STATE OF NEW JERSEY v. RENATO SANTOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0065-04T40065-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENATO SANTOS,

Defendant-Appellant.

_______________________

STATE OF NEW JERSEY, A-1846-04T4

Plaintiff-Respondent,

v.

MARVIN L. WORTHY,

Defendant-Appellant.

_______________________

 

Submitted November 13, 2006 - Decided December 22, 2006

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

Yvonne Smith Segars, Public Defender, attorney for appellants (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief for appellant Santos; Kevin G. Byrnes, Designated Counsel, of counsel and on the brief for appellant Worthy).

Stuart Rabner, Attorney General, attorney for respondent in A-0065-04T4 (Leslie-Ann Justus, Deputy Attorney General, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent in A-1846-04T4 (Samuel Marzarella, Senior Assistant Prosecutor, of counsel and on the brief; William Kyle Meighan, Assistant Prosecutor, on the brief).

Appellant Santos filed a pro se supplemental brief.

PER CURIAM

Defendants, Renato Santos and Marvin L. Worthy, were each convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3, second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). After merger, they were sentenced to thirty years imprisonment, to be served entirely without parole, and subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, plus a concurrent ten-year term for the weapons conviction. They both appeal from the convictions. Santos also appeals from his sentence, insofar as the trial court failed to merge the weapons conviction into the murder conviction. The State concedes this point and agrees that the two convictions should merge. Thus, the concurrent sentence for the weapons conviction must be vacated and the judgment of conviction amended.

Since both defendants were tried together, we have consolidated these appeals for purposes of this opinion. We affirm both defendants' convictions. However, since the State concedes that Santos' convictions for murder and weapons possession should have merged, and we conclude that the trial judge committed the same plain error with respect to Worthy's sentence, we remand both cases for the limited purpose of correcting the judgments of conviction to reflect merger of the murder and weapons convictions.

I

We begin by addressing the trial judge's pre-trial rulings. To place the rulings in context, we summarize the State's case with respect to Santos and Worthy. The State contended that on April 25, 2002, during a trip to Yonkers, New York, Gregory Maples had accused a business associate, Rashon "Jamal" Roy, of trying to have him killed, and that Maples' companions, Worthy and Santos, had tried to intimidate Roy by pointing guns at him and Hakim Shabazz. During this incident, the State contended, Worthy told Hakim and Roy that he had shot people before. The State contended that three days later, on April 28, 2002, outside an apartment complex in Lakewood, New Jersey, defendants Santos and Worthy shot Roy, at Maples' behest, because Maples still believed that Roy was trying to have him killed. The State contended that Santos eventually confessed to shooting Roy and that another defendant, Ernesto Barber, also admitted to being present on April 28 and implicated Santos, Worthy and Maples in the crime.

Pre-Trial Motions

Defendants moved pre-trial to dismiss the indictment, claiming that the prosecutor committed misconduct in telling the grand jury what to decide by way of an indictment and that the prosecutor relied entirely on hearsay in presenting evidence to the grand jury. On August 8, 2003, the trial judge denied the motions, concluding that the prosecutor merely "ensure[d] that the grand jurors were familiar with the necessary statutory laws pertaining to what he intended to present . . . [a]nd there is nothing improper [in] that." He also concluded that there was sufficient evidence to sustain the indictments in the form of testimony from the lead prosecutor's investigator, and statements by Santos and Barber "which would be admissible against them and also admissible against the co-defendants, should [these] defendants repeat their testimony at the trial of the co-defendants."

On March 10, 2004, the trial court held a hearing on Santos' motion to suppress evidence of his confession. Officer Humeny testified that, shortly after the shooting, he encountered an individual who fit the general description of one of the men reported as having fled the scene of the shooting. This individual, who later proved to be defendant Santos, identified himself as Israel Cotto, and voluntarily agreed to go with Humeny to police headquarters. Sergeant Hayes testified that he and Sergeant Isnardi told Santos that he was not under arrest and "was free to leave any time he wanted." They presented Santos with a "consent to question" form, which he read and signed. He initially explained that he was in the area because he was looking for a woman acquaintance to ask her for money. At some point during the interview, he admitted that his real name was Renato Santos and he told them that he had initially lied because there was "an active parole warrant" for him "issued out of Jersey City."

After telling them about the warrant, Santos stated that he knew he was not free to leave, and Hayes read Santos his Miranda rights. According to Hayes, Santos stated that he understood the Miranda form and would talk to the police, but he refused to sign the waiver. Accordingly, Hayes noted "[r]efused to sign" on the form, and continued questioning Santos. After initially telling police he was not involved in the shooting, Santos told them that the victim's name was "Jamal" and "I killed him. I shot him when he was inside the Jeep and when he ran out." He explained that he shot the victim because "he believed the victim had tried to kill him on two separate occasions in Philadelphia." At that point, approximately 1:30 p.m., Santos refused to give any further statement without an attorney.

At 4:00 p.m., Santos indicated that he wanted to provide the police with additional information about the crime. He did not want an attorney, but wanted to have a representative of his mosque present. The police refused this request but gave him an opportunity to call the mosque to speak to a representative. He declined that offer. He asked whether the police could protect him if he implicated others in the crime; they indicated that they could notify jail officials to keep him separate from those persons he named. After considering this offer, Santos indicated that he would speak to police. He was again read his Miranda rights and refused to sign a waiver. He then gave a statement indicating that he had not shot the victim, but that Steven Bennett, James Irwin, Barber and Worthy had all shot at the victim. After police confronted him with contradictions in his various statements, Santos again admitted that he shot the victim and "that he didn't want to speak to us anymore." Hayes testified that the police never took a formal statement from Santos because he refused their requests to let them tape his statements. Hayes admitted that the refusal was not noted in his police report. He destroyed his notes after typing up his report.

At the suppression hearing, Santos testified that he was not involved in the shooting. He testified that he heard shots and was walking away from the area, when a police officer stopped him, told him that a murder had just occurred, and told him to "[g]et in the car." He denied going voluntarily. The officer told him he fit the description of the suspect. He believed he was under arrest. He claimed that he was at the police station for hours, that he felt threatened, and that the police refused his request for an attorney. He also denied that he ever admitted shooting the victim and denied implicating any of his co-defendants.

The trial judge credited the testimony of Officer Humeny, and concluded that Santos voluntarily went with Humeny to police headquarters. He concluded that Santos was not a suspect at the time and that he voluntarily signed the consent to question form. The judge also concluded

that as a result of some things [Santos] said, his situation changed from a witness to a suspect. He was immediately advised of his Miranda warning, and he understood the warnings and voluntarily agreed to speak with the officers. So we have a knowing intelligent waiver of his rights and a voluntary speaking with the investigating officers, and there is absolutely no evidence of any force or coercion, so whatever statements the state says he made may be utilized in his prosecution.

At the same hearing, defense counsel also raised the issue of possible misuse of Santos' confession to implicate co-defendants with hearsay, and the State agreed that at trial there would be no testimony "from Sergeant Hayes about Santos' statements implicating their clients. . . . We won't mention any codefendants." On May 5, 2004, all counsel confirmed that they had agreed to a redacted version of Santos' confession "being admissible with regard to Renato Santos," and "the prosecutor . . . indicated that the statement will mention no one other than Renato Santos and his alleged involvement in this matter." On that basis, counsel for the remaining defendants did not move for a severance.

On May 4, 2004, the trial judge heard a motion in limine concerning the admissibility of testimony concerning the incident on April 25, 2002, in which Santos and Worthy allegedly threatened the victim and a witness with guns, at the behest of Maples, because Maples stated that the victim had tried to have him killed, and testimony concerning the defendants' plans to kill the victim. The judge ruled that the proffered testimony was not other crimes evidence, excludable under N.J.R.E. 404(b), but rather was

evidence of an existing conspiracy between [Maples, Worthy and Santos] who were all present at the time of the threats and [evidence of] an intention to kill the victim. It places handguns in the possession of the defendants and establishes both motive and intent to use them against the victim.

There is also evidence of the accomplice ability for the homicide establishing all three defendants were engaged in the planning and commission thereof.

He also concluded the testimony would be admissible as "part of the res [gestae], a mosaic of the criminal events on which the defendants are standing trial." Relying on State v. James, 346 N.J. Super. 441, 457 (App. Div. 2001), certif. denied, 174 N.J. 193 (2002), he also concluded that Barber's testimony

is admissible regarding defendants' Worthy and Maples' recounting of the events in Yonkers on the morning of the murder as statements in furtherance of the conspiracy. Simply to prompt one not a member of the conspiracy to respond in a way that furthered the goals of the conspiracy. And indeed that's exactly what it did.

