Jury asks questions about murder 'accountability' and weapon 'domain'
As autopsy photos of homicide victims go, the picture the jury saw of the injuries to Dustin Friedland wasn't particularly gruesome.
Still, Ralph Amirata, one of the prosecutors in the case against Basim Henry, made sure to shield it from Friedland's family.
During his closing statement Tuesday in Essex County Superior Court, Amirata presented the poster-sized photograph to the jury, shielded by a big-screen TV from the view of Dustin's parents, Wayne and Rose Friedland, and sister, Deanna.
Amirata would use the TV to show videos of Henry's green and tan 1996 GMC Suburban arriving at the Short Hills Mall at 8:50 p.m. on Dec. 15, 2013, and leaving 17 minutes later, followed by 2012 silver Range Rover that Dustin Friedland and his wife, Jamie, had driven to the mall.
It remained unsaid that, at the precise moment those vehicles were recorded, Dustin Friedland lay dying in the arms of his stricken wife on the cold concrete floor of the mall parking deck.
For about 15 hours over three days, the jury in the trial of Basim Henry, the first of four defendants to be tried separately, wrestled with the question of whether Henry was legally accountable for Friedland's death.
The defense argued that Henry did not pull the trigger, did not accost Friedland and, in fact, never even left the GMC Suburban he drove to the mall with his three accomplices in tow.
The prosecution characterized that trip as a "shopping spree" specifically for a Range Rover and produced video and EZPass records of Henry's vehicle following another Range Rover from Short Hills to Fort Lee several days before Friedland was killed.
Amirata maintained that Henry knew co-defendant Hanif Thompson had a gun before the men drove to Short Hills and that he intended to use the gun, by force if necessary, to steal a car, specifically a Range Rover.
"He (Henry) made this crime happen," Amirata said. "These defendants weren't getting up to the mall without him."
On Wednesday, the jury asked Judge Michael L. Ravin for some nuanced clarification of "legal accountability."
Yesterday they asked to see the one-hour, 20-minute statement Henry gave to police, during which he admitted knowing Thompson had a gun before they went to Short Hills. Later they asked for a definition of "dominion" in terms of control of the gun.
The semantics aside, the language of the New Jersey felony murder non-slayer participant statute (N.J.S.A. 2C:11-3) seems pretty clear. When a death occurs in the commission of a crime, all the criminal participants are accountable, even if they didn't directly cause the death.
And that's why the autopsy photograph cuts through all the legalese. It is the hard, irrefutable evidence of all that could go wrong that did go wrong. A carjacking became a murder. Worse, Friedland was defenseless when he was shot in the top of the head.
In the photo, Friedland's head was shaved at the crown to expose in detail two wounds.
The larger wound was caused by the butt of the .38-caliber handgun used by the carjackers.
This was the "blunt force trauma" of a "pistol whipping," Amirata told the jury.
The second wound to Friedland's scalp, though smaller, was the lethal one.
It was entry mark left by the .38 slug into the top of head, fired at close range.
Amirata did not use the word "execution" but he gave the jury a clear picture.
He described how Friedland fought with attackers "two-on-one" and was driven down to one knee after being struck with the gun.
Amirata, went to one knee in front of the jury and pointed his index finger into the top of his head.
"Dustin was shot on his knees ... the bullet went straight down," he said.
Amirata was careful to explain that the wound that caused Friedland's death was not accidental. The gun was fired twice. One of the bullets shattered the back window of Range Rover.
But the angle of the lethal shot could not have been an accidental discharge caused by the pistol whipping. It was fired directly into his head, said Amirata.
"This is knowingly and willingly causing a death," he told the jury. "This is murder."
The jury will continue deliberating again today whether Henry is guilty of this murder. But in the end, it might not matter. He faces six counts of carjacking, murder and weapons charges. Even if the jury acquits him of the homicide and gun charges, the carjacking alone could land him in prison for life.
Henry, 36, of East Orange, has two prior felony convictions. The first, in 2003, was for receiving stolen property and weapons charges. The second was for a 2006 armed bank robbery in Union. He was released from prison eight months before the fatal carjacking.
His criminal record makes him eligible for "extended-term" sentencing. The 10- to 30-years he faces just on the carjacking charge alone, could be doubled under the law - or even extended to life.
And if there is any doubt that this judge Ravin is timid about meting out such severe and unforgiving sentences, remember Ravin presided over the trials in the execution-style murders of three college students committed behind Mount Vernon School in Newark.
Those defendants. members of the MS-13 Latin gang, were given consecutive life terms that amounted to two centuries in prison.
Even the youngest defendant in that case, Gerardo Gomez, who was 15 the night of the Aug. 4, 2007, schoolyard murders of three college students, was given 195 years.
And that's a language anybody can understand.
Mark Di Ionno may be reached at mdiionno@starledger.com. Follow The Star-Ledger on Twitter @StarLedger and find us on Facebook.
