NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2758-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE S. JOHNSON,
Defendant-Appellant. __________________________
Submitted October 19, 2016 – Decided May 30, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-07-1643.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
A grand jury indicted defendant Dwayne S. Johnson for first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-
degree robbery, N.J.S.A. 2C:15-1 (count two); and first-degree
murder during the commission of a crime, N.J.S.A. 2C:11-3(a)(3)
(count three). The charges stemmed from the beating death of
Terrance Everett, which an eyewitness captured on cell phone video.
Following the denial of his motion to dismiss the indictment,
defendant was tried by a jury and found guilty on count one, guilty
on count two of third-degree theft from a person, N.J.S.A. 2C:20-
2(b)(2)(d), amended from first-degree robbery, and not guilty on
count three. The trial judge sentenced defendant on count one to
a fifty-year term of imprisonment with an eighty-five-percent
period of parole ineligibility pursuant to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive four-year
term of imprisonment on count two.
On appeal, defendant raises the following contentions:
POINT I THE TRIAL COURT'S RULING ADMITTING THE CELL PHONE VIDEO INTO EVIDENCE WAS HARMFUL ERROR BECAUSE UNDER N.J.R.E. 402 THE VIDEO WAS NOT RELEVANT TO THE MATERIAL ISSUE OF CAUSE OF DEATH, AND BECAUSE UNDER N.J.R.E. 403 THE VIDEO SHOULD HAVE BEEN EXCLUDED SINCE THE [] CUMULATIVE EMOTIONAL IMPACT ON THE JURY RESULTING FROM ITS REPEATED PLAYING DURING THE TRIAL CAUSED UNDUE PREJUDICE. 2 A-2758-14T3 POINT II DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE DR. CRONIN FAILED TO COUCH [HER] OPINION AS TO CAUSE OF DEATH "WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY."
POINT III DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROSECUTOR'S FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY AMOUNTED TO TELLING THE GRAND JURY A "HALF TRUTH."
POINT IV THE TRIAL COURT'S JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE PREJUDICED THE DEFENDANT (NOT RAISED BELOW).
POINT V THE [FIFTY-FOUR-YEAR] AGGREGATE BASE CUSTODIAL SENTENCE WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
(A) THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT AGGRAVATING FACTOR N.J.S.A. 2C:44-1[(a)](2) WAS APPLICABLE.
(B) THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON COUNTS ONE AND TWO.
Defendant raises the following contentions in a pro se supplemental
brief:
POINT I
DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED 3 A-2758-14T3 BECAUSE THE PROSECUTOR'S FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY AMOUNTED TO TELLING THE GRAND JURY A "HALF TRUTH[.]"
POINT II
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO [THE MEDICAL EXAMINER'S] TESTIMONY AS AN EXPERT WITNESS THUS VIOLATING DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS.
POINT III
THE TRIAL COURT [ERRED] IN PROVIDING IMPROPER JURY INSTRUCTIONS AND THEREFORE PREJUDICED THE DEFENDANT.
We decline to address defendant's contention in Point II of
his pro se supplemental brief. "Our courts have expressed a
general policy against entertaining ineffective-assistance of
counsel claims on direct appeal because such claims involve
allegations and evidence that lie outside the trial record." State
v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose,
129 N.J. 451, 460 (1992)). "However, when the trial itself
provides an adequately developed record upon which to evaluate
defendant's claims, appellate courts may consider the issue on
direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285
(2002)). We are not persuaded that the record is sufficiently
developed to permit us to consider defendant's claim of ineffective
assistance of counsel on appeal. Thus, we adhere to the practice
of deferring the issues of alleged ineffective assistance of 4 A-2758-14T3 counsel to post-conviction relief proceedings where the necessary
factual record can be established, and focus on the remaining
contentions.
I.
We derive the following facts from the record. At trial,
D.B.1 testified that at approximately 1:20 p.m. on January 7, 2013,
she and A.M. were sitting in A.M.'s car, which was parked near an
apartment building on Avon Avenue in Newark. She saw a man, later
identified as Everett, walking in the area. She also saw
defendant, who she knew, exit the building, drop his jacket, and
run up to Everett and strike him. The two men began fighting,
Everett fell to the ground, and defendant began hitting and kicking
him. At that point, A.M. began recording the fight on his cell
phone. D.B. viewed the cell phone video during her testimony and
confirmed that it showed what she had witnessed. She also viewed
a security camera video and confirmed it showed Everett walking
in the area before the fight.
The seventy-three second cell phone video showed defendant
repeatedly kicking and stomping Everett in the head as Everett lay
face down and motionless on the ground. Defendant then paused
briefly, rifled through Everett's pockets, resumed kicking and
1 We use initials to protect the identities of the witnesses in this case. 5 A-2758-14T3 stomping him in the head, and then walked away and entered the
apartment building he had earlier exited.
D.B. testified that at no time did she see Everett grab his
chest and fall over as if he was having a heart attack. However,
the defense theory was that Everett died as a result of cardiac
arrest caused by acute Phencyclidine (PCP) intoxication, and the
video merely showed defendant kicking a dead body.
A.M. testified that he saw Everett walk past his car and then
saw defendant run from the apartment building, go up to Everett,
punch him, and the two men began fighting. Defendant got Everett
on the ground and began kicking and stomping him in the head. At
this point, A.M. began recording the fight on his cell phone. He
viewed the cell phone video during his testimony and confirmed it
showed what he had witnessed.
E.K. testified that he was driving in the area and he saw
defendant and Everett standing and fighting in the middle of the
street. Defendant was throwing punches at Everett and was winning
the fight, while Everett had his hands up trying to block
defendant's punches. After driving past the two men, E.K. looked
in his rearview mirror, saw that Everett was on the ground, and
saw defendant stomping Everett in the head "like he was trying to
kill him." He viewed part of the cell phone video during his
6 A-2758-14T3 testimony that showed the vehicle he was driving and confirmed it
was his vehicle.
S.E. testified that she was driving in the area and saw
defendant standing over Everett "in a rage" as Everett lay in the
street. She exited her vehicle, went over to Everett, saw that
he was breathing and his chest was raising up and down, and saw
blood "gushing all over the ground." She walked back to her car
and called the police and an ambulance. She saw defendant enter
and then exit the apartment building with a white towel on his
head, and then walk down the street. She viewed part of the video
during her testimony that showed the vehicle she was driving and
confirmed it was her vehicle.
S.E. testified that when Police Officer Jimmy Rios from the
Newark Police Department arrived, she told him what she had
witnessed, gave a description of defendant, and pointed in the
direction where he had walked. Officer Rios testified that he
proceeded in that direction and saw defendant walking down the
street. He stopped defendant and saw that defendant was excited,
aggressive, "a little bit agitated[,]" and sweating profusely.
Defendant was carrying a white towel that appeared to have blood
stains on it and he had some scrapes and abrasions on his knuckles.
He placed defendant in his patrol vehicle and returned to the
crime scene, where Everett had been pronounced dead at 1:41 p.m.
7 A-2758-14T3 Detective Anthony Iemmello of the Essex County Prosecutor's
Office Homicide Task Force testified that he arrived at the scene
and saw Everett lying face down in the street. Everett's teeth
were scattered on the ground, there was a large amount of blood
coming from his nose, mouth, and head, his jacket was pulled up,
and the flap on his right rear pocket had been lifted open as
though someone went through the pocket. He also saw defendant and
noticed that defendant had bruised knuckles and blood on his hand.
He retrieved defendant's shirt and blood-stained black leather
boots and jeans. Defendant stipulated that it was Everett's blood
on the boots.
The State's expert in forensic pathology, Leanne Cronin,
M.D., performed an autopsy on Everett. Dr. Cronin testified that
Everett had blunt force trauma injuries to the head, such as
abrasions and lacerations on his head; scleral hemorrhage in the
whites of his eyes; hemorrhage of the surfaces under his eyelids;
lacerations in his mouth; fractures of his nose and jaw; missing
teeth; subgaleal hemorrhage under his scalp; and hemoaspiration
of blood into the larynx and trachea extending to the main stem
bronchi. Dr. Cronin found that Everett was breathing while he lay
face down in the street, and explained that in order to get blood
into the main stem bronchi there had to be a breath that pulled
the blood down into the windpipe. Dr. Cronin also testified that
8 A-2758-14T3 the scleral hemorrhage in the white of Everett's eyes indicated
he was alive at the time the blunt force trauma was administered,
as this type of injury only occurs when a heart is beating. Dr.
Cronin opined that blunt force trauma to Everett's head caused a
fatal concussion that resulted in his death.
Dr. Cronin acknowledged that a toxicology report showed
Everett had acute PCP intoxication at the time of his death, and
that he was obese and had cardiovascular disease and an enlarged
heart; however, she opined that none of these factors contributed
to Everett's death. Dr. Cronin explained that the mechanisms of
death from acute PCP intoxication and cardiovascular disease or a
heart attack differ from the mechanism of blunt force trauma to
the head causing a fatal concussion. Dr. Cronin reviewed the cell
phone video during her testimony and testified that the type of
kicking and stomping of Everett's head shown in the video would
be the type of blunt force trauma to the head that caused the
fatal concussion resulting in his death. Dr. Cronin also opined
that the video showed Everett was alive and breathing during the
recording.
Dr. Cronin acknowledged that Dr. Lauren Thoma noted in her
neuropathology report there was nothing grossly wrong with
Everett's brain. Dr. Cronin explained that this did not change
her opinion as to cause of death
9 A-2758-14T3 [b]ecause fatal concussion is a diagnosis of exclusion, meaning I've excluded any grossly observable injuries that may cause death. So, [Dr. Thoma's] findings of a negative brain are consistent with a diagnosis of fatal concussion because, oftentimes, you don't see any gross evidence of a fatal concussion in the brain.
Dr. Thoma did not testify. Instead, the following stipulation
was read to the jury:
Dr. Lauren [Thoma] would have testified that she is a neuropathologist, and she examined the brain of [Terrance] Everett on . . . March 20, 2013. She would have testified that she determined there were no pathological changes or trauma to the brain.
Dr. Thoma would also testify that this finding is uncommon when there's blunt force trauma to the head, which causes a fatal brain concussion. However, Dr. Thoma also would have testified that there are some cases where this has occurred.
Defendant's expert in forensic pathology and neuropathology,
Zhongxue Hua, M.D., testified that he reviewed the cell phone
video and could not conclude therefrom that Everett was alive
during the recording. He reviewed the autopsy report, autopsy
photographs, and toxicology and neuropathology reports, and
concluded there was no convincing evidence that Everett was alive
immediately before or during the beating or during the video
recording, and no evidence that blunt force trauma to Everett's
head caused a fatal concussion that resulted in his death. Dr.
Hua also testified that other possible causes of Everett's death 10 A-2758-14T3 were not evaluated, such as cardiac arrest caused by acute PCP
intoxication. He noted that the combination of acute PCP
intoxication and severe heart disease "can be lethal."
On cross-examination, Dr. Hua admitted that he never viewed
the security camera video or the eyewitness' statements to the
police, all of which confirmed that Everett was alive and walking
before the fight. He also did not view photographs that showed
Everett sustained nasal and facial fractures and hemorrhaging. He
conceded that all of this evidence would have been relevant to his
conclusions. He also conceded there was evidence of blunt force
trauma to Everett's head and that the kicking of Everett's head
shown in the video was blunt force trauma that could cause a fatal
concussion.
II.
Defendant filed a pre-trial motion to bar admission of the
cell phone video, contending the video was not admissible under
N.J.R.E. 402 because it was not relevant to the material issue of
cause of death. He argued that the video did not tend to prove
any material facts as to the two murder charges because there was
no indication that Everett was alive during the recording.
Defendant also argued the video was inadmissible under N.J.R.E.
403 because it was highly prejudicial.
11 A-2758-14T3 In a written opinion, the trial judge reviewed the elements
of murder under N.J.S.A. 2C:11-3(a)(1) and (2), and found the
video was relevant and probative, as it tended to prove that
defendant purposely or knowingly caused Everett's death or serious
bodily injury resulting in death through blows to the head that
led to a fatal concussion. The judge determined that in light of
the experts' dispute as to the cause of Everett's death, the video
was material because it showed defendant repeatedly kicking and
stomping Everett in the head and was consistent with Dr. Cronin's
conclusion that blunt force trauma to the head caused a fatal
concussion resulting in Everett's death.
The judge found that the video's probative value was not
substantially outweighed by the risk of undue prejudice. The
judge noted that the video was only seventy-three seconds long
and, although disturbing and upsetting, it was not extremely bloody
or ghastly, or so inherently inflammatory as to detract the jurors
from fairly considering whether defendant was guilty or innocent.
The judge denied the motion, but ordered the State to mute the
volume, which the State did.
On appeal, defendant reiterates in Point I that since there
was no credible evidence that Everett was alive during the video
recording, the video was not admissible under N.J.R.E. 402 because
it was not relevant to the material issue of cause of death. In
12 A-2758-14T3 the alternative, defendant reiterates that the video was
inadmissible under N.J.R.E. 403 because it was prejudicial.
Defendant adds that there was other non-inflammatory evidence
available, and the cumulative effect of playing the video several
times during the trial was unduly prejudicial, since the images
of the assault were capable of engendering disgust and hatred
towards him.
We review a trial court's evidentiary determinations for
abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012).
"A trial judge has broad discretion in making relevance and
admissibility determinations under N.J.R.E. 401, 402, and 403,
which we will not disturb, absent a manifest denial of justice."
Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif.
denied, 196 N.J. 466 (2008). Applying these standards, we conclude
that the judge properly admitted the cell phone video.
N.J.R.E. 401 defines "relevant evidence" as "evidence having
a tendency in reason to prove or disprove any fact of consequence
to the determination of the action." "Relevancy is tested by the
probative value the evidence has with respect to the points at
issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div.
1990). As our Supreme Court has held:
Evidence is relevant if it has a tendency in reason to prove or disprove any fact of consequence to the determination of the action. Relevancy consists of probative value 13 A-2758-14T3 and materiality. Probative value is the tendency of the evidence to establish the proposition that it is offered to prove. A material fact is one which is really in issue in the case. Thus, our inquiry focuses on the logical connection between the proffered evidence and a fact in issue. Evidence need not be dispositive or even strongly probative in order to clear the relevancy bar. It need only have some tendency to prove a material fact. The inquiry is whether the thing sought to be established is more logical with the evidence than without it.
[State v. Buckley, 216 N.J. 249, 261 (2013) (citations omitted).]
The relevancy determination requires consideration of the
statutory elements that the State must prove. Id. at 262.
Generally, all relevant evidence is admissible. N.J.R.E.
402. Once a logical relevancy can be found to bridge the evidence
offered and a consequential issue in the case, the evidence is
admissible unless an exclusion is warranted under a specific
evidence rule. State v. Burr, 195 N.J. 119, 127 (2008). Relevant
evidence may be excluded if "its probative value is substantially
outweighed by the risk of . . . undue prejudice, confusion of
issues, or misleading the jury or undue delay, waste of time, or
needless presentation of cumulative evidence." N.J.R.E. 403. "The
mere possibility that evidence could be prejudicial does not
justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253
(App. Div.), certif. denied, 165 N.J. 492 (2000).
14 A-2758-14T3 "Evidence claimed to be unduly prejudicial is excluded only
when its 'probative value is so significantly outweighed by [its]
inherently inflammatory potential as to have a probable capacity
to divert the minds of the jurors from a reasonable and fair
evaluation' of the issues in the case." State v. Long, 173 N.J.
138, 163-64 (2002) (quoting State v. Koskovich, 168 N.J. 448, 486
(2001)). Although the evidence is likely to be unpleasant and
cause emotional stirring, that of itself does not render it
inadmissible. State v. Sanchez, 224 N.J. Super. 231, 250 (App.
Div.), certif. denied, 111 N.J. 653 (1988) (citing State v.
Micheliche, 222 N.J. Super. 532, 545 (App Div.), certif. denied,
109 N.J. 40 (1987)). The fact that evidence may be cumulative
does not render it inadmissible. Micheliche, supra, 222 N.J.
Super. at 545 (citation omitted).
Defendant was charged with first-degree murder under N.J.S.A.
2C:11-3(a)(1) and (2), which required the State to prove beyond a
reasonable doubt that he purposely or knowingly caused Everett's
death or serious bodily injury that then resulted in Everett's
death. See Model Jury Charge (Criminal), "Murder (N.J.S.A. 2C:11-
3a(1) and 3a(2))" (2004). The cell phone video showed defendant
repeatedly kicking and stomping Everett in the head as Everett lay
motionless on the ground. There was evidence that Everett was
alive during the video recording and died from a fatal concussion
15 A-2758-14T3 caused by blunt force trauma to the head. Accordingly, the video
was relevant because it tended to prove that defendant purposely
or knowingly caused Everett's death or serious bodily injury that
then resulted in Everett's death. Because defendant disputed the
cause of death, the video had significant probative value and was
material as to the cause of death, an issue that related directly
to the murder charges.
The video's probative value was not so substantially
outweighed by its inherently inflammatory potential as to have a
probable capacity to divert the minds of the jurors from a
reasonable and fair evaluation of defendant's guilt or innocence.
The fact that the video was disturbing and upsetting does not
detract from the fact that it was legitimately a part of the
State's proof of defendant's criminal state of mind. From the
video, the jury could infer that the attack was performed with
such ferocity that it could only have been the product of a knowing
purpose to cause death.
The video afforded the jurors the opportunity to see the
incident as it occurred; assisted them in understanding the event
and defendant's acts and state of mind; assisted them in
understanding and evaluating the eyewitness and expert testimony;
and its repeated playing afforded them several opportunities to
determine whether Everett was alive or dead during the recording.
16 A-2758-14T3 We therefore find no merit to defendant's argument that the video
was inadmissible under N.J.R.E. 402 and N.J.R.E. 403.
III.
At the close of the State's case, defendant moved for a
judgment of acquittal on the murder charges. He argued there was
no evidence as to how Everett collapsed or was seen prone on the
ground. He also argued that Dr. Cronin's conclusions were
assumptions and "[there was] nothing medically, forensically that
[could] substantiate that [defendant's] actions caused" Everett's
death.
Relying on State v. Reyes, 50 N.J. 454 (1967), the judge
denied the motion, finding there was eyewitness testimony from
which the jury could reasonably infer that defendant beat Everett
to the ground. The judge also found that the jury could find
beyond a reasonable doubt that defendant purposely or knowingly
caused Everett's death based on evidence that defendant repeatedly
kicked and stomped Everett in the head and that blunt force trauma
to Everett's head caused a fatal concussion that resulted in his
In Point II, defendant argues there was only speculative
proof that his actions caused Everett's death because Dr. Cronin
did not couch her opinion within a reasonable degree of medical
certainty. We disagree.
17 A-2758-14T3 We use the same standard as the trial judge in reviewing a
motion for judgment of acquittal at the close of the State's case.
State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Reyes, supra, 50 N.J. at 459.]
Under Rule 3:18-1, the court "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). "If the evidence satisfies that
standard, the motion must be denied." State v. Spivey, 179 N.J.
229, 236 (2004).
The proof that defendant's actions caused Everett's death was
far from speculative. Viewing the cell phone video and eyewitness
and expert testimony as a whole, and giving the State all favorable
inferences therefrom, there was ample evidence on which a
reasonable jury could find defendant guilty of first-degree murder
under N.J.S.A. 2C:11-3(a)(1) and (2) beyond a reasonable doubt.
Whether Dr. Cronin used the exact words "within a reasonable degree
of medical certainty" during her testimony is immaterial. As we 18 A-2758-14T3 observed in Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46, 51
(App. Div. 1996) (quoting Aspiazu v. Orgera, 535 A.2d 338, 342
(Conn. 1987), it is not necessary for a testifying expert to use
the "'talismanic' or 'magical words' represented by the phrase
'reasonable degree of medical certainty.'" Dr. Cronin's expert
opinion that blunt force trauma to Everett's head caused a fatal
concussion that resulted in his death was sufficient for any
rational jury to find defendant guilty of the murder charges beyond
a reasonable doubt. State v. Martin, 119 N.J. 2, 8 (1990).
IV.
Prior to the trial, defendant filed a motion to dismiss the
indictment, arguing that the prosecutor withheld exculpatory
evidence, specifically, Dr. Thoma's neuropathology report and
evidence that Everett died from cardiac arrest caused by acute PCP
intoxication. The judge denied the motion, finding that defendant
did not present evidence supporting his claim that Everett died
from cardiac arrest caused by acute PCP intoxication. The judge
also found that even if such evidence existed, defendant did not
allege or show that the State had actual knowledge of it. In
Point III and in Point I of his pro se supplemental brief,
defendant reiterates the argument made to the judge.
"[O]ur courts have long held that a dismissal of an indictment
is a draconian remedy and should not be exercised except on the
19 A-2758-14T3 clearest and plainest ground." State v. Williams, 441 N.J. Super.
266, 271-72 (App. Div. 2015) (quoting State v. Peterkin, 226 N.J.
Super. 25, 38 (App. Div.), certif. denied, 114 N.J. 295 (1988)).
"Dismissal is the last resort because the public interest, the
rights of victims and the integrity of the criminal justice system
are at stake." State v. Ruffin, 371 N.J. Super. 371, 384 (App.
Div. 2004).
The decision whether to dismiss an indictment lies within the
trial court's discretion, State v. Saavedra, 222 N.J. 39, 54 (2015)
and should not be overturned unless the court's discretion was
"clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996). The
trial court's discretion should only be "disturbed . . . on the
'clearest and plainest ground'" and only when the indictment is
"'palpably defective.'" Id. at 228-29 (quoting State v. N.J.
Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). As long as an
indictment alleges all of the essential facts of the crime, the
charge is deemed sufficiently stated. State v. Fleischman, 383
N.J. Super. 396, 398-99 (App. Div. 2006), aff'd, 189 N.J. 539
(2007).
The State is not required to present potentially exculpatory
evidence to the grand jury unless such evidence "directly negates
the guilt of the accused and is clearly exculpatory." Hogan,
supra, 144 N.J. at 237. The second requirement, that the evidence
20 A-2758-14T3 is clearly exculpatory, demands "an evaluation of the quality and
reliability of the evidence [and its] exculpatory value . . .
should be analyzed in the context of the nature and source of the
evidence, and the strength of the State's case." Ibid. The Court
cautioned that an indictment should be dismissed on this ground
"only after giving due regard to the prosecutor's own evaluation
of whether the evidence in question is 'clearly exculpatory[,]'"
id. at 238, and "only in the exceptional case will a prosecutor's
failure to present exculpatory evidence to a grand jury constitute
grounds for challenging an indictment[,]" id. at 239.
The prosecutor did not withhold exculpatory evidence from the
grand jury. At the time of the grand jury proceeding, Dr. Hua's
expert report was not available, and there was no evidence that
Everett died from cardiac arrest caused by acute PCP intoxication.
In addition, Dr. Thoma's neuropathology report was not
exculpatory, as she did not dispute Dr. Cronin's conclusion as to
cause of death. Because there was no evidence that directly
negated defendant's guilt that was clearly exculpatory, the judge
properly denied the motion to dismiss the indictment.
The judge gave a circumstantial evidence charge that mirrored
Model Jury Charge, "Circumstantial Evidence" (1993), and used the
following illustration:
21 A-2758-14T3 A simple illustration may be helpful. The problem is proving that Little Johnny ate the blueberry pie. Direct evidence would be testimony indicating that Little Johnny's mother saw him eat the blueberry pie. Circumstantial evidence would be testimony indicating that Little Johnny was seated at the kitchen table with the blueberry pie in front of him, Mom leaves the kitchen to check on Little Johnny's sister, Little Jane.
When Mom comes back to the kitchen, Little Johnny is still seated at the kitchen table. The blueberry pie is gone, but Little Johnny has crumbs all over his lips. The former directly goes to prove the fact that Little Johnny ate the blueberry pie while the latter establishes facts from which the inference that Little Johnny ate the blueberry pie may be drawn.
In Point IV, and Point III of his pro se supplemental brief,
defendant contends for the first time that the circumstantial
evidence charge was prejudicial because it amounted to a virtual
invitation to convict. Defendant focuses on the blueberry pie
illustration and argues that "it posited a situation in which the
actor is clearly guilty and any denial by the actor clearly
ridiculous."
"Appropriate and proper jury charges are essential to a fair
trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State
v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give
a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find." Id. at 159 (quoting State v. Green, 86 22 A-2758-14T3 N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent
duty . . . to ensure that the jurors receive accurate instructions
on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either
party.'" Ibid. (quoting Reddish, supra, 181 N.J. at 613).
"Because proper jury instructions are essential to a fair trial,
erroneous instructions on material points are presumed to possess
the capacity to unfairly prejudice the defendant." Ibid. (quoting
Bunch, supra, 180 N.J. at 541-42).
When a defendant fails to object to an error regarding a jury
charge, we review for plain error. State v. Funderburg, 225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged
error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough. To
warrant reversal . . . an error at trial must be sufficient to
raise 'a reasonable doubt . . . as to whether the error led the
jury to a result it otherwise might not have reached.'" Ibid.
(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
There was no error, let alone plain error, in the
circumstantial evidence charge. The judge gave a charge that
properly instructed the jury on the elements of circumstantial
evidence. The judge emphasized it was the State's burden to prove
23 A-2758-14T3 its case beyond a reasonable doubt, and that the jury could find
defendant guilty by either direct or circumstantial evidence, or
a combination of both types of evidence. The judge further
instructed that defendant could be found not guilty by either
direct or circumstantial evidence, both types of evidence, or a
lack of evidence. The judge's blueberry pie illustration caused
defendant no prejudice whatsoever.
VI.
At sentencing, the judge found three aggravating factors,
including N.J.S.A. 2C:44-1(a)(2) (aggravating factor two):
The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]
In applying aggravating factor two, the judge found as follows:
[Defendant] knew, or reasonably should have known, that the victim of the offense was particularly vulnerable or incapable of resistance. The evidence is incontrovertible that while the victim was down on the ground, face down on the ground, motionless and defenseless that defendant stomped his head over and over and over again. Frankly, I was shocked that with that ferocious stomping the victim's head wasn't split open because the attack was so ferocious. It was as if [the victim's] head was like a football? And like [defendant] was practicing place kicking.
24 A-2758-14T3 The judge then considered the factors in State v. Yarbough,
100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986), and found that the crimes of murder and
theft and their objectives were predominantly independent of each
other, and the crimes involved separate acts of violence, or
threats or violence because the theft was related to reaching into
Everett's back pocket while the physical attack on Everett centered
on stomping his head. The judge imposed a fifty-year term of
imprisonment on the murder conviction subject to NERA, and a
consecutive four-year term of imprisonment on the theft
conviction.
In Point V, defendant argues that aggravating factor two was
not supported by the evidence and constituted double counting.
Defendant also argues that the judge did not conduct a
comprehensive Yarbough analysis in imposing the consecutive
sentence.
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience. 25 A-2758-14T3 [Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Regarding aggravating factor two our Supreme Court has
explained:
When a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether that aggravating factor is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants.
[State v. Kromphold, 162 N.J. 345, 358 (2000).]
Aggravating factor two is "broader and less precise" than serious
bodily injury, but enables the court to determine whether the
degree of harm to the victim warrants its application as an
aggravating factor. Ibid. Aggravating factor two "focuses on the
setting of the offense itself with particular attention to any
factors that rendered the victim vulnerable or incapable of
resistance at the time of the crime." State v. Lawless, 214 N.J.
594, 611 (2013) (citation omitted). Aggravating factor two "does
not limit 'vulnerability' to age or other physical disabilities
of the victim." State v. O'Donnell, 117 N.J. 210, 218-19 (1989).
If "a victim is so constrained as to make physical resistance
virtually impossible, he or she has been rendered vulnerable within
the meaning of [N.J.S.A. 2C:44-1(a)(2)]. Id. at 219. 26 A-2758-14T3 "It is well-settled that where the death of an individual is
an element of the offense, that fact cannot be used as an
aggravating factor for sentencing purposes." State v. Carey, 168
N.J. 413, 425 (2001) (citation omitted). Sentencing courts must
avoid double-counting facts that establish the elements of the
relevant offense in making that determination. Fuentes, supra,
217 N.J. at 74-75. However, in the context of aggravating factor
N.J.S.A. 2C:44-1(a)(1),2 the Court reasoned:
In appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense. . . . A sentencing court may consider aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior.
[Id. at 75 (citations omitted).]
Applying this reasoning to aggravating factor two, a court
may apply this aggravating factor and "focus[] on the setting of
the offense itself with particular attention to any factors that
rendered the victim vulnerable or incapable of resistance at the
time of the crime." Lawless, supra, 214 N.J. at 611; see also
State v. Ramseur, 106 N.J. 123, 208 (1987) (holding that "cruel"
conduct may give rise to an aggravating factor in a manslaughter
2 "The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2C:44-1(a)(1). 27 A-2758-14T3 sentencing when the defendant intended to inflict pain, harm and
suffering in addition to intending death).
The record amply supports the judge's findings on aggravating
factor two, and there was no double counting of the elements of
the murder offense. Defendant viciously and repeatedly kicked and
stomped Everett in the head to the point where Everett was rendered
vulnerable or incapable of resistence within the meaning of
aggravating factor two. O'Donnell, supra, 117 N.J. at 219. The
violent attack on Everett more than justified the finding of that
aggravating factor.
Lastly, there was no error in the imposition of a consecutive
sentence. In Yarbough, supra, 100 N.J. at 639, the Court
identified the relevant criteria for determining when consecutive,
as opposed to concurrent, sentences should be imposed. The Court
noted that it is "senseless" to give a criminal free crimes.
Instead, a sentencing court should consider the factual content
of the crimes, including whether or not: (1) the crimes and their
objectives were predominantly independent of each other; (2) the
crimes involved separate acts of violence or threats of violence;
(3) the crimes were committed at different times or separate
places, rather than being committed so closely in time and place
as to indicate a single period of aberrant behavior; (4) any of
the crimes involved multiple victims; and (5) the convictions for
28 A-2758-14T3 which the sentences were imposed were numerous. Id. at 644. These
five factors are to be applied qualitatively, rather than
quantitatively. A consecutive sentence can be imposed, even if a
majority of the Yarbough factors support concurrent sentences.
Carey, supra, 168 N.J. at 427-28.
Here, the murder and theft had different objectives, the
first being to purposely or knowingly cause Everett's death or
serious bodily injury that then resulted in his death, and the
second being to knowingly or unlawfully commit a theft from
Everett's person. Each offense was separate and distinct and
required its own punishment to address the particular harm to
Everett. When all of the sentencing factors are viewed, either
qualitatively or quantitatively, the judge properly imposed a
consecutive sentence.
Affirmed.
29 A-2758-14T3