Opinion
DOCKET NO. A-3503-13T3
01-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN A. VAUTERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 12-05-0795 and 13-01-0029. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Kevin A. Vauters was tried before a jury, found guilty of murder and other offenses, and sentenced to an aggregate term of life imprisonment without parole, plus sixteen years. Defendant appeals from judgments of conviction entered by the trial court on October 29, 2013. For the reasons that follow, we affirm.
I.
Defendant was charged under Indictment No. 12-05-0795, with first-degree murder of Eugene Lockhart, N.J.S.A. 2C:11-3a(1) or (2) (count one); first-degree felony murder of Lockhart, N.J.S.A. 2C:11-3a(3) (count two); first-degree armed robbery of Lockhart, N.J.S.A. 2C:15-1 (count three); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); third-degree hindering his own detention, apprehension, investigation, prosecution or conviction, N.J.S.A. 2C:29-3b(1) (count six); third-degree hindering an investigation, N.J.S.A. 2C:29-3b(4) (count seven); third-degree witness tampering of B.A. and H.R., N.J.S.A. 2C:28-5a(1) (counts eight and nine); and attempted false incrimination of M.V., N.J.S.A. 2C:28-4a (count ten). Defendant also was charged under Indictment No. 13-01-0029, with first-degree witness tampering of D.W., N.J.S.A. 2C:28-5a.
We refer to certain victims and others involved in this matter by their initials, in order to protect their identities.
The State moved to consolidate the charges in the two indictments, and defendant filed a motion to sever the post-homicide charges. The trial court granted the State's motion, and denied defendant's motion without prejudice. Defense counsel did not thereafter renew his severance motion. Defendant was tried in a single proceeding on all of the charges.
At the trial, evidence was presented which established that, on January 10, 2012, at 6:45 a.m., Lockhart's body was discovered in Pittman Park in New Brunswick. Lockhart had been shot in the head at close range. The police recovered several packets of heroin on the ground near Lockhart's body. They also recovered two unfired .357 cartridges near the body, but did not locate a fired projectile.
Lockhart's wallet was recovered in Feaster Park, which is across the street from Pittman Park. The zipper in Lockhart's pants was open. It appeared that Lockhart's pants pockets had been searched, and there were six packets of cocaine in his mouth.
The police spoke with M.N., who was seen standing by Pittman Park as they searched the area. M.N. said he knew Lockhart by the name of "Rells." According to M.N., the previous night, Lockhart had been selling heroin and crack cocaine. M.N. also saw defendant in the area at around 2:50 a.m. Defendant told M.N. he did not like Lockhart and was going to rob him. At approximately 3:00 a.m., M.N. noticed that defendant was in possession of a nickel-plated gun.
M.N. heard defendant tell Lockhart he had three bags of cocaine to sell him. He saw defendant and Lockhart walk up Seamen Street together. Later, M.N. saw Lockhart with his pants down. Defendant was "running" Lockhart's pockets, and he had a shiny object in his hand. Lockhart's hands were up, and defendant's hands were near Lockhart's mouth. M.N. left the area because he did not want to be involved. At 4:21 a.m., M.N. heard a gunshot.
Investigator Michael Daniewicz contacted Lockhart's mother, T.L., to inform her of her son's death. T.L. provided Daniewicz with Lockhart's cellphone number. He learned that the phone was still operable and applied for a warrant to track its location. The phone was tracked to a location on Carmen Street in New Brunswick. The police set up surveillance there, and later that evening, observed defendant leave the house. Defendant was found to be in possession of two cellphones, one of which was Lockhart's. Defendant also was found to be in possession of eight bags of heroin.
The police informed defendant of his Miranda rights. Defendant waived his rights and gave a statement to the police. Defendant claimed that a member of the Grapes subset of the Crips gang had killed Lockhart. He said he did not know Lockhart well. He stated that on the night of Lockhart's murder, he was home by 1:00 a.m.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant told the police he had obtained one of the cellphones two or three days earlier from a drug user in exchange for cocaine. The police said the phone was Lockhart's phone, and Lockhart had used it to speak with his mother the night before he was shot. Defendant could not explain the discrepancy. He then stated that he actually found the gun on Remsen Avenue at 1:00 a.m. that morning.
On January 11, 2012, the police executed a search warrant at defendant's home on Carmen Street. On the floor of defendant's bedroom, the police found one .9mm cartridge. They also found a .9mm handgun in the backyard, which was wrapped in a blue shirt, and wedged between a fence and an air conditioning unit. The gun's magazine had five unfired rounds, and its chamber contained a spent casing.
Surveillance footage from a camera on a store at the corner of Remsen Avenue and Seamen Street showed defendant walking with Lockhart, M.N. and C.B. at 2:50 a.m. to 2:57 a.m. on January 10. They were walking down Remsen Avenue toward Seaman Street.
T.L. testified that she resides in Virginia, and spoke with her son by phone every day. Phone records indicated that T.L. had called Lockhart on January 9th, at 10:22 p.m. Lockhart said he was hanging out on Remsen Avenue. T.L. told Lockhart she did not like him hanging out on the street because of certain threats he had received. The next day, T.L. called her son's cellphone. Someone answered but hung up quickly.
B.A. is M.N.'s nephew. He testified that defendant and Lockhart were his close friends. B.A. and Lockhart were members of different subsets of the Crips gang. Defendant was a member of a subset of the Bloods, a rival gang of the Crips, but he and B.A. got along. On January 9th, B.A. met defendant at about 8:00 p.m. B.A. had obtained a car from a drug user, in exchange for cocaine, and he picked up defendant at his house.
Defendant and B.A. drove around New Brunswick, and B.A. made drug deliveries. They stopped at a gas station, where they ran into D.W., who said he was stranded in New Brunswick and needed to get back to his home in Long Branch. Defendant offered to give D.W. a ride to the train station in Perth Amboy so he could get a train to Long Branch. D.W. got into the car.
During the ride, defendant told B.A. he had given Lockhart his gun so that he could commit a robbery, but Lockhart had not shared any of the robbery proceeds with him. Defendant also said that Lockhart had stolen heroin from his uncle. Defendant planned to rob Lockhart, who he referred to as "Rells," because Lockhart owed him. He said he was going to do so in "a dark spot" like on Seaman Street near the park.
D.W. realized that defendant was referring to Lockhart, who had just robbed him at gunpoint. This was the reason D.W. was stranded in New Brunswick, but he did not tell defendant he had just been robbed by someone named "Rells." Defendant and B.A. dropped off D.W. in Perth Amboy and drove back to New Brunswick. At around 10:00 p.m., defendant and B.A. split up. The following morning, B.A. learned that Lockhart had been killed.
On January 10, 2012, at around 8:58 p.m., defendant called B.A. on Lockhart's cellphone. He wanted to meet B.A., but B.A. refused. B.A. said he was not going to go near defendant because he knew what he had done. B.A. sent defendant a text message indicating he should stay away because the police were in the area. B.A. saw defendant that night and again told him he knew what he had done. According to B.A., defendant just smirked.
Sometime later, D.W. was incarcerated on an unrelated matter. While in jail, D.W. heard some inmates say that a person named "Rells" had been killed. On August 3, 2012, D.W. provided a sworn statement to the police. He said that on January 9, 2012, a person named "Rells" had robbed him. Thereafter, defendant and B.A. had picked him up in a car. D.W. stated that, during the ride, defendant indicated he was going to rob "Rells" and "leave him in the pit."
After D.W. provided his statement to the police, inmates at the jail began to threaten him and his family. They told him not to "snitch" or he would be killed. The inmates said defendant was going to beat the murder charge. They referred to D.W. as "food," which meant that he was going to be killed. D.W. was placed in protective custody; however, he continued to receive threatening letters and personal taunts.
M.N. testified that defendant told M.N. he wanted him to change his statement and tell the police he had not seen anything, he had been high on cocaine at the time, and his uncle shot Lockhart. M.N. further testified that someone in the jail had given him a letter for B.A., which stated that defendant "didn't do it." M.N. gave the letter to the police.
Y.A. testified that after defendant was arrested, he called her from jail. The conversations were recorded. In one call, defendant told Y.A. he would be sending her two letters. Later, Y.A. received an envelope from the jail, which did not identify the sender. The envelope contained two letters, one for H.R. and one for B.A.
In the letter to H.R., the sender stated that she should call the police with an anonymous tip indicating that she had driven past the crime scene on the night Lockhart was murdered, and she had seen a tall black man committing the crime. The letter to B.A. stated that he should say that defendant's uncle killed Lockhart. H.R. and B.A. told Y.A. they would not do what the letters asked them to do.
B.A. testified he had been threatened if he testified against defendant. A corrections officer from the county jail testified that a document being circulated in the jail had been intercepted. The document contained B.A.'s name and address. Handwritten notes referred to B.A. as "food" and threated B.A. and his family.
In addition, a search warrant was executed at R.J.'s home on Martin Street, and a letter from the county jail was found there. The letter was addressed to T.W., and had a return address for H.C. The letter asked T.W. to tell B.A. to "switch up" what he had told the police.
H.C. testified that, because inmates are limited in the number of letters they can send each week, he had agreed to allow defendant to use his name to send a letter. H.C. testified that he had not written the letter addressed to T.W., and that the letter looked like it had been written by defendant.
The jury found defendant guilty of all charges. In addition, the jury answered the special interrogatories relating to the aggravating factors for sentencing on the murder charge. The jury found that defendant had committed the murder by his own conduct while he was engaged in the commission of a robbery.
The trial judge sentenced defendant to a life sentence without parole for the murder, as charged in count one. The court merged certain counts, and imposed concurrent sentences on counts two, three, five, six, seven and ten. The judge sentenced defendant to concurrent three-year terms on counts eight and nine (charging witness tampering), and ordered that the three years of incarceration be served consecutive to the sentence on count one. The judge also sentenced defendant to a consecutive thirteen-year term for witness tampering.
The court entered judgments of conviction dated October 29, 2013. Defendant appeals and raises the following arguments:
POINT I
THE COURT'S IMPROPER EXCLUSION OF TESTIMONY FROM LOCKHART'S MOTHER ABOUT THREATS HER SON HAD RECEIVED COMPROMISED DEFENDANT'S RIGHT TO OFFER SUPPORT FOR HIS CLAIM OF THIRD-PARTY GUILT, VIOLATING HIS CONSTITUTIONAL RIGHTS.
POINT II
THE COURT'S FAILURE TO PROVIDE THE JURY WITH A LIMITING INSTRUCTION REGARDING THE POST-HOMICIDE CHARGES DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
POINT III
THE IMPOSITION OF THE SENTENCE OF LIFE WITHOUT PAROLE WAS, UNDER THE CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF THE PROHIBITION AGAINST CRUEL AND UNSUAL PUNISHMENTS. U.S. CONST., AMENDS. VIII, XIV; N.J. CONST. (1947), ART. 1, PAR. 12 (Not Raised Below).
Defendant also has filed a pro se supplemental brief in which he raises the following points:
POINT [I]
Did the prosecutor[']s references that defendant was in custody on an out-standing arrest warrant violate[] his constitutional rights under state and federal law[?]
POINT [II]
Did the prosecutor deny defendant a fair trial and due process by withholding material evidence in violation of both, the Brady[] rule, and the rules of discovery[?]
POINT [III]
Did the prosecutor deny the defendant a fair trial and due process of law by using false
testimony to gain an unfair advantage over the defendant[?]
POINT [IV]
Because the prosecutor committed misconduct by making misleading and confusing [innuendoes], and factual assertions she knew were not supported by the established facts of the DNA or scientific, forensic evidence. Thereby, denying defendant a fair trial[.]
POINT [V]
Did the prosecutor deny the defendant due process and a fair trial by interfering with his rights to effectively cross-examine, and elicit favorable information leading to a potential [third] party[']s guilt[.]
POINT [VI]
Because the trial court [erred] by permitting, without any instruction, defendant[']s involvement with the [B]loods street gang violated his rights under the Sixth, and Fourteenth Amendments to the [United States Constitution] and [N.J.R.E.] 404(b)[.]
POINT [VII]
Because the trial court failed to give an immediate instruction to the jury on how it is to use the other crimes evidence, i.e., the CDS, the weapon, the evidence, and the arrest warrant evidence violated defendant[']s state and federal constitutional rights.
Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d (1970). --------
II.
We turn first to defendant's contention that the trial judge erred by excluding certain testimony by T.L. regarding a phone conversation she had with her son the night he was killed. During cross examination, defendant's attorney attempted to question T.L. about her statement that she wanted Lockhart to stay off the streets because of threats he had received. The State objected to the question on the ground that it sought to elicit inadmissible hearsay. The judge then conducted a N.J.R.E. 104 hearing outside the presence of the jury.
During the hearing, defense counsel questioned T.L. about her statement that certain people had been threatening her son. She stated that Lockhart told her he had been threatened because he was in a gang. He said he had been hiding, but he was not going to hide anymore. T.L. recalled that on the night of January 9, 2012, Lockhart told her he was not going home and "if they kill me, they just gonna kill me."
The assistant prosecutor questioned T.L. and she admitted that she had not heard any of the threats directed at her son. She brought Lockhart to Virginia in June 2011 because of the threats, but from the time he returned to New Jersey until the time he was killed, she did not hear of anything happening to him. She also did not know of any immediate threats to her son on the day he died.
The trial court ruled that Lockhart's statements to his mother were hearsay, and they were not admissible under any exception to the hearsay rule. On appeal, defendant argues that the judge erred by refusing to allow him to present this testimony, which he claims was evidence of third-party guilt.
Defendant contends that the evidence was not excludable as hearsay because it was not considered to prove the truth of the matter asserted therein, specifically that Lockhart's life had been threatened by someone in the Grapes gang, but rather to prove the state of Lockhart's mind. He also contends that the facts that he had been threatened several months earlier by members of his own gang, and that he considered himself to be under a continuing threat, were highly relevant and raised a reasonable doubt as to his guilt.
We are not persuaded by these arguments. "'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). The statements that Lockhart made to his mother were offered to prove that he had, in fact, been threatened by certain gang members months before his was slain. Simply put, the statements were offered for their truth.
N.J.R.E. 803(c)(3) allows a statement made in good faith of the declarant's then-existing state of mind to be admitted as an exception to the hearsay rule. However, in a criminal case, the exception is narrowly construed and does not apply unless the state of mind of the declarant is directly relevant to the issues at trial. State v. McLaughlin, 205 N.J. 185, 189 (2011).
In this case, Lockhart's state of mind concerning the threats was not relevant as to whether defendant or some third-party shot and killed him. As the State points out, the key issue was whether defendant shot and killed Lockhart, and Lockhart's state of mind about threats he received had no bearing on that issue.
Moreover, Lockhart's statements were not admissible under N.J.R.E. 804(b)(2), which provides that, "In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made . . . in the imminence of declarant's impending death." To be admitted under this exception, "the statement must have been made while the declarant believed his death was imminent." Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 804(b)(2)(2016). There is no evidence that, when Lockhart made the statements attributed to him months prior to his murder, he believed his death was "impending."
Furthermore, the trial judge's decision to preclude the defense from eliciting this testimony did not deny defendant his right to present evidence of third-party guilt. A defendant is entitled to a meaningful opportunity to present a complete defense, which includes the "right to introduce evidence of third-party guilt 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Fortin, 178 N.J. 540, 591 (2004)).
As we noted previously, when defendant was questioned by the police, he attempted to implicate a member of the Grapes gang in Lockhart's death. At trial, M.L. testified that Lockhart had been a member of the Grapes, and Lockhart had "snitched" on someone in the Grapes. He also said that in the four or five months before his death, Lockhart had "steered clear" of the Grapes.
There was, however, overwhelming evidence that defendant was the person who shot and killed Lockhart. Moreover, when T.L. was questioned at the N.J.R.E. 104 hearing, she merely said that Lockhart told her about unspecified threats by unidentified gang members. Her testimony would not have provided a basis for a claim of third-party guilt. The jury would have been left to speculate that some member of the Grapes may have murdered Lockhart.
III.
Next, defendant argues, for the first time on appeal, that the trial judge erred by failing to provide the jury with a limiting instruction concerning the evidence pertaining to the post-homicide charges.
As we noted previously, those charges were hindering apprehension, hindering an investigation, three counts of witness tampering, and attempting to falsely incriminate M.V. Defendant argues that the judge should have instructed the jury that it could only consider evidence of these post-homicide acts to assess defendant's mental state. Because this argument was not raised at trial, we consider whether the judge's failure to instruct the jury of this point constituted plain error. R. 2:10-2.
Under N.J.R.E. 404(b) "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such a person acted in conformity therewith." However, this 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." Ibid.
Here, there was no claim that defendant was disposed to murder, rob and commit other offenses because he committed the post-homicide offenses. Furthermore, the evidence regarding the post-homicide charges was admissible under N.J.R.E. 404(b) because it was probative as to defendant's consciousness of guilt.
In support of his argument, defendant relies upon State v. Williams, 190 N.J. 114 (2007). In that case, the defendant was charged with reckless manslaughter, along with other charges, arising from the shooting death of an individual. Id. at 117. Prior to the trial, the defendant sought to exclude evidence of conduct that he engaged in after the shooting. Id. at 117-18. The defendant had placed the weapon in the victim's hand, destroyed evidence, and instructed witnesses to lie to the police. Id. at 119-20.
The Supreme Court held that the evidence of the defendant's post-shooting conduct was relevant to defendant's state of mind, because it demonstrates consciousness of guilt. Id. at 125 (citations omitted). In addition, the evidence's probative value was not outweighed by undue prejudice that may result from its admission. Id. at 133.
The Court noted, however, that the trial judge should give the jury an instruction "on the limited use to which this evidence may be put." Id. at 133-34. The Court stated that "the court must instruct the jury that the evidence may be used only to assess defendant's mental state. The court also must carefully inform the jury of the prohibited purposes of the evidence." Id. at 134.
Defendant's reliance upon Williams is misplaced. In that case, the Court made clear that evidence of post-crime conduct is admissible under N.J.R.E. 404(b) if it bears upon the defendant's state of mind. The Court noted that evidence that a defendant sought to cover up an offense is relevant to the defendant's consciousness of guilt. Although the Court indicated that the trial court should instruct the jury on the uses to which such evidence may be put, the Court did not state that the failure to provide such an instruction is reversible error in all cases, even when the defendant does not seek such an instruction.
Furthermore, in this case, it was unlikely that the jury would consider defendant's post-homicide conduct for any purpose other than showing defendant's consciousness of guilt of the homicide-related offenses. The evidence that defendant hindered his own apprehension and prosecution, and attempted to falsely implicate M.V., indicated that defendant wanted to cover up his involvement in Lockhart's death. This evidence was not proof that defendant was disposed to murder Lockhart. Thus, the jury was unlikely to consider the post-homicide evidence for a prohibited purpose.
Here, the trial judge may have erred by failing to provide sua sponte the jury with a limiting instruction concerning its use of the evidence regarding the post-homicide charges. Nevertheless, the absence of the instruction was not an error "clearly capable of producing an unjust result." R. 2:10-2.
IV.
Defendant further 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 and 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:11-3b(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:11-3b(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:11-3b(4)(g).
Here, the jury unanimously found beyond a reasonable doubt that defendant committed the murder by his own conduct while engaged in the commission of a robbery. Thus, the imposition of the sentence of life without parole was lawful. See State v. Troxell, 434 N.J. Super. 502, 510-11 (App. Div.) (noting that under the present statutory scheme, a mandatory sentence of life imprisonment without parole must be imposed if the jury finds beyond a reasonable doubt that one of the aggravating factors in N.J.S.A. 2C:11-3b(4) exists), certif. denied, 221 N.J. 285 (2014).
Defendant nevertheless argues that the evidence presented at trial does not support the jury's finding. Defendant asserts that the robbery was committed haphazardly during the course of the homicide or immediately thereafter rather than "the other way around." Defendant argues that "such an act" is not the separate act that justifies imposition of the sentence of life without parole, as provided in N.J.S.A. 2C:11-3b(4)(g). We are convinced, however, the evidence presented at trial provided the jury with sufficient evidence upon which to find that defendant committed the murder by his own conduct while in the course of committing the robbery.
Defendant also argues that in order for the jury to find that the aggravating factor, the jury had to undertake a qualitative analysis of the circumstances of the offense and of defendant's character. In support of this argument, defendant relies upon State v. Biegenwald, 106 N.J. 13, 62 (1987). However, Biegenwald involved the death penalty and "the ultimate value judgment" as to "whether [the] defendant should live or die." Ibid. (citation omitted). Imposition of a sentence of life without parole does not involve such a judgment. Thus, defendant's reliance upon Biegenwald is misplaced.
In addition, defendant argues that the sentence of life without parole cannot be imposed without proportionality review. Defendant contends the Eighth Amendment to the United States Constitution applies to sentences other than death sentences, and proportionality review should be required for sentences of life without parole. However, defendant cites no case which holds that proportionality review is required before a court may sentence a defendant to life without parole. We are not convinced that proportionality review is warranted for sentences of life without parole.
We have considered the additional issues raised by defendant in his pro se supplemental brief. We are convinced those arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION