Opinion
DOCKET NO. A-2643-11T2
11-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM McMILLAN, a/k/a KHALEEL ALLAH, a/k/a WILLIAM McMILLIAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-03-0388. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Sentenced to prison for life after a jury found him guilty of first-degree murder and weapons offenses for shooting his girlfriend through the head, defendant seeks a new trial or, alternatively, a remand for resentencing. He contends he is entitled to a new trial because: his statement to police should have been suppressed; his motion for a bench trial should have been granted; the trial was tainted by the admission of unduly prejudicial testimony; and the prosecutor's misconduct was also unduly prejudicial. Defendant also contends: his sentence is excessive; the court ordered restitution without first considering his ability to pay; and he was not given the correct amount of jail credits.
For the reasons that follow, we affirm defendant's conviction and sentence. We reverse the restitution requirement, remand for an ability-to-pay hearing, and also remand for further consideration of jail credits.
I.
A.
Defendant was charged in an Ocean County indictment with first-degree murder, N.J.S.A. 2C:11-3 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count two); fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6 (count three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) (count four). Following the indictment, the trial court denied defendant's motions to suppress his statement to police and for a bench trial. The court granted the State's motion to dismiss count three of the indictment and disposed of other motions not relevant to defendant's arguments on appeal.
During the trial, after the State rested, the court denied defendant's motion for a judgment of acquittal on the murder charge. The jury found defendant guilty on counts one and two, first-degree murder and second-degree possession of a weapon for an unlawful purpose. The parties then stipulated "that the defendant is a person who previously has been convicted of a predicate offense" and, after a brief trial on that issue, the same jury found him guilty on count four, second-degree possession of a weapon by a convicted person.
Defendant filed a motion for a judgment of acquittal or a new trial, which the court denied. The court sentenced defendant on count one, murder, to a life term with an eighty-five percent period of parole ineligibility and five years of parole supervision upon release. The court merged count two, possession of a weapon for an unlawful purpose. After granting the State's motion for an extended term on count four, possession of a weapon by a convicted person, the court sentenced defendant to a concurrent twenty-year term with ten years of parole ineligibility. The court also ordered defendant to make restitution in the amount of $5000 and imposed appropriate fines and penalties.
B.
The State developed the following proofs at trial. During his June 14, 2007 midnight shift, at approximately 2:37 a.m., Lakewood Township Patrolman Robert Anderson was dispatched to a Claire Drive residence to investigate a possible suicide. The patrolman and another responding officer entered the residence where they found Shakita Crudup lying on her left side on the floor of a downstairs bedroom. She faced a dresser, a small child sleeping next to her. She was alive but her breathing was shallow and she had an obvious gunshot wound in the right side of her head. According to Patrolman Anderson, a "silver revolver, large caliber with a red and black wooden handle" was "on the floor in front of the victim between her and the dresser and her two small fingers, her ring finger and her pinky finger from her right hand, were laying across the top where the trigger guard was on top."
Paramedics arrived, treated Crudup, and transported her to the hospital. Later that day, she died. Dr. Hydow Park, a medical examiner, performed an autopsy. According to Dr. Park, a single bullet went through the palm of the victim's left hand before entering the right frontal area of her head. Dr. Park concluded the death was a homicide. He informed investigating officers of the autopsy results as well as his opinions ruling out suicide and concluding the wound on the victim's left hand was a "defensive wound."
Although defendant lived with Crudup and was present when the shooting occurred, he left the residence before the police arrived. At approximately 2:00 a.m. he telephoned the home of two friends who lived together, Michele Scott and Denise Thomas. He was crying. He told Thomas the victim had shot herself and asked Thomas to call 911. Thomas asked where the kids were, and defendant said they were with his son. Thomas hung up. Scott called 911.
Defendant telephoned again shortly after his first call. He told Scott to tell the police to go into the house, the door was unlocked, and they would find Crudup downstairs. Scott called 911 a second time and repeated the information.
Later that day, around lunchtime, defendant telephoned Thomas again. In response to his question about how the victim was doing, Thomas told him she had died. He became upset, quiet, and said he would call later. When he called back, he asked Thomas to look for his cell phone in the driveway at a house on Laurel Avenue. He also told Thomas that when he came home the previous night, it was dark and he went downstairs and turned the lights on. Defendant was "standing down there with a gun." He told her "to quit playing" and then tried to take the gun from her.
Thomas spoke with defendant four or five times that day. He wanted to know "if they were looking for him," and Thomas told him yes, several police officers had come by her house. Defendant would not tell Thomas where he was.
Defendant also telephoned another friend, Carla Reid, during the early morning hours of June 14, 2007. Defendant asked if she would meet him at his aunt's house on Laurel Avenue. She asked what was wrong and he said he would tell her when she got there.
When Reid arrived, defendant was "on the corner" and he got into her truck. It looked like he was still wearing his work clothes. He "looked like there was something wrong." When she asked what happened, defendant "just said Shakita shot herself." Reid drove defendant to a hotel in Carteret. During the drive, she kept asking if Crudup was going to be okay and defendant said "I hope so" and "I think she is." They "just sat at the hotel." Defendant "was basically walking back and forth. He wasn't himself. He was worried"; he was "talking to himself, just babbling words." He did not eat or drink or sleep that night. She did not ask him any questions other than "is she going to be okay" and defendant said he did not know or "I think she's going to be." He did not say how it happened, just that he turned on the light and "[s]he just took the gun and shot herself."
The next morning, defendant asked her to drop him at a hotel in Lakewood "so he could just clear his head so he can talk to police." By then Reid knew Crudup had died. She did not ask defendant any other questions and he did not tell her anything else about what happened.
Later that day, around three or four in the afternoon, defendant telephoned Crudup's aunt. She testified at trial that he said, "I know I am the last person you want to hear from." She repeatedly asked him, "[w]hy did you do it? Shakita would never kill herself or hurt her kids." When asked if defendant responded, she said: "He was just like, I know, I know, I know, I know, because I kept saying the kids, I am trying to get the kids." She asked defendant who pulled the trigger; he did not respond. Crudup's aunt told defendant he needed "to turn himself in."
Defendant turned himself in at Lakewood Headquarters at approximately 11:00 p.m. on June 14, 2007. Sgt. Elliot Morgan of the Ocean County Prosecutor's Major Crimes Unit and Sgt. Paul Daley of the Lakewood Police Department's Detective Bureau interrogated defendant. After Sgt. Daly advised defendant of his Miranda rights, defendant waived them and spoke with the officers. The interrogation lasted slightly more than three hours and was recorded on a DVD. The prosecutor played a redacted version of the recorded statement for the jury.
In his statement, defendant gave several versions of the shooting. Throughout the statement, defendant said Crudup had both her hands on the gun and he covered her hands with his. During cross-examination of Sgt. Morgan, defense counsel asked if the Sergeant had returned to the scene to determine if defendant had been telling the truth about the absence of lighting in the room. The Sergeant responded, "I knew he was lying that both of her hands were on the gun. I don't know - - the lighting part of it was minuscule to the fact that he said her hands were on the gun when she got shot."
Sgt. Morgan also testified defendant said "a number of times" he and Crudup were falling when the gun went off; but he also said "a couple of times that he was standing." Defendant said Crudup had the weapon when he stepped into the room and that he "grabbed the weapon[] or her hands" but claimed it was too dark to see whether she had one or both hands on the gun.
Sgt. Morgan was unconcerned about the lighting and skeptical of defendant's account, because "for three hours, he was able to tell us exactly where she was, how she was positioned, how she moved, how she fell." It was not until the end of the interview that defendant claimed the room was "dark so he couldn't tell us if he was standing or she was standing or falling when the shot went off." Sgt. Morgan did not know or ask whether the officers who originally responded "found a dark house" and had to turn on lights.
In addition to the pre-arrest statements defendant made to Crudup's aunt and his friends, he spoke to others about the incident following his arrest. Approximately three weeks after defendant's arrest, in response to a letter from defendant, Crudup's mother and best friend visited defendant. Defendant told Crudup's friend "he didn't know what happened, he was dead ass drunk."
Defendant also spoke about Crudup's death to two inmates at the county jail where defendant was incarcerated while awaiting trial. The first inmate testified defendant told him about the incident in "[b]its and pieces." The first time defendant spoke about the incident he said he and Crudup argued, one thing led to another, Crudup produced a weapon, he took it from her and left the residence. After a while, defendant returned and he and Crudup argued again. He went to leave, she came up behind him, he pushed her away, "turned and was ready to hit her with the gun and it accidentally went off." The inmate further said defendant raised the gun to threaten her to get away from him, she put her hands up, and the gun accidentally fired.
On another occasion, defendant repeated the story, but added "he went to hit her" with the gun, and it went off. On a third occasion, defendant repeated his version of how the shooting occurred.
A second inmate, who was on the same Ocean County jail tier as defendant, also testified. The second inmate played chess with defendant. According to the second inmate, defendant said "he had shot to punish his girlfriend."
Both inmates were facing lengthy jail terms on pending charges. Neither had been sentenced as of the time they testified at defendant's trial. Defense counsel aggressively cross-examined both inmates about their pending charges and their attempt to receive consideration from the State in exchange for testifying against defendant.
The State presented testimony from three witnesses who had seen defendant with the .357 Magnum handgun involved in the shooting. Denise Thomas, who defendant telephoned shortly after the shooting, identified the gun as one she had "seen . . . a few times." She had seen defendant with the gun when he once slept at her house "around the wintertime." Another time she had seen the gun in the back of the restaurant defendant owned. She could not remember when, because she had not been at the restaurant in a long time.
Crudup's brother testified that while at defendant's residence during the summer in 2006, defendant asked him if he "would be able to find bullets for a .357." According to Crudup's brother, he said he would look into it but just brushed it off. Defendant asked him "a couple more times." Crudup's brother brushed defendant off again. Crudup's brother never actually saw a gun.
Crudup's sister had also seen defendant in possession of the gun involved in the shooting. She was working in defendant's restaurant and he removed the gun from a shelf and showed it to her. She had never seen Crudup with a gun.
The State presented the testimony of Crudup's best friend, aunt, and attorney to establish that Crudup intended to leave defendant. A few days before the shooting, Crudup's best friend borrowed her car. According to her friend, Crudup said she "wishe[d] she [could] disappear in the middle of the night." Crudup told her aunt the day before the shooting she was planning on leaving defendant when she received money from a pending lawsuit. Crudup said she "was just tired of him." The attorney who represented Crudup in the civil lawsuit testified that in the first week in June, 2007, Crudup said she was "anxious to get the case resolved and paid" because "she needed the money so she can leave [defendant]."
The State presented the testimony of several experts. Dr. Park, the medical examiner, testified the cause of Crudup's death was a gunshot wound of the head, and the manner of death homicide, that is, she was "killed by another person." During cross-examination, the doctor explained he had ruled out suicide "based partially on the fact that a bullet had passed through [Crudup's] hand prior to going through her head," and also because he "see[s] many suicide cases and this is not a suicide." When pressed by defense counsel, Dr. Park said he had no doubt Crudup's death was not a case of suicide.
Park explained that the victim had another gunshot wound in the palm of her left hand, near the wrist, and there was "a lot of stipplings around the wound," meaning she was shot within a few inches. Park defined "stippling" as "[s]mall dots caused by small fragments hitting the skin, an abrasion . . . that is caused from the discharge of the weapon." Because of the "irregular gunshot wound" in the right frontal area of the head, Park opined that the bullet went through her hand before entering her head. There was some stippling on the victim's forehead going down towards the eyebrow but the hand was in the way of the rest of the wound. There were no other "significant findings" related to the cause of death.
Detective Sergeant John Garkowski, employed with the New Jersey State Police Scene Investigation, South Unit, testified as an expert in blood stain analysis. Garkowski opined, "the victim was shot by one projectile which traveled through the victim's left hypothenar area, exiting the dorsal aspect of the left hand, reentering the victim's right side of her forehead and exiting out the left side of her forehead." Based on the area of origin of the back spatter pattern on a curtain and dresser and the forward spatter pattern on a laundry basket, he concluded "[t]he position of the victim just before the discharge of the weapon is in a near supine or lying down position assuming a defensive posture with the left hand in front of the right forehead."
Because the back spatter, or blood from the entrance wound, was found at a height between seventeen and twenty-three inches on the curtain and dresser side, the position of the victim at the time of the shot is "actually near close to lying on the ground." The forward spatter from the exit wound travelled on top of and into the laundry basket. Using the laundry basket in evidence, Garkowski demonstrated what he believed to be the "only one plausible explanation" for the blood spatter evidence, with defendant standing against the dresser with the gun in his left hand and the projectile landing in the laundry basket.
