State v. Loftin

• Decision Date: 12 January 1996
• Citation: 287 N.J.Super. 76,670 A.2d 557
• Parties: STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant, v. Donald LOFTIN, Defendant-Appellant/Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 76

287 N.J.Super. 76

670 A.2d 557

STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant, v. Donald LOFTIN, Defendant-Appellant/Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Dec. 5, 1995.

Decided Jan. 12, 1996.

Susan Herman and Daniel V. Gautieri, Assistant Deputy Public Defenders, for appellant (Susan L. Reisner

Public Defender, attorney; Ms. Herman and Mr. Gautieri, of counsel, and on the brief)

Paul H. Heinzel, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney; Mr. Heinzel, of counsel, and on the brief).

Before Judges MICHELS, BAIME and VILLANUEVA.

The opinion of the court was delivered by

VILLANUEVA, J.A.D.

Defendant Donald Loftin appeals from his conviction of third degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count one); second degree possession of a firearm with a purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a (count two); second degree burglary while armed with a deadly weapon, contrary to N.J.S.A. 2C:18-2 (count three); first degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count four); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count five); and purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2) (count six). The State cross-appeals, arguing that the robbery conviction should not have been merged with the previously merged felony murder conviction. We affirm the convictions but remand to the trial court to merge the conviction of possession of a firearm with a purpose to use it unlawfully into the burglary, robbery or murder conviction; reverse the merger of the robbery conviction; and order the trial court to restructure the consecutive sentence.

On the evening of March 28, 1992, Sophia Fetter, a sixty-nine year old woman employed as a chambermaid at Harrah's Casino Hotel in Atlantic City, was shot in the head and killed while cleaning Room 1134 of the hotel's Harbor Tower.

Harrah's utilized a security system by which every insertion of a key, whether a guest key or a specially designated master key like the one Ms. Fetter was issued when she began her evening shift, was logged in a computer which identified the exact key used, the door and the time of insertion. The security system records At 7:46 p.m., the door to the room was opened by one of the keys issued to new guests, at which time room service was notified that the beds were unmade. Ms. Fetter was contacted by beeper and assigned to clean the room. The established procedure for all chambermaids was for them to jam a wooden stopper against the bottom of the room door to insure that the door remained wide open while the room was being cleaned. The maid would then pull her four-foot wide cleaning cart in front of the door, close to the threshold, to prevent entry by anyone else.

together with interviews, enabled the police to reconstruct the following history for Room 1134 on the day of the murder.

The computer records indicate that Ms. Fetter entered Room 1134 at 8:18 p.m. She immediately logged her personalized identification code into the room telephone, thus informing the maintenance department of her whereabouts. The room was entered a second time at 8:25 p.m. At approximately 8:30 p.m. a houseman walked by Room 1134 and observed that the door was closed and the maid's cart was down the hall between two other rooms. Room 1134 was reentered with Ms. Fetter's master key at 8:49 p.m.

The next entry into the room was at 10:27 p.m. when Mrs. Johnson, the prior occupant, mistakenly opened the door. She immediately closed it upon seeing someone else's luggage in the room. Although it was later determined that Ms. Fetter's body could be seen from the doorway, Mrs. Johnson saw only what she believed to be wine spilled on the floor. The computer records indicate that Mrs. Johnson then opened her own door across the hall.

By 10:30 p.m., Ms. Fetter's supervisor, Rashesh Rangrej, began to suspect that something was wrong. He contacted hotel security who opened the room at 11:36 p.m. and discovered Ms. Fetter's body on the floor between the two beds. An autopsy later revealed the cause of death to be a single gunshot wound to the head and brain.

Two bullets, one of which had missed Ms. Fetter, were recovered from Room 1134. Although the New Jersey State Police ballistics laboratory determined that the bullets had been fired from a .380 caliber semi-automatic pistol, possibly manufactured by Bryco, no spent shell casings were recovered. Ms. Fetter had $5 in her pocket and was wearing her jewelry when police discovered her body. The only item that appeared to be missing was Ms. Fetter's key caddy. ¹

During the subsequent investigation, detectives met with bellman Donald Rasheed who had taken luggage to Room 1134 between 7:00 and 7:30 p.m. Rasheed stated that sometime during that evening he had reported to his bell captain that a "sneaky" and "suspicious" individual seemed to be following him. The man who was well dressed in a grayish-blue suit with a dark-patterned red tie, was black, of medium build, with glasses, mustache and short-cropped hair. Rasheed recalled that between 7:30 and 9:00 p.m. the man appeared whenever Rasheed carried luggage to a room, regardless of the floor. Rasheed stated that every time he attempted to get a good look at the man, who was sometimes as close as ten feet away, the man would quickly turn aside and pretend to be occupied with something else. Rasheed gave conflicting testimony as to whether he ever saw the man on the eleventh floor of the Harbor Tower.

A composite sketch was prepared from Rasheed's description. Subsequently, security and law enforcement officers reviewed hundreds of hours of videotapes from the cameras which surveil the public areas of Harrah's to see if anyone resembling the man depicted in the composite sketch appeared on camera. It soon became apparent that such a man appeared on various videotapes in various locations in a time sequence matching relevant events. To obviate the need to review each of the videotapes in their The composite videotape, which we reviewed, revealed the following events. At 6:18 p.m., the suspect is seen wearing a black trench coat, walking through the garage lobby, and heading toward the crosswalk which links the garage to the hotel. Six minutes later he is seen returning over the crosswalk toward the garage. At 6:31 p.m., he again comes into view, dressed in a suit. He appears in the garage lobby at 6:34 p.m., where he rides the elevator to the top floor of the garage and looks over the wall toward the Harrah's complex. At 6:37 p.m., he rides back down to the second floor and walks toward the crosswalk and back to the hotel, proceeding in the same direction as pedestrian traffic.

entirety, Atlantic City police personnel prepared a composite videotape showing sequentially all segments in which this man appeared.

The suspect is next seen at 7:15 p.m. in the concourse area. At 7:16 p.m., he enters the Harrah's gift shop where he remains until 7:17 p.m. ² During this sequence, the suspect comes clearly into view and the pattern on his necktie is visible. The suspect is next seen at 7:18 p.m. boarding a Harbor Tower elevator. He does not reappear on the videotape composite until 8:30 p.m. when he exits an Atrium Tower elevator at a place providing a direct route out of the complex. At 8:33 p.m., he is seen walking on the side of the center rail against the flow of pedestrian traffic toward the garage. At 8:37 p.m., the suspect is seen descending a set of steps; at 8:39 p.m., he is seen returning over the crosswalk back toward the hotel where he summons a Harbor Tower elevator and paces the floor. The suspect is next seen at 9:00 p.m. leaving the complex, walking with the flow of pedestrian traffic along the proper side of the crosswalk.

Rasheed reviewed the composite videotape and told police that he was certain that the person shown was the man who had No further progress was made on the case until sometime in May 1992, when Atlantic County Detective Joseph Friedrich read a newspaper article in the Philadelphia Inquirer reporting the arrest of a man and the seizure of a .380 caliber semi-automatic handgun from his car. Friedrich contacted the State Police ballistics laboratory which was in possession of the gun. From a ballistics test, it was conclusively determined that the gun was the one used to kill Ms. Fetter.

followed him that night. At trial, he identified defendant as the man who had followed him.

The events leading to defendant's arrest were as follows. On May 9, 1992, defendant attempted to purchase a computer system with a credit card issued in the name of Gary Marsh, ³ at a Sears store in the Oxford Valley Mall in Middletown, Pennsylvania. When the clerk attempted to obtain authorization from the Sears credit department, he was told to detain defendant since the credit card had been reported stolen four days earlier. The Sears security department was notified and security cameras were then focused on defendant, whose movements over the next fifteen minutes were captured on videotape. Defendant's arrest by the Middletown police is shown briefly on the videotape.

When the police searched defendant's wallet, they discovered Marsh's credit card and driver's license and also a receipt for a Bryco .380 caliber semi-automatic weapon. ⁴ The police then obtained search warrants for defendant's home and two vehicles. They discovered a gun carrying case in defendant's home, together with 500 rounds of shells and various paraphernalia used to reload spent cartridges. In their search of defendant's car that was parked at the Oxford Valley Mall, police found one full and On September 22, 1993, the jury found defendant guilty on all counts. After defendant's motions for a new trial and to interview jurors were denied, defendant was sentenced on count six to a term of life imprisonment with...