Opinion
DOCKET NO. A-3073-12T3
06-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONNELL LOGAN, Defendant-Appellant.
James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). David M. Galemba, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Galemba, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-06-0570. James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). David M. Galemba, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Galemba, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Donnell Logan was convicted of 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); second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and (2) (count three); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count four). After merging count two into count one, the judge sentenced defendant to a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent eight-year term with a NERA period of parole ineligibility on count three; and a consecutive eighteen-month term on count four. Additionally, the judge ordered more than $200,000 in restitution.
Defendant now raises the following points on appeal:
POINT I
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, AND OUR STATE CONSTITUTION, BY REPEATEDLY ASKING HIM WHY HE DID NOT GO TO THE POLICE AND TELL THEM THE TRUTH IN THE YEARS AFTER HE WAS FORMALLY CHARGED WITH THESE OFFENSES (Not Raised Below)
POINT II
DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S JURY CHARGES ON ARSON, FELONY MURDER, AND MURDER, WHICH UTTERLY IGNORED THE THEORY OF THE DEFENSE THAT AFTER THE
VICTIM'S DEATH THE FIRE WAS AN AFTER THOUGHT (Not Raised Below)We have considered these arguments in light of the record and applicable legal standards. We agree with defendant's argument in Point I. The prosecutor's conduct violated basic constitutional principles limiting the cross-examination of a criminal defendant. Because there was no objection, the judge was never called upon to address the issue. Nevertheless, we believe the judge was required to have sua sponte stopped the prosecutor in his tracks, and failed to do so.
POINT III
BECAUSE DEFENDANT'S SENTENCE RESULTED FROM THE TRIAL COURT'S ERRONEOUS FINDINGS OF AGGRAVATING AND MITIGATING FACTORS, A RESENTENCING IS REQUIRED.
POINT IV
THE TRIAL COURT ERRED IN IMPOSING $213,518.25 IN RESTITUTION WHILE RECOGNIZING THAT IT WAS UNLIKELY THAT DEFENDANT WOULD EVER BE ABLE TO PAY THAT AMOUNT.
We have omitted the sub-point headings contained in defendant's brief.
We have specifically forwarded a copy of our decision to the Office of the Attorney General, Division of Criminal Justice, for its review and for consideration as to whether additional training should be required in the county prosecutors' offices to avoid repetition of this conduct.
The difficult question is whether, in light of the overwhelming evidence of defendant's guilt, the error "'was harmless beyond a reasonable doubt.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)). We conclude that it was and therefore affirm defendant's conviction. We also affirm the sentence imposed, except the restitution ordered. We remand to the Law Division to reconsider this aspect of defendant's sentence at a restitution hearing.
I.
During the early morning hours of January 25, 2008, firefighters were dispatched to a burning home on Morgan Street in Rosenhayn. After extinguishing the fire, they found the remains of the owner, S.M., beneath burnt rubble in her bedroom. At trial, the medical examiner opined that S.M.'s body evidenced blunt force trauma, including fractured ribs, and that she died from "inhalation of products of combustion [and] trauma to the head and chest." The State's fire expert testified that the fire started in the bedroom, was "a direct ignition fire and . . . there was possibly ignitable liquids used." Defendant's distinctive eyeglasses were found at the scene, and the State produced a representative from the store who identified the glasses as those purchased by defendant some years earlier.
The victim and defendant worked as corrections officers at South Woods State Prison (South Woods), and, until two days earlier, lived together in the Morgan Street home. The relationship ended after a family party at the house on January 22. The victim's daughter testified that she witnessed defendant and her mother arguing, and she saw defendant physically confront the victim in a threatening manner. S.M.'s best friend, Ms. Brown, told the jury that defendant was "upset" about the "amount of people, the guys that [were] at the party." When S.M. called Brown later that night, she could hear the couple arguing. Brown overheard the victim tell defendant to "[g]et his stuff and leave."
