NOT FOR PUBLICATION WITHOUT THE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-5225-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DREU FERGUSON JR., a/k/a
DREW FERGUSON,
Defendant-Appellant.
_______________________________________
Argued June 8, 2017 – Decided August 11, 2017
Before Judges Hoffman, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 11-08-0708.
Marcia Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Blum, of counsel and on the
brief).
Danielle R. Pennino, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Ms. Pennino, of counsel and on the
brief).
PER CURIAM
Defendant Dreu Ferguson, Jr., appeals from his conviction
and sentence for aggravated manslaughter, desecrating human
remains, and tampering with evidence. We affirm in all
respects, but remand so the judgment of conviction may be
corrected.
I
On March 18, 2015, a jury acquitted defendant of first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), but found him
guilty of the lesser-included offense of first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1); second-degree desecrating
human remains, N.J.S.A. 2C:22-1(a)(1); and third-degree
tampering with evidence, N.J.S.A. 2C:28-6(1). On May 18, 2015,
he was sentenced to an extended life term, with a parole
ineligibility period of sixty-three years and nine months.
We recount the salient evidence adduced at trial. In May
2009, defendant lived with his father, D.F. (father), and
grandmother, V.F. (grandmother). The father worked at night and
cared for the grandmother, who suffered from dementia, during
the day.
One of the father's brothers, K.F. (Kevin),1 testified the
father called him three times on May 12, 2009. The first time
1
To protect his privacy, we refer to him and other family
members and acquaintances through the use of pseudonyms.
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he called the father reported he had locked himself in his car
because defendant and his girlfriend, A.H. (Anne), had
threatened to kill him. Kevin told the father to call the
police. Fifteen minutes later, the father called Kevin and
sounded more relaxed, stating he was not going to call the
police. About an hour and a half later, the father called Kevin
and reported, "everything [is] going to be okay."
Kevin did not hear from the father again, which was "very
out of the ordinary." On May 24, 2009, Kevin reached out to his
brother, B.F. (Brian), and told Brian of his concerns. That
same day, Brian went to and entered the father's house, and
discovered he was not at home. However, Brian noticed the
father's glasses, which "were normally on his face," were in the
house and the father's car was parked outside.
Brian left the house and reported his brother missing to
the police. The police searched the house, but did not find
anything remarkable and left. Brian returned to the house the
next morning and noticed the father's car was still parked on
the property. Brian called out the father's name, and defendant
emerged from and stopped Brian from entering the house.
Defendant stated he did not know where his father was. Brian
went to the police department and returned with a police
officer.
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The officer testified defendant informed him that he had
not heard from or seen his father since Wednesday, May 20, 2009.
Defendant then let the police officer and Brian into the house.
Defendant's wallet and cell phone were found in the house. The
officer asked and defendant admitted he and the father recently
had an argument, but claimed the argument did not get
"physical." At Brian's request, defendant moved out of the
house that day.
The police decided to secure a search warrant of the house.
When officers returned to the premises to acquire details about
the property for the search warrant, they noticed a foul odor
under the porch. After obtaining the warrant on May 26, 2009,
the police searched the premises and discovered the father's
body in a hole covered with a metal grate under the porch. The
body was covered with lime. Defendant was immediately arrested
and charged with desecrating human remains, N.J.S.A. 2C:22-
1(a)(1), and terroristic threats, N.J.S.A. 2C:12-3.2 In August
2011, defendant was indicted for first-degree murder.
Anne testified she had been dating defendant for about one
month before the father's body was found. On Tuesday, May 19,
2009, she was in defendant's bedroom in the basement when she
heard defendant and the father arguing in the living room. She
2
The charge of terroristic threats was dismissed before trial.
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heard the father say, "No, stop. Please don't. Help me." When
she went upstairs to investigate, defendant intercepted her in
the kitchen and told her to go outside. She complied and,
approximately one hour later, defendant came outside. When she
re-entered the house, the father was gone.
Over the next few days, Anne intermittently left the house
for an hour or two, but otherwise remained at the house. During
this period she did not see the father, although his car was
always parked outside. She asked defendant where his father
was, but he did not know and seemed unconcerned about his
whereabouts.
Just before his disappearance, the father had hired a home-
health aide to come to the house twice a week to help him care
for the grandmother. When the aide arrived on May 22, 2009 to
provide care, defendant told her his father "wasn't going to be
[here] anymore," and that defendant had taken over his
grandmother's care.
After his arrest on May 26, 2009, defendant was placed in
the county jail. While there, another inmate, H.A., testified
defendant told him: (1) the State would have a hard time
convicting him because no one had seen him do "anything"; (2)
the biggest mistake he made was not getting rid of his father's
car because it was known the father disliked walking, even very
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short distances, and thus never left home without his car; and
(3) his father's body never smelled, so defendant never had to
move it. H.A. admitted he contacted the Prosecutor's Office to
report defendant's statements in the hope the State would be
lenient in his own matter. However, H.A. also testified the
State never made any promises to him about any of the evidence
he revealed.
Ian Hood, M.D., forensic pathologist, conducted the autopsy
of the father's body. Hood was unable to provide the final
cause of death. Given the state of decomposition, he could not
discern if the body sustained any external injury or trauma.
However, he was able to determine on gross examination the
father did not have any disease or condition to explain his
death, such as cancer or heart disease, and had not had a
stroke.
Although the condition of the body did preclude a
histological examination, which can uncover the existence of
certain diseases on a cellular level, Hood noted the father,
fifty-eight years of age at the time of his death, appeared to
be in overall good health. The father had some mild
hypertension that was treated with medication, but this
condition had not caused any damage.
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Hood explained that even though he was unable to identify
the cause of death, he was required to put a cause of death on
the death certificate. He stated the final cause of death was
"homicide by unspecified means - asphyxia not excluded." He
also had to identify the manner of death, and was required to
check-off one of the five selections provided on the death
certificate under the category "manner of death." The
selections from which to choose were natural, accident, suicide,
homicide, and undetermined.
Hood determined the manner of death was homicide. He
reasoned that, despite the degree of decomposition, he was able
to ascertain the father was in good health before his death. In
addition, the victim's body had been concealed, which was a
"suspicious circumstance[]." However, he emphasized his opinion
the manner of death was a homicide had no bearing on whether
there was a homicide as a matter of law, stating:
[The body was] secreted away under a porch,
wrapped and covered with debris and covered
with lime.
In other words, there's been a distinct
effort made to conceal his body. And
generally when that has happened, it's
because the body has met its end by other
than natural or accidental means. . . .
And usually, it's a young person who's found
out in the Pinelands . . . buried in a
shallow grave.
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Obviously that is suspicious enough that we
assume they are homicides. But remember, as
a medical examiner, I'm filling out a death
certificate so that the state and federal
government can keep some reliable statistics
on how people died by manner. It doesn't
mean that that's going to lead to a
prosecution or that it meets the criteria
the law would require for a homicide.
My calling something a homicide has no
bearing on what the law requires. I will
call things homicides that in fact are not
prosecuted. They're considered excused.
So, it's a different situation for what a
death certificate requires, it is completely
different for what the law requires for a
prosecution. . . .
[Homicide is] what I put on a death
certificate. And in this kind of case . . .
I think most of my colleagues would fill it
out that way. Because it's more likely to
be a homicide than not. It doesn't mean
someone is going to get prosecuted, though.
. . .
There were no specific findings on the body
that would let me call it a homicide. . . .
But I did not have an anatomic cause of
death after completing his autopsy.
Significantly, Hood also testified he could not state
within a reasonable degree of medical certainty a homicide had
occurred.
Defendant called forensic pathologist Jonathan L. Arden,
M.D., as an expert. Arden testified the term "cause of death"
is "the underlying process that sets in motion an unbroken
sequence of events that ends in the death of the person." He
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defined "manner of death" as "the explanation for how the cause
of death came about," which is "really largely dependent on
circumstances" and is "highly dependent on investigation." He
also observed the recognized categories for the manner of death
are homicide, suicide, accident, natural, and undetermined. He
added:
Manner of death is an administrative ruling,
an opinion that is used for purposes of
keeping vital statistics. It's a concept
that was actually invented in the United
States, and it is a way of categorizing or
classifying different deaths. One of the
big reasons that we have cause of death and
manner of death that get officially recorded
on death certificates is because those go to
your local vital statistics arm of your
health department in your county, in your
state. And eventually those statistics,
causes and manners of death, and some other
features, all funnel up to the Federal
Government, and they're done on a national
level.
But the point of categorizing them,
including manner of death, is so you can
figure out how many people die, at what ages
are people dying, how are they dying, why
are they dying. It's a matter of, that's
the heart of vital statistic[s].
Arden testified a medical examiner's opinion of the cause
and manner of death is not a legal opinion.
The manner of death is strictly for purposes
of vital statistics. It has no force of law
. . . It has no implication, . . . . It is
not a determining factor for whether a crime
has been committed, whether someone is
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guilty or not. . . . Homicide, or manner of
death, simply means death at the hands of
another person. It's not up to the medical
examiner to decide if it's a crime.
Arden stated a body found in a crawlspace "like in this
case" indicated there was a homicide, that "[a] death occurred
at the hands of another person." He stated he would have
certified the manner of death in this matter as a homicide.
Finally, he testified he was unable to determine the father's
cause of death.
II
On appeal, defendant asserts the following arguments for
our consideration:
POINT I – THE MEDICAL EXAMINER SHOULD NOT
HAVE BEEN ALLOWED TO TESTIFY THAT THE CAUSE
AND MANNER OF DEATH WERE HOMICIDE BECAUSE:
(1) HE ADMITTED THAT HE DID NOT KNOW THE
CAUSE OF DEATH; (2) HE ERRED IN DESIGNATING
"HOMICIDE" AS THE CAUSE BECAUSE THE CAUSE OF
DEATH IS A MEDICAL FINDING; (3) HIS OPINION
THAT HOMICIDE WAS BOTH THE CAUSE AND MANNER
OF DEATH WAS NOT BASED ON EXPERT KNOWLEDGE;
AND (4) THE JURORS DID NOT NEED AN EXPERT
OPINION TO ASSESS THE CAUSE OF DEATH.
POINT II – THE COURT ERRED IN DENYING THE
SPEEDY TRIAL MOTION, WHICH WAS FILED AFTER
DEFENDANT HAD BEEN IN JAIL MORE THAN TWO
YEARS WITHOUT BEING INDICTED.
POINT III – DEFENDANT WAS PREJUDICED BY THE
ABSENCE OF A COOPERATING WITNESS CHARGE
INSTRUCTING THE JURY THAT IT WAS REQUIRED TO
GIVE CAREFUL SCRUTINY TO THE JAILHOUSE-
SNITCH'S TESTIMONY.
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POINT IV – THE EXTENDED LIFE TERM IS A
GROSSLY EXCESSIVE SENTENCE.
POINT V – THE JUDGMENT OF CONVICTION MUST BE
AMENDED TO REFLECT THE FACT THE JURY
ACQUITTED DEFENDANT OF MURDER AND CONVICTED
HIM OF THE LESSER-INCLUDED OFFENSE OF
AGGRAVATED MANSLAUGHTER.
As for Point V, we agree, as does the State, the judgment
of conviction is inaccurate and must be corrected. However, we
are unpersuaded by the remaining arguments and affirm. We
address each argument seriatim.
A
Defendant contends the admission of Hood's opinion there
was a homicide was error. Defendant asserts such opinion not
only exceeded the bounds of Hood's expertise as a physician, but
also was one the jury was capable of reaching without the aid of
an expert. Defendant argues by admitting this opinion, the
court allowed Hood "to cloak his speculation about the cause and
manner of death in the mantle of expertise." As we understand
defendant's argument, Hood's opinion the father was the victim
of a homicide improperly induced the jury to conclude the father
died as the result of a homicide rather than of natural causes.
We disagree with this contention.
We recited the relevant portions of Hood's and Arden's
testimony to expose the frailties of defendant's argument. When
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viewed in context, Hood did not proffer an opinion that exceeded
the bounds of his expertise or improperly invade the jury's
province of determining those facts that do not require expert
testimony to understand. See N.J.R.E. 702. Hood made it
eminently clear he did not know the cause of death. As for the
manner of the death, for the purpose of providing statistical
data to the government, Hood was required to check off the
manner of death from a choice of five selections on the death
certificate.
Hood concluded the most accurate choice under the
circumstances was homicide. However, he acknowledged he could
not state within a reasonable degree of medical certainty a
homicide had occurred. Moreover, he made it clear his opinion
of what constitutes a homicide is not the same as what
constitutes a homicide under the law, and that his opinion had
no bearing on the jury's task of determining whether a homicide
had occurred.
Ironically, defendant's expert forensic pathologist shared
the same opinions. Arden testified a medical examiner's opinion
of the manner of a death is provided solely for providing vital
statistics. More important, Arden noted a medical examiner's
opinion a homicide has occurred is not a legal one and, further,
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given the father's body was concealed, he would have certified
the manner of death in this matter as a homicide.
The admissibility of evidence, including that of expert
testimony, is a matter within the sound discretion of the trial
court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.),
certif. denied, 208 N.J. 335 (2011). "Under that standard, an
appellate court should not substitute its own judgment for that
of the trial court, unless 'the trial court's ruling was so wide
of the mark that a manifest denial of justice resulted.'" State
v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero,
148 N.J. 469, 484 (1997)). For the reasons provided in our
analysis of the experts' testimony, we are satisfied the court
did not abuse its discretion in admitting the subject testimony
provided by Dr. Hood.
B
On May 26, 2009, defendant was arrested and charged with
desecrating human remains and terroristic threats. He was never
released from custody thereafter. In August 2011, defendant was
indicted for murder. Defendant filed a motion to dismiss all
charges on the ground his rights to a speedy trial were
violated. In opposition to the motion, the assistant prosecutor
submitted a certification detailing the State's efforts to
acquire evidence to substantiate the indictment for murder.
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The court denied the motion, finding the certification
provided an explanation for the delay and that it was not
unreasonable. Among other things, the certification noted the
evidence the State collected required extensive analyses by
various laboratories, including an FBI laboratory in Virginia.
Also contributing to the delay was some of the testing was going
to destroy the evidence. The State was required to notify
defendant and suspend testing until any issues he raised were
resolved, causing further delay. Finally, although the trial
court recognized there is an inherent prejudice if a defendant
is in custody awaiting trial, defendant was not otherwise
prejudiced by the delay.
Defendant contends the trial court erred when it denied his
motion, asserting his rights to a speedy trial were violated,
warranting a reversal. We disagree.
The United States and New Jersey Constitutions both
guarantee a defendant a right to a speedy trial. U.S. Const.
amend. VI; N.J. Const. art. I, ¶ 10. In determining whether
this right has been violated, courts must consider four factors:
(1) the length of the delay; (2) the reasons for the delay; (3)
whether and how the defendant asserted his right to a speedy
trial; and (4) any prejudice to the defendant caused by the
delay. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182,
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2192-93, 33 L. Ed. 2d 101, 116-19 (1972); State v. Szima, 70
N.J. 196, 200-01 (adopting the Barker test and noting that the
right to a speedy trial is relative and depends upon the
circumstances), cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L.
Ed. 2d 180 (1976).
No single factor under this four-part test is dispositive;
rather, they are related and must be considered together, along
with any "such other circumstances as may be relevant." Szima,
supra, 70 N.J. at 201. The remedy for violating the right to a
speedy trial is dismissal of the indictment. Barker, supra, 407
U.S. at 522, 92 S. Ct. at 2188, 33 L. Ed. 2d at 112.
Defendant bears the burden of establishing a violation of
his speedy trial right. State v. Berezansky, 386 N.J. Super.
84, 99 (App. Div. 2006). In addition, a trial court's factual
determination on a speedy trial issue "should not be overturned
unless [it is] clearly erroneous." State v. Merlino, 153 N.J.
Super. 12, 17 (App. Div. 1977).
Having fully considered the arguments, we affirm the denial
of defendant's motion for substantially the same reasons
expressed by the trial court. The court properly considered (1)
the length of the delay, (2) the reasons for the delay, (3)
whether and how the defendant asserted his right to a speedy
trial, and (4) any prejudice to the defendant caused by the
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delay, and correctly determined there was no basis to grant the
motion. The explanation provided by the State in this complex
matter put the delay in perspective and demonstrated why the
delay was not unreasonable. Moreover, defendant failed to show
the delay compromised his defense in any way.
C
Defendant contends H.A.'s testimony required the court to
provide the cooperating witness charge. Defendant did not
object to the jury charge at the time of trial. Accordingly,
defendant's argument is subject to the plain error rule. R.
2:10-2.
The model cooperating witness charge states in relevant
part:
[The witness] has testified to facts which
may show some involvement on [his] part in
another criminal matter. The law requires
that the testimony of such a witness be
given careful scrutiny. In weighing his
testimony, therefore, you may consider
whether he has a special interest in the
outcome of the case and whether his
testimony was influenced by the hope or
expectation of any favorable treatment or
reward, or by any feelings of revenge or
reprisal.
If you believe this witness to be credible
and worthy of belief, you have a right to
convict the defendant on his testimony
alone, provided, of course, that upon a
consideration of the whole case, you are
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satisfied beyond a reasonable doubt of the
defendant's guilt.
[Model Jury Charge (Criminal), "Testimony of
a Cooperating Co-Defendant or Witness"
(2006).]
In other words, the cooperating witness instruction informs the
jury a witness who has been implicated in a criminal matter may
have provided testimony helpful to the State in exchange for the
State's favorable treatment of his or her own criminal matter.
Here, the defense attorney skillfully cross-examined H.A.,
exacting from him he contacted the State to provide the evidence
about which he testified solely to gain an advantage in his own
matter. Moreover, the court instructed the jury on credibility,
which adequately addressed any potential credibility issues
raised by H.A.'s testimony. In light of the testimony that
emerged during H.A.'s cross-examination and the charge on
credibility, we reject defendant's contention the court
committed plain error by failing to provide the cooperating
witness charge.
D
Defendant maintains his sentence was excessive, but the
record supports the findings challenged on appeal.
We review a "trial court's 'sentencing determination under
a deferential standard of review.'" State v. Grate, 220 N.J.
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317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606
(2013)). We may "not substitute [our] judgment for the judgment
of the sentencing court." Lawless, supra, 214 N.J. at 606. We
must affirm a sentence if: (1) the trial court followed the
sentencing guidelines; (2) its findings of fact and application
of aggravating and mitigating factors were based on competent,
credible evidence in the record; and (3) the application of the
law to the facts does not "shock[] the judicial conscience."
State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).
At the time of sentencing, the court determined the
following aggravating factors applied: three, N.J.S.A. 2C:44-
1(a)(3) (the risk of reoffending); six, N.J.S.A. 2C:44-1(a)(6)
(prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (the
need to deter). The court also found mitigating factor four
applied, N.J.S.A. 2C:44-1(b)(4) (substantial grounds existed to
excuse or justify the conduct, but fail to establish a defense).
Defendant contends the court applied the first aggravating
factor, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of
the offense, including whether it was committed in an especially
heinous, cruel, or depraved manner), and maintains the
consideration of such factor was error. However, the record
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reveals that, although the court considered this factor, the
court ultimately rejected it as inappropriate.
Defendant maintains the court failed to accord the
appropriate weight to mitigating factor four. At sentencing,
defendant argued he suffers from schizoaffective disorder. In
support of this contention, defendant appended a partial
transcript of the testimony of a psychologist who appeared on
his behalf at a 2006 trial on a charge defendant committed
voluntary manslaughter.
The court in the within matter considered the testimony and
determined it would accord defendant's mental health history
only "very slight weight" because, according to the
psychologist's testimony, the disorder "waxes and wanes." The
court also noted the information about defendant's condition was
dated, and "[n]othing current" had been submitted. The court's
comments revealed an understandable reticence to accord more
weight to defendant's disorder because it affected defendant's
behavior only intermittently, and there was no evidence this
affliction played any role in the father's death.
Defendant's remaining arguments on sentencing are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
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E
Finally, the judgment of conviction states the murder
charge was amended to aggravated manslaughter. Both the State
and defendant agree the judgment of conviction must be corrected
to reflect the jury found defendant not guilty of first-degree
murder and guilty of first-degree aggravated manslaughter.
Accordingly, we remand this matter so the judgment may be
amended to reflect the correct disposition of the murder charge.
We affirm defendant's convictions and sentence, but remand
for the purpose of correcting the judgment of conviction in
accordance with this opinion. We do not retain jurisdiction.
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