based on information received through the CDW, police were dispatched to locations called most frequently with the cell phones stolen in the several carjackings. Lt. Melody, and Dets. Wright and Lally were sent to the Elizabeth Avenue residence of Debra Sanders, defendant's mother. A description of defendant obtained from Debra Sanders matched the description of a participant in the crimes the police officers had developed from their investigation. Debra Sanders' statement that her son's name was Jermaine was also significant, because a witness had told police that Jones and someone he knew as Tramaine had pulled up on him, exited their vehicle, and then recognized the witness and decided not to rob him. Det. Smith also testified that when police went to Cooper's address, police found Thelemaque's Lexus parked in front.
Upon being recalled, Lt. Melody testified in greater detail about his interactions with Debra Sanders. He testified he did not know who resided at the Elizabeth Avenue address before he arrived; and Jermaine Sanders was not then a suspect. Rather, police were looking for someone named Tramaine. Lt. Melody testified that once they interviewed Debra ...