Defendant moved into Ms. Vasquez's apartment, which was little more than six miles from the victim's home. Defendant and Vasquez were the parents of two daughters, the result of an earlier relationship. On January 24, an employee of South Woods, who knew defendant and S.M., saw defendant at a local gas station with a fuel can on the ground next to his car.
In the evening of January 24, Brown was at S.M.'s home watching a movie. Defendant called S.M.'s cellphone dozens of times, but the calls were transferred immediately to voice mail. Brown said that S.M. eventually played the messages, and Brown heard defendant accuse the victim of having sexual relations with one of the men at the party. He wanted to know "[w]hich one of those guys was yours[.]" In one of the messages, defendant said, "I want my bed and my refrigerator, or I'll burn it the f*** down."
Defendant was at the scene of the fire on January 25, after firefighters and police began their investigation. A State Police sergeant who was canvassing the scene testified that defendant told him he was alerted to the fire by a friend who lived nearby. At the scene, defendant told police that he and the victim had broken up, and he was staying at Vasquez's house, where he had been and never left since 9:25 p.m.
Vasquez initially confirmed defendant's alibi, but she later informed police that defendant had in fact left her house the night of the fire. She testified that on the night of January 24, defendant returned home around 9:30 p.m. and went to bed. Around 3:00 a.m., she woke up to care for one of her children and noticed defendant was not in the house. Her car, a Ford Windstar, was not there, but defendant's Ford Expedition was still parked outside. She returned to bed but woke up again around 5:15 a.m. and saw defendant standing in her bedroom wearing only his boxer briefs. He was looking for his glasses. Later, Vasquez noticed a gas can was missing from her walk-in closet, and she smelled bleach on her porch. The State contended that defendant had removed his clothing and washed the items with bleach.
On the night of January 25, defendant came to Vasquez's house and began questioning her about what she had told police, who had questioned her earlier in the day. According to Vasquez, defendant "wasn't himself" and continued searching for his glasses. Vasquez grew concerned and so she called police, admitting that defendant had in fact left the apartment in the middle of the night.
Police arranged a consensual intercept of a phone call between Vasquez and defendant, but defendant did not want to speak on the phone and agreed to meet her in a nearby park. Vasquez then agreed to wear a wire to the meeting. Both taped conversations were heard by the jury.
During the meeting in the park, when Vasquez told defendant that she informed police he had left the house on the night of the fire, defendant was incredulous and said "[t]hat ain't for you to tell them." Defendant later asked Vasquez, "How long you told them I left?" Defendant exclaimed, "You're not on my side . . . because when I asked you to tell them I didn't go anywhere, that's what you should have told them. I didn't go nowhere."
Police asked defendant to come to the station and provide a statement. The videotaped statement was played for the jury. Although defendant did not admit killing S.M., he admitted to briefly leaving Vasquez's house on the night of the fire, claiming he drove around texting Ms. Colon, a woman with whom he had dinner and sexual intercourse earlier in the evening.
Colon testified and corroborated defendant's version of their date. However, she was surprised that defendant asked her out for dinner, because it had been more than one year since she had last heard from him. Colon also said that after she and defendant parted on the night of January 24, she never received any text messages and never saw or heard from him again. Defendant's phone records did not reflect any calls or texts to Colon's Delaware phone number.
Defendant made an additional statement while providing a DNA sample. He spontaneously asked if "the [p]rosecutor [could] make everything happen fast?" and wondered whether they "ha[d] to have a trial?" Defendant also told police that "he needed to go home one more night" because he knew "how the guards treat the prisoners. And he [could not] go to jail." He also said: "'I do not want a trial or anything. I want everything to start right away,'" and asked for protective custody.
Substantial forensic evidence inculpated defendant. Swabs of blood found at various locations on the driver's side of Vasquez's Ford Windstar contained the victim's DNA. At the fire scene, police found numerous household items — a television, the victim's jewelry box, stereo equipment and a piggy bank — strewn around the backyard. Blood found on the television contained the victim's DNA. The victim's charred clothing and samples of carpet and padding taken from her bedroom revealed the presence of gasoline. Police searched defendant's Ford Expedition and found, in a large plastic garbage bag in the back, numerous personal items belonging to S.M., including credit cards and blank checks, many of which had been cut into small pieces.
Defendant elected to testify. He acknowledged that his relationship with S.M. ended after she went to Atlantic City following the house party on January 22 and refused to answer defendant's repeated calls and text messages. Defendant spent the evening of January 24 with Colon before returning to Vasquez's apartment. He could not sleep because he kept thinking about S.M., so, he decided to go to her Morgan Street home. Defendant took Vasquez's car because his was blocked in by other cars.
When he arrived, S.M. saw Vasquez's car and became angry. The two argued and defendant grabbed S.M.'s cell phone and began looking through its text messages. He found messages between S.M. and another man that implied a sexual relationship. According to defendant, S.M. began taunting him, and he "kind of lost it" and "pushed her real hard." She fell and hit her head on the nearby dresser. Defendant saw a puddle of blood and realized S.M. was no longer moving or breathing. He attempted to perform CPR but realized S.M. was dead. He remembered nothing after that point and denied that he intended to kill S.M.
II.
Defendant was arrested after the taped conversation with Vasquez in the park, at approximately 4:25 p.m. on January 26, 2008. On direct examination, defense counsel asked defendant why he did not tell police what really happened when they spoke to him at the scene on the night of the fire. Defendant responded, "I was just trying to gather myself. Just trying to feel normal again. . . . I mean, how do you tell somebody that you went up to make up with your girlfriend and she ended up dead?"
During cross-examination, defendant acknowledged that he also lied when he spoke to police after his arrest. The following exchange then took place between defendant and the prosecutor:
During the pre-trial hearing regarding the admissibility of defendant's videotaped statement, it was revealed that after initially waving his Miranda rights and answering detectives' questions, he invoked his right to counsel. The exchange was redacted from the version of the interview seen by the jurors.
Q: Did you really have amnesia or are you just trying to come up with something to explain the things that you can't explain away?
A: No, I'm telling you the truth.
Q: Now you are? You didn't tell the police but you --
A: I didn't tell you because this is the first time I'm speaking to you.
Q: In 2012, you're telling the truth; correct?
A: I told my lawyers the truth, yes.
Q: But in 2008, you lied to [Vasquez]?
A: I told my lawyers the truth.
Q: I'm asking you a question. In 2008, you lied to [Vasquez]?
A: Yes.
Q: In 2008, you lied to the police at the scene of the fire?
A: Yes.
Q: In 2008, you lied to the police when you knew you were being taped for an interview and you were warned it could be used against you; correct?
A: Yes.
Q: And in 2008, you lied to [Vasquez] when you were at Parvin State Park, about all the different things you said you were doing with [Ms.] Colon and making calls?
A: Yes.
Q: And you went out for a brief second; correct?
A: Yes.
Q: So those -- immediately after this incident, you lied a number of times to a number of different people?
A: How do you tell somebody that you went to patch something up with your ex-girlfriend, you patch it up and she ended up dead? How do you end up -- how can that just freely comes [sic] out?
. . . .
Q: So then you get questioned by the police again but you don't come clean. You change your lie to a different lie about what you were doing that night; that you went out for a brief second?
A: Like I said, how can you tell somebody that? Eventually, I was going to tell them but how can that come out of your mouth? How can you tell somebody that --
Q: Well, which year were you going to tell them? '07? I'm sorry - '08? '09?
A: I was going to tell them. '07 was gone.
Q: '10, '11, or '12?On re-direct, defense counsel asked about a portion of the taped conversation from the park, in which defendant had checked Vasquez's caller identification. The following exchange then took place:
A: I was going to tell them. I have a conscience.
Q: Which year were you going to tell them that?
A: I was going —
Q: This happened in 2008? Did you tell them in 2008?
A: I was going to —
Q: 2009, 2010, 2011, or 2012? I guess its 2012 because this is the first we've heard of it.
A: I only talked to the cops one time. I only spoke to the cops in 2008. How could I tell them in 2009, 2010?
Q: You know you could call the cops any time you want.
A: No. I spoke to —
Q: You weren't in prison.
A: Once I talked to my lawyer, I don't supposed to speak to anybody. Isn't that correct?
Q: It's your decision; isn't it?
A: Yeah, it was my decision.
. . . .
Q: And it was your decision not to tell the police at any point in time?
A: I spoke to my lawyer and he knows.
Q: And do you remember what you were talking about . . . as to why you were checking the caller ID?On re-cross, the prosecutor asked:
A: I was trying to get the detective's phone number.
Q: And actually, you asked [Vasquez] about the detective's phone number in the consensual intercept; don't you?
A: Yes.
Q: Did you ever think of just calling the police department . . . and saying hello, Bridgeton State Police, can I talk to Detective Parry?
A: No. I don't -- I hadn't --
Q: You never called them; did you?
A: At that time, I hadn't talked to Parry.
Q: Or any detective?
. . . .
A: No, but I know it was going to come a time where I was going to speak to them but I wanted to do it on my time. Like I said, how do you tell somebody that you went over to make up with your girlfriend, that you did umpteen times, and she ended up dead? How do you tell that?
Q: And you never did. You never did?There was no objection at any time.
A: I told my lawyers. That's why I wanted to speak to a lawyer.
Defendant concedes that the prosecutor's cross-examination about statements he made prior to arrest was proper, as was cross-examination regarding inconsistencies between defendant's trial testimony and the statement he made to police after waiving his rights. See, e.g., State v. Tucker, 190 N.J. 183, 189 (2007) ("A defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial."). However, defendant argues, and we agree, that the prosecutor was forbidden from questioning him about his failure to provide information to law enforcement after his arrest.
The State may not "impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest." Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241, 49 L. Ed. 2d 91, 94 (1976). In State v. Muhammad, 182 N.J. 551, 567-568 (2005), the Court held that even in the absence of Miranda warnings, the State could not use defendant's silence at or near arrest. Further, "[d]efendant was not obliged to give the police the exculpatory story his attorney presented at trial, and the State was not permitted to use his silence to convict him." Id. at 573.
The Court has recently granted certification in another case involving the State's use of defendant's post-arrest silence. State v. Kucinski, 224 N.J. 282 (2016).
Citing our decision in State v. Jenkins, 299 N.J. Super. 61 (App. Div. 1997), the State seeks to justify the prosecutor's questioning in this case by arguing that defendant "opened the door" by testifying that he intended to tell police the true story of what happened. In Jenkins, the defendant gave an exculpatory version of events during his direct examination, claiming responding officers never gave him a chance to explain, even though he tried. Id. at 65. He testified that after his arrest, no member of the police department ever spoke to him or took a statement from him. Id. at 66.
In summation, defense counsel argued that his client was never given the opportunity to explain. Ibid. In his summation, the prosecutor argued that defendant's testimony was incredible, because at no time after his arrest eight months earlier did he ever speak to the prosecutor's office or offer an exculpatory explanation for his conduct. Ibid.
We concluded that the prosecutor's comments "ordinarily would be improper." Id. at 68. However, in "explaining his post-arrest silence," the "defendant necessarily raised the issue . . . ." Ibid. As a result, "the prosecutor had a right, if not a duty, in the presentation of the State's case to comment on defendant's post-arrest silence and to offer the State's version as to why defendant was silent." Id. at 69. We nevertheless reversed defendant's conviction based upon other misconduct by the prosecutor. Id. at 69-71.
This case differs from Jenkins in several key respects. First, during direct examination, defendant was only asked to explain why he did not tell police at the scene that he fought with S.M. earlier that evening. During re-direct, counsel asked about a portion of the consensually recorded conversation, wherein defendant asked Vasquez for a detective's phone number. Both lines of questioning referenced pre-arrest circumstances. It was during cross-examination that defendant first claimed he eventually intended to tell police the truth.
