State v. Sego

629 A.2d 1362, 266 N.J. Super. 406
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 29, 1993
StatusPublished
Cited by10 cases

This text of 629 A.2d 1362 (State v. Sego) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sego, 629 A.2d 1362, 266 N.J. Super. 406 (N.J. Ct. App. 1993).

Opinion

266 N.J. Super. 406 (1993)
629 A.2d 1362

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LARRY SEGO, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Submitted February 23, 1993.
Decided July 29, 1993.

*407 Before Judges ANTELL, DREIER and SKILLMAN.

Zulima V. Farber, Public Defender, attorney for appellant (Judith A. Fallat, Designated Counsel, of counsel and on the brief).

*408 Stephen G. Raymond, Burlington County Prosecutor, attorney for respondent (Deborah A. Siegrist, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by SKILLMAN, J.A.D.

This appeal requires us to decide whether an alleged accomplice's out-of-court statement inculpating defendant, which the Confrontation Clause of the Sixth Amendment would preclude the State from introducing as substantive evidence, may be used for the purpose of impeaching the alleged accomplice's subsequent out-of-court statement exculpating defendant.

A jury found defendant guilty of knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2), two counts of first degree robbery, in violation of N.J.S.A. 2C:15-1a(1), second degree burglary, in violation of N.J.S.A. 2C:18-2b(1), and fourth degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3a. The jury also acquitted defendant of purposeful murder, one count of first degree robbery and one count of second degree burglary. The court sentenced defendant to a 40 year term of imprisonment, with 30 years of parole ineligibility, for murder, and concurrent terms of four years imprisonment for burglary and nine months imprisonment for theft. The court merged defendant's robbery convictions into his conviction for murder.

The State's evidence showed that defendant, who was then 16 years old, committed the murder jointly with Donald Slover, an 18 year old, who was tried separately. The victim was Martin Vinson, who lived in an old school bus parked in a Woodland Township junkyard where he worked. After consuming a substantial amount of alcoholic beverages, defendant and Slover went to the junkyard during the early morning hours of August 2, 1988 to rob Vinson. The two young men entered Vinson's school bus and struck him with multiple blows on the head, with defendant wielding a metal pipe and Slover a flashlight in the attack. These blows crushed Vinson's skull and caused his death.

*409 The most damaging testimony against defendant was given by his friend, Stephen DeFrank. According to DeFrank, defendant came to his house during the late morning of August 2, 1988, and said that he and Slover had just killed Vinson. Defendant told DeFrank that they had decided to rob Vinson because he owed Slover money. When they arrived at Vinson's school bus, Slover and Vinson got into an argument and Slover hit Vinson over the head several times with a flashlight. Defendant and Slover then had a discussion outside Vinson's bus in which they agreed that "somebody had to take him out or kill him." After defendant and Slover got back into the bus, defendant used a metal pipe to hit Vinson over the head "[m]ore than a couple of times." As defendant was hitting Vinson, Slover asked for Vinson's wallet, which defendant took from Vinson's back pocket and gave to Slover.

In addition, defendant gave a statement to the police in which he admitted involvement in the murder, stating that, after waking up following a night of drinking, he and Slover talked about robbing Vinson. They then entered Vinson's bus, at which time Vinson "jumped up ... and ... was coming at" them. Slover grabbed a flashlight and defendant grabbed a pipe, and each of them struck Vinson in the back of his head two or three times.

Defendant testified on his own behalf that he and Slover consumed an extremely large amount of alcohol and marijuana before the murder. According to defendant, he went to the junkyard with Slover with the intent of finding motorcycles with which to go "joyriding." But sometime after they arrived at the junkyard, Slover walked over to Vinson's school bus and defendant followed him. Slover opened the door of the bus and when he got to the top of the stairs, Vinson "jumped out." Slover then picked up a flashlight and hit Vinson over the head. According to defendant, Vinson came towards him, so he picked up a pipe and also hit Vinson over the head several times. Vinson then fell to the floor. Slover said, "[g]rab the wallet," and defendant did so, throwing it to Slover. Defendant claimed that he did not intend to hurt, kill *410 or rob Vinson, but was simply defending himself because he thought Vinson was attacking him.

Defendant also presented testimony by a psychiatrist who expressed the opinion that defendant was suffering from extreme intoxication when Vinson was killed, resulting in a "prostration of faculties," and causing defendant to be "unable to act with knowledge and purpose with ... respect to the criminal charges against him."

On appeal, defendant makes the following arguments:

I. PHOTOGRAPHS AND SLIDES OF THE VICTIM SHOULD HAVE BEEN DEEMED INADMISSIBLE.
II. THE COURT SHOULD HAVE GRANTED DEFENDANT A JUDGMENT OF ACQUITTAL, WHICH ERROR CLEARLY PROVIDED AN UNJUST RESULT.
III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A NEW TRIAL, WHICH ERROR RESULTED IN A MANIFEST DENIAL OF JUSTICE.
1. The trial court's charge to the jury on intoxication improperly shifted the burden of proof to the defendant, constituting reversible error.
2. The defendant's motions for mistrial should have been granted on the ground that his right to a fair trial was prejudiced by the prosecutor's impermissible comments.
3. The court erred in deeming codefendant's statement to police admissible.
4. The charge given to the jury by the court assumed defendant to be guilty, constituting grounds for a new trial.

Defendant's only substantial argument is that the trial court violated his Sixth Amendment right of confrontation in ruling that Slover's statement to the police inculpating him would be admissible for the limited purpose of impeaching Slover's subsequent exculpatory statement. Defendant's other arguments are clearly without merit and do not require discussion. R. 2:11-3(e)(2).

During trial, defendant indicated his intention to call John Dobran, who had been incarcerated with Slover, to testify that Slover told him he had killed Vinson and that defendant left the *411 bus before Slover administered the fatal blows.[1] Defendant offered this testimony pursuant to Evidence Rule 63(10) as a declaration against penal interest. The trial court ruled that Dobran's testimony would be admissible but that if he testified, the prosecution would be permitted under Evidence Rule 65 to introduce portions of Slover's statement to the police which placed primary responsibility for the murder upon defendant for the purpose of impeaching Slover's later statement to Dobran. The court indicated that it would instruct the jury that the statement could not be used as independent evidence of defendant's guilt but only to show that Slover "said several different things on the subject." In light of this ruling, defendant did not call Dobran as a witness.

Evidence Rule 65 provides:

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Cite This Page — Counsel Stack

Bluebook (online)
629 A.2d 1362, 266 N.J. Super. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sego-njsuperctappdiv-1993.