Delores Coniglio, who is employed by the New Jersey State Police Office of Forensic Sciences, testified as an expert in forensic DNA analysis. She testified that samples taken from the gun, the bullet, a t-shirt, and other areas in the room where the shooting occurred matched Crudup's DNA. Swabs from shell casings and cartridges inside the gun came from a male source but did not match defendant. She did, however, find DNA matches to defendant in the room where the shooting occurred.
Although defendant did not testify, he presented the testimony of four witnesses. Arthur Young, an expert in blood stain pattern analysis opined that "the gun discharged at a time when the victim's head was somewhere approximately 17 to 23 inches above the ground," which was in agreement with Garkowski's conclusion. With that height, he was able to rule out certain scenarios, including the victim lying on her back or stomach, sitting up with her legs crossed or crouching down. He concluded that she must have been falling at the time the gun was fired in order to produce the spatter at the height indicated because no other scenarios were likely.
The defense recalled Detective Robert Hart, who had testified for the prosecution about the crime scene. Defense counsel questioned Detective Hart about the crime scene generally, and specifically when the laundry basket was removed.
The defense also called Lt. James Ryan, who is employed by the New Jersey State Police in the ballistics unit. Lt. Ryan had examined the gun involved in the shooting, a .357 magnum caliber Ruger revolver. The handgun, which was operable and capable of being discharged, required only five pounds of force against the trigger to fire the weapon, provided it had first been manually cocked. If the revolver were not cocked, it would take more than thirteen pounds of force to pull the trigger and fire the gun. The lieutenant confirmed this revolver did not have a "hair trigger."
Lastly, Dr. Mark Taff, a forensic pathologist, agreed that Crudup died from a gunshot wound to the head. Dr. Taff opined that Crudup was shot "at near contact range," that is, "anywhere between [two] to [four] inches from body surface." The doctor could not determine from anatomical findings alone whether the manner of death was a homicide, accident, or suicide. The doctor also gave opinions about the amount of blood he would expect to see from wounds caused by a bullet that first passed through a victim's hand and then her head. His opinion was contradictory to some evidence presented by the State.
As noted previously, the jury convicted defendant of murder and the weapons offenses.
II.
On appeal, defendant raises the following points:
POINT I
THE THREE HOUR STATEMENT OF DEFENDANT ADMITTED INTO EVIDENCE VIOLATED HIS RIGHTS UNDER THE [UNITED STATES] AND [NEW JERSEY CONSTITUTIONS].
POINT II
IT WAS AN ABUSE OF DISCRETION FOR THE COURT TO DENY THE DEFENDANT'S MOTION FOR A BENCH TRIAL.
POINT III
THE ADMISSION OF TESTIMONY REGARDING DEFENDANT'S POSSESSION OF A GUN ON PRIOR OCCASIONS AND THE VICTIM'S STATEMENTS CONCERNING HER RELATIONSHIP WITH DEFENDANT WAS ERROR.
POINT IV
THE STATEMENT OF DETECTIVE GARKOWSKI WAS A "NET OPINION" THAT SHOULD HAVE BEEN STRICKEN FROM THE RECORD (Not raised below).
POINT V
THE TESTIMONY OF THE MEDICAL EXAMINER THAT DEFENDANT LIED IN HIS STATEMENT TO POLICE WAS IMPERMISSIBLE OPINION EVIDENCE THAT DEPRIVED DEFENDANT OF FAIR TRIAL (Not raised below).
POINT VI
TESTIMONY THAT THE VICTIM WAS SHOT WITH HOLLOW POINT BULLETS WAS GROSSLY PREJUDICIAL AND SHOULD HAVE BEEN STRICKEN FROM THE RECORD. (Not raised below).
POINT VII
CERTAIN CONDUCT BY THE PROSECUTORS AT TRIAL CONSTITUTED MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT VIII
IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND FOR A NEW TRIAL.
POINT IX
THE AGGREGATE SENTENCE IMPOSED UPON THE DEFENDANT OF LIFE WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
POINT X
THE ORDER FOR RESTITUTION ENTERED WITHOUT A HEARING OR CONSIDERATION OF DEFENDANT'S ABILITY TO PAY MUST BE VACATED. (Not raised below).
POINT XI
DEFENDANT IS ENTITLED TO JAIL CREDIT FOR THE MORE THAN FOUR YEARS HE WAS IN CUSTODY ON THIS OFFENSE. (Not raised below).
POINT XII
THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
Having considered defendant's points in light of the record and controlling law, we conclude defendant's arguments in Points I (his confession was involuntary), II (his motion for a bench trial was improperly denied), III (the admission of evidence he previously possessed a handgun and the victim intended to leave him were unduly prejudicial), and VIII (his motion for judgment of acquittal on murder count was improperly denied) have insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
Defendant's argument concerning his statement is based solely on the premise that the officers who interrogated him did not first tell him a murder warrant had been issued for his arrest. Defendant conceded to the trial court he had been properly informed of his Miranda rights, understood them, and voluntarily waived them; and he now acknowledges — and the suppression hearing record establishes — that he was aware when he turned himself in that a warrant for "weapon possession by a convicted person" had been issued for his arrest. His argument concerning the murder warrant is based on these assertions in his brief: "Although an arrest warrant for murder had been issued [defendant] was not served with a copy of the warrant and he was not advised by the police prior to his statement that he had been previously charged." The assertions are erroneous.
For the proposition that a murder warrant had been issued, defendant cites the following exchange between the prosecutor and Sgt. Morgan:
Q. [T]o your knowledge, sergeant, was there an arrest warrant prior to him turning himself in?During thie exchange, Sgt. Morgan did not mention a murder warrant.
A. Yes, there was.
Q. And when he turned himself in, was he advised of that arrest warrant?
A. Yes. He - - when he got there, the desk sergeant advised us that that's why he turned himself in, because he said he had a warrant.
Q. And he was made aware of that warrant?
A. Yes.
In its brief, the State disputes an arrest warrant for murder existed before defendant was interrogated:
This contention is simply untrue. The defendant was not yet charged with murder at the time of the interrogation. When the defendant turned himself in to the Lakewood Police, he was arrested and charged with possession of a weapon by a convicted person . . ., not murder, prior to providing his recorded statement.
Defendant has not cited to any testimonial or documentary evidence of record to support his argument. Consequently, we reject it.
Defendant's argument concerning his request for a bench trial is also unavailing. Defendants, with the approval of the court, may waive their constitutional right to trial by jury. R. 1:8-1(a). When considering a defendant's request to waive a jury trial, a court should: assure defendant's decision is "voluntarily, knowingly, and competently" made, State v. Dunne, 124 N.J. 303, 314 (1991); determine that the request is made in good faith, not as "a stratagem to procure an . . . impermissible procedural advantage," ibid.; and "consider other factors relevant to whether maintenance of the public's confidence in the criminal justice system requires a jury trial." State v. Jackson, 404 N.J. Super. 483, 489 (App. Div.), certif. denied, 199 N.J. 129 (2009). Such factors include
the gravity of the crime[,] . . . the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere, the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence.
[Dunne, supra, 124 N.J. at 317.]
We review a trial court's denial of a defendant's motion to waive a jury trial under an abuse-of-discretion standard. Id. at 312-13. Here, we discern from the record no basis for concluding the trial court abused its discretion. The court noted that anticipated expert testimony was not beyond the comprehension of the jury, the issues were not highly technical or complex, and defendant was charged with murder, "the highest degree of severity for an indictable offense, which clearly weighs in favor of the jury trial." The court was also concerned about a bench trial because it had viewed defendant's recorded statement to police and issued pretrial rulings.
These considerations amply supported the court's decision. Defendant's argument that testimony concerning blood spatter and "forensic pathology" would "stir the passions of untrained people," while a factor to be considered, was simply that. Defendant's argument amounts to little more than after-the-fact criticism of the weight the court gave to factors militating in favor of a jury trial. Such criticism does not establish an abuse of discretion.
We also reject defendant's argument that his possession of the gun on previous occasions "was irrelevant and immaterial." This evidence had "a tendency in reason to prove" he, not Crudup, owned or possessed the weapon. The evidence was thus relevant. N.J.R.E. 401. Moreover, his possession of the weapon on more than one occasion, considered with testimony that Crudup had not been seen with a gun on previous occasions, had a tendency in reason to prove defendant wielded the gun on the day of the shooting and, in the context of all other evidence, intentionally shot Crudup. See State v. Carswell, 303 N.J. Super. 462, 470-72 (App. Div. 1997) (finding the State's witnesses were properly allowed to testify that the defendant was known to carry a gun and had been seen carrying the gun in question on other occasions because the testimony was introduced to tie the gun which was found at the scene of the crime to defendant).
Additionally, defendant's possession of the weapon on previous occasions contradicted his statement to police of never possessing a gun or seeing a gun before the shooting. And the court specifically instructed the jury that it was not unlawful for a person to possess a handgun at their own residence or place of business, thereby negating any potential prejudice from defendant's illegal possession of a weapon. See N.J.R.E. 403.
We also conclude Crudup's intention to leave defendant was relevant. In his recorded statement to police, defendant claimed he was confronted by Crudup about his infidelity, and she said, "you are going to miss me when I am gone." Defendant then noticed she had a gun in her hand. The court admitted the testimony concerning Crudup's intention for the following reasons:
[T]he defendant has put the state of mind of the victim at issue when he stated to the detectives that he heard Shakita Crudup say you are going to miss me when I am [gone] and he sees her with a gun in her hand. He tells detective he thought by that comment at the time that she was going to hurt herself. He intends to and attempts to disarm Shakita Crudup.
Crudup's intent to leave defendant had a tendency in reason to refute his claim that she intended to commit suicide and said he would miss her when she took her own life. We review a trial court's rulings on the admissibility of evidence for abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). Here, the trial court did not abuse its discretion by admitting the evidence of Crudup's intention to leave defendant.
Lastly, we find no merit in defendant's contention the trial court erred by not granting his motion for a judgment of acquittal and for a new trial. No one disputed Crudup was shot through the hand and the head. The State's evidence established she was shot with defendant's gun and the shooting was unlikely suicide or accidental. One witness testified defendant shot to punish Crudup. The evidence amply established the elements of murder.
III.
Defendant did not raise before the trial court his arguments in Points IV (Detective Garkowski's "net opinion" should have been stricken), V (the medical examiner gave impermissible opinion testimony), and VI (testimony that the victim was shot with hollow point bullets was unduly prejudicial). Because defendant did not make these arguments before the trial court, we review them under a plain error analysis. R. 2:10-2. To constitute plain error, errors or omissions must be "of such a nature as to have been clearly capable of producing an unjust result." Ibid. None of the errors urged by defendant was of such a nature.
Defendant argues the State's blood stain analysis expert, Detective Garkowski, rendered an opinion he reached "without performing any scientific tests, measurements or even personal examination of the scene." Defendant emphasizes that Detective Garkowski did not personally examine the crime scene or any photographs of the individual blood stains. Defendant also points out that the detective made no measurements, did not examine the bullet or the weapon, and "performed no tests to measure the discharge capacity at certain distances." For those and other reasons, defendant asserts Detective Garkowski's opinion was an impermissible net opinion.
An expert may base an opinion on facts or data "perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. "The corollary of that rule is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).
Here, before explaining his opinion, Detective Garkowski enumerated the facts and data he relied upon in formulating his opinion. In addition to virtually every report generated by responding or investigating officers, as well as witness statements, the detective relied upon two "crime scene investigation photo CD-R's, . . . prepared by the Ocean County Crime Scene Unit"; and defendant's video recorded statement. The detective also reviewed the two reports authored by defendant's expert. In short, Detective Garkowski considered mostly all of the evidence developed during the entire investigation. Thus, it is difficult to understand defendant's argument that the detective's opinion was a net opinion, unsupported by factual evidence or data.
The significance of defendant's assertion that the detective examined no "photographs of the individual blood stains" is also difficult to discern. The detective considered two "crime scene investigation photo CD-R's[.]" And as far as explaining "the why and wherefore of his opinion," the detective prepared his own PowerPoint presentation to explain the blood stain pattern analysis he went through to reach his conclusion. Defendant's argument that the detective gave a net opinion is readily refuted by the record.
Next, defendant contends he is entitled to a new trial because Dr. Park characterized a part of defendant's statement to the police as a lie. During cross-examination, defense counsel questioned Dr. Park as to whether he thought defendant could have shot the victim intentionally or if it "could have been a struggle." Park responded that he does not get involved with "what caused him to fire" but only how a person died. Park maintained that it was not possible for Crudup to have shot herself based on the location of the wound and the stippling around the wound.
When counsel persisted and attempted to demonstrate how this type of shot could occur in a struggle, Park referred back to defendant's statement and said, "I spent two hours, more than [two], [three] hours watching what he was stating, but he did not describe that and he was essentially lying. That is the only reason I can make. He was not telling the truth." Defense counsel did not object but rather continued cross-examining Park about his conclusion as to the manner of death.
On the next trial date, five days later, the court instructed the jury:
Last week, you heard expert testimony from Dr. Hydow Park as to the mechanics of Shakita Crudup's death. During the testimony, Dr. Park stated he reviewed the defendant's statement and that he felt the defendant was essentially lying and untruthful about the incident. You are to ignore the testimony of Dr. Park's opinion as to the veracity of the defendant's statement. It shall not be considered by you in any manner whatsoever. It should play no part in your deliberations. Dr. Park was called solely for his opinion as a forensic pathologist regarding the cause and manner of Shakita Crudup's death. Whether defendant's statement is true or untrue is for you to decide.
In the context of the lengthy and often pointed interchange between defense counsel and Dr. Park, it was clear that Dr. Park characterized defendant's statement to the police based on it being inconsistent with the physical evidence and observations Dr. Park made during the autopsy. Those contrasts were evident from the documentary and photographic evidence. When considered in the context of all of the evidence presented by the parties, Dr. Park's statement can hardly be deemed clearly capable of producing an unjust result. And in any event, the court's clear, strongly worded instruction to the jury cured any prejudice.
Lastly, defendant argues now, though he did not object at the time, that Detective Garkowski's testimony about hollow point bullets was unduly prejudicial. During the detective's testimony, he described the wounds to Crudup's hand and head. When describing the entrance wound on the forehead, he stated:
The wound is about one inch in diameter and it's that big because the projectile in this case was a hollow point bullet. Hollow point bullets, once they strike flesh, once they strike skin, they are designed to expand. Actually, it looks like flower petals opening on a flower and that's to create more damage to human tissue. It has more stopping power so that's why it's in that diameter or in a one inch diameter.
Defendant contends the testimony concerning the hollow point bullet was irrelevant and unduly prejudicial. The State responds that the testimony was relevant to "explain the size of the hole, which is relevant to blood spatter analysis" and necessary to discredit the testimony of defendant's expert.
Considering the context of the detective's reference to the hollow point bullet, the relevancy of the testimony is a close call. Had defense counsel objected, the trial court would not have abused its discretion by admitting the evidence. But even if, as defendant claims, the evidence had little or no probative value, it was not of such a nature as to be clearly capable of producing an unjust result. The victim was shot through the head, and the overwhelming evidence negated defendant's theory that Crudup's death was either a suicide or an accidental shooting. Defendant gave many versions to many people about how the accident happened, most of which were inconsistent with the physical evidence. Moreover, defendant told at least one person that he shot Crudup to punish her. In the context of such overwhelming evidence, Detective Garkowski's short explanation about the hollow point bullet was unlikely to have had any effect whatsoever on the outcome of the trial.
IV.
Defendant next contends he was denied a fair trial when the prosecutor: asked the State's DNA expert if the defense had asked her to do any DNA testing; questioned one of the State's experts about the purpose of hollow point bullets; and demonstrated, with the assistance of another prosecutor, that the hammer of the handgun could be clicked back without the gun making a sound. Defendant also challenges under the label of prosecutorial misconduct the testimony of the medical examiner and Sgt. Morgan that defendant lied when giving his statement to police.
When reviewing such claims, we must determine whether misconduct occurred, and if so, we must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). If a prosecutor has engaged in misconduct, "[t]o justify reversal, the . . . conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).
Defendant first claims misconduct in the prosecutor's direct questioning of the State's DNA expert about her inability to identify the source of DNA found on the gun cartridges. The prosecutor asked the expert if she would have been able to analyze "additional DNA control samples" against the evidence recovered if such additional samples had been sent by the prosecutor's office; she responded she would have been able to make the comparisons. The prosecutor then asked, "[a]nd if the defense had asked you to examine a control that they wanted you to look at, that could have been done; is that correct?" The DNA expert responded, "[t]hat's correct." After an intervening question, the prosecutor continued: "[D]id the defense or anyone else on the defense behalf ask you to look at a control regarding any other individual?" The expert responded, "[n]o." When defense counsel belatedly objected, the court instructed the jury:
you are to totally and completely disregard the comment made by the witness that she was not provided with any samples or materials from the defendant with which to test. The defendant on trial is presumed innocent and has no obligation or duty to testify, no obligation or duty to present any evidence or to prove his innocence. Every obligation from A to Z is on the State so you are not to consider that the defendant did not provide anything for DNA analysis to the State Police lab because they are under absolutely no obligation to do so and you are not to consider that in any way, shape or form in your deliberations or considerations of the issues in this trial.
When the court asked defense counsel if the instruction was sufficient, defense counsel replied that the instruction was sufficient and satisfactory. We agree with defense counsel's assessment of the court's curative instruction. More specifically, the instruction minimized the prosecutor's misconduct in implying the defense could or should have produced evidence. Considering the trial court's instruction, we cannot conclude the prosecutor's misconduct "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, supra, 161 N.J. at 575.
We have previously addressed defendant's arguments concerning the testimony of a State's expert about the hollow point bullet. For the reasons previously stated, we reject those arguments as grounds for reversal of defendant's conviction based on a theory of prosecutorial misconduct.
Concerning the testimony of Dr. Park and Sgt. Morgan about defendant lying during his statement, as we previously pointed out, Dr. Park's comment was made during his cross-examination. Similarly, Sgt. Morgan's comment was made during his cross-examination. The statements having been made during cross-examination, we fail to understand defendant's argument that the prosecutor engaged in misconduct. Defendant's remaining arguments concerning prosecutorial misconduct are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Defendant contends that he is entitled to a new trial due to the cumulative trial errors. Indisputably, if "legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). Here, the instances where improper evidence was admitted and improper conduct occurred were few, relatively insignificant, and in most instances, neutralized by the trial court's curative instructions. Thus, though defendant may not have received an entirely error-free trial, he received a fair trial. State v. R.B., 183 N.J. 308, 333-34 (2005).
V.
Defendant contends his sentence is excessive. When a court has followed the sentencing guidelines, and its findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 363 (1984).
Significantly, defendant does not challenge the trial court's analysis or application of aggravating and mitigating factors. In fact, his sole argument is that the sentence "condemned [him] to die in jail. Give[n] his age, the presumptive term for a murder of thirty . . . years with thirty . . . years of parole ineligibility was more than sufficient."
Defendant's argument does not suggest the court misapplied the sentencing guidelines or that its determination of aggravating and mitigating factors was not supported by the record. Moreover, in light of the facts of this case, the sentence does not shock the judicial conscience. Accordingly, we will not disturb it.
Defendant next argues that the court erred by ordering restitution without first conducting a hearing to determine defendant's ability to pay. Generally, before ordering restitution, the sentencing court must determine that defendant has a present or future ability to pay restitution. N.J.S.A. 2C:44-2(b)(2); State v. Newman, 132 N.J. 159, 169 (1993). A hearing is not required where there is no controversy as to either the amount or the ability to pay. State v. Orji, 2 77 N.J. Super. 582, 589-90 (App. Div. 1994); see also State in the Interest of R.V., 280 N.J. Super. 118, 121-22 (App. Div. 1995).
Here, when the State requested restitution to the Victim's Crimes Compensation Board for the cost of Crudup's funeral expenses, the court ordered defendant to pay $5000 restitution without any significant explanation for the decision. Because a hearing was not conducted, we cannot determine whether defendant had any assets or what the basis was for the court's determination. Accordingly, we reverse and remand for a hearing.
Defendant also claims that he was denied jail credits to which he was entitled following his arrest for Crudup's murder. Defendant was on parole when arrested for Crudup's murder. We cannot determine from the record, however, any facts concerning his incarceration for the parole violation. Because this matter is being remanded on the issue of restitution, the parties can address the issue of jail credits on remand. The parties should make an appropriate record with documentation concerning relevant timelines. Doing so will provide a level of certainty that the computation of credits is accurate, and will permit meaningful appellate review.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).