Likewise, on May 5, 2004, the judge denied a motion in limine to bar the testimony of Halim Shabazz concerning the incident in which, according to Halim, defendants Worthy and Santos pulled guns on Halim and the decedent and Santos allegedly told the two men that he had shot people before. The trial judge denied the motion, concluding that the statement was part of the res gestae and showed that Santos and Worthy were trying to intimidate the decedent.

Trial Testimony

At the trial, Hakim Shabazz testified that Halim Shabazz was his twin brother, and that the decedent, Rashon Roy, was his older brother. He testified that Roy, Santos, and Maples were involved in a "business relationship." According to Hakim, on April 25, 2002, he and his two brothers were riding around in a van with Maples, Santos, and several other people. During the ride, Maples "was saying that my brother [Roy] tried to get him killed in Philly:"

[T]hey all went to a bar in Philadelphia. And when they left the bar my brother stayed and [Maples] left, and somebody in a green Escalade truck chased [Maples] out of Philly.

. . . .

[Maples] said that my brother was trying to get him killed or robbed or something. And he was telling me and my twin brother, if my brother was going to do something I would know about it. Everybody have something to do with it. I know you all had something to do with it.

Hakim also testified that during the argument in the van Maples "said . . . that he would kill us. That if he thought that my brother was trying to kill him, that he will kill all of us." He testified that he was able to calm Maples down by reminding him that they had all grown up together and were friends. At some point during the trip, Worthy joined them, and the group drove to Lakewood. Hakim testified that he then went home, leaving Maples, Worthy, Santos and his two brothers, Halim and Roy, in the van.

Halim Shabazz also testified to the incident on April 25. According to Halim, Maples accused Roy of trying to have someone chase him in Philadelphia. He told Roy: "Why I feel like you threatening my life, Jamal [Roy]?" He also told Halim, "if your brother going to do something, you know about it." Maples then stated that "We going to handle this when my cousin [Worthy] get here." According to Halim, the group returned to Lakewood, picked up Worthy and dropped off Hakim. Thereafter, Maples, Worthy, Santos, Roy, and Halim set off in the van to spend the evening in Manhattan. However, instead of driving to Manhattan, Santos drove them to a "miniature golf place" near either Yonkers or Yankee Stadium, where all of the passengers got out to relieve themselves.

According to Halim, when he, Roy and Maples got back in the van, Worthy and Santos stayed outside the van and Worthy pointed a gun at Roy, while Santos pointed a gun at Halim. According to Halim's testimony, Santos and Worthy appeared to be taking direction from Maples:

Q. Where was Marvin Worthy?

A. Standing in front of my brother with a gun in his face.

. . . .

Q. Did Marvin Worthy say anything at that point?

A. He was just holding the gun. I couldn't really hear what he was saying because I was talking to Khaleef [Maples]. It was like, Khaleef, what's going on, man? . . .

And Khaleef [Maples] just said -- he put his head down and he was looking, like, at the steering wheel. And he was like, yo, get out the car. Get out the car. And I was, like, what? I was, like, Khaleef, what's going on? . . .

And I hear Red [Santos] at the side of me saying, don't run . . . . If you run, I shoot you. . . . And I looked and I seen [Renato] Santos with a gun in my face.

After the men got out of the car, Maples said to Roy "why everytime I go somewheres I feel like my life being threatened?" Halim then began pleading with Maples:

[W]hat's going on? Yo, you got somebody holding a gun to my face, dog. I said, yo, I knew you for 20 years. . . . We was like brothers, man. What's going on?

According to Halim, Maples then

looked at Red [Santos] and he told Red, take the gun off Peanut [Halim]. And then I looked at him and I said, Khaleef [Maples], you got a gun on my brother, dog. And he was, like, yo, you all just get in the van. Everybody just get back in the van.

They all got back in the van, with Worthy and Santos sitting with the guns "in their laps."

Halim testified that "Marvin Worthy turned around, looked at me in my face and said, I was going to shoot both of you all. I was going to kill both of you all." Worthy also "said he killed people before" and stated when they "were riding through Newark, he was, like, yeah, that's where them two boys got killed. Yeah, I did that." Santos also told them "I was going to shoot the shit out of you all." Halim testified, however, that he did not believe them and thought they were only bragging and trying to create the impression that they were "tough guys." When Maples dropped the brothers off in Seaside Heights, Halim wanted to report the incident to the police, but Roy talked him out of it. According to Halim, the next day, Maples apologized to him, and said he would never hurt Halim, but that he "felt like Jamal [Roy] was trying to get at me."

Ernesto Barber testified that he was in a business relationship with James Irwin, Maples, Worthy, Santos and Steven Bennett. Barber testified that on April 28, 2002, Maples, Worthy, Bennett and Irwin were all with Barber at Irwin's home in Lakewood. All five men left the house in a green Jeep Cherokee with Maples driving. During the ride Maples talked to Irwin about the incident in Yonkers, in which Santos and Worthy pointed guns at "Jamal." Maples said that the incident occurred because "the victim was trying to run him over in Philly at a club." Maples expressed disbelief that Roy would try to have him run over "'cause he [Maples] put him [Roy] on his feet, and now [Roy] was trying to take over what he's doing." According to Barber, during the same conversation in the Jeep, Worthy said that he and Santos had pointed guns "to the victim's head" but did not shoot him because he "was praying for his life." Maples then brought Irwin, Bennet and Barber back to Irwin's house and left.

Fifteen minutes later, Worthy came by in a beige Acura and picked up Irwin, Bennett and Barber to take them to Toms River. During the ride, Worthy was discussing the incident between Roy and Maples in Philadelphia and the incident in Yonkers. Worthy stated "he's not afraid to shoot at anybody that tries him." Barber testified that Worthy picked up a gun at an apartment building in Toms River and showed it to them. "[Worthy] was showing us about how the gun jammed and how he fixed it." Worthy also told them the gun was loaded. After dropping off Bennett, Worthy drove Irwin and Barber to the High Point apartments in Lakewood. Worthy made several calls on his cell phone, and Bennett arrived at High Point some time later, driving a red car. Maples arrived next, in the same green Jeep he had been driving before.

As Barber, Worthy, Bennett and Irwin walked over to the Jeep, Barber saw that Maples, Roy and Santos were already in the Jeep. Maples was in the driver's seat with Santos behind him. Roy ("Jamal") was in the front passenger's seat. Barber testified that Worthy got into the Jeep on the rear passenger's seat behind Roy. Barber and Bennett walked back to Bennett's car, with Irwin following shortly after. Barber then saw Maples rush out of the Jeep and get into the beige Acura on the passenger side.

Then Barber saw Santos get out of the Jeep and run around to the front passenger side of the Jeep with "a gun in his hand." Roy tried to get out of the car, but Santos leaned on the door and prevented him from leaving. Barber then saw Santos open the door and "go, like, almost halfway in with the gun first." Worthy was still in the car. Barber then heard two shots and saw Santos backing out of the car door. Barber saw the victim leave the Jeep through the driver's side. He heard a third shot and saw Roy fall against a mini-van parked next to the Jeep. The victim started to run with Santos chasing him and shooting at him. When Roy fell, Santos "stood over him and shot him one time."

Worthy exited the car and went to the Acura. Bennett ran into the woods. Barber and Irwin ran to the Jeep and started backing up. Barber saw Santos run to the Acura and try to get in, but it left without him. Santos then ran to the Jeep, tried and failed to get in, but threw in the gun and some gloves. Barber testified that he and Irwin left in the Jeep and eventually crashed into a tree in the woods in Jackson. They attempted to "torch" the Jeep, and then buried the guns in the woods nearby. Barber was picked up by the police and questioned the next day. He confessed and led them to the buried guns.

On cross-examination, Barber admitted that he had pled guilty to theft of the Jeep, that his plea bargain required him to give truthful testimony in this case, and that he agreed that he was "hoping that your cooperation by testifying will help you" with respect to other pending charges. Other than theft of the Jeep, Barber did not plead guilty to any charges in connection with the shooting of Roy.

According to Officer Frey, who was called to the scene after the shooting, police found a green mini-van in the parking lot; the van bore the marks of a ricocheted bullet. He testified without objection that the green van had a temporary registration tag with the name "Gregory Maples" on it. He also testified that several spent shell casings were found in the lot. Frey also described the discovery of the green Jeep Cherokee abandoned in the woods, and testified that Ernesto Barber led police to the location where the guns, allegedly used in the shooting, were buried. According to Detective Pozalante, neither blood nor bullet holes were found in the Jeep. Sergeant Armstrong, a fingerprint expert, testified that fingerprints from Maples, Barber, Roy, Santos, and Halim Shabazz were found in the Jeep.

Daniel Barrett, a firearms and ballistics expert, testified that most of the shell casings and bullet fragments found at the scene or in the victim could not be matched to any gun. However, one of the spent shell casings and one of the bullet fragments removed from the victim matched a Smith & Wesson pistol, which was the gun found buried in the woods encased in a white sock. Barber had identified Worthy's gun as having been wrapped in a white sock. Barrett could not match any of the shells to the other gun.

Officer Humeny testified, consistent with his testimony at the suppression hearing, concerning his encounter with Santos walking away from the area of the shooting, and Santos' voluntary agreement to come to police headquarters to answer questions. Sergeant Hayes testified to his interview with Santos at headquarters, Santos' explanation as to why he initially identified himself as "Israel Cotto," and Santos' eventual confession. Before he testified to the confession, Hayes referred twice to Santos having told him that "they" picked up the victim on the morning of April 28, 2002. Defense counsel objected, and the trial judge directed the prosecutor to limit Hayes' testimony to what Santos did and not to refer to others. Thereafter, Hayes limited his testimony to Santos' statements about his own actions. He testified that Santos admitted shooting Roy "inside the Jeep and when he ran out." Santos told him that the victim "had tried to kill him on two prior occasions while he was in Philadelphia." Santos told Hayes that he left the gun "at the scene near the Jeep" and that he had washed his hands to remove any gunshot residue. According to Hayes, Santos then repeated his confession to Sergeant Isnardi. But Santos refused to sign a formal confession or to have his confession taped.

Several witnesses who lived in the vicinity of the shooting, including Pamela Dunn, testified to hearing gun shots and to seeing two men leaving the scene on foot. But none of them, including Dunn, were able to identify any of the defendants.

The defendants presented testimony from two police witnesses, who admitted to various contradictions in the statements that Barber and the Shabazz brothers had given to police. They also elicited testimony that Barber told police he had once seen Bennett in possession of the gun to which the bullets were traced, although Barber did not say that he saw Bennett with the gun on the day of the murder.

Worthy testified in his own defense. He denied being involved in any of the activities alleged to have occurred on April 25, 2002. He denied being in Lakewood on April 28 and denied that he was in any way involved in the shooting of Roy. He admitted knowing Maples, Santos, Irwin, Bennett and the Shabazz brothers. He denied ever knowing Barber. He admitted that his mother owned a beige Acura and that he drove it on occasion.

II

On this appeal, defendant Worthy raises the following contentions:

POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART.I PAR.1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS ADMISSION AND USE OF UNDULY PREJUDICIAL OTHER-CRIME EVIDENCE.

A. The Trial Court Improperly Admitted Other-Crime Evidence.

B. The Trial Court Failed To Restrict The Use Of Other-Crime Murder Evidence With A Proper Limiting Instruction. (Not Raised Below).

POINT II: THE STATE'S RELIANCE ON THE CO-DEFENDANT'S CONFESSION TO PROVE ITS CASE AGAINST THE DEFENDANT VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Partially Raised Below).

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE ACTIONS LEADING TO THE DEATH OF THE VICTIM. (Not Raised Below).

POINT IV: THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW [UNITED STATES CONST. AMEND. XIV AND ART. I PAR. 1 OF THE NEW JERSEY CONST.] BY FAILING TO ADVISE THE JURORS THAT IF SOME JURORS FOUND THAT THE DEFENDANT ACTED PURPOSELY OR KNOWINGLY WHILE OTHER JURORS FOUND THAT THE DEFENDANT ACTED RECKLESSLY, THEY COULD FIND THE DEFENDANT GUILTY OF AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER BECAUSE THE MENTAL STATE OF RECKLESSNESS IS INCLUDED IN THE HIGHER CULPABILITY OF PURPOSEFUL OR KNOWING STATE OF MIND. (Not Raised Below).

POINT V: THE [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT THE VICTIM HAD BEEN MURDERED. (Not Raised Below).

POINT VI: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE MISLEADING AND HIGHLY PREJUDICIAL INSTRUCTION ON THE INFERENCES THAT COULD BE

DRAWN FROM THE USE OF A FIREARM. (Not Raised Below).

POINT VII: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE MISLEADING AND HIGHLY PREJUDICIAL INSTRUCTION TO THE JURORS ON THE LAW OF CIRCUMSTANTIAL EVIDENCE. (Not Raised Below).

POINT VIII: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE CO-DEFENDANT'S COUNSEL MISCONSTRUED THE LAW OF ACCOMPLICE LIABILITY IN HIS SUMMATION. (Not Raised Below).

POINT IX: THE DEFENDANT'S RIGHT TO A FAIR GRAND JURY INDICTMENT PROCEEDING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.

Having reviewed the entire record, we conclude that, with the exception of the issues addressed below, his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We find no merit in defendant's contention that the trial court erred in permitting Halim to testify that Worthy had bragged about committing other murders. This testimony was properly admitted as part of the res gestae, presenting "the full picture" of defendants' effort to intimidate Roy and the Shabazz brothers. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Moreover, Worthy's statements were not presented for their truth, because Halim testified that he did not believe them and thought Worthy was merely bragging and trying to show that he was a "tough guy." No limiting instruction was required. Ibid.

We likewise find no merit in Worthy's contention concerning the admission of Santos' confession. The confession was properly purged of all references to any other defendants. See State v. Young, 46 N.J. 152, 157-58 (1965). All counsel were scrupulously careful to limit the use of the confession to the guilt of Santos himself. When Sergeant Hayes made two references to Santos' saying that "they" drove him somewhere, defense counsel objected and the judge immediately directed that no further such references be made. None of defense counsel moved for a mistrial or requested the court to take any other corrective action. Nor did the prosecutor make any improper use of Santos' confession in summation. Moreover, the trial judge specifically instructed the jurors that they could not consider Santos' confession as bearing on the guilt or innocence of any of his co-defendants.

We likewise find no prejudicial error in Barber's brief testimony concerning a statement by Maples that Worthy had threatened Roy. Barber testified that during the same conversation Worthy himself confirmed that he had pointed a gun at Roy. In the context of the entire conversation as Barber recounted it, Maples' statement may be considered admissible as evidence in furtherance of his conspiracy with Worthy. See State v. James, 346 N.J. Super. 441, 457-59 (App. Div.), certif. denied, 174 N.J. 193 (2002). And considering the record as a whole, even if the statement about Maples was admitted in error, it was harmless.

Points III through VIII were not raised below and thus may not be raised on appeal. However, even considering them, we conclude they are without merit. R. 2:11-3(e)(2). We add only that, given the issues in this case, it would have been the better practice for the trial judge to have used an example of circumstantial evidence that did not relate to the shooting of a victim. However, in light of this record, we find no possibility that the example he used could have misled or prejudiced the jury.

We reject defendant's final point concerning the motion to dismiss the indictment, for the reasons cogently stated by the trial judge in his oral opinion of August 8, 2003.

We affirm Worthy's conviction. As noted at the beginning of this opinion, we have determined sua sponte to remand for correction of the judgment of conviction to reflect merger of the murder and weapons convictions since, in the companion appeal, the State has conceded that these offenses merge.

III

Defendant Santos raises the following contentions on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING SUPPRESSION OF THE DEFENDANT'S INCULPATORY STATEMENTS, BECAUSE THEY WERE THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST, AND INVOLUNTARY UNDER THE TOTALITY OF THE CIRCUMSTANCES.

A. The Trial Court Erred In Its Determination Of Credibility.

B. The Defendant Was Arrested Without Probable Cause, And His Inculpatory Statement Was The Unattenuated Result Of The Illegal Arrest. U.S. Const., Amends. IV, XIV; N.J. Const. (1947), Art. 1, Par. 7.

C. The Purported Confession Was Also The Result Of An Overbearing Of The Defendant's Will, And Accordingly Must Be Suppressed.

POINT II: THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DELIVER A "FALSE IN ONE, FALSE IN ALL" CHARGE.

POINT III: THE STATE COMMITTED MISCONDUCT DURING ITS SUMMATION, NECESSITATING REVERSAL. (Not Raised Below).

POINT IV: THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY CHARGING LESSER-INCLUDED OFFENSES OVER HIS OBJECTION[S].

POINT V: THE DEFENDANT WAS SEVERELY PREJUDICED BY THE FAILURE OF THE TRIAL COURT TO DELIVER A JURY CHARGE CONCERNING THE FAILURE OF THE AUTHORITIES TO RECORD HIS INTERROGATION. (Not Raised Below).

POINT VI: THE TRIAL COURT ERRED IN FAILING TO MERGE THE WEAPON OFFENSE WITH THE MURDER CONVICTION, AND IN IMPOSING AN ILLEGAL SENTENCE AS TO THE WEAPON OFFENSE. (Not Raised Below).

A. The Weapon Conviction Must Be Merged.

B. The Trial Court Imposed An Illegal Sentence For The Weapon Offense.

In a supplemental pro se brief, Santos also raises the following arguments:

POINT I: THE ADMISSION OF ORAL STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT WAS OBTAINED IN VIOLATION OF DEFENDANT'S [FIFTH AND SIXTH] AMENDMENT CONSTITUTIONAL RIGHTS AFTER DEFENDANT INVOKED HIS RIGHT TO SILENCE AND TO COUNSEL WHICH WAS NOT SCRUPULOUSLY HONORED WAS SO PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.

POINT II: THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY THAT THE GUILTY PLEA OF CO-DEFENDANT ERNESTO BARBER COULD NOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT WAS EXTREMELY PREJUDICIAL WHERE THE CO-DEFENDANTS WERE THE CRUX OF THE [STATE'S] CASE THEREFORE DEFENDANT'S CONVICTION SHOULD BE REVERSED.

POINT III: THE INTRODUCTION OF OTHER-CRIMES-EVIDENCE THAT DEFENDANT AND CO-DEFENDANT MARVIN WORTHY HAD SHOT AND KILLED OTHER PEOPLE WITHOUT ANY LIMITING INSTRUCTION WAS SO PREJUDICIAL AS TO DEPRIVE THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.

With the exception of the merger issue, on which the State concedes the trial court erred, we conclude that all of Santos' appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

In reviewing the trial court's factual findings on the motion to suppress Santos' confession, we will defer to those findings unless they are "clearly . . . mistaken" and not supported by "sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Having closely reviewed the transcript of the suppression motion, we find no basis to disturb the judge's decision to credit the testimony of the police that Santos went voluntarily to the police station. Consequently, we need not further address defendant's argument that his confession was the product of an illegal arrest. Santos testified at the suppression hearing that he did not confess at all; he did not claim that he confessed under duress. We find sufficient credible evidence to support the judge's conclusion that Santos did confess and that his confession was voluntary.

We find no abuse of discretion in the trial judge's refusal to give a "false in one, false in all" charge. See State v Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The trial judge thoroughly instructed the jury on evaluation of witness credibility, including prior inconsistent statements, and the possible negative impact on Barber's credibility of his prior convictions and his plea agreement. We find no prejudice to defendant in the omission of the "false in one, false in all" charge.

Defendant's argument concerning the trial judge's failure to deliver a jury charge on the failure to record his interrogation was not raised below and hence will not be addressed on appeal. We note that Rule 3:17, concerning recording of custodial interrogations, was not adopted at the time, and the judge properly charged the jury concerning the evaluation of whether Santos actually confessed and whether his confession was true. See State v. Hampton, 61 N.J. 250, 272 (1972).

We find no merit in defendant's contention that the trial judge erred in charging the jury as to the lesser included offenses of murder. See State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). At trial, defense counsel indicated that they strenuously disagreed with their clients' direction that they ask the judge not to charge lesser included offenses. The evidence might have supported the conviction of Santos on a lesser included offense, particularly if the jury disbelieved his confession and placed weight on the fact that the only shell casings that could be matched were matched to Worthy's gun. Further, the jury convicted Santos of murder, and he has provided no convincing argument as to how he was prejudiced by the charge on lesser included offenses.

Santos' remaining objections to his conviction lack sufficient merit to warrant discussion here. R. 2:11-3(e)(2). Accordingly, we affirm his conviction.

With the State's consent, we remand for correction of the judgment of conviction to reflect the merger of the weapons conviction into the murder conviction.

Both defendants' convictions are affirmed. Both defendants' sentences are remanded for correction of the judgment of conviction to reflect merger.

 

By agreement of all counsel, the nature of Maples' "business" was never disclosed to the jury.

Hakim Shabazz and his twin brother, Halim Shabazz, were both witnesses at the trial. To avoid confusion we will refer to them as Hakim and Halim.

Santos, Worthy, Maples and James Irwin were all tried together. Barber avoided trial by pleading guilty to reduced charges. Santos, Worthy and Maples each filed separate appeals from their convictions. We affirmed Maples' conviction in an unreported opinion. State v. Maples, No. A-6934-03 (App. Div. May 12, 2005).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

During the defense case, the trial judge also precluded counsel from "open[ing] th[e] door" to any reference to Santos having implicated Maples in the shooting.

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2

A-0065-04T4

December 22, 2006