Second, unlike Jenkins, defendant never asserted that police laxity or indifference denied him the opportunity to tell the same story he had now told the jury. The only door opened, and barely a crack, was whether defendant actually intended to tell the story earlier or not. However, the lack of any probative value from impeaching defendant's credibility on this limited issue is obvious, because "every post-arrest silence is insolubly ambiguous[.]" Doyle, supra, 426 U.S. at 617, 96 S. Ct. at 2244, 49 L. Ed. 2d at 97. Repeated questions that impugned defendant's decision-making process in asserting his absolute constitutional right not to make any further statements to police were improper.
Lastly, the prosecutor knew that defendant invoked his right to remain silent during the interview immediately following his arrest. Defendant was indicted five months later, in June 2008. The prosecutor nevertheless thought it was proper to ask defendant why he did not come forward and admit assaulting S.M. in 2009, 2010, 2011 and 2012, years after defendant was indicted. Such conduct cannot be justified by claiming that defendant "opened the door."
We must consider whether the prosecutor's conduct and the admission of irrelevant evidence through his highly improper cross-examination requires reversal. When there is no objection at trial, we evaluate the effect of improperly admitted evidence under the plain error standard. See R. 2:10-2 (whether the error was "of such a nature as to have been clearly capable of producing an unjust result"). We consider the strengths of the State's case and the entire record. State v. Sowell, 213 N.J. 89, 107-08 (2013). Because the prosecutor's improper questions implicated defendant's constitutional rights, we must assess whether the error was harmless beyond a reasonable doubt. Castagna, supra, 187 N.J. at 312.
"'[A] prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction.'" State v. Daniels, 182 N.J. 80, 96 (2004) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83).
One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." State v. Smith, 212 N.J. 365, 407 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). When no objections are lodged, we review the issue under the plain error standard. Daniels, supra, 182 N.J. at 95. Consideration of whether the prosecutor committed plain error necessarily requires us to weigh the conduct against the strengths of the State's case. State v. Negron, 355 N.J. Super. 556, 578-79 (App. Div. 2002). See also State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005) ("When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence."), certif. dismissed, 189 N.J. 420 (2007).
Recently, the Third Circuit considered whether a Doyle violation was plain error requiring reversal in United States v. Lopez, 818 F.3d 125 (3rd Cir. 2016). There, without objection, the prosecutor repeatedly cross-examined the defendant about his failure to tell anyone before trial that he had been "framed" by police. Id. at 126. The prosecutor argued extensively in summation that the defendant lacked credibility because he failed to tell anyone about the alleged police misconduct. Id. at 128.
The Third Circuit conducted its "review [of] an unpreserved Doyle violation for plain error." Id. at 129 (citations omitted).
Under this framework, an appellant must show: "(1) there is an 'error'; (2) the error is 'clear or obvious, rather than subject to reasonable dispute'; (3) the error 'affected the appellant's substantial rights, which in the ordinary case means' it 'affected the outcome of the district court proceedings'; and (4) 'the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.'"The court found that the "the first two steps of plain error review are satisfied." Id. at 131. It also concluded that "there [was] a reasonable probability that the Doyle violation affected the outcome of [the defendant's] trial[,]" thereby satisfying the third prong. Id. at 131. The court noted that the jury "faced a credibility determination," which it struggled with, "as evidenced by the questions it sent to the . . . [c]ourt," and that the "defense depended entirely on [defendant's] credibility as compared to the officer's credibility." Ibid. In short, "the Government's impermissible impeachment of [the defendant's] testimony diminished his credibility in a manner that created a reasonable probability that this error affected the outcome of his trial." Id. at 131-32.
[Id. at 129 (alteration in original) (quoting United States v. Marcus, 560 U.S. 258, 262, 130 S. Ct. 2159, 2164, 176 L. Ed. 2d 1012, 1018 (2010)).]
Finally, the court recognized that the fourth prong of plain error review of an unpreserved Doyle violation "erects a high hurdle," surmounted only in "'those circumstances in which a miscarriage of justice would otherwise result.'" Id. at 132 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508, 521 (1993)). The court held:
This demanding test is met here in view of the fact that the case hinged entirely on the relative credibility of [the defendant] and the officers, with no corroborating evidence for either side's account; the Doyle violation was blatant; and the government's repeated emphasis of the error in closing argument exacerbated the prejudice from the violation. Under these circumstances, the government's conduct did indeed undermine the fairness, integrity, and reputation of judicial proceedings. Because we find that the four steps of the plain error analysis are satisfied, we will vacate [the defendant's] conviction and remand for a new trial.
[Id. at 132.]
Although not binding upon us, we find the Third Circuit's framework for plain error review of an unpreserved Doyle violation to be persuasive. See Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 622 (App. Div. 1997) ("[I]nterpretation of federal law by federal courts may be persuasive in a given case, and 'should be accorded due respect'; nevertheless, such rulings, other than by the United States Supreme Court, are not binding upon a state appellate court.") (quoting Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 79-80 (1990)), certif. denied, 149 N.J. 408 (1999). Here, unlike Lopez, the State's case was overwhelming. There was substantial circumstantial and forensic evidence pointing to defendant's guilt. Additionally, defendant's well-documented, inconsistent prior statements impeached his credibility well beyond the prosecutor's improper cross-examination, and it is clear that the jury found defendant's trial testimony was incredible. The prosecutor did not highlight the offending questions in any way during his summation.
In sum, the prosecutor's improper questioning does not raise a reasonable doubt that the jury readied a result it otherwise would not have reached. We therefore refuse to reverse defendant's conviction on this ground.
III.
Defendant next argues we should reverse because the jury instructions "utterly ignored the theory of the defense that after the victim's death, the fire was an afterthought." Defendant argues this error infected the jury's consideration of not only the felony murder count, but also its consideration of knowing and purposeful murder and aggravated arson. We disagree.
The judge utilized the Model Jury Charges to define all three crimes. There was no objection, nor does the record reflect that defendant requested any particular revisions. As a result, we again consider defendant's argument under the plain error standard. R. 2:10-2.
The Court has said that
[i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "'"in the context of the trial[,] the [alleged] error was actually of no moment."'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).
[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
Criminal homicide constitutes felony murder if "[i]t is committed when the actor . . . is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit . . . arson . . . ." N.J.S.A. 2C:11-3(a)(3). Defendant's essential claim is that the evidence supported a finding that the fire was started as an "afterthought," i.e., after S.M. was already dead. As a result, the jury might have concluded that defendant was not guilty of felony murder or aggravated arson.
Aggravated arson requires that the State prove defendant started a fire and "purposely or knowingly plac[ed] another . . . in danger of death or bodily injury;" or "[w]ith a purpose of destroying a building or structure of another." N.J.S.A. 2C:17-1(a). --------
In State v. Lopez, 187 N.J. 91, 93 (2006), the Court held that N.J.S.A. 2C:15-1(a) does not include "'afterthought' robbery — the situation in which a defendant does not formulate the intent to steal until after force is used." In State v. Whitaker, 200 N.J. 444, 463 (2009), the Court held that the defendant could not be guilty of felony murder unless he was guilty as an accomplice in the underlying robbery, and he could not be guilty of being an accomplice in the robbery "based [solely] on his conduct after [the alleged principal] had already robbed and fatally wounded the victim."
At trial, defendant asserted that he killed S.M. by mistake, or in the heat of passion after a reasonable provocation. Defense counsel only tangentially argued that defendant could not be guilty of aggravated arson if he believed S.M. was already dead when he started the fire. Defendant never requested a specific instruction.
Under the circumstances, we do not think "the trial court ha[d] 'the obligation on its own to meticulously sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain'" a defense theory never fully articulated. State v. Funderburg, ___ N.J. ___, ___ (2016) (slip op at 17) (quoting State v. Choice, 98 N.J. 295, 299 (1985)). Moreover, the evidence did not support a factual finding that S.M. was dead before the fire started.
In her unrebutted expert testimony, the medical examiner concluded that S.M. died from the "inhalation of products of combustion [and] trauma to the head and chest." While admitting on cross-examination that the amount of soot in the victim's lungs was "minimal" and her carboxyhemoglobin level was in a non-lethal range, the doctor testified on direct examination that "[t]he presence of carbon monoxide in the blood and the presence of soot in the upper and lower airways means that that person was alive when the fire was started." Defendant's self-serving belief that S.M. was dead carries little weight to the contrary, and we cannot conclude that the judge's failure to sua sponte tailor a charge under these circumstances requires reversal of defendant's conviction.
IV.
Defendant contends the sentence was excessive because the judge made erroneous findings regarding aggravating and mitigating sentencing factors. He also argues that the judge ordered restitution, despite finding that defendant was unable to likely be able to pay. We affirm defendant's sentence in respects, save for the restitution ordered.
The judge found aggravating sentencing factors three and nine. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"); (a)(9) ("[t]he need for deterring the defendant and others from violating the law"). Acknowledging that defendant had no criminal record, the judge noted that defendant and S.M. were involved in "a classic abusive relationship." The judge concluded "defendant has demonstrated he will murder a domestic partner, and it appears to me, strongly likely[] that anyone who ends up in a domestic relationship with this defendant[] would be at great risk." In finding aggravating factor nine, the judge again emphasized the problem of domestic violence, noting that "[o]n average, each day of the year in the United States, three women, and one man, are murdered by a domestic partner." He applied "significant weight" to factor nine.
The judge gave slight weight to mitigating factor seven. N.J.S.A. 2C:44-1(b)(7) ("defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"). He rejected defendant's argument that mitigating factor four applied, N.J.S.A. 2C:44-1(b)(4), "[t]here were substantial grounds tending to excuse or justify the defendant's conduct"), and declined to find mitigating factor eleven. N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents").
We apply a deferential standard of review to a trial court's imposition of sentence and do not "substitute [our] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014). As the Court has reiterated on numerous occasions:
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant's arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following.
In Case, supra, 220 N.J. at 68, the Court remanded for resentencing, in part, because the trial judge failed to explain the "'particular emphasis'" he gave to general deterrence as recognized in factor nine. Here, however, taking the judge's comments as a whole, we believe his reasoning included the amply-supported finding of the need to specifically deter this defendant. As to the mitigating factors, the judge's decision to attach little weight to defendant's lack of a criminal record was not a mistaken exercise of discretion, but rather, a qualitative assessment of the individual before the court. We find no basis to disturb the findings as to the lack of other mitigating factors.
Lastly, at sentencing, defense counsel noted that the Violent Crimes Compensation Board requested $5000 in restitution and State Farm Insurance sought "subrogation" in the amount of $213,518, payments presumably made on S.M.'s home insurance policy. While defense counsel did not "contest the amounts," he stated that defendant would not "have the ability to make restitution." The Court responded:
I think it should be imposed. I agree that it is unlikely he'll ever pay it. But, I don't know, he could inherit money, he could
-- you know, I don't know. And, if he ever does then that -- those figures are out there and they would have to be paid.The judgment of conviction (JOC) reflects the judge's imposition of these amounts of restitution.
"A court in determining the amount of restitution is required to consider defendant's financial resources, including likely future earnings and ability to pay." State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994) (emphasis added) (citing N.J.S.A. 2C:44-2(c)(2)). N.J.S.A. 2C:44-2(c)(2) provides:
In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the same time, the court shall set priorities of payment.We reject the State's position that defendant waived his right to a hearing, since defense counsel expressly stated at sentencing that defendant could not pay the amount sought. The judge was therefore required to hold a hearing on the matter.
Affirmed. The restitution ordered by the JOC is vacated, and the matter is remanded to the Law Division for the sole purpose of conducting a restitution hearing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION