Opinion
DOCKET NO. A-0221-12T2
05-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE FELICIANO, Defendant-Appellant.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the briefs). John K. McNamara, Jr., Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. McNamara, Paula C. Jordao, and Erin Smith Wisloff, Assistant Prosecutors, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll, and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-09-0985. Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the briefs). John K. McNamara, Jr., Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. McNamara, Paula C. Jordao, and Erin Smith Wisloff, Assistant Prosecutors, on the brief). PER CURIAM
Tried to a jury, defendant Jose Feliciano appeals from his convictions for first degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first degree robbery with the use of a deadly weapon, N.J.S.A. 2C:15-1(a)(1) (counts three and four); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); and third degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b)(1) (count seven). Following applicable mergers, the court sentenced defendant on count one (murder) to life in prison without parole, on count three (robbery) to a concurrent twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility, and on count seven (hindering) to a five-year prison term to run consecutively to count one.
On appeal, defendant argues that the court erred by admitting evidence of a prior arrest and outstanding warrant, by refusing to admit into evidence his entire pre-arrest statement, and by permitting privileged testimony of a pastoral psychotherapist and hospital mental health worker. Defendant also argues that he was denied a fair trial as a result of juror bias and prosecutorial misconduct, and that his sentence of life without parole constitutes cruel and unusual punishment. Having considered these arguments in light of the record and applicable legal principles, we affirm.
I.
We summarize the trial evidence, and discuss the facts in greater detail in our analysis of the legal issues.
The victim, Father Edward Hinds, was a priest at St. Patrick's Roman Catholic Church in Chatham Borough, where defendant worked as a custodian. At approximately 8:00 a.m. on October 23, 2009, members of the Chatham Borough Police Department (CBPD) were called to respond to St. Patrick's rectory, where they observed Hinds lying on the kitchen floor.
Defendant was present and began to perform cardiopulmonary resuscitation (CPR) on Hinds. CBPD Officer Kelly was surprised when defendant stopped the CPR after two or three seconds, explaining "it would not have been effective at all." Defendant then placed his hands near Hinds's shoulders, "ran his hands up behind [Hinds's] head where there appeared to be most of the blood," and said: "[O]h, what could [] possibly have happened to Father Ed?" According to Kelly, defendant began to weep and became overly emotional. The officer considered defendant's actions unusual, noting that everyone else was "pretty much stationary, paralyzed, so to speak, and just shocked, in awe, completely shocked."
Kelly checked the victim's carotid artery for a pulse, but found none. He described the body as cold to the touch with a significant amount of rigor mortis, suggesting the victim had been deceased for quite some time. Joseph McCabe, an emergency medical technician (EMT) on the Chatham Emergency Squad, also examined the victim and confirmed the presence of rigor mortis, the lack of a pulse, and the fact that the body was cold and ashen.
About thirty minutes after the body was discovered, Kelly requested an ambulance because defendant was having "some stress issues." Kelly asked the Chatham Emergency Squad to conduct a patient assessment. At that point, he felt "things just weren't adding up." Defendant was transported to Morristown Memorial Hospital where, at the nurse's station, he was "carrying on, uncontrollably." When asked for his cell phone number, however, defendant's "head snapped around" and he looked "as if he had seen a ghost." At approximately 9:20 a.m., Detectives Robert McNally and Kayla Dent of the Morris County Prosecutor's Office (Prosecutor's Office) responded to the hospital to speak with defendant. During the interview, McNally noticed a small cut on defendant's left hand, but saw no injuries suggesting a struggle or violent encounter.
At approximately 1:30 p.m., Detective Jan Monrad of the Prosecutor's Office requested Hinds's cell phone number from his service carrier, Verizon Wireless. Monrad then contacted Verizon's Law Enforcement Resource Team to obtain the call detail records for October 22 and 23, 2009. Monrad received the phone records about an hour later. They revealed that on the previous day, at 5:26:04 p.m., a call was placed to 9-1-1, using a cell tower in Florham Park. The records further revealed an incoming call at 5:26:55 p.m. from the New Jersey State Police 9-1-1 Call Center, using the same cell tower, which went to Hinds's voicemail. A second incoming call from the 9-1-1 operator was placed to Hinds's cell phone at 5:27:43 p.m., using a cell tower in Chatham, which was located in the same coverage area.
Jeannine Sorrentino, Hinds's administrative assistant, identified his voice on the outgoing 9-1-1 call, but the words spoken by the caller were unintelligible. During the second incoming 9-1-1 call, the operator said: "Yes. This is the State Police. You called 9-1-1. Do you have an emergency?" The person on the other end of the phone replied: "No, we don't. Thank you. (Unintelligible)." Sorrentino identified defendant's voice on that call, "saying that there's no emergency and no thank you," and also recognized Hinds's voice in the background. Judith Conk, a close friend of Hinds, also identified his voice on the first 9-1-1 call and in the background of the third call. Virginia Donnellon, the parish business administrator, similarly testified that Hinds spoke on the first call and that defendant spoke on the third call, "saying thank you and that there's not a problem."
The cell phone records also showed that at 6:54:57 p.m. on October 22, 2009, a call was made on Hinds's phone using a cell tower in Phillipsburg. Between 9:12:20 p.m. and 10:59:50 p.m., various outgoing calls were made on Hinds's cell phone using a cell tower in Easton, Pennsylvania, where defendant resided. Conk testified that she received three calls from Hinds's cell phone between 10:52 and 11:30 that night, but no one was on the line when she answered them.
Around 11:00 p.m. on October 23, 2009, McNally received information that Hinds's cell phone was producing a signal from the area of defendant's home address. When law enforcement officers arrived there, the signals were identified as coming from a baseball field across the street. During a search of the field, the officers recovered a garbage can containing a plastic bag of clothing with a "red substance in it," along with blood-stained rags or cloths and paper towels. A second search of a wooded area near the ball field the next day yielded a small knife and pieces of Hinds's cell phone.
Dr. Ronald Suarez, the medical examiner for Morris, Sussex, and Warren Counties, conducted the autopsy on October 23, 2009. He testified that Hinds sustained forty-four stab wounds, "including very small superficial ones." Six stab wounds were "immediately life threatening." He explained that the stab wound to the neck was deep enough to fracture part of the windpipe, which would have made breathing and talking more difficult. In Suarez's opinion, none of the injuries would have rendered the victim immediately unconscious or immobile. However, he believed the serious stab wounds would have caused death within minutes due to blood loss, especially when combined with the inability to breathe due to "a bunch of broken ribs."
Suarez testified that the stab wounds were "all over the body," including the front, back, side, and head. He noted that the knife was "oriented in different directions" and that some wounds were very deep, indicating there was "an ongoing attack." He found the injuries on Hinds's hands were consistent with defensive wounds, including one that perforated his left hand. He also described the kitchen where the body was found as a mess, explaining there was blood under the table, on the floor, and on the telephone. Suarez concluded that the cause of death was multiple sharp force injuries and that the manner of death was homicide.
Captain Jeffrey Paul of the Prosecutor's Office took a recorded statement from defendant in his hospital room on October 24. Defendant initially denied any incident with Hinds in the rectory. He later stated that five years earlier he admitted to Hinds that he had been sexually abused by a priest, and that the next year Hinds began to inappropriately touch him. According to defendant, this sexual relationship continued for four years, and they always met in the rectory.
Defendant said that, on October 22, he told Hinds he wanted to end the relationship. Hinds responded that if the relationship ended, his job ended too. Defendant became angry and pushed Hinds, and then took a knife from the kitchen and stabbed him. Hinds grabbed the knife and hit defendant, and then defendant took the knife back and stabbed Hinds again. Hinds pushed defendant and they struggled on the floor. Hinds called 9-1-1, but defendant grabbed the phone. When the operator called back, defendant answered and said there was no problem.
Defendant admitted that he stabbed Hinds "[a] lot in the chest," and that they continued to struggle until Hinds fell and "banged his head hard." Defendant cleaned up and put the knife, cell phone and bloody clothes in a bag that he took home with him. He threw the knife in a park by his home, tossed the cell phone in one of the park's garbage cans, and washed his clothes. He told Paul: "I'm guilty of it. . . . I'm confessing to you." Defendant said he did not mean to kill Hinds and did not want a trial, and asked Paul to "[p]ut [him] away . . . [l]ike an animal."
On November 30, 2009, Kenneth Mullaney, general counsel for the Roman Catholic Diocese of Paterson (Diocese), called the Prosecutor's Office and turned over to McNally a "small black daily planner" (planner) that a parishioner found in the rectory while packing Hinds's belongings. The planner contained handwritten entries made by Hinds. Pertinent to this appeal, on August 25 and September 2, 2009, Hinds wrote: "J.F. forms." A second entry on September 2, 2009, read: "J fing appt J.F." On October 22, 2009, Hinds wrote: "Jose, Friday, 10/23, last day, pay to 10/31." Another entry read: "a-d-p-t-f-i-n-g-j-f."
