Opinion
DOCKET NO. A-5270-11T4
08-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MALIK SINGER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Haas. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0398 and 10-03-0168. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
On June 12, 2008, a Somerset County grand jury returned indictment 08-06-00398, charging defendant Malik Singer with the first degree murder of Michael Love, N.J.S.A. 2C:11-3(a)(1) and (2), first degree conspiracy to murder Michael Love, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-2, and second degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a). The grand jury also indicted and charged codefendants Sa'id Kendrick and James Miller with the first degree murder of Michael Love, and second degree possession of a firearm for unlawful purposes. Kendrick and Miller were also charged with first degree conspiracy to murder Michael Love. On March 24, 2010, a Somerset County grand jury returned indictment 10-03-00168, charging defendant with three counts of first degree conspiracy to commit murder of three potential prosecution witnesses, N.J.S.A. 2C:11-3 and 2C:5-2, and three counts of second degree conspiracy to commit witness retaliation, N.J.S.A. 2C:28-5(b).
The trial court denied defendant's motions to dismiss the indictment charging him with the murder of Michael Love (08-06-00398), or in the alternative for a bill of particulars, and to suppress a statement he gave to the police officers investigating the homicide. The court subsequently denied defendant's motion to suppress a photographic identification made by Aisha Williams, an alleged eyewitness to the crime. A different judge ultimately consolidated the indictments for purposes of trial. A third judge was eventually assigned to preside over the trial of the consolidated indictments.
Defendant was tried before a jury. After five days of deliberation, the jury returned a partial verdict on indictment number 08-06-00398 (the murder of Michael Love), convicting defendant of first degree conspiracy to murder Love. The jury was unable to reach a unanimous verdict on the counts of the indictment charging defendant with first degree murder and possession of a handgun for unlawful purposes. However, the jury found defendant guilty of all of the charges in indictment 10-03-00168, which charged defendant with first degree conspiracy to murder three potential prosecution witnesses and conspiracy to commit witness retaliation.
Approximately two months after the jury returned its partial verdict, the court granted the State's motion for a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). On April 13, 2012, the court sentenced defendant to an extended term of twenty-five years, with an eighty-five percent period of parole ineligibility and five years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first degree conspiracy to murder Love. On the charges in indictment number 10-03-00168, the court merged the three counts of conspiracy to commit witness retaliation with the three counts of conspiracy to commit murder, and sentenced defendant to three concurrent fifteen-year terms of imprisonment, with an eighty-five percent period of parole ineligibility and five years of parole supervision under NERA, to run consecutive to the twenty-five year term imposed on the conspiracy to murder Love under indictment number 08-06-00398.
Defendant now appeals arguing the trial court erred in denying his pre-trial motion to suppress the statement he gave to law enforcement officers who were investigating Love's murder. Defendant claims the officers interrogated him in a custodial setting without first apprising him of his rights under Miranda. Defendant also argues the court should have excluded the out-of-court identification made by the alleged eyewitnesses and should have sua sponte charged the jury to consider aggravated manslaughter as a lesser included offense to murder. Finally, defendant argues the sentence imposed by the court was excessive and not supported by the relevant aggravating and mitigating factors.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After reviewing the record before us and mindful of prevailing legal standards, we reject defendant's arguments and affirm. We gather the following facts from the record developed before the trial court.
I
At approximately 7:30 a.m. on May 11, 2008, Keith Crandle, the manager of the social club "Ten's Enough" in Franklin Township, discovered the body of Michael Love just outside in the club's smoking area. At first Crandle did not know if Love was dead, sleeping, or intoxicated; after confirming that Love was dead, Crandle called the Franklin Police Department and the owners of the club. He remained at the scene until the police officers arrived.
Detectives Anthony Bisignano and Jolanda Lacewell, of the Franklin Township Police Department, and Detectives Jeffrey Scozzafava and Robert Flanigan of the Somerset County Prosecutor's Office, responded to the crime scene. Scozzafava and Flanigan, who were in the Forensic Unit, processed the scene, which included conducting fixed point measurements, collecting evidence, taking photographs, and videotaping the scene. Based on witness interviews and an inquiry sent to area law enforcement agencies, Bisignano received information regarding a "James Miller," and an individual with a street name or alias of "Face," as possible suspects in the murder. The man known as "Face" was described as "a thin black male with a teardrop tattoo under each eye."
Lieutenant Christopher Shea, of the Somerset County Prosecutor's Office, was the supervisor of the detectives involved in the homicide investigation and was also personally involved in the investigation. The individuals suspected of having some involvement with Love's death were believed to have used a particular cell phone. The Prosecutor's Office obtained a communication data warrant (CDW) to "ping the cell phone, which basically is giving [the detectives] the location of where that cell phone is." The pinged phone identified Stamford, Connecticut as the cell phone's location. The investigation revealed defendant was using the cell phone, and that it belonged to Ann Marie Pettigrew, whom investigators believed was associated with Sa'id Kendrick.
On May 12, 2008, Detective Sergeant Lewis DeMeo, of the Somerset County Prosecutor's Office, Major Crimes Unit, and other police officers, drove to Stamford, Connecticut to follow up on cell phone information indicating someone named "Face" was at this location. With the assistance of Stamford Police Officers, Sergeant DeMeo and the other New Jersey officers were able to refine their electronic search to a particular address where the phone was located.
A woman opened the door of this apartment. When asked whether she was white, DeMeo described her as "Hispanic." After identifying themselves as police officers, they told her they were looking for an "African-American male" whom they believed was in the apartment. The woman invited the officers to "come in." According to DeMeo, they walked in and towards the back of the apartment where the door "was opened a little bit." The officers found Kendrick, his girlfriend, and his cousin, James Spurgeon, in the back bedroom. DeMeo testified that as soon as they announced themselves as police officers, Kendrick "jumped up out of bed, [and] made a move to a backpack." The officers tackled Kendrick to the ground and handcuffed him. Before opening the backpack DeMeo saw "a pair of shoes and what looked like the butt of a handgun." DeMeo retrieved a handgun from the backpack.
We take this opportunity to point out that, "Hispanic is not a race. It is a cultural term, an ethnic identification." State v. Valentine, 345 N.J. Super. 490, 496 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). As our colleague Judge Rodriguez made clear in Valentine, "Hispanics are of different races, i.e. African-American, Caucasian, Native-American, or Asian. All of these races are represented among Hispanics living in the urban centers of this state. A Hispanic person can also be of multi-racial descent." Id. at 497.
During questioning by the officers in Connecticut, Kendrick denied he was the person called "Face," and claimed defendant was the one who used that street moniker. Armed with this information, DeMeo and his investigative team returned to New Jersey. On May 13, 2008, DeMeo and two other detectives staked out the home of Antoinette Michaels, the woman known to be the mother of defendant's child. She resided in the Township of South Brunswick. At one point, DeMeo testified he saw "a Hispanic female driving a small grey car." Sergeant DeMeo and Detective Bisignano also saw that "Malik Singer was in the passenger seat" of the vehicle.
The woman driver parked the car and defendant stepped out. The detectives pulled up behind the vehicle, jumped out of their car with their guns drawn, and DeMeo yelled: "Face, get on the ground!" Defendant immediately "got down." DeMeo testified that after he and Bisignano finished handcuffing him, defendant "kind of looked up because he was laying down on his stomach, [and said]: 'You homicide'"? (Emphasis added). DeMeo noted in his testimony before the jury that defendant asked this question before he and his fellow officers had made any references to their position in law enforcement or otherwise advised defendant that he was being arrested in connection with someone's death. Bisignano corroborated DeMeo's testimony in this respect. He testified the first words out of defendant's mouth were: "You homicide detectives, right?"
DeMeo thereafter told defendant he was being arrested in connection with "the shooting the other night." In the course of defense counsel's cross-examination, DeMeo read a section of the transcript of defendant's videotaped interview in which he twice denied that his nickname or "street name" is "Face." Defendant insisted people know him as "Mo" not "Face." DeMeo also testified defendant referred to himself as "Face" then retracted it by claiming: "No, I fucked up. Listen no [sic] my name is 'Face,' everybody know [sic] me as Mo." DeMeo also indicated, through cross-examination, that defendant yelled out, "I didn't kill nobody." DeMeo testified that while waiting for other officers to arrive, "somebody" told defendant that James Miller and Sa'id Kendrick had both been arrested and that the police had found Kendrick in possession of a handgun in Connecticut.
II
Somerset County Prosecutor Detective David Whipple and Franklin Detective Lacewell interrogated defendant after his arrest. The interrogation was video/audiotaped and transcribed. Lacewell testified that before they asked defendant any questions about Love's death, Whipple read defendant his rights under Miranda from a standard form. Defendant read the Miranda rights form himself and signed the waiver card; both Whipple and Lacewell signed the card as well. The record shows defendant signed the waiver form at 4:18 p.m. on May 13, 2008. The video/audiotape of defendant's statement was played to the jury.
Defendant denied shooting Love. He also denied being at the club "Ten's Enough" on the night of May 10 into 11, 2008, the evening Love was killed, claiming he was with his girlfriend and her friend at a hotel that evening. Although he admitted that he had possession of the murder weapon the night before the shooting, defendant stated he had returned the weapon to Kendrick prior to the shooting.
DEFENDANT: Yeah at one point I did touch the gun when I flashed it, that's it.Defendant also claimed Kendrick had confessed to him that he had shot and killed Love and that Kendrick's street name was "Face"; defendant insisted he was known as "Mo Betta Brim."
. . . .
I gave it back to Sa'id [Kendrick]. I'm fucked either way.
DETECTIVE WHIPPLE: Yeah.
DEFENDANT: Cause (inaudible) on the shit know what I'm saying.
DETECTIVE WHIPPLE: Yeah I know.
DEFENDANT: I'm fucked I mean because I touched the gun.
Fingerprint comparison analysis identified the victim as Michael E. Love. The jury also heard testimony from the State's fingerprint expert that the victim's fingerprint comparison was not based on criminal records. Dr. Thomas Blumenfeld, the medical examiner who conducted the autopsy on Love's body on May 12, 2008 and issued a report documenting his findings, died before the start of this trial. Dr. Roger Mitchell, Jr., a forensic pathologist and the "Medical Examiner for the northern region of New Jersey" testified at trial after he had reviewed Dr. Blumenfeld's autopsy report. Love suffered a gunshot entrance wound on the right side of his head at the eyebrow level. There was no exit wound. As Dr. Mitchell explained:
The path of the bullet was front to back, right to left, and slightly downward after entering into the side of the head and entered into the skull, and penetrated the brain and brain stem causing damage and bleeding.The bullet was found in the skull cavity. It was undisputed the manner of death was homicide.
Q. What is the effect, Doctor, in your . . . field of expertise, what is the effect of a bullet to the brainstem?
A. Death.
Acting on the State's application, the trial court admitted Edward Jachimowicz, a former supervisor of the Firearms and Tool Marks Section of the Connecticut Department of Public Safety's Science Laboratory, as an expert in firearms examination and tool marks. On May 12, 2008, he examined the Smith and Wesson revolver found in Kendrick's possession in Connecticut. Jachimowicz determined that the handgun was operable, and that its serial number was partially "obliterated." He fired six test shots from the handgun, preserving the fired bullets for subsequent comparison.
The trial court also admitted Detective Gary Mayer of the Somerset County Prosecutor's Office, Ballistics Unit, as a forensic ballistics expert. On May 13, 2008, he drove to Connecticut to collect the six "test shot" bullets fired from the revolver, and transported them to the Somerset County Prosecutor's Office's forensic ballistics laboratory. The next day, Mayer examined the bullet fragments removed from the victim at the autopsy and concluded they were what was left of a .357 magnum or .38 caliber bullet. He also compared those fragments with the six "test shot" bullets he recovered from Jachimowicz. Detective Mayer concluded there was a positive match, and that the bullet removed from Love's body was fired from the revolver the police seized from Kendrick.
Kendrick, who along with defendant and Miller, was also indicted as a codefendant for murdering Love, testified as a witness for the State. According to Kendrick, on Friday May 9, 2008 (the day before Love was killed), defendant was involved in a bar fight. Kendrick testified defendant was bloody coming out of the bar and asked to borrow his gun. Kendrick said he lent defendant a .38 caliber revolver. Kendrick testified that defendant took the handgun from him:
He enters inside the bar. Maybe like two, three steps behind him. I open the door. When I open the door, everybody is on the ground. The yelling, screaming, people heading for the back door. I grab him by his shirt. Ask him what he's doing.
Q. Where is the gun, Mr. Kendrick?
A. The gun is pointed at everybody.
Q. Whose got it?
A. Mr. Singer.
Kendrick testified that he pulled defendant out of the bar and told him to leave. Kendrick was using his mother's cell phone that night; he let defendant use it to call for a ride, which came immediately. Kendrick saw a woman pull up in a gray or silver Honda Accord, with tinted windows; defendant stepped inside this car on the passenger's side and the woman drove away.
Miller, who was also indicted with defendant and Kendrick for the murder of Love, also testified as a witness for the State. He testified that his street name was "Brim." He had known defendant, whose street name was "Face," for years and identified him in open court. On May 9, 2008, Miller was inside Ten's Enough social club when he had an argument with Latoya Singleton (the mother of his son), because she was drinking with a man at the club. This man was Michael Love.
Singleton testified that she shared a couple of drinks with Love that night, and they "had one dance, probably less than three minutes long." Love gave Singleton approximately $75 in cash and told her it was "a Mother's Day present[.]" He said she should use the money to "treat herself." Singleton gave the money to her friend Aisha Williams to hold because "I had a boyfriend, and I didn't seem it [sic] necessary to take male money, as I referred to it." Stated differently, because she lived with "Brim," she did not want him to see her with "a wad of money and then be asking [her] questions about it."
Singleton testified as a State's witness. She identified defendant in court as someone she knew of a "couple of months." She knew him as "Mo Better," and said that she, Williams, Kimberly Simonson, and Miller arrived at Ten's Enough just after 11:00 p.m. on May 10, 2008. She said Miller was using her cell phone throughout the night, and to her knowledge, any calls made on that phone on May 10 or 11, 2008, were made by Miller. She was near the bar and heard one gunshot. According to Singleton, Miller and Williams were outside at the time.
Williams corroborated most of Singleton's testimony. She testified she was at the club that night with Singleton and Simonson. Love, whom she had never seen before that night, sent them some drinks because Williams believed he was "kind of sweet on Toya [Singleton]." Love had given Williams $80 or $90 for her to buy Singleton a gift for Mother's Day. Williams testified Miller showed up and started yelling and accusing her that she had "his girlfriend at the bar lap dancing with some other guy." Singleton denied she was "lap dancing" on Love, and claimed she was just dancing with him. This prompted an argument between Miller and Singleton.
Williams witnessed an argument between her friend Simonson and Simonson's boyfriend, Willie Pitts. When Simonson and Pitts went outside, Williams followed them. Once outside, she saw James Rice, Miller, and defendant; she also heard Rice tell defendant that he could not enter through the side door. She then saw defendant standing behind Love. "The next thing I know, the gun go [sic] off. I see [sic] the man's body jerk." Williams testified she saw defendant holding a gun, pointing it at Love's head, and pulling the trigger. She identified defendant in open court as the man she saw shoot Love that night.
Williams specifically noticed defendant's tear-drop tattoos; she had seen him at the club before that night. She testified defendant was wearing a black "hoodie." When asked whether she had any doubt that defendant was the man she saw shoot Love, Williams responded she was "[p]ositive. Positive" that defendant was the shooter. She estimated the shooting occurred "anywhere between a few minutes before 1 to about maybe 1:30 [a.m.]" on May 11, 2008.
In the afternoon on the next day, Williams met with the police officers who were investigating the shooting. She told the investigators what she had witnessed and said she heard more than one shot. She admitted, however, that her hearing could have been affected by a combination of the music and the noise and commotion after the gunshot. She was nevertheless positive she saw only one gunshot.
On that same day, May 12, 2008, Williams was shown a photographic array prepared by the police. She selected defendant's photograph as the one depicting the shooter. She testified she looked through the photographs and "pointed out the picture of the man that I saw commit the murder at Ten's Enough. I signed it." She was certain defendant was the man who "pulled that gun, shot that man and killed him."
Miller testified that on May 10, 2008, he went to the Ten's Enough club with Simonson, Williams (whom he described as "like a family member" to him), and Singleton. They arrived a little after 10:30 p.m. He wanted to take Singleton out because it was Mother's Day weekend. He also saw Simonson get into an argument with her boyfriend, Pitts. Williams got Miller involved in the argument and eventually they moved outside into the smoking area, but he went back inside the club after a short time.
Later that evening, Miller called defendant to come to the club for "security," "back-up." Simonson's argument with Pitts had escalated and Miller felt outnumbered. Because he had come to the club with three women, Miller thought Pitts was going to jump him. When defendant arrived, Miller was outside; he told defendant, "I would take care of Will[ie Pitts], back up Mr. Love." Miller noted Love was "the person that the night before supposedly that my baby mother [Singleton] was dancing with." Miller pointed out Love to defendant and told him to go after Love. According to Miller, he thought defendant was just going to fight Love; he denied knowing anything about a gun.
Miller claimed he was focused on Pitts, who was in front of him. Less than a minute later, "everybody hears a gunshot." Miller testified he did not see defendant after defendant went over to where Love was standing. Defendant was only at the club a few minutes before Miller heard the gunshot. Miller testified he agreed to plead guilty under a negotiated agreement with the State that included agreeing to testify against defendant in this trial. Under the plea agreement, the State dismissed the charge of first degree murder; the charge of first degree conspiracy to commit murder was reduced to conspiracy to commit aggravated assault; the prosecutor agreed to recommend a term of imprisonment not to exceed five years. According to Miller, as a result of the plea agreement, he was "marked" anywhere he went as "working with the State."
Kendrick testified that he drove to Ten's Enough on the evening of May 10, 2008, with his cousin, Spurgeon. He claimed he arrived at the club between 12:00 and 12:15 a.m., approximately ten to fifteen minutes before the shooting. He testified defendant was already there when he arrived. Contrary to Miller's testimony, Kendrick claims he did not get out of the car. He testified his cousin was the one who got out of the car and tried to get into the club through the side door. He testified he saw defendant shoot Love while he (Kendrick) was inside the car. "I seen [sic] the brown-skinned gentleman, he was on the telephone, he was speaking to someone. I don't know. I seen [sic] Mr. Singer. He stepped away slightly from Mr. Miller, then he raised his arm. I seen [sic] the firearm and I seen [sic] a light. I heard, I heard a single shot and I seen [sic] the gentleman fall." Kendrick was "positive" defendant shot the man.
Kendrick testified that immediately after the shooting, he saw Spurgeon come running out of the club into the parking lot; he also saw defendant run towards a Honda Accord, and pull off "[l]ike pretty fast." Before defendant left, however, he pulled up to Kendrick's car, and returned Kendrick's mother's cell phone, which Kendrick claims defendant had from the night before, and told Kendrick to call him. Later that day, Sunday, May 11, 2008, Kendrick met defendant at Johnson Park in New Brunswick. Defendant gave him a bookbag and told him to get rid of it. He testified that although he did not look in the bookbag, he knew the gun was inside. Despite this, he took possession of a bookbag he believed contained the handgun used to murder a man because he "wanted to help him out." He planned to go back to Connecticut and while on route, throw the gun off the George Washington Bridge. He got a ride to his house in Connecticut, where he was eventually arrested the following day in possession of the handgun.
Kendrick identified defendant in court as "Face." He claimed they were very close friends, "like [b]rothers." He nevertheless decided to testify against him because what was done "was wrong, and for a long time I tried to help him, tried to protect him, and I basically got to do what's right." He also explained that he decided to testify because he hoped his "cooperation" would result in time off his sentence as a co-defendant. He pleaded to conspiracy to commit murder with a sentencing recommendation not to exceed ten years imprisonment, with the further stipulation that he could serve his sentence in Connecticut. Finally, with respect to aliases or street-names, Kendrick testified he never heard defendant use the street moniker "Mo Better." As for himself, he has never used or been referred to as "Face."
James Rice was working security at the back door of the club on the night of the shooting. Rice described himself as a retired law enforcement officer. He had worked as a disc jockey at Ten's Enough in May 2008. He testified he stopped someone he had never seen before from entering the side door; he told that person he could not use the side door and that he had to go through the front door. He noticed the man had a teardrop tattoo under his eye. On May 12, 2008, a police officer showed Rice a photographic lineup; he identified defendant as the person he stopped from using the side entrance. He told the detective conducting the lineup, "I confronted him [and] told this person he couldn't come through the side door at Ten's Enough." Detective Richard Regan, of the Somerset County Prosecutor's Office, conducted a lineup for Rice. Regan testified Rice said "[t]his looks like him" when he selected defendant's picture. According to Regan, Rice did not say or do anything that indicated a lack of confidence in his choice.
III
The State called four witnesses who were or had been incarcerated at the Somerset County Jail during the time defendant was detained at this facility awaiting trial on these charges. These four inmates contacted the Somerset County Prosecutor's Office and offered to testify at defendant's trial concerning self-incriminating statements defendant allegedly made to them while he was incarcerated at the County Jail. Three out of four of these witnesses entered into plea agreements with the State that significantly reduced their penal exposure in exchange for testifying truthfully and completely about the statements defendant allegedly made to them concerning his involvement in the killing of Michael Love. Only one of these four men testified he had not reached an explicit agreement with the State in exchange for his testimony. However, he hoped his cooperation and willingness to testify would be considered favorably by the court at the time of sentencing.
John Simpkins was incarcerated at the Somerset County Jail on the charge of robbery. He was housed "in the same pod" as defendant in the Somerset County Jail. He knew defendant before the two came to be detained in the same area of the jail. Simpkins testified at defendant's trial concerning an alleged conversation he had had with defendant about the reasons for his detention. According to Simpkins, defendant admitted to him he was involved in Love's murder. Defendant told him he had received a call from a friend named "Fat Boy" who was having a problem at a club. When he arrived at the club, "Fat Boy" pointed out Love as the person he was having a problem with that night. Simpkins testified defendant told him he snuck into the club and shot Love one time on the side of the head with a .38 caliber handgun.
According to Simpkins, defendant told him that after the shooting "he pretty much crept through the crowd without being noticed," and left the scene in "a car with tinted windows and two females." Defendant also allegedly told Simpkins about his plan for establishing an alibi. Defendant said that after the shooting, he "drove real fast to a gas station where he knew there was surveillance [cameras]," so that he could be taped there and "distance himself from [the crime scene]." Defendant also told Simpkins that he wore a black hoodie at the time of the shooting, but changed his clothes by the time he was caught on the gas station's surveillance camera. The next day, defendant gave his clothes and the gun to his friend "[t]o get rid of." Defendant told Simpkins that his friend failed to follow the instructions he gave him and ended up being arrested in Connecticut in possession of the handgun.
Simpkins claimed he contacted the prosecutor's office because he believed defendant's action in shooting Love was "senseless." Notwithstanding his alleged altruism, Simpkins negotiated a plea agreement with the prosecutor through which his original charge of first degree robbery was downgraded to third degree theft. Simpkins pled guilty to this reduced charge. Under the terms of the plea agreement, Simpkins agreed to testify truthfully about conversations he had had with defendant in which defendant allegedly made these self-incriminating admissions.
Marquis Smith was the second inmate from the Somerset County Jail who testified as a witness for the State. He was originally arrested for robbery and had been incarcerated since January 2009 awaiting a resolution of this charge. In October 2009, Smith's attorney contacted the prosecutor's office about his client giving a statement concerning a murder involving defendant, Miller, and Kendrick. Smith's statement and cooperation, however, were contingent upon reaching a favorable resolution of his robbery case. Smith negotiated an agreement with the prosecutor through which, in exchange for his truthful testimony and a guilty plea, his sentence would not exceed six years.
At this point, we pause to clarify that both Simpkins and Smith were charged with the crime of first degree robbery under N.J.S.A. 2C:15-1. If convicted after a trial, they both could have been sentenced to a maximum term of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision under NERA. N.J.S.A. 2C:43-7.2. In Simpkins's case, the State amended the original charge to third degree theft under N.J.S.A. 2C:20-2, which carries a maximum sentence of five years without any mandatory period of parole ineligibility. In Smith's case, although not explicitly stated in the record, we infer he agreed to plead to second degree robbery, thus reducing his penal exposure to a maximum of six years imprisonment, with an eighty-five percent period of parole ineligibility and three years of parole supervision, as required by NERA.
Smith testified he knew defendant's first name was Malik. However, Smith claimed defendant referred to himself as both "Face" and "Mo' Better." According to Smith, he initially gave a false statement to the detectives from the prosecutor's office because he was "forced" to do so by defendant. Smith claimed defendant had obtained both Smith's address and his family's address, and threatened to kill Smith and members of his family unless Smith told the detectives investigating the case a false statement. Specifically, defendant told Smith to say he had not been involved in Love's murder, and that his street name was not "Face." He also told Smith to say Kendrick had shot and killed Love.
However, shortly after he gave the detectives this allegedly false statement, Smith recanted. He told the detectives the statement he had given was false. Smith claimed he was scared for his life and the lives of his family members because defendant had threatened them both. Smith told the detectives he was prepared to tell the truth about defendant's involvement in the murder of Michael Love. Smith then told the detectives he was detained in the same pod as defendant. During this time, defendant told him he had been arrested for a homicide at the Ten's Enough club in Franklin. Defendant also told him he had shot and killed Love with a .38 caliber revolver, after Miller pointed Love out to him.
Sonny Jackson was the third inmate called by the State. Jackson was incarcerated at the Somerset County Jail at the same time defendant was there awaiting trial. Jackson testified he had been arrested and charged with credit card fraud, which was subsequently "downgraded to theft," ordinarily a third degree offense. He met defendant while he was at the jail's "medical segregation unit." He testified defendant "was on the same floor as I, but he was about two cells from me." Jackson identified defendant at trial and testified defendant talked to him about the reasons he was in jail awaiting trial. Defendant allegedly admitted to Jackson that he shot and killed Michael Love over a "disagreement." Jackson subsequently contacted the prosecutor's office.
Jackson testified he had injured his leg and was placed in this "medical segregation" or "quarantine" part of the jail to recuperate.
Jackson told the prosecutor that defendant asked him to contact and provide information to someone named "China." Jackson said defendant "wanted three witnesses taken care of, meaning killed, dealt with, or out of the picture in regards to making statements against him in his pending legal matters." The three potential prosecution witnesses defendant wanted "eliminated" were Yassim Cobbs, Marquis Smith, and Aisha Williams. Jackson told defendant he would deliver the message to China and help arrange with China to kill those three potential witnesses. Jackson testified he did not get "a deal" for his testimony; he testified because "it's the right thing to do, and I just don't agree with the facts of the matter."
Admir Hoornaert was the final "inmate witness" to testify for the State against defendant. He had arranged to buy marijuana from defendant on the night of the murder, May 10, 2008, at 10:00 p.m. Defendant did not show up; Hoornaert waited for defendant for about an hour and a half, then went home. Defendant called him later that evening at about 12:00 a.m., saying something had come up. He said he was still going to meet up with him "shortly," meaning within the next half hour or so; but defendant did not show up. Defendant eventually called him again at approximately 2:00 a.m., saying he was nearby in Manville. The two agreed to meet.
Hoornaert testified defendant showed up sometime between 2:00 and 2:15 a.m., in a gray Honda, with tinted windows. There were two women in the car with him. Hoornaert noticed what looked like blood, "like drops and clumps" of blood on defendant's left sleeve. Hoornaert testified defendant told him not to worry about it. Defendant got out of the car, lifted up his shirt, pulled out a gun and said, "I need you to do me a favor"; "You got to keep this for me." Defendant said he would give him "an ounce right now" "if you hold this thing for a while." Hoornaert testified he told defendant he would not agree to hold the handgun. Defendant "got really pissed off" and called him a "pussy, [and a] faggot." Defendant then sold him the marijuana, slammed the car door and left.
Hoornaert next saw defendant in March 2009, when he was arrested for allegedly presenting forged documents. He was detained at the Somerset County Jail. His cell was next to "Face," whose real name he learned was Malik Singer. Defendant asked him if he remembered the night he had met him in Manville and sold him marijuana. According to Hoornaert, defendant told him "[w]e popped a guy over a bitch"; "The only problem was we popped the wrong guy." Defendant said that he had given the gun to this guy to get rid of it, but the "stupid ass" did not do that and got "popped with it."
According to Hoornaert, sometime thereafter, defendant began to act differently with respect to the reasons for his current incarceration. Hoornaert surmised defendant "started to realize that he had just said way too much already, and he started telling me that . . . my name is not Face anymore . . . [m]y name is Mo' Better. It's always been Mo' Better." Defendant also told him to make sure he told the police that he met him between 1:00 and 1:30 a.m., and to really emphasize the timing. Later on defendant changed his mind again and told him to "[f]orget about it," and that "it never happened."
Hoornaert had his attorney contact the prosecutor because he was afraid of possible retaliation from defendant. Hoornaert testified he feared being killed in jail. He told the jury he received "absolutely nothing" for his testimony in court. However, he remained hopeful he would receive some leniency for his cooperation.
IV
Defendant now appeals raising the following arguments.
POINT ONE
THE TWO-STEP, QUESTION-FIRST INTERROGATION TECHNIQUE WHICH WAS USED IN THIS CASE - WHERE A DEFENDANT WHO IS IN CUSTODY IS INTERROGATED WITHOUT MIRANDA WARNINGS, AND
THEN THE INTERROGATION IS REPEATED WITH WARNINGS - CLEARLY VIOLATED THE DEFENDANT'S STATE-LAW RIGHT AGAINST COMPELLED SELF-INCRIMINATION AS WELL AS HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.
POINT TWO
WILLIAMS'S IDENTIFICATION OF DEFENDANT AS THE SHOOTER SHOULD HAVE BEEN SUPPRESSED BECAUSE THE INDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPERABLE MISIDENTIFICATION.
POINT THREE
THE COURT ERRED IN FAILING TO INSTRUCT THE JURORS ON LESSER INCLUDED OFFENSES FOR MURDER AND CONSPIRACY TO COMMIT MURDER, AND DEFENSE COUNSEL WAS INEFFECTIVE IN ARGUING THAT THERE WAS NO BASIS FOR SUCH AN INSTRUCTION (Not Raised Below)
POINT FOUR
DEFENDANT'S AGGREGATE SENTENCE OF 40 YEARS WITH AN 85% PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND.
We reject these arguments and affirm. Defendant's argument attacking the admissibility of the statement he gave to Prosecutor's Detective Whipple and Franklin Detective Lacewell is completely without merit. In arguing the Miranda motion before the trial court, defense counsel stipulated to the factual record. He argued defendant was not apprised of his rights under Miranda before the interrogation began. The record does not support defendant's argument. The interrogation technique known as "question-first, warn-later," which the Supreme Court properly denounced in State v. O'Neill, 193 N.J. 148 (2007), did not occur here. As the trial court correctly determined, defendant made a knowing and voluntary waiver of his Miranda rights before the detectives began asking him any questions concerning Love's death. This point needs no further elaboration. We reject defendant's argument as reflected in Point I of his appellate brief substantially for the reasons expressed by the motion judge.
We next consider defendant's argument attacking the trial court's failure to suppress Williams's out-of-court identification in which she identified defendant as the man who shot and killed Love. Defendant argues the identification procedure used was impermissibly and unnecessarily suggestive, resulting in a strong likelihood of misidentification. Under these circumstances, defendant argues the trial court should have found Williams's identification unreliable and inadmissible at trial. Specifically, defendant emphasizes only two photographs in the array of "arguably 'light skinned' black males," had facial tattoos. According to defendant, this rendered the entire photo array unduly suggestive.
The State argues the identification procedure followed by Somerset County Sheriff's Department Officer Barbara Cole, who prepared the array, was not unduly suggestive and was in compliance with the Attorney General's guidelines regarding the preparation of photographic lineups. The array included photographs of African-American men who were similar in appearance to defendant. The State also claims the Franklin Township Detective who showed Williams the array followed the Attorney General's guidelines as well.
We are not persuaded by defendant's arguments. The trial court conducted a hearing in response to defendant's motion challenging Williams's out-of-court identification. The motion judge found the photographic lineup was not impermissibly suggestive. He found Williams's identification of defendant reliable because she testified the police officer did not emphasize defendant's photograph in the lineup and did not pressure her in any way into making an identification. The judge reviewed the photographs used in the lineup and noted people in the photographs were "[r]emarkably similar in facial features." There was nothing to indicate defendant's picture was highlighted by the police in any fashion, or that the police made any suggestion as to which picture to select.
The judge also noted that Williams identified defendant in court as the person she saw shoot Love. She was familiar with defendant, having seen him before on several occasions. She also had an unobstructed view of the shooting. Williams saw defendant with the gun in his hand and pull the trigger. She was "positive on the identification"; in fact, "[s]he couldn't be more positive." Finally, the judge noted Williams identified defendant just two days after the shooting.
As an appellate court, we are bound to defer to the trial court's findings based on testimony presented at a hearing to determine the admissibility of a witness' identification. State v. Adams, 194 N.J. 186, 203 (2008). "[T]he trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid.
In order to reject an out-of-court identification, the court must find the procedures used were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968). See also State v. Herrera, 187 N.J. 493, 503 (2006). The United States Supreme Court has established procedures to ensure that identification procedures are not unduly suggestive. See United States v. Wade, 388 U.S. 218, 227-41, 87 S. Ct. 1926, 1932-40, 18 L. Ed. 2d 1149, 1157-65 (1967). Our own Supreme Court has also followed suit. State v. Madison, 109 N.J. 223, 232 (1988). To determine the admissibility of eyewitness identifications, our Supreme Court adopted the two-prong test articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).
In State v. Henderson, 208 N.J. 208, 285-93 (2011), our Supreme Court revised the procedures we discuss here for evaluating eyewitness identification evidence in criminal cases. The standards the Court established in Henderson, however, are applied prospectively. Id. at 300-02. Because the decision we review here was made in 2009, the Henderson standards are inapplicable. --------
The first prong requires the court to "ascertain whether the identification procedure was impermissibly suggestive[.]" Herrera, supra, 187 N.J. at 503-04. "What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).
Under the second prong, if the procedure is found to be impermissibly suggestive, the court must then decide whether the procedure was nevertheless reliable in light of the totality of the circumstances. The court must weigh the suggestive nature of the identification against the reliability of the identification. State v. Romero, 191 N.J. 59, 76 (2007).
Under this analytical approach, "reliability is the linchpin in determining the admissibility of identification testimony[.]" Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. In determining reliability of the identification testimony, we consider
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
[Ibid.]
Here, the photographic lineup was set up in a manner so that the other individuals looked similar to defendant, using the criteria of race, ethnicity, hair type, facial features, gender, and eye color. The motion judge found defendant's photograph did not stand out from the other five photographs. After reviewing the photographs, the judge explained in detail the similarities between defendant's photograph and the five other photographs used in the lineup. The judge also noted that looking at the photograph, defendant's "two tear drop tattoos" located on the left side of his cheek looked like an ordinary blemish on a person. He emphasized that some of the other individuals in the photographs used in the lineup had similar looking blemishes. In short, the procedures employed by the police officers here were not unduly suggestive. There was no evidence that the identification made through the use of these photo arrays was tainted by any improper suggestiveness rendering the identification unreliable.
The remaining arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Trial judges are not required to "meticulously sift through the entire record in every murder trial to determine if some combination of facts and circumstances might rationally sustain a manslaughter charge." State v. Purnell, 126 N.J. 518, 540-41 (1992). It is only when the facts "clearly indicate" the appropriateness of that charge that the "duty of the trial court . . . arises." Id. at 541. Here, the record shows no rational basis to impose an obligation on the trial court to charge the jury sua sponte with the lesser included offense of aggravated manslaughter as defined in N.J.S.A. 2C:11-4(a)(1).
Finally, we are equally satisfied that the discretionary extended term sentence imposed by the court here was factually warranted and legally sustainable. State v. Dunbar, 108 N.J. 80, 89 (1987).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION