State
v.
Dille

This case is not covered by Casetext's citator
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONApr 22, 2013
DOCKET NO. A-2548-09T1 (N.J. Super. App. Div. Apr. 22, 2013)

DOCKET NO. A-2548-09T1

04-22-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALTER A. DILLE, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Graves, Espinosa, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-06-1338.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Tried to a jury, defendant Walter A. Dille was found guilty of first-degree purposeful or knowing murder, N.J.S.A. 2C:11- 3(a)(1) and (2); two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); three counts of first-degree robbery, N.J.S.A. 2C:15-1; first-degree carjacking, N.J.S.A. 2C:15-2(a)(1); third-degree hindering apprehension/prosecution, N.J.S.A. 2C:29-3(a)(3); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced to life in prison without parole.

He appeals, claiming the trial court erred in admitting evidence of his affiliation with a white supremacist organization and in failing to issue appropriate limiting instructions for the use of that evidence. Defendant also argues that the court erred in failing to suppress evidence and denied him the right to an impartial jury. We have carefully considered all of his arguments and we affirm his convictions. However, as conceded by the State, a limited remand for resentencing is necessary.

I.

Marcus and Cindy Cade first married in 1981 and had two sons, Marcus Jr. and Alex. They divorced in 1989, but after a seven-year separation, remarried in 1996. Marcus worked several different jobs out of his home. Cindy, an African-American, was employed by a private telephone company as a customer service representative. Cindy was provided with a white Hyundai Accent as a company car.

The Cade family attended movies regularly and when a popular movie would open, they would try to see it on the first night of its release. They would buy tickets in advance and arrive at the theater early to get a good seat. On December 16, 2005, Cindy and Marcus planned to meet Alex for dinner and then see the premiere of King Kong, which had just been released. Cindy had an appointment that morning in Mays Landing and planned to stop by the Regal Cinema at lunchtime to buy the tickets. Cindy left her office around 9:30 a.m.

Patricia Austin and her friend Mary Ciarlante also planned a trip to the Regal Cinema that day. At around 10:55 a.m., Austin picked up Ciarlante in Austin's pick-up truck and the two women drove to the theater for the noon showing of the Harry Potter movie. When they arrived at around 11:25 a.m., there were only two other cars in the parking lot; one was Cindy Cade's Hyundai. Austin parked three or four spaces away from Cade's car, facing in the opposite direction.

While sitting in the truck with the doors open, the women noticed a man, later identified as defendant, walk over to the Hyundai where Cindy Cade was sitting. Cade tried to get out of the car, but defendant said something to her in a loud voice, then pushed her back into the car.

After Austin saw defendant force Cade back into the car, she decided to get out of the truck and help the woman. Before she could do anything, defendant shot Cade in the head. After shooting her, defendant leaned into the car over Cade, but Austin and Ciarlante could not see what he was doing.

Defendant then went to the back of the Hyundai holding a black gun in his hand, and stared directly at Austin and Ciarlante. He then began to run slowly away from the movie theater. Austin told Ciarlante to use her cell phone to call 911 while she ran to the victim's car. Austin checked for a pulse and found none. Austin called 911 when Ciarlante had difficulty operating her cell phone. The shooter was initially described as dirty, unshaven, and tan, wearing camouflage pants, a green "hoodie" sweatshirt, and a knit hat. The police arrived shortly thereafter and began an intensive hunt for the shooter.

The 911 tape was not preserved and there were some discrepancies as to the description of the shooter.

After working at home that morning, Marcus left at around 11:30 a.m. to take his car to be serviced. The car dealership was located on the Black Horse Pike, opposite the Regal Cinema. While Marcus waited for his car, one of the salesmen at the dealership mentioned that a woman had been killed at the movie theater. Marcus remembered thinking how horrible this was, happening so close to Christmas. After his car was serviced, Marcus went to the mall to pick up his glasses and then to the barber shop for a haircut. His cell phone was ringing but the caller ID indicated a "private call," so he did not answer it. Later, when Marcus called his home, a detective answered and told him to come home. When Marcus arrived, he saw police cars. Upon entering his home, an investigator told him that his wife had been killed.

Reynaldo Torres, a fuel manager for the Wawa across the Black Horse Pike from the Regal Cinema, was at work on Friday, December 16, 2005. He noticed a man walk by one of the employee's cars and try to open the door. When the door did not open, the man walked across the parking lot and across the Black Horse Pike toward the movie theater. Torres described the man as wearing a green "hoodie" sweatshirt and green camouflage pants.

Approximately fifteen minutes later, Torres saw the same man running very fast across the Black Horse Pike from the area where the Regal Cinema is located and into the trailer park adjacent to the Wawa. Torres then saw several police officers and a few helicopters in the area.

William Joseph Eddis stopped at the Wawa around 11:30 a.m. on December 16, 2005. As he pulled into the parking lot, he saw a man running directly at his car. He had to stop his vehicle to avoid hitting the man. Eddis described the man as a white male, wearing a camouflage jacket with a hood and camouflage pants with boots. After parking and getting out of his car, Eddis saw the same man running through the woods in the direction of a trailer park on the other side of the woods. After leaving the Wawa, Eddis saw numerous police and emergency vehicles.

Officer James Longo, from the Hamilton Township Police Department, was the first police officer to arrive at the scene of the shooting. He saw several witnesses standing between the open passenger door of the white Hyundai and the victim, who was slumped over the passenger seat. He checked the victim and found no pulse.

Other officers began arriving and began to search the area, including Sergeant Michael J. Quigley, with the Major Crimes Unit of the Atlantic County Prosecutor's Office. Quigley estimated that at least fifty officers were involved with securing the scene, interviewing witnesses and searching the area.

Lieutenant Edward Barr, also of Hamilton Township, arrived at the scene between 12:30 p.m. and 1:00 p.m. Barr was involved in securing the scene and coordinating the efforts of the local and state police officers who participated in the search. He estimated that more than one hundred officers were involved with the search of the area, including K-9 units, SWAT teams and helicopters. Barr also assisted in the removal of the victim from the car.

Investigator Michael Alimenti, a detective assigned to the Atlantic County Prosecutor's Office, was initially dispatched to secure a perimeter around the area and later returned to assist with the search for the suspect. After police spoke with Torres, Alimenti and other officers were sent to the area of the Inland Estates trailer park, next to the Wawa. As other officers were searching the trailer park, Alimenti started to search one of the dirt paths leading away from the park. Alimenti spotted defendant with camouflage pants and a dark colored shirt about fifty to seventy-five yards ahead of him. Alimenti realized the man matched the description of the suspect and thought that the man appeared "sneaky" in the way he was trying to walk away from the area. Alimenti shouted at defendant, who began to run towards the woods.

Alimenti alerted others by radio and chased defendant down a dirt path while identifying himself as a police officer. Defendant ran into the woods before Alimenti caught up to him and ordered him to get on the ground. Defendant complied and was handcuffed.

After noticing the helicopters and several police officers, defendant said, "What? All this for me?" Alimenti said nothing and defendant continued, "You should have fucking killed me. It's over for me now. I'm better off dead. You know it's fucking over for me." Alimenti replied, "Nobody's better off dead." Defendant responded, "What the fuck do you know? . . . You know it's over for me. There is no reason for it all. I lost my fucking mind. . . . I've had these helicopters over my head looking for me all day, and you know it's over for me."

As Alimenti started walking defendant up the path to the patrol car, defendant said "Man, you scared me so bad I shit my pants, . . . I knew as soon as I saw you, that you had me, and I just stopped running because I figured you were going to get me anyway." When they reached the patrol car, defendant saw the number of officers there and said "What? No F.B.I.?" He was then placed in a patrol car and taken to the prosecutor's office.

After arriving at the prosecutor's office, defendant said "I ruined my life today and I can't believe I got caught. I should have stayed bunkered down and I shouldn't have moved."

Defendant was initially charged with a violation of his probation out of Florida, and was not charged with homicide until the following day. Later that night, as he was being processed at the Atlantic County Jail, defendant was asked if he had any enemies. Defendant replied he had a lot as he had just shot a black woman he didn't even know and he was all over the news. He told the corrections officer his life was over.

On the day after the shooting, Austin was shown six black and white photographs. Austin identified a photo of defendant as the shooter from the array. Although Austin identified defendant the first time she looked at the pictures, she went through the pictures three times just to be "completely, completely sure."

Ciarlante stated that she could not identify the shooter, but the day after the shooting, she saw a picture of defendant on television and told police the person she saw "kind of looks like, like the man."

Amanda Hull began dating defendant in 2004. In October 2005, they began living together in Atlantic City, but defendant moved out in November 2005 and moved in with a friend in the Inland Estates trailer park. Although Hull tried to end the relationship, defendant continued to call her. Just after midnight on December 16, 2005, defendant called Hull to say he loved her and wanted to see her. Hull tried again to tell defendant their relationship was over. She ended the conversation saying she had to work the next day and had to go to bed.

Around 11:00 a.m. on the day of the shooting, defendant called Hull while she was at work. Defendant told Hull he had a loaded .38 with bullets in his pocket, and that he planned on stealing a car so he could come and pick her up. Hull told defendant he would get arrested and the idea was "stupid." Defendant complained to Hull that she did not think he was serious and she thought this was all a "game." Defendant again stated that he was going to get a car and asked Hull if she wanted him to pick her up. Hull said no and ended the conversation.

When police interviewed Hull after the shooting, she identified the trailer in Inland Estates where defendant was staying and provided her cell phone records, confirming the calls defendant made to her. Hull also directed the police to defendant's MySpace internet web page which contained photographs showing defendant handling firearms. Hull identified defendant as a member of the Atlantic City Skinheads (ACS), a group she described as a racist organization.

A few days after the shooting, defendant sent Hull a letter indicating that he had heard that Hull told police about his membership in ACS and his phone call telling her about his plans to steal a car. Defendant wrote, "whatever you said to the cops that you shouldn't have, or if your mom told them about MySpace, I am not seeking revenge on anyone; so rest at ease if that's on your mind."

James McDowell was with defendant the night before the shooting. They drank alcohol and used cocaine at McDowell's house in Egg Harbor City before defendant left just after sunrise. McDowell received a letter from defendant dated February 6, 2006, where defendant said he was "really glad" that McDowell had become a member of ACS and was "in charge of Egg Harbor City." Defendant discussed Hull in the letter:

Well, I am beginning to believe that my girl, Amanda, the one I brought to your house that snowy morning, has turn [sic] state on me. I heard her say some shit on tape the police played that she shouldn't have said. I haven't heard from her at all either. Oh, well. Good ridden [sic]. She was a dirty hippie anyway. Her cousin's name is Stevo and he hangs in Egg Harbor City. If you don't know him, then get with Cody and he'll fill you in. Since Egg Harbor City is yours, so is Stevo. So handle that for me if you are given the opportunity.

When interviewed, McDowell explained that ACS was "a white supremacy gang" and they believed in white power, violence, and hate towards minorities, who he described as "people we don't like." McDowell explained that he interpreted defendant's request that he "handle that" to mean "[p]retty much beat him down or something." McDowell also identified the signature on the letter, "Snake," as defendant's nickname. After the signature was the number eighty-eight, which McDowell explained, "'H' is the eighth letter of the alphabet, means Hell Heifer [sic] to the ACS."

While incarcerated, defendant wrote a letter to Maggie Shearer in Ontario, Canada, that was intercepted by prison authorities. In the letter, defendant told Shearer that the State was seeking the death penalty because his ex-girlfriend claimed defendant called her and told her he was going to steal a car on "the morning of this alleged homicide." Defendant said that "without her testimony, not only could they not try [him] under the death penalty but they would lack sufficient evidence for robbery as the motive." Defendant continued "[t]he girl's name is Amanda Hull and she's obviously a filthy race traitor and I'll deal with her in the next life." The letter to Shearer also included numerous references to ACS.

At the time of his arrest, Dille was subject to the death penalty pursuant to N.J.S.A. 2C:11-3(c), but that penalty had been repealed by the time of trial. L. 2007, c. 204.

In another letter intercepted by prison authorities, defendant wrote to Pete Hennessy at Riverfront State Prison in Camden:

the little slut, Amanda is the State's star witness apparently. She testified at Grand Jury on the morning of this alleged incident that I called her and said I was going to steal a car. There has to be at least one Aggravating Factor in a murder case in order to be tried under the death penalty and Amanda's testimony was it.

Defendant listed the charges against him and said "[n]o one in the history, past or present of ACS, will ever top that." The letter also warned Hennessy to
[b]e careful what you say in letters referring to our gang or racial shit. They have a team of internal affairs correction cops they call STG, security threat group. They put members in a gang unit in Rahway prison. You don't want to go there. It's twenty-four hours lock down.

Defendant signed the letter from "Snake" and wrote "ACS" using the "A" in Snake.

In another intercepted letter addressed to "Bri," defendant again referenced Hull's testimony and stated that she is "the only (only is underlined twice) thing causing me to face the death penalty." Defendant continued, "[s]he can decide to retract her statement if she was so incline [sic] to or maybe she would go back to Washington State and not testify at all. If she didn't testify at all, that would be the absolute best thing for my case." The letter was signed "Snake" with ACS and three swastikas drawn around his signature.

Another letter addressed to Cody Hoebel asked him to tell "everyone that has the ACS tattooed on them that [he] need[s] money, money and stamps." The letter continued, "I got twenty years service in this fuckin' gang." Defendant again mentioned that he was facing the death penalty because of "that slut" Hull and that "[w]ithout her testimony at my trial the State's case is weak." Defendant mentioned ACS and how "[t]he Prosecutor's side of the courtroom was filled with niggers and some press" and that he "look[ed] right at those niggers with [his] mean look."

A fourth letter to Hennessy was intercepted which included the following reference to Hull:

Ready for this? Amanda stated to the Prosecutor at Grand Jury that I called her prior to this alleged incident and said to her that I was going to steal a car. So because of that statement the case is going for the death penalty. Very weak. So hopefully Amanda will decide to retract her statement or go back to live on the west coast and just disappear from the area before my trial. Hopefully she'll just disappear. Without her I don't see how they have a case because their case goes to motive, plus no weapon, some .38 caliber
handgun they swear I had, plus there is no eyewitness.

Defendant also stated he had "seen a few big ass niggers" in the prison, and concluded, "Pete, do you realize that me and you are the oldest ACS. Shit probably the oldest American skinheads."

On June 13, 2006, a grand jury sitting in Atlantic County returned an eleven-count indictment charging defendant with the murder of Cindy Cade as well as related robbery, carjacking and weapons offenses. Defendant was also charged with hindering prosecution and tampering with physical evidence. Numerous motions were filed and several pretrial hearings were held. The trial court decided these motions in three thorough and comprehensive written decisions.

Trial began on January 5, 2009, and continued over seventeen days. The court charged the jury on January 29, 2009, and provided additional instruction on the following day in response to the jury's requests for a "clarification between murder, aggravated manslaughter and reckless manslaughter," and "the difference between robbery and carjacking." On February 2, 2009, the jury found defendant guilty on all eleven counts of the indictment.

On April 3, 2009, defendant was sentenced as follows: (1) a term of life imprisonment without the possibility of parole on count one (knowing and purposeful murder); (2) a term of life imprisonment with an eighty-five percent period of parole ineligibility on count two (felony murder), to be served concurrent with count one; (3) counts three (robbery), four (robbery) and five (robbery) merged with counts one and two; (4) a term of thirty years on count six (carjacking), to be served concurrent with counts one and two; (5) a term of five years on count seven (hindering prosecution), to be served concurrent with counts one and two; (6) count eight (tampering with physical evidence) merged with count seven; (7) a term of fifteen years on count nine (possession of a weapon), to be served consecutive to counts one, two, six and seven; (8) a term of five years on count ten (unlawful possession of a weapon), to be served consecutive to count nine; and (9) a term of life imprisonment with an eighty-five percent period of parole ineligibility on count eleven (felony murder), to be served concurrent with count one. The aggregate term of imprisonment was life without parole and a twenty-year-term consecutive to that.

Defendant raises the following issues on appeal:

POINT I
THE COURT FAILED TO RESTRICT THE ADMISSION OF HIGHLY PREJUDICIAL, CUMULATIVE EVIDENCE ON THE DEFENDANT'S AFFILIATION WITH SKINHEADS, AND FURTHER FAILED TO ISSUE PROMPT LIMITING INSTRUCTIONS AS THE EVIDENCE WAS ADMITTED. (PARTIALLY RAISED BELOW)

A. OTHER CRIME EVIDENCE.
B. EXPERT TESTIMONY.

POINT II

THE DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED WHEN THE COURT DENIED DEFENSE COUNSEL'S REQUEST FOR AN ADDITIONAL PEREMPTORY CHALLENGE.
POINT III

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO CHARGE INTOXICATION.
POINT IV

THE DISCOVERY OF A CRITICAL WITNESS, AMANDA HULL, AND THE INFORMATION OBTAINED FROM HER, SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

A. ATTENUATION DOCTRINE.
B. THE INEVITABLE DISCOVERY DOCTRINE.

POINT V

THE COURT, ON ITS OWN INITIATIVE, SHOULD HAVE DISMISSED THE CHARGES OF FELONY MURDER, ROBBERY AND CARJACKING AS THERE WAS INSUFFICIENT EVIDENCE TO WARRANT CONVICTION. (NOT RAISED BELOW)
POINT VI

THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF LIFE WITHOUT PAROLE WITH A 20 YEAR CONSECUTIVE SENTENCE AS IT VIOLATED THE EX POST FACTO CLAUSE, WAS IN PART ILLEGAL, AND WAS MANIFESTLY EXCESSIVE. (NOT RAISED BELOW)

A. THE SENTENCE VIOLATES THE EX POST FACTO CLAUSE.
B. THE SENTENCE ON COUNT 9 IS ILLEGAL BECAUSE IT EXCEEDS THE SENTENCE RANGE FOR SECOND-DEGREE CRIMES.
C. THE COURT FAILED TO MERGE ALL THE APPROPRIATE COUNTS.
D. THE CONSECUTIVE SENTENCES ON COUNT 9 AND COUNT 10 MUST BE VACATED.


While the State urges that defendant's convictions be affirmed, it concedes that we must remand for resentencing as the fifteen-year term for violating N.J.S.A. 2C:39-4(a) exceeds the maximum permissible term for a second-degree crime and the trial court erred by not merging the convictions for felony murder and purposeful or knowing murder.

II.


A.

In his first point, defendant argues that the court failed to limit the admission of "highly prejudicial, cumulative evidence" regarding defendant's affiliation with skinheads, and failed to issue "prompt" limiting instructions. Specifically, defendant claims that three categories of "potentially prejudicial evidence" were admitted, including: (1) defendant's oral statements; (2) other crime evidence; and (3) testimony of Investigator Raphael Dolce, who was qualified as an expert in gangs, and who explained the ideology and symbolism of white supremacists.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

The trial judge in this case held Rule 104 hearings, and his factual findings from those hearings are also entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009). Our review of the judge's legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith," but is admissible 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." Once it is determined that the evidence of other crimes, wrongs, or acts is material to a genuine disputed fact in the case and that such evidence is necessary, the probative value of the evidence must be balanced against the risk of undue prejudice against the defendant, pursuant to N.J.R.E. 403. State v. Marrero, 148 N.J. 469, 482 (1997); State v. Nance, 148 N.J. 376, 387 (1997).

Although defendant's affiliation with ACS, standing alone, does not constitute criminal activity, the trial court appropriately reviewed such evidence under the heightened standard of review of N.J.R.E. 404(b), because "[s]uch evidence has the potential to 'taint' a defendant in much the same way as evidence of actual criminal conduct." State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). In Goodman, we concluded that evidence of the defendant's membership in a street gang could be admitted only if "the more demanding provisions of N.J.R.E. 404(b), as interpreted in [State v. Cofield, 127 N.J. 328, 338 (1992)], are satisfied." Ibid.

In Cofield, the Court set forth a four-factor test to govern the admissibility of such evidence for those purposes:

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]


"An important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue." State v. Oliver, 133 N.J. 141, 151 (1993). However, unless that other evidence is equally probative as well as being less prejudicial, the other-crime evidence is admissible. State v. Castagna 400 N.J. Super. 164, 181 (App. Div. 2008). "Because other-crimes evidence has a 'unique tendency' to prejudice a jury against the defendant, it must be admitted cautiously." State v. Gillispie, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)).

Whenever evidence is admitted under N.J.R.E. 404(b), the jury must be instructed as to the "limited use of the evidence." Marrero, supra, 148 N.J. at 495. The principle involved is that evidence should not be used to suggest that because the defendant is a person of criminal, or bad character, it is more probable than not that the defendant committed the crime charged. State v. Weeks, 107 N.J. 396, 406 (1987).

The trial court's December 6, 2007 decision on the admission of the 404(b) evidence found that the exhibits revealing defendant's views and associations were relevant as evidence of a possible motive to purposely or knowingly murder the victim. Citing State v. Crumb, 277 N.J. Super. 311, 320 (App. Div. 1994), the court found that the "evidence has the potential to provide a motive 'for an otherwise incomprehensible crime' or elaborate on a 'chain of events forming the context, nature or set up of the crime.'" Id. at 320. In Crumb, the defendant was accused of striking an elderly black man in the head, and kicking and stomping on the fallen victim's face and chest. There was no evidence of robbery as cash was found in the victim's wallet. Ibid. The defendant told a friend that he had beaten up "an old black bum . . . just because he was there . . . ." Id. at 314. In an attempt to prove that the defendant's attack was motivated by racism, the State sought to introduce drawings and writings produced by the defendant that sanctioned white supremacy and contained various racial epithets. Id. at 315-16. The trial court excluded the evidence and we reversed, holding that evidence of a defendant's bigotry was admissible to establish the defendant's motive for randomly attacking an elderly black man:

[S]ome of the written material directly expresses defendant's hostility toward and hatred of black people and his concomitant desire to see them dead. This material is compellingly powerful evidence of a motive which helps to explain an otherwise inexplicable act of random violence. The material also tends to cast doubt on the credibility of defendant's self-serving statement that [the victim] initiated the confrontation by swinging his cane at [the defendant].
[Id. at 317.]


Here, the trial court examined each exhibit the State sought to introduce as direct and indirect examples of defendant's discriminatory views. Some exhibits were found to be more probative than prejudicial, and were ruled admissible to establish either a motive for the selection of the victim, or to support the inference that the killing was intentionally or knowingly committed.

The court indicated that it would limit the evidence showing racial bias to non-cumulative evidence which specifically mentioned African-Americans or violence. The court disallowed some of the more prejudicial photographs, as well as Hull's proffered testimony about defendant beating up an African-American on the street. The court also agreed to specifically instruct the jury on the use of such evidence so as to minimize the possible prejudice.

The court separately addressed three pictures taken from defendant's MySpace page, finding one picture of defendant handling firearms to be admissible, but barring another picture with defendant holding a semi-automatic pistol and cash, as too prejudicial. A third picture of defendant holding a book in one hand and holding a small pistol to his head was also admissible on the ground that it tends to establish defendant's "familiarity and comfort with firearms" and was not sufficiently inflammatory as to warrant exclusion.

On appeal, defendant does not challenge the admission of any individual piece of evidence under the Cofield factors. Instead, he raises three specific objections about the court's failure to "follow through on its stated intentions" to limit the racial evidence to only non-cumulative evidence, and to properly instruct the jury on the use of such evidence at the time the evidence was admitted.

First, defendant argues that evidence of his tattoos, as well as drawings and several letters indicating ACS membership, were "superfluous" and should have been "strictly limited, if admitted at all," because defendant did not dispute his membership in ACS. Although defendant did not dispute his membership in ACS, the State had the burden of proving that defendant knowingly murdered a complete stranger after earlier expressing a plan to his former girlfriend to steal a car at gunpoint. Defendant's membership in, and adherence to the beliefs of ACS, was probative evidence to establish motive for the selection of this particular victim, who was African-American, and unknown to defendant, prior to the shooting. It was also probative as to how a planned carjacking escalated to murder.

Defense counsel made no objection to the introduction of redacted copies of defendant's drawings or the letters defendant wrote from prison. The letters, which were written subsequent to the offense, were admissible only if they were probative of guilt. State v. Mann, 132 N.J. 410, 418 (1993). Here, a jury could find that the letters demonstrated that defendant was aware that Hull's testimony would be very damaging at trial, and he wrote them to urge his ACS associates to keep her from testifying.

Defendant also argues that he was denied a fair trial because the court issued only one limiting instruction during Hull's testimony, and did not repeat the instruction until the final charge, when it attempted to address all the inflammatory evidence at one time. The court issued the first of the two limiting instructions after Hull concluded her direct testimony:

Now, in this case the State has now introduced evidence that the defendant is either a member of a skinhead group or that he ascribes to the beliefs or views or opinions of such a group, in particular racial bias against African Americans. Now, understand that this evidence is being offered for a very limited purpose. Normally such evidence is not permitted under our rules when it is offered to show that a person is simply one of bad character and therefore may have a tendency to commit crimes more than others might have that tendency; that is not the purpose for which this evidence is being allowed.
In this case the evidence that the defendant holds such skinhead views or philosophy or opinions, and in particular racial bias against people of African decent [sic] is offered for you for the limited purpose of proving a possible motive, motive; that is, a reason for the defendant to have selected Cindy Cade as a victim and/or a motive for killing her.
Whether the evidence does in fact demonstrate that he held such views [or] that he may have such a motive is for you to decide. You may decide that the evidence does not demonstrate a motive and is not helpful to you at all, in that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate a motive, and may use it for that purpose; however, you may not use this evidence to decide that defendant has a tendency to commit crimes, or that he is a bad person; that is, you may not decide that just because the defendant is a skinhead or ascribes to skinhead beliefs that he must have committed the crimes.
I have admitted the evidence only to help you decide the specific question of whether he had a reason, that is, a motive to commit the homicide.


The second instruction came during the jury charge:

Now, the State has introduced evidence--and this is a limiting instruction, okay--the State has introduced evidence that the defendant is a member or associate of a skinhead group or organization, or holds similar briefs [sic] expressed by such groups or organizations. Now, I'll remind you, as I told you during the trial, that normally such evidence is not permitted under our rules. Our rules specifically include--exclude such evidence when it is offered only to show that a person has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied that the defendant did hold such beliefs or views; if you are not so satisfied, you may not consider it for any purpose.
In this case evidence that the defendant holds so-called skinhead views and in particular racial bias against people of African de[s]cent is offered for the limited purpose of proving a motive for the defendant to have selected Cindy Cade as a victim and/or motive for killing her. Whether this evidence does in fact demonstrate a motive is for you to decide. You may decide that the evidence does not demonstrate a motive and is not helpful to you at all; in that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate a motive and use it for that specific purpose. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person;
that is you may not decide just because the defendant is a skinhead or ascribes to skinhead beliefs that he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific question of motive. You may not consider it for any other purpose.
Similarly, there has been evidence in this case--again now this is another limiting instruction--there has been evidence in this case in the form of photographs posted on the defendant's alleged MySpace website depicting him holding or handling firearms. This evidence is not offered as evidence of a defendant's prior wrongdoing or criminal conduct, and it is not evidence from which you can infer that the defendant had a disposition or tendency to do wrong, in special regard to the unlawful possession or use of firearms, or that he would have a tendency to commit the crimes specifically charged in this indictment. This evidence has been admitted for you for your consideration of the defendant's familiarity with the use or handling of firearm[s]; simply that and nothing more. It is for that limited purpose that you may make use of such evidence and not for any other.

Defendant's counsel raised no objection to the charge at trial, and here does not object to the substance of the two limiting instructions. Rather, he claims that these instructions were not issued promptly at the time the evidence was admitted.

Defendant's counsel agreed with the prosecutor that the court failed to charge the jury as to one count and made two minor errors in the facts. It is not disputed that the court corrected these errors.

When other-crime evidence is admitted, "the court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41. Because of the inherently prejudicial nature of other-crime evidence, the court's instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Id. at 341.

We are satisfied that the limiting instructions given at the conclusion of Hull's testimony and again during the jury charge were sufficient to advise the jury as to the proper use of the other-crime evidence and the failure of the trial court to repeat this instruction each time other-crime evidence was introduced was not "clearly capable of producing an unjust result." Ibid. Given the evidence of defendant's guilt, independent of the other-crime evidence, that evidence, "did not tip the scales in the jury's deliberations." Marrero, supra, 148 N.J. at 497.

Defendant also objects to the expert testimony offered by Investigator Dolce as unnecessary because he claims the majority of the jurors indicated during voir dire that "they were familiar with the racism espoused by skinheads and white supremacists." A close review of the record reveals that a few jurors expressed a vague familiarity with white supremacists and their beliefs. One juror indicated that his knowledge of skinheads came through what he saw on television. When the judge asked him if he knew anything about their particular beliefs or followings, he replied that he did not. Another juror had a similar response and said that her knowledge was limited to what she had seen on television or in the movies. A third juror did not know anything about what skinheads stood for or believed in.

"The necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony, are judgments within the discretion of the trial court." State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). If the subject matter is one which the average juror might not be sufficiently familiar with and testimony from an expert would be beneficial, then the expert opinion is admissible if the proposed expert witness is "adequately qualified and possess[es] sufficient knowledge and experience to express an opinion and explain its basis to the jury." State v. Berry, 140 N.J. 280, 293 (1995).

The jurors' responses during voir dire indicated that some were familiar with the practices and beliefs of skinheads while others had no knowledge of them or only information derived from television or movies. It cannot be said that this is a subject generally known by persons of ordinary understanding. Thus "the opinion of a duly-qualified expert may be presented to a jury if it will genuinely assist the jury in comprehending the evidence and determining issues of fact." State v. Odom, 116 N.J. 65, 70 (1989) .

After being qualified as an expert in "gang investigation," Dolce gave extensive testimony about how white supremacists "engage in specific targeted acts of violence against minorities" and believe that African-Americans should be "just wiped off the face of the earth." Dolce testified that members of ACS in particular believe that "African-Americans . . . don't have a place on this earth and that they should be removed from this planet." Based on defendant's letters, drawings and tattoos, Dolce offered the opinion the defendant was a member of ACS. Dolce then testified that members of ACS are prone to violence against minorities as part of that membership.

While this testimony was prejudicial, it was relevant in understanding the two common themes contained in defendant's prison letters. First, defendant claimed he was facing the death penalty because of Hull's testimony and without her testimony the State's case would be weak. Second, he was a longtime member of ACS and clearly felt the other members should help him with his problem. In one letter, defendant expressed a desire that Hull "retract her statement" or "go back to Washington State and not testify at all." In another, he expressed hope that Hull "go back to the west coast and just disappear from the area before my trial."

B.

Defendant next argues that his right to a fair and impartial jury was violated when his counsel's request for an additional peremptory challenge was denied. Defendant maintains that granting the additional peremptory challenge would have required the court to qualify another panel and thus the court's decision was "motivated solely by a desire to expedite trial at the sacrifice of the defendant's fundamental rights." Defendant argues that he was forced to use his peremptory challenges for three jurors that should have been excused for cause and that four of the remaining jurors demonstrated a "potential for bias."

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant "the right to . . . trial by an impartial jury." That right is "of exceptional significance," as "[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). Accordingly, "a defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." Ibid.

In an effort to obtain a jury that is "as nearly impartial 'as the lot of humanity will admit,'" State v. Singletary, 80 N.J. 55, 62 (1979) (quoting State v. Jackson, 43 N.J. 148, 158 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)), our jury-selection process provides for peremptory challenges and challenges for cause. N.J.S.A. 2B:23-11 and R. 1:8-3(b) (challenges for cause); N.J.S.A. 2B:23-13; R. 1:8-3(d) (peremptory challenges). "Challenges for cause are based upon proof of legally cognizable grounds of a potential juror's partiality." State v. Tinnes, 379 N.J. Super. 179, 185 (App. Div. 2005). "Trial courts possess considerable discretion in determining the qualifications of prospective jurors." State v. DiFrisco, 137 N.J. 434, 459 (1994).

"Probing inquiries are essential in uncovering hidden biases." State v. Williams, 113 N.J. 393, 424 (1988). However, "[n]o hard-and-fast rules exist to determine whether the removal for cause was proper." DiFrisco, supra, 137 N.J. at 460. The decision is left to the trial court's sound discretion based upon its consideration of the prospective juror's voir dire. Ibid. "[F]or the forced expenditure of a peremptory challenge to constitute reversible error under New Jersey law, a defendant must demonstrate that a juror who was partial sat as a result of the defendant's exhaustion of peremptories." Id. at 470.

To prove such error a defendant must show: (1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.
[Id. at 471.]

See also
, Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278, 101 L. Ed. 2d 80, 90 (1988) ("So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.").

On appeal, defendant claims that three jurors should have been removed for cause: (1) E.K., a corrections officer; (2) M.G., whose mother worked with the victim's husband; and (3) D.J., who knew relatives of Hull, and had attended parties with and knew a member of the prosecutor's staff who was assisting at trial. Defense counsel used peremptory challenges to remove these prospective jurors.

Defendant claims that the following seated jurors demonstrated the potential for bias: (1) D.T., who admitted reading about the case and characterized the crime as "horrific"; (2) J.C., who was ultimately excused during trial because of travel plans but indicated that he thought "an accused person would want to testify to defend himself"; (3) E. L., who read a newspaper article about the case during jury selection; and (4) U.P., who was married to a corrections officer. Defendant made no objection to these four jurors at the time the jury was constituted. In addition, as the following context reveals, defendant has not demonstrated that they could not be fair and impartial.

When D.T. was asked what she recalled reading about the case, she responded, "there was an incident near the movie theater and the woman was killed." When asked what she recalled about "someone being arrested," she could only remember something about "the person" being from Florida. When asked about her reaction when she first heard the judge explain the charges against defendant, D.T. responded that she "didn't have too much reaction except it was a horrific crime and he broke my memory [sic] when I read this in paper." D.T. also indicated that there was nothing about the "nature of the charge itself" that would interfere with her impartiality, she had no preconceived opinion of guilt or innocence, and she had "[n]o negative, no positive" thoughts about defendant's ties to "a so-called 'skinhead' group."

When asked what he thought of the principle of law that allows a defendant to remain silent, J.C. responded "Urn, that is his decision. It's a hard decision not to want to say anything, defend themself -- or themselves." The judge then asked whether he would "draw any negative conclusion about it" and J.C. responded "I don't think so." At sidebar, the prosecutor asked to strike the juror because of his response to a different question and defense counsel stated only that he agreed with the judge that the juror just misunderstood the question. Counsel made no objection based on the remark now raised on appeal. After the misunderstanding was resolved, defense counsel made no objection to the juror. Ultimately, J.C. was excused during the trial because of travel plans and was not involved in the jury's deliberations.

E.L. admitted seeing an article about the case in the January 6, 2009 newspaper and reading the article despite the judge's instruction not to read it. She claimed to be "surprised it was in there" and it was the first time she read anything about the case. She did not "pay that much attention" to the news about it when the incident actually happened. When asked whether the article created any feeling or belief about the case, E.L. responded "No, it didn't because I didn't see it happen." She claimed she was "a believer in believing that I only believe things that I actually see." As a juror, E.L. said she would "have to be convinced" and she agreed to follow the court's instruction to refrain from reading articles about the case if selected. E.L. also testified that it did not bother her to be a juror on a "murder case," and she would not "hold it against him" if defendant chose not to testify. Defense counsel had no questions at the end of E.L.'s voir dire.

U.P. reported that her husband had recently taken a job as a corrections officer in Cumberland County. When asked if she had any views or opinions about people accused of a crime because of her husband's work, U.P. responded, "No, I don't think so." She was "[s]hocked" when she heard it was a murder case but it would not affect her ability to be fair because "you just take it more seriously." U.P. only knew of "skinhead" groups from the movies that showed "they're bad people" but she did not think that would affect her ability to "remain impartial and objective" in deciding defendant's guilt or innocence in this case. She also indicated that she was a "pretty fair person." Defense counsel had no comment or question at the end of her voir dire.

We discern no error or mistaken exercise of discretion. The judge conducted the appropriate inquiry and received assurances that each juror would fairly and impartially hear and weigh the evidence. In addition, we find no error in the court's refusal to grant defendant an extra peremptory challenge.

C.

Although acknowledging that the defense advanced the theory of misidentification, not intoxication, at trial, defendant next claims that the court erred in denying his request to charge intoxication based on witness testimony describing defendant's "heavy drinking and use of drugs shortly before the crime."

At the charge conference on January 28, 2009, defense counsel argued that an intoxication charge was warranted based on the witness testimony about defendant's drinking and drug use in the early morning hours of December 16, 2005, as well as Hull's testimony that defendant sounded intoxicated when they spoke and that he was more often than not intoxicated. The prosecutor objected because: (1) no notice of the defense was submitted in advance; (2) no expert testimony was proffered; (3) no discovery was provided on the defense; (4) no questions were asked of the jury panel regarding the defense; and (5) voluntary intoxication is not an affirmative defense but only relevant if there is evidence "that it resulted in a prostration of faculties," which was not present in this case.

The court ruled that the evidence of defendant's intoxication

would not support a reasonable or rational inference that he was so greatly intoxicated that he was--his faculties were prostrated to the extent he could not form the requisite intent to commit the crimes charged. . . . It is a defense, which requires sufficient proof to negative [sic] an element of the offenses charged in this case, purposeful or knowing by all the evidence or from all the evidence in this case. It is a fair, if not compelling, inference that the Defendant acted with a plan. That he said what he was going to do. He embarked upon doing it. He exhibited consciousness of guilt and concern for his welfare by fleeing, by staying in hiding for the time that he did. . . . I don't find that a rational jury would have the basis to make such a finding. So I will not give intoxication as a defense.


"Under N.J.S.A. 2C:2-8(a) self-induced intoxication is a defense to a purposeful or knowing crime." State v. Mauricio, 117 N.J. 402, 418 (1990). "Self-induced intoxication can reduce the offense of purposeful or knowing murder to manslaughter or aggravated manslaughter." Ibid. Intoxication is defined as "a disturbance of mental or physical capacities resulting from the introduction of substances into the body." See N.J.S.A. 2C:2-8(e). "[A] jury issue arises only if there exists a rational basis for the conclusion that defendant's 'faculties' were so 'prostrated' that he or she was incapable of forming an intent to commit the crime." Mauricio, supra, at 418-19.

Thus, in order to be entitled to present an intoxication defense to the jury, "the intoxication must be of an extremely high level." State v. Cameron, 104 N.J. 42, 54 (1986). Among the pertinent factors that the fact-finder should consider are:

[T]he quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.
[Id. at 56.]


Even viewing the evidence in the light most favorable to defendant, there is insufficient evidence on this record to show that defendant was so intoxicated as to prevent him from being able to form the requisite intent to knowingly commit murder. First, Hull testified that she did not take defendant's phone call about stealing a car and picking her up seriously because she "just thought it was him being drunk" and because he was "always drunk." However, she also testified that she was not sure if defendant was drunk when he called and he spoke clearly enough for her to understand everything he said. Hull did not recall telling police that he "sounded slurred."

Joseph Soltz testified that he and defendant had "a few beers" in the early morning hours and he admitted giving defendant cocaine, an unopened bottle of rum and possibly Xanax earlier that night. James McDowell testified that he, defendant and Soltz "drank some beer, did a couple lines" in the early morning hours as well. In her initial statement to police, Marissa Soltz testified that she saw defendant in Peter Hennessy's trailer "drinking Captain Morgan" at around 9:00 or 10:00 a.m. on the morning of the shooting.

However, there is nothing in the record as to the quantity of alcohol or amount of drugs defendant consumed in the hours leading up to the shooting or whether defendant appeared to be intoxicated or under the influence. The eyewitnesses to the shooting did not make any mention of defendant staggering or having any problems with his coordination as he approached the car, or later, as he fled. Nor did the witnesses at the Wawa observe any noticeable problem with defendant's coordination or balance. It is also evident that defendant's faculties were intact enough for him to call Hull, attempt to steal a car, flee, hide the gun, and evade detection for several hours while more than one hundred police officers searched the area for him.

On the record before us, there is insufficient evidence to determine that defendant was intoxicated to the degree necessary so as to be incapable of forming the requisite intent to commit the crime of purposeful or knowing murder. We are satisfied that the trial court did not err in refusing to charge the jury on voluntary intoxication.

D.

Defendant next argues that the evidence police obtained from Amanda Hull should have been suppressed as "fruit of the poisonous tree," because police continued questioning defendant after his limited invocation of the right to silence. While defendant's statements to police after he invoked his right to remain silent were suppressed, the court ruled that defendant's statement about Hull and her contact information was an exception. On appeal, defendant maintains that the court erred in ruling that the evidence obtained from Hull could be admitted under the attenuation doctrine and the inevitable discovery doctrine.

During a pretrial hearing on defendant's motion to suppress his statements made to police, Sergeant Michael J. Quigley testified that he learned that defendant had been arrested in the woods near the Inland Estates trailer park at around 3:50 p.m. on December 16, 2005. Defendant was brought to police headquarters and Quigley read defendant his Miranda rights at 4:08 p.m. Defendant signed a card indicating that he understood his rights and was willing to speak with police. Defendant's initial statements to police were suppressed by the court because defendant had made a limited invocation of his right to remain silent. The court ruled that it was improper for the police to continue questioning defendant after he said he would "talk about anything but the incident." Defendant described the "incident" as "[l]ike what happened today where the woman was killed."

Within ten to twenty minutes after going over the Miranda rights card and talking about "different things," defendant made an unprompted inquiry about his girlfriend. He told the officers he wanted to make sure his girlfriend was okay and he wanted to talk to her. Quigley had not asked about a girlfriend or asked any question that "could have triggered" information about a girlfriend. Defendant identified his girlfriend as Amanda Hull, gave police her phone number, and stated that he wanted to "get in touch" with her and tell her what was going on before she heard it "from some other source." After telling defendant that he would not be able to talk to Hull on the phone, Quigley offered to contact Hull on defendant's behalf. Defendant indicated that he "was okay with that." Quigley assigned Detective Graham to contact Hull using the phone number provided by defendant.

Graham and Investigator Gorski interviewed Hull in person that night and again the next morning. Defendant was appreciative at first and thanked Quigley for contacting Hull. After defendant expressed doubt that they had actually contacted Hull, Quigley played part of Hull's taped statement where she identified herself.

When asked about his "law enforcement training and experience" prior to joining the prosecutor's office, Quigley explained that he had become "very knowledgeable in skinheads." He had also been contacted by other agencies because of his "specialization in dealing with skinhead activity." Quigley recognized defendant's name from his experience with skinheads and their associates and knew that he was affiliated with ACS from prior contact.

Quigley maintained that the police would have eventually found Hull even if defendant had not told them about her because they would have contacted other law enforcement agencies about skinhead activity. It was "common practice" to get information from other agencies "on the subject and associates, friends, employment, anything." Quigley had been aware of defendant's "skinhead affiliation or involvement independent of and without regard to any information learned from Amanda Hull."

During his investigation into skinhead activities, Quigley obtained a report of a knife fight that occurred on November 20, 2005, about a month before the incident. The fight occurred at the Murray Avenue address in Atlantic City where Hull resided.

Quigley also testified that he searched a database to find people associated with defendant, and learned that defendant had been working as a "house mover" for Hull's uncle, Steven Hauk, and that Hull also worked for Hauk. Hauk's son and Hull's cousin, Steven Hauk, Jr., also worked there and lived at the Murray Avenue location with Hull. Therefore, Quigley concluded that he would have discovered Hull's identity eventually.

Through his investigation of ACS, Quigley also learned the identity of James McDowell from a report referencing skinheads and white supremacists prepared by an investigator with the New Jersey Division of Fish and Wildlife.

McDowell testified before the grand jury on March 21, 2006, about a letter he received from defendant referring to Hull as his girlfriend and talking about his concern that she "turned state's on [defendant]." The letter mentioned that McDowell had met Hull "that snowy morning" and Quigley claimed he would have found out who Hull was from questioning McDowell, if defendant had not provided that information before.

Quigley also testified that he would have discovered Hull's identity as a result of the investigation that would have followed the statements he obtained from other witnesses. Specifically, Joseph Soltz, who was with defendant a few hours before the shooting, and who socialized with defendant on several occasions, told Quigley that he and defendant had talked about defendant's girlfriend the night before. If defendant had not provided Hull's name, Quigley would have explored the subject of defendant's girlfriend further with Soltz.

Quigley also testified that he would have learned Hull's identity through questioning Soltz's sister, Marissa, who was the girlfriend of Pete Hennessy, another member of ACS. Hennessy and Cody Hoebel lived in the trailer in Mays Landing frequented by defendant and Marissa.

Hull had also told police about defendant's MySpace page. At the request of defendant's counsel, Quigley did an on-line search and found two news reports showing the same photographs from defendant's MySpace page that police had acquired through Hull's information. Quigley testified that had defendant not provided Hull's name, police would have eventually found the MySpace page and pictures contained therein.

When Hull first met with the police, she voluntarily provided information to them and was clear that she was no longer involved with defendant. Graham and Gorski met with Hull again on December 17, 2005. They picked her up at her home and, on route to the prosecutor's office in Mays Landing, Hull mentioned that one of defendant's friends lived in a trailer park right off Route 322. Because Hull was reluctant to be seen identifying the trailer, the officers returned later in an unmarked vehicle with tinted windows and Hull pointed out Hennessy's trailer where she and defendant had stayed.

Hull agreed to access her phone records online to verify the time of defendant's calls the day before. Hull also told Graham about defendant's MySpace page. Hull gave a second taped statement about the phone calls and the MySpace page pictures.

In a thorough nine-page letter opinion, the trial court denied defendant's motion to suppress the statements made to police concerning Hull. The "exact substance" of the statement at issue was "singularly the identification of his girlfriend and how she may be contacted," which the court noted was not incriminating by itself and did not "appear to have been made in response to a direct question or remark intended to [elicit] an incriminating statement." The court explained,

[w]hen you combine that fact together with the character of the interaction of the
defendant with investigators during which he proclaimed his intellectual superiority to theirs and that he could verbally parry with them all day, the entire context of the interrogation invites application of the Attenuation Doctrine.

The court also found clear and convincing evidence that "the evidence provided by Amanda Hull would have been obtained independent of the information received from the defendant by any one or more of the avenues suggested by Sgt. Quigley" and that the MySpace website would have been discovered independent of Hull. Given Hull's "effusive" cooperation, the court found that there was no evidence that she would have been any less cooperative had she been contacted a week or month later.

"Confessions obtained in violation of a defendant's constitutional rights are excluded at trial." State v. Johnson, 120 N.J. 263, 286 (1990). "The purpose of the exclusionary rule is to deter police misconduct and to preserve the integrity of the courts." State v. Johnson, 118 N.J. 639, 651 (1990). "[I]llegally-seized evidence is excluded whether it is obtained directly or indirectly." Id. at 652. "Indirectly-obtained evidence is excluded as 'the fruit of the poisonous tree.'" Ibid. (quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963)).

"[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes 'so attenuated as to dissipate the taint' from the unlawful conduct." State v. Badessa, 185 N.J. 303, 311 (2005) (quoting Murray v. United States, 487 U.S. 533, 536-37, 108 S. Ct. 2529, 2533, 101 L. Ed. 2d 472, 480 (1988) (additional citations and internal citations omitted)). "In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, [the courts] look to three factors: '(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct.'" State v. Williams, 192 N.J. 1, 15 (2007) (quoting Johnson, supra, 118 N.J. at 653); accord Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975).

In its decision, the trial court distinguished its earlier ruling suppressing defendant's statements from the statement providing the contact information about Hull because "the time at which defendant offered information about Amanda Hull was only 15-20 minutes into the process and at a point when approximately 90% of the interrogation had yet to occur." The court was persuaded that the "temporal proximity factor" was satisfied because "defendant was never affected by what this Court subsequently found was a violation by police." However, this information was "volunteered" after defendant refused to talk about "the incident," which the court interpreted as a invocation of his right to remain silent. As such, the custodial interrogation should have ceased.

As for the second factor, the court found that defendant's conduct in volunteering the name and contact information for Hull for "purposes of his own" could be an intervening circumstance also "favorable to the State in establishing the inevitable discovery of the challenged evidence." We agree.

A statement can be found to break the "causal chain" after a Fourth Amendment violation, if it is "sufficiently an act of free will to purge the primary taint." Brown v. Illinois, supra, 422 U.S. at 602, 95 S. Ct. at 2261, 45 L. Ed. 2d at 426. Here, Quigley testified that defendant asked about contacting his girlfriend to "make sure she was okay" and that it was not in response to any type of question about a girlfriend. Defendant identified his girlfriend as Amanda Hull, gave her phone number to the officers, and stated that he wanted to "get in touch" with her and tell her what was going on before she heard it "from some other source." Defendant agreed to have police contact Hull on his behalf.

As for the third factor, the court found no "flagrant or egregious conduct on the part of the police" and the "early" disclosure was "not a product of coercion, persistence, or unrelenting exposure to police interrogation." Defendant challenges this point as well, claiming only that "the detectives acted volitionally, not by inadvertence or accident."

The court ruled that "the totality of circumstances in this case satisfy the three prongs of the Attenuation Doctrine" and the challenged evidence was found to be admissible. Although there was no break in time between the police action in continuing to question defendant after his limited invocation of his right to remain silent and the statements identifying Hull, temporal proximity has been found to be "the least determinative" factor. State v. Worlock, 117 N.J. 596, 622-23 (1990). The court found that defendant made a voluntary request that police contact Hull before she found out about his arrest from other sources and that this constituted a sufficient intervening circumstance so as to attenuate it from the other statements made after defendant's invocation of his right to remain silent. We are satisfied that these conclusions find ample support in the record and that defendant's request that the police contact Hull was "sufficiently an act of free will to purge the primary taint." State v. Brown, 205 N.J. 133, 149 (2011) (citations omitted).

We also agree that under the inevitable discovery doctrine, the information would have ultimately or inevitably been discovered by lawful means. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387-88 (1984). For the purposes of the inevitable discovery doctrine, the State must show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[State v. Sugar, 100 N.J. 214, 238 (1985).]

"However, the State is not required to show the precise circumstances under which the evidence would have been discovered." State v. Finesmith, 406 N.J. Super. 510, 522 (App. Div. 2009). Rather,
[t]o establish the inevitability of discovery of evidence, the State need not demonstrate the exact circumstances of the evidence's discovery. It need not establish the exclusive path leading to the discovery . . . . It may [satisfy its burden] by demonstrating that such discovery would occur in one or in several ways. A number of possibilities may cumulatively constitute clear and convincing evidence that the evidence would be discovered.
[Id. at 523 (quoting State v. Sugar, 108 N.J. 151, 158-59 (1987)).]


On appeal, defendant maintains that "all of the proffered avenues of investigation are grounded in speculation" and police would not have "discovered" Hull without defendant's "disclosures during the unlawful interrogation." Specifically, defendant argues that his "previous under-the-table work would have been extremely hard, if not impossible, to find," the police report about the fight at Hull's residence was obtained to corroborate Hull's information and did not contain defendant's name, and there was "no written information" about defendant's affiliation with the ACS prior to the shooting. Defendant's argument oversimplifies the evidence and is without merit.

The trial court was persuaded by Quigley's testimony regarding the "myriad of ways" that investigators would have discovered and interviewed Hull, and, given Hull's cooperation, the timing of the discovery was immaterial. The record supports this finding.

Specifically, Quigley testified that he "recognized" defendant's name and knew of his association with ACS. As a "common practice," Quigley would have contacted other police agencies about "skinhead activity" and, in fact, one such contact produced the report of a fight with a knife that occurred at Hull's residence about a month before the shooting. Quigley also described his method of finding information about employment and that he found defendant's current employer, Hauk. Hauk, who was Hull's uncle, also employed Hull and Hull's cousin, who both lived at the Murray Avenue apartment where the fight had occurred a month earlier. Finally, Quigley testified that his investigation would have led him to McDowell, who received a letter from defendant mentioning Hull; and to both Joseph and Marissa Soltz, who both knew Hull and had been with defendant the night before and morning of the shooting.

The court's findings that defendant's statement to police about Hull and the contact information he provided were sufficiently attenuated from the improper questioning, and that Hull's identity would have inevitably been discovered through other means, are adequately supported by the record. The trial court properly denied defendant's motion to suppress the identity of Hull and any evidence derived from her interviews.

E.

Although not raised below, defendant maintains that the court should have dismissed the charges of felony murder, robbery, and carjacking on its own motion, as there was insufficient evidence to support the convictions. He claims the "sole basis" for those charges was Hull's statement that defendant told her shortly before the crime that he was going to steal a car and that the eyewitness testimony did not support the charges of robbery or carjacking.

Under Rule 3:18-1, at the close of the State's case or after all evidence has been given, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." The general test applied when determining the sufficiency of evidence is whether, viewing the State's direct or circumstantial evidence in its entirety, and after affording the State the benefit of all favorable inferences that reasonably could be drawn therefrom, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). "On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978).

Under the standard of review on appeal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). "The approach is the same whether the evidence is direct or circumstantial" and our review is "limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its duty." Ibid.

Giving the State the benefit of all favorable inferences as required on a motion for judgment of acquittal, the trial court did not err in failing, sua sponte, to enter a judgment of acquittal or dismissal of the felony murder, robbery and carjacking charges. Defendant was charged with robbery, in violation of N.J.S.A. 2C:15-1; carjacking, in violation of N.J.S.A. 2C:15-2(a)(1); and felony murder, in violation of N.J.S.A. 2C:11-3(a)(3). A person is guilty of robbery if he "[i]nflicts bodily injury or uses force upon another" in the course of committing a theft, see N.J.S.A. 2C:15-1(a)(1), and carjacking if he "inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle" in the course of committing an unlawful taking of a motor vehicle. N.J.S.A. 2C:15-2(a)(1). A person is guilty of felony murder if a person causes the death of a person while "engaged in the commission of, or an attempt to commit, . . . robbery, . . . [or] carjacking." N.J.S.A. 2C:11-3(a)(3).

Here, there was sufficient evidence in the record for a jury to convict defendant, based not only on the testimony of Hull, but also on the two eyewitnesses to the shooting, and the two witnesses from the Wawa. Specifically, Hull testified that defendant had called her between 11:00 a.m. and 12:00 p.m., shortly before the shooting, and said he had a gun and bullets, and was going to steal a car so he could pick her up. Defendant had previously told Hull that Hennessy had a gun that he had access to.

Austin testified that defendant, "in a very loud voice," "demanded [the victim] to get back into her car." He "physically pushed her back in, and then he was over top of her and shot her and then he lingered over her for a little bit. And then he got out." Austin also mentioned that the shooter was "looking like he was, uhm, fixing or looking or just rummaging, . . . over her."

Several police witnesses testified that the victim's car keys were hidden from view by the position of the body and the victim's large coat; they were only found on the floor of the car after the body was removed. The jury could infer from such testimony that defendant was searching for the keys in an attempt to steal the car as he "lingered" over the body before ultimately deciding to flee.

Further, Marissa Soltz testified that defendant had been wearing "camo pants and a green shirt" when she left the trailer that morning. Several witnesses reported seeing a male dressed in camouflage around the time of the shooting. Eddis testified that he saw a white male in camouflage and either a hat or hood run past his car around 11:30 a.m., and then saw the same man run through the woods in the direction of the trailer park where Hull and other witnesses testified defendant often stayed with Hoebel and Hennessy. Torres described seeing a white male in a green "hoodie" and camouflage pants try to open the door of another Wawa employee's car as he walked by it before crossing the street in the direction of the movie theater. Torres saw the same man around fifteen minutes later "running really fast . . . out of nowhere across the pike without looking" and "run right into the trailer park that's next to our store." The State also presented a surveillance tape showing a male in a dark "hoodie" and dark pants come out of the tree line area and turn towards the vehicle door before walking away. Defendant was wearing a dark shirt, a green hooded sweatshirt, and camouflage pants when he was arrested.

We find no merit to defendant's argument that the "sole basis" for the felony murder, robbery, and carjacking charges was Hull's testimony that defendant said he was going to steal a car, and that the eyewitness testimony "did not coincide" with that alleged intention. There is sufficient evidence on this record for the jury to determine that defendant was guilty of the crimes and thus, the court did not err in failing to dismiss the felony murder, robbery, and carjacking charges on its own motion.

F.

Finally, defendant argues that the aggregate sentence imposed violates the Ex Post Facto Clause of the United States and New Jersey Constitutions, it is "in part illegal," and it is "manifestly excessive." Defendant also claims that the sentence on count nine was illegal because it exceeds the range for second-degree crimes, the court failed to merge all appropriate counts, and the consecutive sentences on counts nine and ten must be vacated.

The State concedes that a limited remand for resentencing on counts two through eleven is necessary because defendant's sentence on count nine exceeds the maximum permissible term for a second-degree crime, and because the court erred by not merging the felony murder conviction with the conviction for purposeful or knowing murder. Therefore, we need only review the life sentence imposed on count one for the first-degree murder charge. The State maintains that a life sentence without the possibility of parole was appropriate.

Defendant argues that the sentence of life without parole violates the Ex Post Facto Clauses of the Federal and State Constitutions because "[n]o separate penalty phase proceeding was conducted." During the trial, the prosecutor raised the issue of whether a separate penalty phase was needed since "this is a post abolition of capital punishment case and there's the availability of life without parole provision in the event that the jury finds purposeful and knowing murder." As the court started to explain why it thought the second proceeding was not necessary, defendant's counsel interrupted and the following colloquy took place:

[Defense Counsel]: Okay. I misunderstood because I thought what we discussed was we would go, but would not be any mitigation to be presented.
THE COURT: There is no mitigation to be presented?
[Defense Counsel]: Right. I understand.
THE COURT: I don't see the point of telling the jury anything about this. The felony murder is a count in the indictment if they find guilt on that and guilty of purposeful murder by his own conduct, the questions are answered.

Defense counsel made no further comment or objection. The court then ruled that as a consequence of defendant's conviction on felony murder, N.J.S.A. 2C:11-3 mandated that he be sentenced to life imprisonment without the possibility of parole.

The murder was committed in 2005, when the Criminal Code allowed for the imposition of certain sentences for those convicted of murder, including the death sentence. At that time, N.J.S.A. 2C:11-3(c)(1) (2005) provided that:

Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in subsection c. of this section by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced 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.

Under the 2005 statute, the court was required to conduct a separate sentencing proceeding to determine whether the death sentence should be imposed. In addition, the statute provided that the judge or jury must determine whether the State has proven that any aggravating factor exists, and whether the factor or factors outweighs any one or more mitigating factors beyond a reasonable doubt:
(a) If the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating
factors, the court shall sentence the defendant to death.
(b) If the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection b.
(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
[N.J.S.A. 2C:11-3(c)(3) (2005).]


On December 17, 2007, while defendant's trial was pending, the Legislature repealed the death penalty and replaced it with a sentence of life without the possibility of parole if certain aggravating factors were present. L. 2007, c. 204 (codified as the current version of N.J.S.A. 2C:11-3). The current version of N.J.S.A. 2C:11-3 provides for life imprisonment without parole "in all murder cases which previously would have been eligible for the death penalty and where the jury finds beyond a reasonable doubt that any of a number of aggravating factors exists." Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:11-3 (2012). "The aggravating factors triggering a sentence of life without parole under subsection b(4) are identical to the aggravating factors that a jury could have considered under the prior death penalty provisions." Ibid.

In addition to deleting the provisions allowing for a death sentence, L. 2007, c. 204 eliminated the provisions on mitigating factors and on a separate sentencing proceeding. N.J.S.A. 2C:11-3 simply provides for a sentence of life imprisonment without eligibility for parole "if a jury finds beyond a reasonable doubt that any of the following aggravating factors exist," including that "[t]he murder was committed while the defendant was engaged in the commission of, or an attempt to commit, . . . robbery, . . . [or] carjacking . . . ." N.J.S.A. 2C:11-3(b)(4)(g).

In finding defendant guilty of not only first-degree murder, but also robbery and carjacking, the jury clearly found that the State had proven at least two of the aggravating factors beyond a reasonable doubt.

In State v. Baylor, 423 N.J. Super. 578 (App. Div. 2011), certif. denied, 210 N.J. 263 (2012), a defendant shot and killed four people during the course of a robbery. Id. at 584. The murders took place in 2005 when the death penalty was permissible but the defendant came to trial in 2008, after its repeal. The defendant was found guilty on four counts of first-degree murder and other offenses following a jury trial. Id. at 586. The trial court imposed four consecutive life sentences, without the possibility of parole. Ibid.

On appeal, the defendant claimed that the sentences violated ex post facto principles. Id. at 596. We affirmed the sentences, noting that the law in effect in 2005 provided that a person convicted of murder shall be sentenced to life without parole if the jury finds at least one aggravating factor, regardless of any mitigating factors. Id. at 597. The jury in Baylor found that the State had proven beyond a reasonable doubt that the defendant committed each murder while engaged in the commission of or attempt of the other murders and while engaging in a robbery, which were aggravating factors under the law in effect in 2005. Ibid. As a result, the imposition of the four consecutive life sentences was not an ex post facto punishment. Id. at 598. The same reasoning applies here.

Defendant submitted a supplemental letter brief bringing Baylor to our attention but stated only that he disagrees with the holding.
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Defendant relies on State v. Fortin, 198 N.J. 619 (2009) (Fortin IV), in claiming that a separate penalty phase proceeding must be held before the court can impose a sentence of life without parole. In Fortin IV, the defendant committed a murder in 1994. Id. at 622. The law in effect at the time permitted the imposition of the death penalty if the State proved beyond a reasonable doubt that one or more aggravating factors were present and they outweighed the mitigating factors. Id. at 622-23. If the State failed to prove those two criteria, the defendant would be subject to life with a thirty-year period of parole ineligibility. Id. at 623.

The defendant was convicted and the death penalty was imposed, but the Supreme Court reversed the conviction and ordered a new trial. State v. Fortin (Fortin II), 178 N.J. 540, 581 (2004).

The defendant was tried again and found guilty. Fortin IV, supra, 198 N.J. at 624. However, before the penalty phase in the case, the Legislature again amended the murder statute to eliminate the death penalty and substitute a sentence of life without parole. Ibid. Under the amended statute, a life sentence without parole must be imposed if the State establishes beyond a reasonable doubt one or more of the statutory aggravating factors. Ibid. The Court held that sentencing the defendant to life without parole would violate the Ex Post Facto Clause as the law in effect when the defendant committed the murder, provided only for a sentence of death or thirty years to life with a thirty-year period of parole ineligibility. Id. at 629. Because the trial had not advanced to the penalty phase, the jury did not make findings as to the aggravating factors. Ibid.

Defendant also relies upon State v. Cooper, 410 N.J. Super. 43 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). In Cooper, the defendant was convicted of a murder committed in 1993 and sentenced to death. Id. at 49. The Supreme Court affirmed the murder conviction and capital sentence. Ibid.

Defendant then filed a petition for post-conviction relief (PCR), which was denied. Id. at 50-51. Subsequently, the death penalty was abolished and the defendant's sentence was commuted to life imprisonment without parole. Id. at 51. The Supreme Court remanded the matter to this court for consideration of the defendant's appeal from the order denying his PCR petition. Ibid. We found that the abolishment of the death penalty did not render the defendant's appeal moot as he would be entitled to a new trial if his conviction were to be set aside in the PCR proceedings. Id. at 51. In that event, and, if again found guilty, he would be in the same position as the defendant in Fortin, subject to life without parole only after another penalty phase hearing in which the aggravating factor or factors were found to exist and to outweigh any mitigating factors. Id. at 51-52.

We find that both Fortin and Cooper are distinguishable as the defendants in those cases were convicted of committing murder before the statutory amendments enacted in 2000 which allowed the imposition of life sentences without parole if the jury were to find at least one aggravating factor. L. 2000, c. 88 (codified at N.J.S.A. 2C:11-3(b)(4)). Unlike the defendants in Fortin and Cooper, defendant here was always eligible for a life sentence without the possibility of parole. Such a sentence was mandated if the jury found any of the aggravating factors listed in N.J.S.A. 2C:11-3(c)(4)(g). The jury's guilty verdicts on the three robbery counts and the carjacking count establish these aggravating factors beyond a reasonable doubt.

We affirm defendant's convictions on all counts and his sentence on count one, but remand for resentencing on counts two through eleven. 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