Mullaney's name also appears in the record as Malaney. --------
In 2003, the Roman Catholic Church instituted a program called Protecting God's Children (PGC). PGC required all employees and volunteers who had contact with children to be fingerprinted for background checks, sign a code of pastoral conduct, and take a computer class called VIRTUS to help identify child abuse. Mullaney testified that "diocesan rules" provided that an employee who refused to be fingerprinted should be fired.
In summer 2009, the Diocese notified St. Patrick's that an audit would take place in October 2009, to ensure compliance with the Dallas Charter, a document establishing policies for addressing the sexual abuse of minors. Hinds selected Sorrentino as the "parish coordinator" to maintain compliance information. She was instructed to check all files for fingerprints, a VIRTUS training certificate, and a code of conduct. In August or September 2009, she checked defendant's file and discovered that his fingerprint card was never sent to the State Police. Sorrentino gave defendant's fingerprint card to Hinds, who said he would take care of it.
In September 2009, the parish business administrator, Donnellon, was reviewing parish credit card statements for the previous month when she noticed three charges to "Net Detective" and one to "P.A. Criminal Record." When she asked Hinds about the charges, he told her that defendant "had something he didn't want found in his background," Hinds was "going to check it out," and if defendant did not eventually obtain a background check, he would "have to let him go."
At trial, the parties entered into the following stipulation:
On April 2nd, 1988, the defendant in this case, Jose Feliciano was arrested in 1988 and charged with three charges involving a minor.
The pedigree information provided by
the defendant to . . . the Philadelphia Police Department was a date of birth . . . and a Social Security number . . . .
On May 11, 1988, the defendant failed to appear [in] court for that arrest and a bench warrant was issued for the defendant's arrest by a Philadelphia, Pennsylvania judge.
That warrant was active for Jose Feliciano, the defendant in this case, up to and including October 22nd, 2009.
On August 25, 2009, Father Edward Hinds purchased a criminal background check from his computer on the EPatch website, which is operated by the Pennsylvania State Police Bureau of Records and Identification.
Father Hinds purchased the criminal history background check for $10 and used his St. Patrick's American Express credit card.
Father Hinds requested a criminal history for Jose Ramone Feliciano . . . .
Father Hinds . . . provided the following information as the requestor, Edward John Hinds, St. Patrick Church, 41 Oliver Street, Chatham, New Jersey 07929.
On October 2nd, 2009, Father Hinds returned to the EPatch website to check the status of the request and received an "under review" response.
At no point was the defendant's record accessible online by Father Hinds because EPatch only provides records through the mail.
The information was manually checked by the record check review unit and it was determined that the search criteria provided
by Father Hinds matched the defendant's, in this case, 1988 arrest.When shown the warrant for defendant's arrest, Mullaney said defendant should have been fired.
The database was updated on October 5, 2009 and the Pennsylvania State Police sent a letter and criminal history detailing the defendant's history, in this case, the 1988 record to Father Edward Hinds at 41 Oliver Street, Chatham, New Jersey, 07929.
The letter and criminal history information was sent on October 6th, 2009 by Pennsylvania State Police through bulk mail via the United States Postal Service and the typical delivery time of that letter and criminal history is 5 to 10 business days.
Maris Barrett, a pastoral associate at St. Patrick's, testified that Hinds was "not the type of person that would have had a relationship other than pastor with anyone." Marta Luz Cleves, a custodian at St. Patrick's, similarly testified that she never saw any "unusual interaction" between defendant and Hinds. A former custodian, John Bongo, who testified as a defense witness, said defendant never mentioned any "concerns" or "issues" with Hinds, and he never saw any unusual activity or contact between them. Likewise, Donnellon never noticed any "strange" or "odd" behavior between defendant and Hinds, and said neither man complained to her about the other.
Defendant testified that St. Patrick's first required fingerprinting of employees in December 2003. At that time, he told Hinds that he had some problems in Pennsylvania and that he would not be able to work at St. Patrick's if his fingerprints were taken. Hinds said "not to worry" because he would decide whether defendant would work or not. Defendant went to the police station in January 2004 with Barrett, gave his fingerprint card to her, and assumed she would give it to Hinds.
In March 2004, Hinds asked him what happened in Pennsylvania. When defendant initially refused to explain, Hinds said "let's do it in confession." That month, their relationship changed. According to defendant, Hinds called him into the rectory, where he placed his hand on defendant's lap, rubbed defendant's leg, and "grabbed [defendant's] privacy [sic]." Defendant said other incidents occurred between 2004 and 2007, but admitted some confusion about the dates. In spring, 2009, Hinds touched him again.
Defendant said the incidents did not happen often. He did not tell anyone because he thought no one would believe him. He also said Hinds promised to protect him and his family, and to keep him at the school. Defendant, however, planned to retire in March 2010 when he was sixty-five, and wanted to end the relationship.
Defendant was cleaning the school on October 22, 2009, when Hinds asked to talk with him. At about 5:00 p.m., he went to the rectory, where Hinds said "he had to let [defendant] go." When defendant asked why, Hinds responded: "[T]here are a lot of things that are going on right now in the office . . . . I cannot afford to have you around anymore." Defendant cried and pleaded to stay.
Defendant said Hinds began to yell at him and he "got real furious," because Hinds had promised he could stay until he retired. Hinds pushed him away, saying it was already decided that he would leave. As they argued, defendant grabbed a small knife on the kitchen table. He took the knife and walked to the parish center, but then returned to the rectory to finish their conversation. As things "got really heated," defendant "just lost it" and "threw the knife at the table." When Hinds picked up the knife, defendant "took it away from him" and "sliced him in the hand." Defendant explained that he "closed [his] eyes" and heard voices in the back of his head tell him to "just do it." He "just went crazy" and stabbed Hinds, and "that's when [he] lost it." He recalled "rolling" over the kitchen floor and stabbing Hinds "a lot of times."
At some point, defendant heard Hinds say something and noticed he was holding a phone. Defendant said he "bang[ed] [Hinds's] hand and the phone fell on the floor." Hinds then fell, striking his head against the refrigerator. Defendant knew he was dead.
Defendant got rags and paper towels, and started cleaning "because there was so much blood." As he cleaned, Hinds's cell phone rang and stopped. When the phone rang again, defendant said his "mind wasn't there" so he answered it and told the operator that everything was fine and hung up. Defendant placed the knife, rags and paper towels in a garbage bag, and "snapped" the cell phone before putting it into his pocket. Later that evening, he threw the knife and broken cell phone in the park near his home, and placed the bag in a trash can.
When he saw Hinds on the floor the next morning, defendant felt a lot of guilt and denial. Defendant explained that he "felt anger" about Hinds's sexual advances. Nonetheless, he admitted that the killing was "horrible," that he felt bad about what he did to Hinds, and that it should have never happened.
On cross-examination, defendant acknowledged that he initially lied to Paul when he denied any involvement in the murder before eventually admitting that he killed Hinds. Defendant also contradicted his statement to Paul that Hinds took the knife from him. He admitted at trial that Hinds never threatened him with the knife and that he knew if he plunged the knife into Hinds he could cause death.
Defendant maintained that he killed Hinds because he was angry about "the way" he was fired after being told he could remain at St. Patrick's until retirement. He denied that they argued over his background investigation, claiming Hinds never asked him to get his fingerprints taken. He testified that their argument had to do with "mostly, actually, what happened between both of us."
Defendant acknowledged that on April 2, 1988, he was arrested in Philadelphia, Pennsylvania, on three charges involving a minor. He did not appear in court to answer the charges, and was aware that there was an active bench warrant for his arrest. He further acknowledged that he never told anyone about those charges and that he should not have been working around children. He also believed he would have lost his job at St. Patrick's if the parishioners learned of the charges.
On December 22, 2011, the jury returned guilty verdicts on all counts. Before sentencing, defendant sought a new trial based on a juror's responses during voir dire. On April 19, 2012, following an in camera hearing, the court denied the motion. The following day, the trial judge sentenced defendant to life imprisonment without parole for the murder.
The court entered a judgment of conviction on April 26, 2012. Defendant appeals and raises the following arguments:
POINT I
THE TRIAL COURT ERRONEOUSLY ADMITTED HIGHLY PREJUDICIAL EVIDENCE OF PRIOR BAD ACTS, AND THE STATE WILLFULLY EXCEEDED EVEN THE IMPROPERLY BROAD ADMISSION, NECESSITATING REVERSAL
. . . .
B. Admission of the Actual Charges
C. The Mistrial Motion
POINT II
MISCONDUCT BY THE PROSECUTOR, THROUGHOUT THE TRIAL, BUT MOST EGREGIOUSLY DURING THE OPENING AND CLOSING STATEMENTS, DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PARS. 9, 10 (Partially Raised Below)
. . .
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL, BECAUSE A JUROR EXHIBITED POTENTIAL BIAS IN FAVOR OF THE STATE. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, ¶ 1, 9 AND 10
POINT IV
THE TRIAL COURT ERRED PREJUDICIALLY IN DENYING DEFENDANT'S MOTION TO ADMIT HIS ENTIRE STATEMENT INTO EVIDENCE, BECAUSE THE EXCERPTS WERE MISLEADINGLY INCOMPLETE
A. Doctrine of Completeness
B. Declarations Against Interest
POINT V
THE COURT ERRED IN PERMITTING TESTIMONY BY A PASTORAL COUNSELOR AND A HOSPITAL MENTAL HEALTH WORKER, OVER DEFENDANT'S APPROPRIATE CLAIMS OF PRIVILEGE
A. Pastoral Counselor
B. Hospital Mental Health Worker
POINT VI
REVERSAL IS NECESSITATED BY THE CUMULATION OF TRIAL ERROR
POINT VII
THE IMPOSITION OF LIFE WITHOUT PAROLE WITHOUT CONSIDERATION OF PROPORTIONALITY IS, UNDER THE CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. (PARTIALLY RAISED BELOW.) U.S. CONST., AMENDS. VIII, XIV; N.J. CONST. (1947), ART. 1, PAR. 12
II.
We turn first to defendant's contentions that the trial court erred in: (1) admitting evidence of his prior arrest and outstanding warrant under N.J.R.E. 404(b); and (2) denying his motion for a mistrial based on the State's reference to the warrant. At the outset, we note that a trial court's decision on the admissibility of other-crimes evidence is guided by the abuse of discretion standard and will be disturbed only where there is a clear error of judgment with respect to the balancing test required by N.J.R.E. 404(b). State v. Barden, 195 N.J. 375, 390-91 (2008).
A. N.J.R.E. 404(b) Ruling
At a pretrial hearing in February 2011, the State sought to admit defendant's prior arrest and subsequent bench warrant to show motive and to rebut his claim of passion/provocation. Applying the four-prong test established in State v. Cofield, 127 N.J. 328, 338 (1992), the court found that evidence of the prior arrest and warrant was relevant to prove the State's theory of motive and to disprove defendant's theory of passion/provocation (prong one); the evidence of his criminal history was clear and convincing based on the warrant itself (prong three); and that the probative value of this evidence to show motive would not substantially prejudice or inflame the jury (prong four). The court found that prong two did not apply. The court, therefore, concluded that this evidence was admissible under N.J.R.E. 404(b), provided that, in a future proceeding, the State could meet its burden to prove by clear and convincing evidence the existence of the predicate facts.
In July 2011, following an evidentiary hearing, the court permitted the State to introduce evidence that, at the time of Hinds's death, defendant was a fugitive from Pennsylvania on three offenses involving a minor. The court noted that the State did not seek to introduce in its direct case the nature of the alleged offenses or the underlying facts, "unless the door was opened by [] defendant and leave of the court was granted." The court indicated that this limitation would satisfy the mandate to use less prejudicial evidence, when available.
The court also found that the other crimes evidence "as a whole" showed a "clear pattern" that Hinds terminated or could have terminated defendant based on his criminal history. It reasoned:
[W]hether or not that was in fact the motive is for the finders of fact to determine, not for the [c]ourt. It is the [c]ourt's obligation to determine whether or not the State has provided sufficient evidence so that such an inference could be drawn. [The] [c]ourt finds again that the State has met its burden in that regard.
At the very least, [the] finder of fact could determine that [defendant] was going to be terminated as of October 23rd, notwithstanding the reason for his termination. Whether that is sufficient motive to cause Father Hinds to be attacked and have his life taken, again, is for the jury to determine.
The court further found that the prior act involving a minor was probative based on the underlying rationale of the diocesan policy to prevent exposure of children to individuals with criminal backgrounds. Thus, the court found it would be reasonable to infer that the prior arrest would "certainly guarantee [defendant's] firing." To ameliorate any prejudice, the court indicated that it would give a limiting instruction when this issue became relevant at trial.
The court subsequently read to the jury the parties' stipulation that defendant was arrested in 1988 and charged with three offenses involving a minor; defendant failed to appear in court; a bench warrant was issued for his arrest by a Philadelphia judge; and the warrant was active on October 22, 2009.
N.J.R.E. 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.The Court in Cofield enumerated a four-part test to admit N.J.R.E. 404(b) "other crime" evidence as follows:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
Under the first prong, evidence is relevant if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; see State v. Covell, 157 N.J. 554, 565 (1999). When determining relevance, "the inquiry should focus on the 'logical connection between the proffered evidence and a fact in issue.'" Covell, supra, 157 N.J. at 565 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "[E]vidence may be admitted for other purposes, such as proof of motive when motive is relevant to a material issue in dispute." State v. Collier, 316 N.J. Super. 181, 192 (App. Div. 1998), aff'd, 162 N.J. 27 (1999).
Here, the evidence of defendant's prior arrest and outstanding warrant was relevant and material given the State's theory of motive. The testimony supports the court's findings that defendant's fingerprint card was never sent to the State Police for a background check, that by early October 2009 Hinds was aware of defendant's criminal history and fugitive status, that Hinds made an entry in his notebook regarding defendant that said "23 Friday last day" and "pay 10/31," that defendant met with Hinds in the rectory, and that defendant believed he would lose his job if Hinds revealed his prior arrest in Pennsylvania. Because these findings gave rise to a motive to kill Hinds, the exclusion of this other-crimes evidence would hinder the State's case and deprive the jury of understanding why defendant would stab Hinds to death. Likewise, the other-crimes evidence was relevant to challenge defendant's claim of sexual abuse.
With respect to the second Cofield prong, our Supreme Court has recognized that temporality and similarity of conduct are not always applicable. State v. Carlucci, 217 N.J. 129, 141 (2014); State v. Rose, 206 N.J. 141, 160 (2011). Here, the trial court properly determined that this prong was not relevant to its analysis. See State v. Skinner, 218 N.J. 496, 515 (2014) (finding second prong was "implicated only in circumstances factually similar to Cofield").
The third prong of Cofield requires clear and convincing evidence that the other crime or prior bad act actually happened. Rose, supra, 206 N.J. at 160. Here, in addition to certified criminal records, the court heard testimony confirming the facts of defendant's prior arrest and bench warrant, and his fugitive status at the time of Hinds's death. Importantly, as the court found, the evidence of defendant's prior criminal history was clear and convincing based on the warrant itself, even if the underlying charges were never proven.
The fourth prong "requires a balancing of the probative value of the evidence as compared to its prejudicial effect, and necessarily implicates an examination into whether less inflammatory sources of evidence that are equally probative are available." Id. at 164. This prong was satisfied because the existence of the prior arrest and outstanding warrant, and the upcoming audit, explained why defendant killed Hinds despite their prior friendship. This evidence was not "overly prejudicial" as it was admitted to explain why defendant committed the particular crime, not to suggest to the jury that he had a propensity to commit bad acts and that he should be convicted on that basis. Ibid. Indeed, in its final charge, the court instructed the jury about the permitted (to show motive) and prohibited (to show disposition to do wrong) uses of this evidence.
B. Motion For Mistrial
Defendant also contends the court erred by denying his motion for a mistrial when it permitted the State to reference the warrant itself, "thus enumerating the precise charges" against him. We disagree.
At trial, the prosecutor asked Mullaney to review the three charges on the warrant, but not to describe them. He also asked Mullaney to explain the purpose of PGC and Hinds's responsibility, assuming Hinds saw defendant's prior record. Mullaney said the purpose of PGC was to protect children from sexual abuse and that there was "[n]o question at all" that the policy required Hinds to immediately fire defendant. The prosecutor then asked: "And what's in these charges is what's implicated in Protecting God's Children." At that time, defense counsel objected and moved for a mistrial on the grounds that the State exceeded the N.J.R.E. 404(b) ruling by attempting to elicit testimony that defendant's prior arrest involved "sex charges."
The court reiterated that its prior ruling permitted the use of the warrant and the charges to demonstrate motive. It noted that the prosecutor had avoided asking questions about the particular charges and that the stipulation only provided the year of the arrest and the fact that the three charges involved a minor. The court denied the motion for a mistrial, finding that defendant was not prejudiced by the question. The court, however, emphasized the nature of the charges must never be disclosed to the jury, including that a young girl was involved and that there were allegations of inappropriate touching. When the prosecutor asked whether defense counsel wanted a limiting instruction, the court replied, without objection: "I haven't heard anything in which I believe I should give it a limiting instruction, that would be my ruling."
The prosecutor then asked Mullaney to review the warrant, but not to read the charges. When asked if it would be fair to say that the charges would have been a "huge concern" to anyone who received the warrant, Mullaney replied: "No question."
On direct examination, defendant testified that he told Hinds the details about the prior incident in 2004. On cross-examination, the State argued that the nature of the charges, which it did not seek to introduce in its direct case, were relevant to impeach defendant's credibility. It thus sought to "bring out" that the prior offenses involved a seven-year-old child to show that Hinds would have terminated defendant's employment, if he had known about them. The court ruled the prosecutor could confront defendant with the warrant and refer to the three offenses, but could not ask any questions about the "particulars of these charges" such as the age of the alleged victim or their seriousness or grade. It explained that any reference to the nature of the offenses would create undue prejudice, confuse the issues, and mislead the jurors.
During his cross-examination, defendant testified that he told Hinds the truth about his criminal history and that Hinds permitted him to work at St. Patrick's while knowing he was a fugitive from justice. Later, the State again sought to introduce information that the charges involved a seven-year old girl. At that time, defendant advised the court that he would renew his motion for a mistrial if such questions were asked.
After recapping its prior rulings, the court reiterated that the additional information was not permitted under N.J.R.E. 403, and that the jury could hear only exactly what appeared on the warrant, "not a word different" and "not the degree of charges." The court instructed defendant not to answer any questions about the nature of the prior charges, and defendant said he understood. When the prosecutor later mentioned "the nature of the charges," the court asked him to avoid the phrase, and the prosecutor complied.
In the final charge, the court reminded the jury that it heard evidence that since 1988 defendant had an outstanding warrant for his arrest on three charges involving a minor. The jury was instructed that it could not use this evidence to decide that defendant had a disposition or tendency to do wrong and therefore must be guilty of the charged offense. The court explained:
I have admitted the evidence only to help you decide the specific question of motive. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed or was charged with other crimes, wrongs, or acts.The State later advised the court that it would not seek to admit the warrant into evidence.
The decision to grant a mistrial rests in the sound discretion of the trial court. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice. Ibid.; State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
We discern no abuse of discretion in the denial of defendant's motion for a mistrial. Notably, defense counsel referred to the warrant during his opening statement, saying: "The warrant that was out for [defendant] should have had him fired, if they followed procedure, immediately. Immediately. No ifs, ands or buts, he's gone." Defendant cannot complain about the reference to evidence he mentioned in his opening statement. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) (applying invited error doctrine to bar a disappointed litigant from arguing on appeal a different strategy than one advocated below).
More importantly, as we have noted, reference to the warrant was proper to establish defendant's motive for killing Hinds, and to rebut the defense theory of passion/provocation arising from an alleged sexual relationship between defendant and Hinds. The information about the three charged offenses involving a minor was also necessary to avoid speculation about whether Hinds would have fired defendant if he had known the details. Thus, without reference to the warrant and its charges, the jurors would have been left with questions regarding a key piece of evidence. See Rose, supra, 206 N.J. at 165 (holding, despite the potential prejudice of admitting evidence that the defendant was incarcerated on earlier charges that he attempted to kill the victim, "[w]ithout that knowledge," the jurors would have known the defendant wanted to kill the victim, but not why).
Moreover, the court did not admit evidence of the nature of the prior charges or the degree of the offenses. See State v. Gillispie, 208 N.J. 59, 92-93 (2011) (holding court should have admitted the essentials of the other-crimes evidence to prove the defendant's identity, but not the details). In fact, the warrant was never entered into evidence. Additionally, the court provided appropriate instructions in its final charge to limit any potential prejudice to defendant. Defendant does not challenge on appeal the adequacy of the jury instruction or the lack of a limiting instruction at the time of Mullaney's testimony. Further, the prosecutor's use of the warrant was neither misleading nor prejudicial given the stipulation by the parties regarding its content.
III.
Next, defendant argues that prosecutorial misconduct during the State's opening and closing statements deprived him of a fair trial. We detail the alleged improper comments to lend further context to defendant's argument.
A. Improper Comments In Opening Statement
Defendant contends the prosecutor committed misconduct during his opening statement by using emotionally charged items including photographs of Hinds and the 9-1-1 calls, by improperly vouching for the State's case, by improper appeals for sympathy for the victim and by improper personal attacks upon him. He also argues that the State's lengthy opening statement was "an extended diatribe, designed to inflame the jury and exalt the prosecutor."
It is well-settled that prosecutors "are afforded considerable leeway in making opening statements[.]" State v. Williams, 113 N.J. 393, 447 (1988). However, the prosecutor is "limited to commenting upon the evidence and the reasonable inferences which may be drawn from that evidence[.]" State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). "A prosecutor's opening statement 'should provide an outline or roadmap of the State's case' and 'should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014) (emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 588 (App. Div.), certif. denied, 182 N.J. 148 (2004)).
"[T]o justify reversal, the [prosecutor's remark] must have been so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (citation omitted). The reviewing court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (citation omitted).
1. Improper Length
Defendant first argues that "[n]o 'general recital' of what a party intends to prove concerning one defendant and one incident requires [eighty-six] transcript pages." He claims the State's opening argument was a systematic attempt "to inspire personal loathing" of him.
A trial court has wide discretion over the conduct of a trial. State v. Tilghman, 385 N.J. Super. 45, 53 (App. Div.), certif. granted limited to sentence and summarily remanded, 188 N.J. 269 (2006). This discretion allows the court "to control the discussions of counsel," and "to regulate the time which counsel shall occupy[.]" Id. at 54 (citation omitted). In deciding whether to limit the duration of counsel's opening statement, a trial court must consider its nature and purpose as well as the complexity of the case, the number of witnesses, and the length of the trial. Id. at 54-55, 57-58. "Overall, when presenting an opening statement, '[c]ounsel must be summary and succinct.'" Id. at 55 (alteration in original) (quoting Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)).
Here, the trial court did not abuse its discretion by allowing the State to give a lengthy opening statement. In fact, prior to opening statements, the trial judge told the attorneys: "I don't know how long your opening is going to take and I don't even care to know how long your opening is going to take. It can take however long it takes." The prosecutor responded that his opening "should be done within [three] hours." Defendant did not object at the time, and it may be presumed that he did not consider the length prejudicial or improper. See State v. Frost, 158 N.J. 76, 84 (1999). We further note that the trial spanned some twenty-eight days between October 19, 2011, and December 22, 2011. Given the length and complexity of the trial, we do not find the duration of the prosecutor's opening statement improper.
2. Improper Use Of Photos And 9-1-1 Calls
Defendant next challenges the prosecutor's use of "emotionally-charged evidentiary items," including the 9-1-1 calls and photographs of the crime scene and the victim's autopsy. He argues that the photos were "[p]articularly disturbing" and that the simultaneous display of photographs of himself and the victim's torso served "no purpose other than inflammation."
The record does not support defendant's argument. In his opening statement, the prosecutor told the jury how the 9-1-1 calls were recovered and how the voices were identified. He also informed the jury that witnesses would identify defendant's voice on the last 9-1-1 call telling the operator that "everything is okay" while, in the background, Hinds was saying "no, everything is not all right," which the operator evidently did not hear. The prosecutor further explained the 9-1-1 calls would show that Hinds reached out to law enforcement while mortally wounded and that defendant would "pounce on top of Father Ed and hang the phone up and take the phone from" Hinds, which were acts of felony murder and robbery.
Defendant's contention that photographs of the victim served no permissible purpose is equally without merit. The trial judge reviewed the photos and precluded certain ones as duplicative or inflammatory while finding that others had "probative value." The comparison photos depicted the location of the stab wounds on the victim's body, the extent of his injuries, and the presence of his defensive wounds in contrast to the absence of such wounds on defendant. As the court found, these photographs were permissible to show what the prosecutor intended to prove, i.e., that defendant was the aggressor and Hinds the victim.
The autopsy photos also showed Hinds was assaulted on his front and back, and corroborated the medical examiner's conclusion that he sustained multiple stab wounds, including six that would have caused death within minutes. Thus, these photos were relevant to the State's case and not unduly prejudicial.
3. Improper Vouching
Defendant argues that the prosecutor impermissibly vouched for the strength of the State's case. For example, he objects to the prosecutor's statement that "[h]undreds, at least 100, if not more, witnesses have been interviewed" and that many of them had information. He argues that this remark, which was the subject of an unsuccessful mistrial motion, suggested to the jury that the State possessed more evidence than it chose to present. He also objects to the prosecutor's remarks regarding the "[g]reat work by law enforcement" and the overwhelming evidence, and to the prosecutor's reference to the 9-1-1 call as "the gem of the case." Defendant concedes that some of these comments individually "might well be excusable," but that together they resulted in improper vouching in favor of the State's case.
We agree with defendant that some of the prosecutor's comments were unnecessary and exceeded the boundaries of permissible advocacy. However, in this case, given the length of the opening argument and the ensuing trial, we do not find these isolated comments about the State's witnesses or evidence substantially prejudiced defendant's right to a fair trial. The prosecutor did not suggest any personal knowledge outside of the record, but instead referred repeatedly to the evidence that he would present at trial. See Walden, supra, 370 N.J. Super. at 560 (prosecutor may argue that a witness is credible, so long as he or she does not personally vouch for the witness or reference matters outside the record to support witness's credibility).
4. Improper Appeals For Sympathy For The Victim And Personal Attacks On The Defense
Defendant challenges several of the prosecutor's comments as improper appeals for sympathy for the victim and personal attacks on the defense. To illustrate, defendant objects to statements that: the victim was slaughtered; the victim was a "dead, cold, stiff, bloody corpse;" defendant picked up the phone, "calm as a cucumber" and answered the 9-1-1 call "no different than if he is ordering a pizza pie;" defendant would do "anything to cover up his actions;" and the jury was told to think about a man "plunging the knife into the flesh of another human being." Defendant also objects to the prosecutor's reference "to the level he'll go, to the level he'll stoop, to try to get himself out from being in trouble." Defendant concedes he did not object to the bulk of these comments, but claims, without support, they were "clearly encompassed" in his mistrial motion.
We conclude that, when viewed in the context of the lengthy proceedings, these remarks did not deprive defendant of a fair trial. Contrary to defendant's assertion, they were a fair comment on the overwhelming amount of evidence produced at trial. State v. Timmendequas, 161 N.J. 515, 577-78 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). While comments regarding the chilling 9-1-1 call and the plunging of a knife into the body were prejudicial and inflammatory, they were based on defendant's admissions that he took the phone from Hinds, that he answered the last 9-1-1 call, and that he stabbed Hinds multiple times and killed him.
In concluding our discussion regarding the prosecutor's opening statement, we additionally note that, following opening statements, the court instructed the jury that what the attorneys said and presented as exhibits were not evidence. It explained that evidence would come from witnesses and from documents or tangible items admitted into evidence at trial. The court added: "Simply stated, I will decide what is the evidence in this case, after it is presented. And only that evidence will you consider at the time of your deliberations." It is presumed the jurors followed these instructions. State v. Loftin, 146 N.J. 295, 390 (1996).
B. Improper Comments in Summation
Defendant contends the prosecutor also made improper comments in his summation. He argues that the prosecutor improperly made "call-to-arms" statements, denigrated the defense, vouched for the State's witnesses, and expressed his personal belief.
We initially note that, the day after summations, the court asked defense counsel if he had any objections to the prosecutor's closing argument. He responded: "I wasn't actually planning on it. I made my objections . . . when I did." Defense counsel later raised an objection about the use of the word "courage." The prosecutor explained that it was "fair comment" to ask a jury to have courage to follow the law and the facts. The court found that, viewed in context, the words courage and courageous did not have the capacity to inflame the jury or rise to the level of prosecutorial misconduct. In its final charge, the court reminded the jury that summations of counsel were not evidence.
Prosecutors are entitled to wide latitude in summations provided their comments are based on the facts of the case or reasonably inferred from the evidence. Wakefield, supra, 190 N.J. at 457; Frost, supra, 158 N.J. at 82. They may not make "inflammatory and highly emotional" appeals that can divert a jury from a fair consideration of the evidence. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). While they have the right to point out discrepancies in a defendant's testimony and argue that the defendant was not truthful, prosecutors cannot express a personal opinion as to the defendant's credibility. State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997). They also may not cast unjustified aspersions on a defendant or defense counsel, demean the credibility of a defense witness, or make inaccurate factual or legal assertions. State v. Smith, 167 N.J. 158, 177-78 (2001); Frost, supra, 158 N.J. at 85-86.
An appellate court's task is "to consider the 'fair import' of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting Wakefield, supra, 190 N.J. at 457). When reviewing a prosecutor's summation, we consider "the context in which the challenged portions were made, including determining whether the remarks were a measured response to defendant's summation made in an attempt to 'right the scale.'" State v. Murray, 338 N.J. Super. 80, 88 (App. Div.) (quoting State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991) certif. denied, 169 N.J. 608 (2001)). To warrant reversal, the misconduct must be "'so egregious that it deprived the defendant of a fair trial.'" Jackson, supra, 211 N.J. at 409 (quoting Frost, supra, 158 N.J. at 83).
1. Call To Arms
Defendant first argues that the prosecutor improperly communicated a "call to arms" to convict him by exhorting the jurors to have courage and to "[r]ight this wrong for" the victim. He claims that these comments were attempts "to divert the jury from objectively performing its function of deciding whether the charges have been proven beyond a reasonable doubt."
Call-to-arms comments that "send a message to the community" are impermissible because they improperly divert the jury's attention from the facts of the case. State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (citation omitted). They also tend "to promote a sense of partisanship with the jury that is incompatible with the jury's function." Id. at 537-38 (holding call-to-arms comments in closing argument asking jury to hold the defendant accountable for his betrayal of children, including the reference to the defendant as having a "lack of courage," were inflammatory and improper, and had the capacity to deprive defendant of a fair trial).
We share the trial court's view that the challenged comments did not rise to the level of prosecutorial misconduct when considered in context. The prosecutor told the jury that Hinds "fought with every ounce of his life to survive. But he left a lot of fingerprints behind and his voice has been heard in the courtroom." The prosecutor then told the jury to "[h]ave the courage" when it went into the jury room to conduct its deliberations. Shortly afterwards, he thanked the jury for being "awesome" and said it was now time "to get down to business." He immediately added: "Right this wrong for Father Ed. Right the wrong based on the evidence. The evidence speaks for itself." Thus, the prosecutor urged the jury to reach a verdict based on the evidence. See Wakefield, supra, 190 N.J. at 460-61 (affirming trial court's analysis that prosecutor's use of the word courage was not so egregious to warrant reversal because he told jury to reach a verdict based on the evidence, not to demonstrate courage by voting for death). Unlike Neal, these comments did not improperly send a message to the community or deprive defendant of a fair trial.
2. Denigration of Defense
Defendant argues, among other things, that the prosecutor improperly referred to his testimony as "retarded" and repeatedly said he committed the murder for "narcissistic, self[-]centered reasons." He also argues that the prosecutor denigrated the defense by suggesting the victim took money from "little old ladies," and by repeatedly suggesting defense counsel forgot to mention certain facts. He further contends that the prosecutor misstated the law by portraying the defense of passion/provocation as an excuse or justification for homicide, rather than a second-degree crime.
Initially, we note that defense counsel did not raise these objections at trial . Moreover, when read in the context of the entirety of his summation, none of the prosecutor's comments were so egregious as to deprive defendant of a fair trial. State v. Darrian, 255 N.J. Super. 435, 458 (App. Div.), certif. denied, 130 N.J. 13 (1992) (holding, although some of the prosecutor's remarks in summation approached limits of permissible advocacy, none were so egregious as to deprive the defendant of a fair trial). For example, he used the word "retarded" in the context of asking why Hinds would need to destroy defendant's fingerprint card, explaining: "It's retarded, literally, to make a suggestion." He also used the term "narcissistic" in connection with defendant's statement to Captain Paul, "What's going to happen to me?," characterizing this as another "self[-] centered, narcissistic response."
The State concedes in its brief that "certain editorial comments made by the prosecution in the course of this long trial were admittedly better left unsaid." Certainly, use of the term "retarded" was improper and should not be condoned. Nonetheless, when viewed as a whole, the prosecutor emphasized inconsistencies in defendant's statement and testimony based on the evidence. He also properly commented on the credibility of defendant's testimony. We discern no plain error. R. 1:7-2; R. 2:10-2.
3. Improper Expressions of Personal Belief
Defendant contends that approximately fourteen times during summation the prosecutor used a variation of the word "lie" to describe his testimony and that the prosecutor twice called him a liar. He argues that the repeated use of these words indicated the prosecutor's personal belief in his guilt and that such excess was highly improper and prejudicial.
In this case, the prosecutor's remarks emphasized inconsistences between defendant's statement to law enforcement and his trial testimony. For example, the prosecutor told the jury in summation that defendant "has not earned your right to say that anything he is saying is the truth. He has not earned your right, this person who has lied all these years and lied right to your face and admitted it." Although immediately followed by an objection, the court found the prosecutor was "talking about credibility."
The prosecutor's comments also were based on the facts of the case or reasonable inferences drawn from the evidence at trial and, therefore, were not grounds for reversal. See State v. Morton, 155 N.J. 383, 457-58 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (holding no reversible error for prosecutor to call the defendant's testimony a "self-serving pack of lies," because the comment was based on reasonable inferences drawn from evidence presented at trial).
Additionally, in his summation, defense counsel argued that Hinds knew about defendant's prior arrest, that he destroyed the fingerprint card and the letter from the State Police, and that he "covered up" defendant's record because "Hinds and defendant had a sexual relationship." The prosecutor responded to these comments during his closing argument by telling the jury, among other things, that defendant was "not worthy of your investment of credibility and believability," and that defendant was not being truthful. Thus, the prosecutor's comments about defendant's lies were made to rebut defense counsel's suggestion that Hinds was involved in a cover-up, and were supported by the record. In any event, these comments, singularly or cumulatively, were not so egregious as to deprive defendant of a fair trial. Smith, supra, 167 N.J. at 185.
IV.
Defendant contends the court erred by denying his motion for a new trial based on a juror's failure to disclose that she was the victim of a crime and that there were criminal charges pending against her daughter. He argues that the juror's misconduct deprived him of a fair trial by an impartial jury free of taint from extraneous influences.
After the verdict, defendant filed a motion for a new trial based on information provided by the prosecutor's office "under sealed application" that juror #10 failed to reveal during voir dire that she had been a victim of a crime and during trial that her daughter had a pending criminal charge. The court conducted an in camera voir dire of juror #10, explaining, in part, that some questions would touch on the confidential jury deliberation process.
Juror #10 testified that her daughter was charged with criminal offenses in Glen Rock for an incident that occurred in July 2011, and in Morristown for alleged fraud and theft from credit card accounts that occurred before she became a juror. She said her husband filed the complaint in Morristown and that the alleged theft involved his account only. She first became aware of the charges on November 1, 2011, while in the middle of jury duty, after receiving a call from her daughter.
The juror subsequently learned that her daughter had missed a court appearance on December 6, 2011. At her request, her daughter's treatment facility sent a letter to the prosecutor explaining why her daughter failed to appear. Juror #10 said the jury had not begun to deliberate and she did not know at the time that her daughter's charges were serious.
Juror #10 explained that, at the time of voir dire, she was unaware of the charges against her daughter. She stated that her husband kept her "somewhat in the dark about it." She therefore answered "no" when asked whether she or any family member or close friend had been accused of committing an offense. After learning of the charges, she did not inform the court because she did not think they were relevant to defendant's case.
Juror #10 also said her response on the juror questionnaire was accurate that she did not consider herself a victim of theft. She did not believe the taking of $5000 from a joint account with her husband constituted a crime, explaining she transferred money from her daughter's account to cover the shortfall. She never "made a connection" between the two cases.
Juror #10 maintained that the charges against her daughter had no impact on her ability to be a fair and impartial juror. She explained that defendant's case "had absolutely nothing to do with my daughter." She denied seeking any favor for her daughter by serving on the jury or trying to impress the Prosecutor's Office by returning a guilty verdict. She also denied knowing that the Prosecutor's Office was handling her daughter's criminal case at any time while sitting on the jury or deliberating. She believed the local court was handling her daughter's case. She insisted that her daughter's involvement with the criminal justice system did not, in any way, impact the verdict she returned in defendant's case.
At the hearing, a supervising assistant prosecutor represented that after defendant filed a motion for a new trial, he performed a last name search in the office database system and learned that juror #10 and her husband were the alleged victims of a fraudulent computer transaction involving the purchase of an automobile. When asked about the automobile incident, juror #10 recalled that in 2009, she and her husband filed a complaint after purchasing a vehicle for $8000 on the internet and never receiving it. She admitted being a victim of a crime, but said, at the time of voir dire, it was not "in the forefront of my mind" because "nothing was ever resolved." When asked if she could remain fair and impartial in light of the 2009 crime, she responded: "Absolutely."
After reviewing the voir dire, the court determined that her responses to two questions were not accurate. Regarding the question of whether she had been a victim of a crime, the court found juror #10 knew she and her husband had been defrauded of $8000 in connection with the motor vehicle sale, but did not think of the case at the time she answered the question. It also found juror #10 was a victim of theft when her daughter took money from her joint account, but did not believe it was stolen because she used her daughter's account to replace the money. The court determined there was "absolutely no intent to mislead either the defense or the prosecution by her answer of no to the question whether she or any family member was ever the victim of a crime."
As for the question that asked whether any family member or close friend had been charged with a crime, the court found that juror #10 was aware of her daughter's criminal investigation at the time of voir dire. However, the court accepted her testimony that she was "kept in the dark" by her husband as to the exact nature of the charges against her daughter, and that she believed her daughter's problems were being handled locally, not by the prosecutor's office. The court further accepted as truthful her testimony that she did not attempt to curry any favor with the prosecutor's office. Additionally, the court found that even if juror #10 knew of her daughter's criminal offenses and the role of the prosecutor's office, it was more likely that "she would harbor a bias against the prosecuting agency a) for not finding out who stole her $8000 and b). . . [because] her daughter was being prosecuted."
Under these facts, the court determined that it would not have excused juror #10 for cause and that it was highly unlikely she would have been challenged peremptorily by the defense. To the contrary, the court believed the State would have been more concerned given the fact that her daughter faced criminal charges. The court, however, noted the juror's testimony that she did not harbor any ill feelings or bias towards either the State or defendant.
The court concluded that juror #10 did not improperly seek to influence the verdict. The court found no jury taint, and denied the motion for a new trial. The following day, after further argument, the court added:
I do not find that any injustice took place based on her testimony because she made it quite clear as I noted yesterday, that nothing involving her personal life — be it as a victim or the parent of a daughter charged with criminal conduct impacted upon her ability to be fair and impartial because the one thing that is so, is that all of these events had occurred in her life and she knew of them and even though they were not revealed and that's pretty clear, she was emphatic by saying that none of these events touched upon her ability to be fair and impartial.
We shall not disturb the trial court's denial of a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We apply essentially the same test under Rule 3:20-1 as the trial court, giving due regard to the trial judge's "feel of the case" and opportunity to assess witness credibility and demeanor. Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).
An accused has a constitutionally guaranteed right to trial by an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution, and Article I, paragraph 10, of the New Jersey Constitution. State v. Fortin, 178 N.J. 540, 575 (2004). "The jury is an integral part of the court for the administration of justice, and on elementary principles its verdict must be entirely free from the taint of extraneous considerations and influences." State v. Simon, 79 N.J. 191, 199 (1979).
A trial court's duty to ensure a fair trial begins with voir dire. Fortin, supra, 178 N.J. at 575. A "vital aspect" of voir dire is to impanel only impartial jurors by eliminating potential juror biases. Ibid. To ensure an impartial jury, the court and the parties may examine potential jurors to determine if a peremptory challenge should be exercised. R. 1:8-3(a). "[A] juror's failure to mention, after jury selection, an incorrect or a misleading answer that was given during voir dire, potentially endangers an accused's right to a fair trial." State v. Bianco, 391 N.J. Super. 509, 517 (App. Div.), certif. denied, 192 N.J. 74 (2007). In this regard, it does not matter whether the juror's omission or misstatement is deliberate or unintentional. Id. at 518.
The failure to obtain accurate information during voir dire does not compel the granting of a new trial in all cases. Ibid. For example, a new trial is not warranted where a trial judge finds, at a post-verdict hearing, that the omission of information during jury selection or trial was not potentially prejudicial to the defendant. Ibid. Although an omission during voir dire is presumed prejudicial "if it had the potential to be prejudicial," litigants must demonstrate that, if they had known of the omitted information, they would have exercised a peremptory challenge to exclude the juror. State v. Cooper, 151 N.J. 326, 349, 351 (1997) (holding the defendant failed to demonstrate any prejudice from a juror's failure to disclose during voir dire her cousin's imprisonment, where the defendant probably would not have excused the juror because she "did not appear to be in any way a 'bad' defense juror"), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000); Bianco, supra, 391 N.J. Super. at 511 (holding the defendant was not denied a fair trial where a juror realized during deliberations that he knew the defendant but did not disclose the fact to the trial judge, because the omitted information suggested the juror might be biased in favor of the defendant).
Here, there is no evidence that juror #10 was impacted by outside influences. If the juror was biased, however, it was likely in favor of defendant (given the prosecutor's role in the investigation of the juror's daughter), or non-prejudicial (given the juror's status as a fraud victim in connection with an online purchase of a vehicle). Moreover, the court's findings of fact are supported by sufficient, credible evidence in the record, and its credibility determinations are entitled to deference. State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004). Accordingly, defendant's motion for a new trial was properly denied.
V.
Defendant argues that the court erred by refusing to admit into evidence his entire pre-arrest statement because the omitted portions were admissible under the doctrine of completeness in N.J.R.E. 106, or as declarations against interest under N.J.R.E. 803(c)(25). We disagree.
A. Doctrine of Completeness
N.J.R.E. 106 provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously." The fairness principle embodied in the doctrine of completeness applies to trial testimony and to out-of-court statements which are offered into evidence. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 106 (2016). "Consequently, the completeness doctrine allows the reading of a second writing or statement where 'it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App. Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 272 (App. Div.), certif. denied, 130 N.J. 595 (1992)).
Here, defendant argues that, "as a matter of simple fairness," the admission of his entire statement was necessary to show that he was distraught and confused at the time and that Captain Paul was "deceptive from the outset." He also argues that the redacted portions of the statement support his claim of passion/provocation by showing "the genesis of the incident in a loss of control, and his remorse," and by providing context for the admitted portions.
During cross-examination, the prosecutor elicited testimony about defendant's alleged sexual relationship with Hinds and the subsequent stabbing. He then used portions of defendant's statement to probe his credibility. On redirect, defense counsel played portions of the audio recording and asked if they accurately reflected what he told Paul. In his final question, defense counsel asked defendant if "all of the other parts" played for the jury that afternoon accurately reflected what he told Paul on October 24, 2009. Defendant replied yes.
The portions of defendant's statement that the court would not allow the jury to hear were unnecessary to ensure a fair and complete understanding of what he said to Paul. They were also properly excluded to avoid misleading the jury or to prevent confusion. State v. Gomez, 246 N.J. Super. 209, 221 (App. Div. 1991). Notably, the omitted portions emphasized defendant's remorse and concern for his family, and appealed to the jury's sympathy. Because they were not relevant to the admitted portions of defendant's statement, the doctrine of completeness did not apply. Likewise, as the court found, the omitted remarks about how he should be treated were properly excluded as highly prejudicial and confusing to the jury under the N.J.R.E. 403 balancing test, which determines whether the risk of prejudice in admitting the evidence outweighs its probative worth. State v. Long, 173 N.J. 138, 160-61 (2002). Moreover, as the trial court noted, defendant was available to testify on redirect as to any area of cross-examination. For these reasons, the court properly analyzed the arguments and exercised its discretion to deny defendant's request to admit on redirect his entire statement.
B. Declarations Against Interest
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is only admissible under certain exceptions. N.J.R.E. 802. Under the declaration-against-interest exception, N.J.R.E. 803(c)(25):
A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.This exception "is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably." State v. White, 158 N.J. 230, 238 (1999). Because such statements disserve the declarant, they are deemed inherently trustworthy and reliable. Ibid.
Defendant first argues that the omitted portions of his statement were admissible under N.J.R.E. 803(c)(25) because they were against his penal interest. "'The appropriate test for admissibility is whether, in the context of the whole statement, the particular remark was plausibly against the declarant's penal interest, even though it might be neutral or even self-serving if considered alone.'" State v. Nevius, 426 N.J. Super. 379, 394 (App. Div. 2012) (quoting State v. Abrams, 140 N.J. Super. 232, 236 (App. Div. 1976), aff'd o.b., 72 N.J. 342 (1977)), certif. denied, 213 N.J. 568 (2013). The statement, however, must "on the whole be so far against the declarant's interest that a reasonable person in the declarant's position would not have made the statement unless he [or she] believed it to have been true." Ibid.
Defendant, however, actually sought to admit his entire statement to support his claim of passion/provocation manslaughter, not murder. Indeed, the gist of the omitted portions was that he was an unwilling participant in a sexual relationship with Hinds, that he was guilty of killing Hinds, and that he wanted to be kept away from people. A defendant's self-serving, exculpatory representations do not constitute a declaration against penal interest. Alves, supra, 400 N.J. Super. at 563 (holding self-serving, exculpatory representations in the defendant's deposition testimony were not admissible under N.J.R.E. 803(c)(25)); Gomez, supra, 246 N.J. Super. at 215-16 (holding exculpatory statement was not admissible as declaration against interest because it was self-serving). Thus, while defendant's remarks were an admission to passion/provocation manslaughter and not entirely exculpatory, they were intended to minimize or mitigate his exposure to the more serious offense of murder and, therefore, were not inherently trustworthy. See Nevius, supra, 426 N.J. Super. at 394-95 (holding declarant's statements, individually or collectively, were inherently self-serving and tainted by motive to exculpate the declarant from liability and, therefore, were too unreliable and untrustworthy to qualify as declarations against interest).
Likewise, defendant's statements do not constitute a declaration against social interest. While the current rule does not define "social interest," our Court has adopted the meaning in a prior rule, which provided that a statement would be viewed as against a declarant's social interest if it "created such a risk of making [the declarant] an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true." State v. Brown, 170 N.J. 138, 151 (2001) (alteration in original). Here, defendant fails to show how the omitted remarks would have made him an object of hatred, ridicule or social disapproval for being involved in an unwanted sexual relationship. Because he did not establish that his omitted statements were against his interest, they were properly excluded by the trial court.
VI.
Defendant contends the court erred by permitting the privileged testimony of Sister Catherine Morrissett, a pastoral psychotherapist, and Malti Kathuria, a hospital mental health worker. For the reasons that follow, we reject defendant's claims of privilege.
Testimonial privileges generally are construed narrowly because they prevent the trier of fact from hearing relevant evidence and undermine the search for truth. State v. J.G., 201 N.J. 369, 383 (2010); State v. Mauti, 416 N.J. Super. 178, 188 (App. Div. 2010), aff'd, 208 N.J. 519 (2012); State v. Ballard, 331 N.J. Super. 529, 552 (App. Div. 2000). "[S]ince privileges conceal the truth rather than advancing its ascertainment, courts have traditionally tended to restrict rather than to create or expand them." Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 446 (1988). For this reason, "the adoption of a privilege restricting the flow of evidence is a substantial policy decision uniquely within the competence of the Supreme Court or the Legislature." In re Gail D., 217 N.J. Super. 226, 232 (App. Div. 1987). Consequently, "courts sensibly accommodate privileges to the 'aim of a just result' and accept them to the extent they outweigh the public interest in full disclosure." J.G., supra, 201 N.J. at 383 (citations omitted). Guided by these principles, we separately analyze defendant's privilege claims.
A. Morrisett
Before trial, the State filed an application to interview and elicit testimony from Morrisett based on information that she had provided counseling to defendant. Defendant then moved to preclude her testimony under the psychologist-patient privilege, N.J.R.E. 505, the cleric-penitent privilege, N.J.R.E. 511, and the victim-counselor privilege, N.J.R.E. 517.
During a pretrial hearing, Morrisett testified that she worked as a "staff therapist" in a church-related setting at the Grace Counseling Center. She was certified as a pastoral psychotherapist, and was not a licensed psychologist. Morrisett explained that there was a difference between the work performed by a licensed psychologist and a pastoral counselor, noting pastoral counseling was "grounded in the spiritual." She further explained that, unlike psychologists, there was no licensing requirement for pastoral psychotherapists. She conducted individual and marital group therapy, and gave advice, but did not administer psychological tests. She also did not represent herself "as being medical personnel," explaining that her "real training [was] being a good listener in life's experiences." She made referrals to licensed psychologists and psychiatrists for certain illnesses or disorders, or for pharmacological intervention.
The trial court found that the cleric-penitent privilege did not apply because Morrisett did not perform the functions of a cleric of any religion. It also found that there was no basis to assert the victim-counselor privilege, N.J.R.E. 517, because "there was no counseling [or therapy] relative to [defendant] being a victim."
The court further found that Morrisett was not a licensed psychologist by virtue of her training or her practice, and that under N.J.R.E. 505, which was based on N.J.S.A. 45:14B-28, the privilege applied only to licensed psychologists. The court declined to expand the privilege to cover someone other than a licensed psychologist.
Called by the State as a rebuttal witness, Morrisett testified at trial that she saw defendant forty to fifty times from February 2004 to 2005 for individual and marriage counseling. Defendant said he was "very distressed," explaining "[h]e had issues from the past," including "gang issues in New York City," and "he could not share them with anyone, particularly with his wife." He recalled witnessing "very horrible things," and said he had possibly participated in one of them. He was not sleeping because of the memories.
Defendant never told Morrisett that he had been sexually abused by a priest, that he had an outstanding warrant for his arrest, or that Hinds had been inappropriately touching him or "anything of that nature." In fact, defendant told her that he had been offered a job at another parish, but turned it down because "he didn't feel he could leave the community of St. Pat's, [his family] felt so much at home and so welcomed there, he didn't want to start somewhere else."
On appeal, defendant argues that the court erred by allowing the State to present Morrisett's testimony because it violated the psychologist-patient privilege governed by N.J.S.A. 45:14B-28 and N.J.R.E. 505, and was highly prejudicial. He concedes that N.J.R.E. 505 extends the privilege to communications with "a licensed practicing psychologist." Nonetheless, he claims that "so limiting the privilege is unjustifiably narrow, and frustrates its purpose."
N.J.S.A. 45:14B-28, and also N.J.R.E. 505, govern the psychologist-patient privilege. N.J.S.A. 45:14B-28 provides, in relevant part:
The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
The Legislature created the psychologist-patient privilege as "part of a comprehensive statutory scheme designed to license and regulate practicing psychologists." Arena v. Saphier, 201 N.J. Super. 79, 85 (App. Div. 1985). As defined in the Practicing Psychology Licensing Act, N.J.S.A. 45:14B-1 to -45, a "'[l]icensed practicing psychologist' means an individual to whom a license has been issued pursuant to the provisions of this act, which license is in force and not suspended or revoked as of the particular time in question." N.J.S.A. 45:14B-2(a).
Here, it is undisputed that Morrisett was not a licensed psychologist. Therefore, she did not fall within the scope of the Practicing Psychology Licensing Act, and did not qualify for the statutory protection accorded to confidential communications between a psychologist and patient. Under the Licensing Act's express terms, the psychologist-patient privilege did not apply to the communications between Morrisett and defendant.
B. Kathuria
Kathuria, who had a Master's Degree in psychology, testified on rebuttal that she worked at Morristown Memorial Hospital as a per diem mental health practitioner. She routinely spoke with "all patients" and asked screening questions about their mental health. Kathuria worked under the supervision of a psychiatrist when she was at the hospital. She was directed to patients by emergency room (ER) physicians.
On October 24, 2009, at approximately 7:30 p.m., she spoke with defendant in the hospital after receiving a referral from an ER physician. Defendant told her that he was in the hospital for a homicide charge against a priest and that "female voices were telling me to hurt him." Kathuria recalled that he was depressed and withdrawn, with a flat affect, meaning "there were no emotions." She prepared a report for a psychiatrist to review to make a mental health evaluation.
Defendant argued that the physician-patient privilege applied to Kathuria. The trial court disagreed, finding Kathuria was not "operating at the direction of a psychiatrist." Instead, it found that she was "part of a routine screening of patients." It determined that she saw patients who went to the emergency room with signs of depression or other psychiatric issues, that she interviewed them, and that she took down what they said and passed it along to "the staff psychiatrist or some psychiatrist in the hospital."
On appeal, defendant renews his argument that Kathuria's testimony concerning his mental health status after his arrest violated the patient-physician privilege. He acknowledges "the principle that evidentiary privileges are to be 'restrictively construed,'" but argues the court construed the physician- patient privilege "far too narrowly." He contends that Kathuria, who held "an advanced degree," interviewed him to gather information in the "context of treatment" and, therefore, his statements to her were confidential and privileged.
The physician-patient privilege, codified in N.J.S.A. 2A:84A-22.1 to -22.2, and incorporated in N.J.R.E. 506, generally protects from disclosure "confidential information" transmitted between a physician and patient. Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010). A "physician" is defined as "a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place." N.J.S.A. 2A:84A-22.1.
Like all privileges, the physician-patient privilege is an exception to the general rule that trials are a search for truth. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 310 (1995). "The inevitable effect of allowing the privilege . . . is the withholding of evidence, often of the most reliable and probative kind, from the trier of fact." State v. Dyal, 97 N.J. 229, 237 (1984). The physician-patient privilege is justified because it encourages patients to freely disclose information necessary for diagnosis and treatment. Stigliano, supra, 140 N.J. at 310-11. Even so, because this privilege precludes the admission of relevant evidence, it is narrowly construed. Id. at 311; Dyal, supra, 97 N.J. at 237.
Direct communications by a patient to a nurse in a hospital emergency room do not constitute a "confidential communication between a physician and a patient" within the scope of the physician-patient privilege. See State v. Risden, 106 N.J. Super. 226, 237 (App. Div. 1969) (holding physician-patient privilege did not apply to exclude testimony of nurse in emergency room, who asked the defendant for her name and "[h]ow did this happen?," and then noted the answers on an emergency report), modified on other grounds, 56 N.J. 27 (1970). Our courts, however, recognize that the definition of "confidential communication" may include statements made to or in the presence of a nurse in circumstances other than those present in Risden. Biunno et al., supra, comment 2 on N.J.R.E. 506. For example, this privilege may apply to protect statements made to a treating nurse, "acting either as an agent under the supervision of a doctor or in her professional capacity." State v. Phillips, 213 N.J. Super. 534, 543 n.5 (App. Div. 1986); see State v. Smith, 307 N.J. Super. 1, 12-13 (App. Div. 1997) (suggesting physician-patient privilege applied to communications between hospital patient and "treatment team"), certif. denied, 153 N.J. 216 (1998).
Here, the physician-patient privilege did not apply to Kathuria. She was not a nurse or a licensed practitioner in another medical field. She also was not acting under the supervision of a psychiatrist or a member of a treatment team. Her interview of defendant was not intended to elicit information for treatment but rather to collect screening information for consideration by a psychiatrist. Given defendant's conflicting statements in the hospital and at trial, the court properly admitted Kathuria's testimony on rebuttal.
VII.
We reject defendant's assertion that the cumulative trial and prosecutorial errors denied his right to a fair trial. Where the aggregation of legal errors renders a trial unfair, a new trial is required. See Wakefield, supra, 190 N.J. at 538. However, "[i]f a defendant alleges multiple trial errors, the theory of cumulative error will still not apply where no error was prejudicial and the trial was fair." State v. Weaver, 219 N.J. 131, 155 (2014). Here, not only were none of the asserted errors prejudicial, we have not found any errors apart from a few isolated improper comments by the prosecutor, which were adequately addressed by the trial court's instructions and do not merit disrupting the jury's verdict.
VIII.
Finally, defendant argues that, under the circumstances of this case, imposition of a life sentence without parole violates the prohibitions of cruel and unusual punishments in the Constitution of the United States and the New Jersey Constitution. Again, we disagree.
In 2007, New Jersey's death penalty was repealed and replaced with life imprisonment without parole, which could be imposed in certain circumstances. See Senate Comm. Statement to Senate Comm. Substitute for S. Nos. 171 & 2741 (May 10, 2007), enacted as L. 2007, c. 204 (Dec. 17, 2007). Under the present statutory scheme
a person convicted of murder shall be sentenced . . . to a term of 30 years, during which the person shall not be eligible for parole, or . . . to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole.
[N. J.S.A. 2C:11-3(b)(1).]
However, a defendant may not be sentenced to life imprisonment without parole unless the jury finds beyond a reasonable doubt that any one of certain enumerated aggravating factors exist. N.J.S.A. 2C:11-3(b)(4). One aggravating factor is that defendant committed a murder by his own conduct and "[t]he murder was committed while [he] was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit . . . robbery[.]" N.J.S.A. 2C:11-3(b)(4)(g).
Here, the jury unanimously found beyond a reasonable doubt that defendant was guilty of all offenses, including murder and robbery. It also found that defendant committed the murder by his own conduct, given the complete absence in the record of any suggestion that anyone else was involved. Because the jury already found the existence of an aggravating factor, N.J.S.A. 2C:11-3(b)(4)(g), the court properly concluded that it did not have to separately consider the issue of aggravating factors in imposing the sentence of life imprisonment without parole.
The federal and state constitutions prohibit the infliction of cruel and unusual punishment. U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12. The test to determine whether a punishment is cruel and unusual under both constitutions is generally the same. State v. Ramseur, 106 N.J. 123, 169 (1987). A court must consider: "First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penalogical objective?" Ibid.
When assessing the constitutionality of a legislatively fixed punishment, a court must presume validity. State v. Johnson, 206 N.J. Super. 341, 344 (App. Div. 1985), certif. denied, 104 N.J. 382 (1986). A court will not interfere with a prescribed penalty "unless it is so clearly arbitrary and without rational relation to the offense or so disproportionate to the offense as to transgress the Federal and State constitutional prohibitions against excessive fines or cruel and unusual punishment." State v. Smith, 58 N.J. 202, 211 (1971); accord, Johnson, supra, 206 N.J. Super. at 344. In the absence of such a showing, "the judiciary must respect the legislative will." State v. Hampton, 61 N.J. 250, 274 (1972).
Guided by these principles, we conclude defendant's argument that his life sentence without parole constitutes cruel and unusual punishment is without merit. Our Court has upheld New Jersey statutes imposing severe penalties. See State v. Oliver, 162 N.J. 580, 588-89 (2000) (holding Three Strikes Law, N.J.S.A. 2C:43-7.1(a), did not violate prohibition against cruel and unusual punishment). Defendant's sentence is consistent with contemporary standards of decency, is not grossly disproportionate to the crime, and accomplishes the legitimate goal of protecting society from individuals who commit murder. Contrary to defendant's argument, we are also not persuaded that proportionality review is warranted for sentences of life without parole.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION