NOT FOR PUBLICATION WITHOUT THE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-4452-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRAVIS T. HARTSFIELD, JR.,
Defendant-Appellant.
_____________________________
Argued April 19, 2018 – Decided April 15, 2019
Before Judges Simonelli, Haas and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-10-1865.
Joshua D. Sanders, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joshua D. Sanders, of
counsel and on the brief).
Frank J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Frank J. Ducoat, of counsel and
on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a second jury trial,1 defendant was convicted of murder,
N.J.S.A. 2C:11-3(a)(1); and second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). He was sentenced to an aggregate term of life
imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. The convictions stemmed from defendant killing his twenty-month-old
daughter, A.H., by repeatedly punching her in the chest, causing a fatal liver
injury. During police questioning, defendant admitted punching his daughter
twice. His defense at trial was that he lacked the requisite state of mind for
murder because he never intended to cause serious bodily injury.
Defendant now appeals from his convictions and sentence, raising the
following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED BY PRECLUDING
DEFENSE COUNSEL FROM ENGAGING IN A
MEANINGFUL CROSS-EXAMINATION OF THE
STATE'S CENTRAL EXPERT WITNESS AS TO AN
UNCONTESTED PRIOR PROFESSIONAL ERROR
COMMITTED BY THAT EXPERT.
1
The first trial ended in a mistrial due to a hung jury.
2 A-4452-14T1
POINT II
IT WAS ERROR FOR THE TRIAL COURT TO
DENY THE APPLICATION FOR A MISTRIAL AND
TO SUBSTITUTE A JUROR AFTER BOTH
SUBSTANTIAL DELIBERATIONS AND WHEN IT
WAS APPARENT THAT THE JURY WAS [DE
FACTO] DEADLOCKED.
POINT III
THE JURY CHARGE RELATIVE TO
[DEFENDANT'S] STATEMENT WAS
INSUFFICIENT TO ADVISE THE JURY OF THE
NEED TO CRITICALLY AND EFFECTIVELY
EVALUATE THIS STATEMENT IN LIGHT OF THE
REALITY THAT JURORS . . . HAVE GREAT
DIFFICULTY DISTINGUISHING BETWEEN
FALSE CONFESSIONS AND TRUE CONFESSIONS.
U.S. CONST. AMEND. VI; N.J. CONST. ART. I,
PAR. 10. (NOT RAISED BELOW)
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR
THAT EVEN IF EACH INDIVIDUAL ERROR DOES
NOT REQUIRE REVERSAL, THE AGGREGATE OF
THE ERRORS DENIED [DEFENDANT] A FAIR
TRIAL. (NOT RAISED BELOW)
POINT V
[DEFENDANT'S] SENTENCE IS EXCESSIVE AND
MUST BE REDUCED.
After considering the arguments presented in light of the record and applicable
law, we affirm.
3 A-4452-14T1
I.
We glean the following facts from the trial record. A.H. was born out of
a dating relationship between defendant and D.J. D.J. and defendant did not live
together. However, because D.J. worked two jobs, and defendant was
unemployed, while D.J. was at work, defendant cared for A.H. at his mother's
home where he lived with his mother and his younger sister. A.H. had a history
of health and developmental problems. She was underweight, did not walk, had
limited talking ability, had acid reflux, and was diagnosed with a heart murmur
at two weeks old after she vomited and temporarily stopped breathing.
On the morning of March 14, 2011, D.J. brought A.H. to the shopping
center, where she worked, to hand A.H. off to defendant before her shift began.
She provided defendant with a baby bag, money, and pre-cooked food for A.H.,
who at the time was happy and energetic, and had no bruises, scrapes, or
scratches. At 7:00 p.m., when D.J.'s shift ended, she called defendant, had a
half-hour to hour-long conversation with him, and heard A.H. in the background.
When D.J. called defendant again at about 10:00 p.m., defendant informed
her that A.H. had vomited and he was cleaning it up, but his tone sounded as if
he was aggravated and D.J. did not hear A.H. in the background during the call.
Defendant's mother arrived home between 10:20 and 10:30 that night, and
observed A.H. laying on defendant's bed while defendant was sitting at the end
4 A-4452-14T1
of the bed playing a videogame. When she greeted A.H., A.H. lifted her head
and appeared "congested," prompting defendant's mother to inquire whether
A.H. had a cold. Defendant replied that she did. After helping defendant's sister
with her homework, defendant's mother went to sleep.
Later, at 12:39 a.m. on March 15, 2011, D.J. was awakened by a telephone
call from defendant, and noticed she had seven to eight missed calls from
defendant on her phone. Defendant informed D.J. that A.H. was not breathing,
and when he woke up to change her diaper, she was "ice cold." D.J. told
defendant to call 9-1-1 and promptly headed for his house. When 9-1-1 call-
taker Lauri Biverfeld received the call from defendant at 12:41 a.m., she noted
that he was not hysterical or upset during the call as people normally were in
that situation and did not mention that his child was not breathing until one
minute and twenty-eight seconds into the call. Biverfeld dispatched emergency
medical assistance to the Hartsfield residence, instructed defendant to perform
cardiac pulmonary resuscitation (CPR) on A.H., and guided him through the
process.
Emergency Medical Services (EMS) technicians Paul Visoskas and John
Berghoefer were the first to respond to the Hartsfield residence. Visoskas
observed A.H. lying on her back on the kitchen floor, with defendant standing
over her "very calmly." A.H. "had turned ashen" and was not breathing. Her
5 A-4452-14T1
pupils were fixed and dilated. Defendant told Visoskas that A.H. had been in
that condition "for at least [forty] minutes." Berghoefer checked for breathing
and a pulse, but did not detect either. He picked up A.H., performed CPR,
carried her outside, and delivered her to paramedics Juan Carlos Jurjo and Dan
Rice, who arrived at the residence at 12:48 a.m. Jurjo and Rice placed A.H. on
a stretcher, performed CPR, and attached electronic monitoring devices to her.
Jurjo also observed that A.H. was "cold to the touch" and "asystole," meaning
she had no heartbeat. In addition, there was bruising on her chest that
"resembled multiple small round spots[,]" as well as trauma in the mouth area.
Jurjo inserted an interosseous line into A.H.'s shin bone to administer
medications and fluids, and Rice intubated her. However, despite continuing
CPR during the ride to the hospital, A.H. did not respond. The paramedics
arrived at the hospital at 12:58 a.m. and handed A.H. over to the emergency
room staff. At the time, A.H. was still aystolic, not breathing, had no pulse, and
had a temperature of eighty-five degrees.
Dr. Maria Alvarez-Ballway, the attending physician in the Pediatric
Emergency Department at University Hospital, began treating A.H. at 1:00 a.m.
Although she did not do a full-body assessment of A.H.'s bruising, she observed
eleven chest bruises on A.H., as well as bruises or scratches on her back, arms,
forehead, ear, and face. Her staff continued CPR and attempted to warm the
6 A-4452-14T1
body with the hope that medication would become effective at higher
temperatures. However, after an hour of treatment, A.H. lacked any vital signs
and was pronounced dead at 2:00 a.m.
D.J. arrived at the Hartsfield residence after the first responders had left,
and observed defendant speaking in a "laid back" fashion with police officers.
Upon learning that A.H. had been taken to the hospital, which was a little over
a half-mile from defendant's house, D.J. ran to the hospital. Newark Police
Department Detective Levi Holmes was one of the officers speaking to
defendant at his house. Holmes arranged for defendant to be transported to the
police station and recorded a formal statement from him at 3:45 a.m. At the
time, defendant was not a suspect and was not informed that his daughter was
dead. Holmes noted that during the statement, defendant was "very cooperative"
and "calm," but never inquired about his daughter's condition. Defendant
admitted that A.H. was with him since he picked her up from D.J., and said that
he noticed A.H. was not breathing at about 12:20 a.m. to 12:30 a.m. when he
went to change her diaper. He also stated that A.H. had no marks or bruises on
her other than a chest bruise from sleeping on a necklace.
Two Division of Child Protection and Permanency (DCPP) caseworkers
responded to the police station on the morning of March 15 and interviewed
defendant following his interview with Holmes. They described defendant's
7 A-4452-14T1
demeanor as "very flat." During the interview, defendant again attributed A.H.'s
chest bruises to a necklace, and became frustrated when the caseworkers
questioned him regarding A.H.'s temperature. Defendant also spoke with D.J.
on the telephone at some point later that day and swore "on his great[-
]grandmother[]" that he did not do anything to cause harm to A.H.
Eddy Lilavois, Assistant Medical Examiner for the Northern Regional
Medical Examiner's Office, began A.H.'s autopsy at 10:10 a.m. on March 15.
He observed "multiple injuries" on "the head," "the torso," and "the extremities"
of her body. Notably, he observed "a series of bruises that covered the lower
part of the chest extending over the upper abdomen." He found that the "pattern
of injuries was clearly demarcated and . . . was the imprint of knuckle injuries
imparted on the chest of the decedent." He also observed bruises and injuries
on A.H.'s internal organs, including the thymus, right lung, and liver, and when
he cut into the abdominal wall, "blood came gushing out of the abdomen ."
Lilavois concluded that the cause of death was "multiple blunt impact
injuries of the torso," which resulted in a fatal liver tear that caused A.H. to
internally bleed to death. He determined that the manner of death was homicide.
He opined that "[a] very strong blow, or . . . series of strong blows," was
necessary to cause the injuries he observed to the chest and underlying organs ,
and explained that the blows "were strong enough to crush the spongy lung and
8 A-4452-14T1
break the vessels inside." According to Lilavois, the injuries to the chest
presented a "very specific pattern[,]" which he attributed "to direct blows to the
chest by a closed fist with the knuckles presenting up front."
Upon receipt of the medical examiner's report, defendant became the main
target of a homicide investigation based on his earlier acknowledgement that
A.H. had been with him since he picked her up from D.J. the prior morning.
Detective Paul Sarabando of the Essex County Prosecutor's Office took a formal
recorded statement from defendant, which began at 6:40 p.m. on March 15.
Initially, Sarabando and his partner read Miranda2 warnings to defendant, and
defendant waived his rights and agreed to give a statement.
During the questioning, the detectives asked defendant a series of
questions about the events leading up to the death of his daughter. Defendant
confirmed that he was home alone with A.H. between 1:30 p.m. and 10:30 p.m.
According to defendant, A.H. had napped from 1:30 p.m. to 4:30 p.m. and had
a chocolate drink and juice before going back to sleep. After she awoke at about
7:00 p.m., he attempted to feed her, but she did not want to eat. So, instead, he
gave her another drink and she slept until his mother returned home at about
10:30 p.m. After his mother arrived home, he laid A.H. down to sleep again and
2
Miranda v. Arizona, 384 U.S. 436 (1966).
9 A-4452-14T1
claimed that he did not notice that she was not breathing until around 12:30 a.m.
when he went to change her diaper.
After listening to defendant, Sarabando stated, "[t]here's something
missing in between all that. You want to tell us what's missing?" Defendant
responded, "[a]bout the part when she didn't want to eat[?]" Defendant then
explained that A.H. refusing food "[k]ind of made [him] a little upset[,]" and
"[he] kind of lost it." He further explained:
So I was basically trying to force her to eat. Like, she
would put -- she would eat pudding in her mouth, but
she wouldn't chew it, like, chew your food. So I kind
of got upset and -- and punched her twice in the chest.
That was it. And nothing else.
Defendant demonstrated the position of his punches, "[l]ike where her
breasts [were]," and explained that he used both hands and closed fists.
According to defendant, "as soon as" he punched her, she vomited, cried, and
started to breathe differently. He described her breathing as "a bad cough , . . .
[that] wouldn't come out." After delivering the punches, he told A.H. to "go lay
down," and she crawled away. He estimated that the incident occurred about
thirty minutes before his mother arrived home, at around 10:00 p.m. When
asked why he did not call an ambulance, defendant stated, "I didn't think
[any]thing of it then because I thought it was just okay, like, I punched her twice,
she -- she's all right. She's just breathing." Unsolicited, defendant later stated,
10 A-4452-14T1
"I believe I have anger issues . . . . [m]ajor." Defendant was then placed under
arrest.
At the trial, the State presented thirteen fact witnesses. D.J. and
defendant's mother testified about the family background and their involvement
in the events of the day in question. DCPP caseworkers testified about their
investigation of the case. Visoskas, Berghoefer, and Jurjo testified about the
emergency medical response and delivery of A.H. to the hospital, and Alvarez-
Ballway testified about the emergency room treatment provided to A.H. at the
hospital. Biverfeld testified about the 9-1-1 call, which was played for the jury,
and Sarabando and Holmes detailed the investigation and defendant's
statements. Defendant's videotaped confession was played for the jury during
Sarabando's testimony. Additionally, Crime Scene Unit members testified about
evidence collection at the Hartsfield residence.
Lilavois was the State's sole expert witness at trial. He testified about the
autopsy results and described the fatal liver injury in detail, noting it would not
have been survivable even if it had occurred on the steps of the hospital. He
opined that, based on the discoloration of the bruises, the injuries he observed—
including the bruised lips and the chest and back bruises—all occurred
contemporaneously and prior to A.H.'s death. According to Lilavois, the
coloration of the bruises indicated that they were "sustained within a few hours,"
11 A-4452-14T1
but certainly "[l]ess than a day" before her death. He also opined that A.H. was
"practically dead" by the time the emergency medical service personnel arrived
at the Hartsfield residence, and that her cold temperature indicated that she had
been in a "lifeless condition, or close to lifeless condition, for some[ time]." He
testified that none of the injuries he observed were caused by CPR or intubation
because when the first responders arrived, based on A.H.'s reported condition,
there would not have been enough blood in "circulation" for any "bruising" to
have occurred.
Defendant did not testify but produced one expert witness, Dr. Zhonghue
Hua, a physician, forensic pathologist, and neuropathologist. After reviewing
the autopsy report prepared by Lilavois, Hua agreed with Lilavois that the sole
cause of death was defendant punching A.H., resulting in the fatal liver injury.
However, Hua expressed several minor disagreements with Lilavois' findings
and conclusions, and two major disagreements related to the effect of the CPR
or intubation and the time of death. Contrary to Lilavois, Hua opined that CPR
or intubation could have caused some of the injuries observed on A.H.'s body,
and that A.H.'s time of death was mere minutes before her pronouncement at the
hospital at 2:00 a.m. Hua premised the latter conclusion on the presumption that
the emergency medical personnel would not have attempted to resuscitate A.H.
for so long if she had been truly dead.
12 A-4452-14T1
Following the jury verdict, on December 22, 2014, the trial court
sentenced defendant to life imprisonment subject to NERA on the murder
charge,3 and a concurrent ten-year term with a five-year period of parole
ineligibility on the child endangerment charge. A memorializing judgment of
conviction was entered and this appeal followed.
II.
In Point I, defendant argues that the court erred by preventing him from
cross-examining Lilavois about his involvement "in a shaken-baby case" that
occurred in 1993, and his subsequent resignation from a job in 1995, in order to
challenge his "professional competency" and "credibility." According to
defendant, "[t]he refusal to allow meaningful cross-examination of [Lilavois]
when his opinion was the issue before the jury was egregiously unfair" and
deprived him of his "right to a fair trial." We disagree.
In a civil suit stemming from the 1993 incident, a New York court
summarized Lilavois' involvement as follows:
Three-year-old Andrew Lauer died on August 7,
1993. That same day, Dr. Eddy Lilavois, a New York
City Medical Examiner, performed an autopsy and
3
A defendant convicted of a crime subject to NERA must serve eighty-five
percent of his sentence before he is eligible for parole. N.J.S.A. 2C:43 -7.2(a).
"Solely for the purpose of calculating the minimum term of parole ineligibility
. . . , a sentence of life imprisonment shall be deemed to be [seventy-five] years."
N.J.S.A. 2C:43-7.2(b).
13 A-4452-14T1
prepared a report stating that the child's death was a
homicide caused by "blunt injuries" to the neck and
brain. Although the report indicated that the brain was
being preserved for further examination, the following
day a death certificate was issued stating that Andrew's
death was a homicide. Based on the Medical
Examiner's conclusion, the police began investigating
what they thought was a homicide, focusing primarily
on plaintiff, Andrew's father. Weeks later, on August
31, 1993, the Medical Examiner and a neuropathologist
conducted a more detailed study of Andrew's brain.
The report, prepared in October 1993, indicated that a
ruptured brain aneurysm caused the child's death, thus
contradicting the earlier conclusion. The Medical
Examiner, however, failed to correct the autopsy report
or death certificate, and failed to notify law
enforcement authorities.
Meanwhile, the Police Department's
investigation into Andrew's death continued. Some
[seventeen] months later, in March 1995, after a
newspaper exposé, the autopsy findings were revised,
the police investigation ceased and an amended death
certificate was prepared. As a result of this incident,
the City Medical Examiner who had conducted the
examination resigned.
[Lauer v. City of N.Y., 733 N.E.2d 184, 186 (N.Y.
2000).]
During the first trial, the judge granted the State's in limine motion,
precluding cross-examination about the incident, stating:
It appears to me that the actual details of the
misdiagnosis or initial misdiagnosis because I don't
know that we really had a mistake here, but . . .
accepting . . . the factual allegations that the [S]tate has
made with regard to what happened back [twenty] years
14 A-4452-14T1
ago, in essence, that a diagnosis was made of a
particular cause of death which led the doctor to call it
a homicide and then when they got back certain lab
results, he realized . . . it was a different cause of death,
which now led him to believe it was not a homicide.
And it had to do with an aneurysm . . . . And that,
obviously, has nothing to do with the cause of death in
this particular case.
So, factually, medically, there is no relevance
between the issues in determining the cause of death
from a [twenty]-year-old case to the cause of death in
this case. Even if there was, it's [twenty] years ago, and
. . . there would have to be, as counsel said, a trial within
a trial, to educe all the circumstances regarding that
particular diagnosis, how it was made -- the state of the
art of the medical profession at that time may have been
different than it is today when this diagnosis was made
-- and why the doctor made the diagnosis he made, and
what the conditions were, and whether it was
appropriate for him to do so.
But we all know, and counsel admits for the
defense, that's not really the issue. The issue is his
failure to disclose that to the investigative authorities
when he changed the manner of death from homicide to
. . . natural causes . . . .
. . . [A]nd I find that Rule [404(b)] applies and
this is . . . a prior bad act. And . . . [404(b)] tells us that,
except as otherwise provided under Rule [608(b),]
which doesn't apply, 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. And there has
been no indication by counsel to me that the . . .
evidence would be introduced for any other reason such
as opportunity, intent, motive, preparation, [etc.]
15 A-4452-14T1
So, the fact that it's [twenty] years old, the fact
that it would cause undue extra time to be taken in trial
dealing with the actual facts of this [twenty]-year-old
case, the facts of which are irrelevant, . . . leads me to
preclude that evidence.
During the second trial before a different judge, defendant expressed his
continuing objection to the ruling, to which the trial judge responded that he was
"not changing [the prior judge's] ruling on that subject[,]" a ruling with which
he "[did] not disagree." 4
We recognize the well-established principle in our system of criminal
jurisprudence that "an accused is entitled to advance in his defense any evidence
which may rationally tend to refute his guilt or buttress his innocence of the
charge made." State v. Garfole, 76 N.J. 445, 453 (1978), aff'd following remand,
80 N.J. 350 (1979). Equally established is the principle that "[t]he admission or
exclusion of evidence at trial rests in the sound discretion of the trial court ."
State v. Willis, 225 N.J. 85, 96 (2016) (citing State v. Gillispie, 208 N.J. 59, 84
4
We reject as specious defendant's procedural challenge to the judge relying on
the prior judge's ruling. While "[t]he declaration of [a] mistrial rendered
nugatory all of the proceedings during the first trial[,]" and each party "was
entitled to offer evidence and to make motions and objections without limitation
to that which had been offered or made at the first trial, . . . without being bound
by the prior rulings of the court with respect thereto[,]" State v. Hale, 127 N.J.
Super. 407, 413 (App. Div. 1974), a judge is not precluded from adopting a prior
evidentiary ruling by a different judge or required to conduct a hearing in the
absence of a motion for reconsideration.
16 A-4452-14T1
(2011)). We will sustain the trial court's evidentiary ruling "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.
Lykes, 192 N.J. 519, 534 (2007) (first alteration in original) (quoting Verdicchio
v. Ricca, 179 N.J. 1, 34 (2004)), or "on a showing that there has been a 'clear
error in judgment.'" State v. Harris, 156 N.J. 122, 178 (1998) (quoting State v.
Koedatich, 112 N.J. 225, 313 (1988)).
Likewise, "the scope of cross-examination is a matter for the control of
the trial court and an appellate court will not interfere with such control unless
clear error and prejudice are shown." State v. Murray, 240 N.J. Super. 378, 394
(App. Div. 1990). Generally, cross-examination "should be limited to the
subject matter of the direct examination and matters affecting the credibility of
the witness." N.J.R.E. 611(b). However, experts may also be questioned
regarding "testimonial and experiential weakness[es.]" Janus v. Hackensack
Hosp., 131 N.J. Super. 535, 541 (App. Div. 1974) (quoting Angel v. Rand
Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961)). Additionally, "an
expert witness is always subject to searching cross-examination as to the basis
of his opinion[,]" State v. Martini, 131 N.J. 176, 264 (1993) (quoting Glenpointe
Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)), rev'd in
part on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004), and any change
17 A-4452-14T1
of opinion, Murray, 240 N.J. Super. at 395, as well as issues that demonstrate
bias or partiality. State v. Wakefield, 190 N.J. 397, 451-52 (2007).
Here, defendant sought to cross-examine the State's expert with evidence
of other wrongs or acts. "[E]vidence 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." N.J.R.E. 404(b). However, "[s]uch evidence
may be admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity[,] or absence of mistake or accident when
such matters are relevant to a material issue in dispute." Ibid. Here, defendant
sought to introduce the evidence to impeach the expert's credibility and
undermine his professional competency.
In order to be admissible under Rule 404(b),
1. The evidence of the other [crimes, wrongs, or acts]
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 [crimes, wrongs, or acts]
must be clear and convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting
Abraham P. Ordover, Balancing The Presumptions Of
Guilt And Innocence: Rules 404(b), 608(b), And
18 A-4452-14T1
609(a), 38 Emory L.J. 135, 160 (1989)) (footnote
omitted).]
"Generally, courts apply that rule to evidence of 'other crimes, wrongs, or
acts' of the defendant in a criminal case." State v. Gookins, 135 N.J. 42, 46
(1994). However, "[w]hen the defendant is offering the evidence, a less
stringent test of relevancy applies and prejudice to the defendant is not a factor."
State v. Franklin, 384 N.J. Super. 306, 310 (App. Div. 2006) (citing Garfole, 76
N.J. at 452). Indeed, "simple relevance to guilt or innocence should suffice as
the standard of admissibility[.]" Garfole, 76 N.J. at 452-53. However, when the
defendant seeks to use Rule 404(b) evidence not as substantive proof of guilt of
a third party but to attack the credibility of a witness, "[p]rejudice to the State,
as well as confusion of the issues and misleading the jury, must be evaluated in
balancing all of the factors." Franklin, 384 N.J. Super. at 312. "'[W]hat is called
for . . . is a highly discretionary determination as to the admissibility of the
defendant's proffered evidence' which weighs and takes into account the
competing considerations listed in [Rule] 403." State v. Fulston, 325 N.J. Super.
184, 190-91 (App. Div. 1999) (first alteration in original) (quoting Garfole, 76
N.J. at 457).
Applying these principles, we discern no abuse of discretion in the judge's
ruling. When Lilavois testified at defendant's trial in 2014, he had been in his
19 A-4452-14T1
position for eighteen years and had performed close to 500 autopsies just in the
three years prior to the trial. Defendant sought to introduce evidence of a 1993
misdiagnosis in an unrelated case and resulting resignation in an attempt to
discredit Lilavois' current professional competency and impeach his credibility.
However, specific instances of past conduct cannot be used on cross-
examination to attack a witness' credibility. See, e.g., State v. Hernandez, 225
N.J. 451, 466 (2016) (explaining that inconsistent statements made by a
confidential informant in another trial were not admissible under N.J.R.E. 608
to impeach the informant's credibility in current trial); State v. Parker, 216 N.J.
408, 422-25 (2014) (prosecutor's use of evidence that defendant previously used
false names to impeach his credibility warranted a new trial); State v. Spivey,
179 N.J. 229, 242 (2004) (upholding exclusion of evidence of police officer's
"single alleged act of prior misconduct" by assaulting and framing a different
defendant "in an unrelated case tried several years earlier" when proffered by
defendant to show bad character of same officer in defendant's trial on drug
related and assault charges).
Indeed, the credibility of a witness may only be attacked using past
conduct evidence if "the witness made a prior false accusation against any
person of a crime similar to the crime with which defendant is charged," Rule
608(b), or if the past conduct evidence falls under an exception set forth in any
20 A-4452-14T1
other Rule of Evidence, none of which apply here. See, e.g., N.J.R.E. 609
(providing prior criminal conviction may be used to impeach credibility of
witness); N.J.R.E. 608(a) ("Except as otherwise provided by Rule 609 . . . , a
trait of character cannot be proved by specific instances of conduct"); N.J.R.E.
405(a) (providing "[s]pecific instances of conduct not the subject of a conviction
of a crime shall be inadmissible").
As to challenging Lilavois' professional competency, the remote 1993
incident fails to satisfy prong four of the Cofield test inasmuch as its marginal
probative value is vastly outweighed by its prejudice to the State. Thus, we
agree with the judge that the evidence was inadmissible under Rule 404(b), and
we are satisfied that none of the cases cited by defendant mandate a different
outcome. Cf. State v. Parsons, 341 N.J. Super. 448, 458-59 (App. Div. 2001)
(holding that the pendency of official misconduct charges relating to an arresting
officer's involvement with drug dealers was admissible under Rule 404(b) to
attack the officer's credibility in the defendant's prosecution for drug and
weapons possession charges); Gookins, 135 N.J. at 44-48 (vacating the drunk
driving convictions of three defendants so that they could offer evidence under
Rule 404(b) of the arresting officer's guilty plea to fabricating breathalyzer
readings in another drunk-driving case and being implicated in similar
21 A-4452-14T1
misconduct in others where the principal evidence against the defendants
consisted of the breathalyzer readings performed by the officer).
Moreover, as the judge recognized, the introduction of the evidence would
have led to "a trial within a trial," and any probative value it possessed was
substantially outweighed by the undue risk of prejudice to the State,
consumption of time, confusion of the issues, and misleading the jury. N.J.R.E.
403. Cf. Harris, 156 N.J. at 178 (holding trial court did not abuse discretion in
excluding past conduct evidence under Rule 403 because evidence had minimal
probative value, incidents occurred years earlier, and evidence "would only
divert attention from the true issues" in case).
III.
In Point II, defendant argues that the judge erred by substituting an
alternate juror rather than declaring a mistrial after "the jury had passed the point
of no return" during their deliberations. According to defendant, the "late
substitution was error either due to the [de facto] deadlock or due to the extent
of the prior deliberations." We disagree.
After ten days of trial, jury deliberations commenced at 1:42 p.m. on
October 22, 2014, and, over the course of two days, October 22 and 23, the jury
spent approximately nine-and-one-half hours deliberating. At the jury's request,
deliberations were interrupted during that two-day period for a play back of the
22 A-4452-14T1
tape of defendant's confession and the 9-1-1 call, as well as additional
instructions on "knowingly" and the state of mind requirements for murder.5 On
the morning of October 24, 2014, after advising a Sheriff's officer that he wanted
to speak with the judge, juror seven notified the court that "[y]esterday, in the
jury room, juror number [fifteen] had stated she had [a] previous . . .
investigation with DYFS and we, as a whole, feel that that's impeding . . . her
judgment . . . to make a decision." The juror explained that other members of
the jury also heard the comments and when asked by counsel why he believed
the juror's prior experience was impeding her judgment, juror seven responded
that juror fifteen was "showing too much emotion and not basing her decision
on facts and evidence."
The judge then questioned juror fifteen, who admitted to previous
involvement with "DYFS" when she was the subject of a child abuse
investigation "about [twenty] years ago," and admitted that she pled guilty to
theft in 2008, although she had failed to disclose either fact during jury selection.
Contrary to juror seven's representations, she also denied having discussed her
"DYFS" involvement with any other juror and claimed she had no bias. The
prosecutor moved to excuse juror fifteen for failing to disclose the information
5
The alternate was present in the courtroom when the judge responded to the jury's
requests.
23 A-4452-14T1
during jury selection, arguing she would have exercised a peremptory challenge
to remove the juror at the outset had the juror been truthful. However, before
the judge could issue his ruling, juror eight asked to speak with the judge, and
inquired "if the jury comes back deadlocked, [does] the person get retried again,"
and "if so, how many times?" After consulting with counsel, the judge
responded to juror eight that "[i]t [was] the jury's duty to decide this case on the
evidence produced in this courtroom and not on the consequences of their
decision," and directed juror eight not to discuss their conversation "with [her]
fellow jurors."
Thereafter, defense counsel requested a mistrial. Although she agreed
with the prosecutor that juror fifteen had to be excused, she argued that the case
could not proceed with an alternate juror because the circumstances of juror
fifteen's removal went beyond "a personal issue[.]" Instead, the circumstances
"indicate[d] that juror bias was injected into the jury room[,]" and "that this jury
has gone too far for a substitute juror to be put in at this time." The prosecutor
opposed a mistrial, arguing that the reason for removal was "juror misconduct"
based on juror fifteen intentionally withholding information and making
deliberate misrepresentations to the court. She urged the judge to conduct a voir
dire of the remaining jurors to determine if juror fifteen's comments affected
24 A-4452-14T1
their ability to be fair and impartial, and, if not, to allow deliberations to
continue with an alternate juror.
Later that day, the judge removed juror fifteen because she "concealed"
her prior conviction and "DYFS" investigation during jury selection. The judge
determined that her "willful dishonesty" and "emotional instability" made her
"[un]fit to serve" and incapable of "discharging the obligations of a juror."
Moreover, the parties agreed that juror fifteen "had to be discharged." However,
the judge found that "[her] inability to continue as a juror [was] personal to her"
because her "misconduct" did not relate "to her interaction with her fellow jurors
or with the case[] itself." The judge excused the remaining jurors for the day,
without any deliberations occurring that day, informed them of juror fifteen's
removal, and instructed them "not to speculate [as to] the reason" for her
removal or have her removal "enter into [their] discussions or deliberations in
any manner, for any purpose, at any point."
When the remaining jurors returned four days later, on October 28, 2014,
without "intrud[ing] into the specifics of jury deliberations[,]" the judge
conducted separate interviews with each deliberating juror in order "to
determine 'whether a reconstituted jury will be in a position to meaningfully . . .
evaluate and discuss the case.'" See State v. Ross, 218 N.J. 130, 149 (2014).
After cautioning each juror not to say anything about their or any other juror's
25 A-4452-14T1
position on the case, how they or any other juror intended to vote, the vote tally,
or any discussions in the jury room, the judge inquired of each juror whether he
or she heard juror fifteen make reference during deliberations to her personal
experience with "DYFS." If so, the judge inquired whether the juror could set
aside those comments and decide the case based on the evidence produced and
nothing else. All but one juror heard juror fifteen's comments, which included
references to her being treated unfairly. However, all the jurors who heard the
comments told the judge they were able to set the comments aside and decide
the case solely on the evidence produced in the courtroom.
Based on the jurors' responses to the individual questioning, the judge
concluded "no deliberating juror ha[d] been tainted" and deliberations had not
progressed to the point where deliberations could not commence anew. Thus,
the judge denied defendant's motion for a mistrial, explaining:
Here, there's no indication that the original jury
has proceeded too far in their deliberations to begin
anew with the remaining alternate juror substituted in
for juror [fifteen]. The jury thus far has deliberated
only for approximately [nine-and-one-half] hours . . . .
And during that time, they have sent out four notes
asking to see and hear . . . evidence and asking for
clarification on legal principles.
The jury sent out its final note of this nature
approximately two hours before it finished deliberating
for the day on Thursday, October 23[], which was its
last day of deliberating. The number and substance of
26 A-4452-14T1
jury notes in the comparatively short time the jury has
spent deliberating, in relation to the great length of the
trial[] itself, indicates that the jury has not yet reached
a decision on the issues of fact and law present in this
case. . . .
Additionally, juror [eight's] hypothetical
question about the consequences of a deadlock is of no
moment. Juror [eight] asked this question on Friday,
October 24[], while the jury was not deliberating
because the [c]ourt was working to address juror
[fifteen's] misconduct. This question was raised by a
single juror, not the jury as a whole, and it was raised
in a hypothetical manner that did not suggest to the
[c]ourt that the jury had determined that it could not
come to a decision on any issues of fact or law.
Accordingly, the jury's deliberations have not
progressed to the point that a reconstituted jury would
be unable to evaluate and discuss the case in a
meaningful way and a mistrial is not warranted . . . .
The court seated the only alternate, juror number two, and instructed the
newly constituted jury as follows:
As you know, juror number [fifteen] has been . . .
excused from the jury. An alternate juror, number
[two], will take her place. . . .
Because of this change in your jury, you must set
aside and disregard all of your past deliberations and
begin your deliberations again, just as if you were now
entering the jury room for the first time directly after
listening to my charge.
In that connection, the notes that you wrote, or
whatever you put into that envelope[,] . . . . is [going
27 A-4452-14T1
to] be destroyed. You'll have new paper to make new
notes.
Now, in beginning your deliberations again, you
must eliminate any impact that juror [fifteen] may have
had on your deliberations and consider the evidence in
the context of full and complete deliberations with a
new member of your jury, juror number [two].
The reconstituted jury deliberated for approximately one hour and forty-three
minutes in total, before rendering a verdict of guilty.
"Our review of a trial court's decision to remove and substitute a
deliberating juror because of an 'inability to continue,' pursuant to Rule 1:8-
2(d)(1)," and its denial of a motion for a mistrial based upon the removal and
substitution, is deferential, warranting reversal only if "the court has abused its
discretion." State v. Musa, 222 N.J. 554, 564-65 (2015). "[T]he 'inability to
continue' standard is necessarily vague because it is impossible to catalogue the
myriad circumstances personal to a deliberating juror that may warrant her
removal and substitution." State v. Jenkins, 182 N.J. 112, 124 (2004). Thus,
deference to the "trial court fact-findings in this setting must guide our analysis."
Musa, 222 N.J. at 565.
The juror substitution procedure delineated in Rule 1:8-2(d)(1) does not
"offend our constitutional guaranty of trial by jury[,]" State v. Miller, 76 N.J.
392, 406 (1978), rev'd on other grounds, Miller v. Fenton, 474 U.S. 104 (1985),
28 A-4452-14T1
and substituting a juror in the course of deliberations "does not in and of itself
offend a defendant's constitutional guarantee of a trial by jury." State v.
Williams, 171 N.J. 151, 162 (2002). "Such a substitution, however, contravenes
constitutional norms if it impairs the mutuality of deliberations—the 'joint or
collective exchange of views among individual jurors.'" Ross, 218 N.J. at 146-
47 (quoting Williams, 171 N.J. at 163).
Because "[t]he trial court is charged with maintaining 'an environment that
fosters and preserves that exchange until the jury reaches a final
determination[,]'" id. at 147 (quoting Williams, 171 N.J. at 163), "the trial court
must appraise the impact of a juror substitution on the jury process, without
tainting that process with intrusive questions. It must conduct any inquiry with
respect to the juror in question, or the jury as a whole, with caution and
restraint." Ibid. In that regard, the trial court must assess two related issues:
First, the trial court must determine the cause of the
juror's concern and assess the impact of the juror's
departure on the deliberative process. Second, in light
of the timing of the juror's dismissal and other relevant
considerations, the trial court must ascertain whether a
reconstituted jury will be in a position to conduct open-
minded and fair deliberations.
[Ibid.]
"Consistent with the language of Rule 1:8-2(d)(1), and in the absence of
indicia that a reconstituted jury cannot engage in meaningful deliberations, our
29 A-4452-14T1
courts have consistently upheld the substitution of an alternate for a juror
excused for personal reasons unrelated to the case." Ibid. Personal reasons
prompting a juror's departure in the midst of deliberations "do not originate in
the interactions between the excused juror and the remaining jurors.
Accordingly, they do not preclude the substitution of an alternate for the excused
juror." Id. at 148.
After determining "whether issues personal to the juror or troubled
relationships in the jury room" prompted the juror's departure,
the trial court should consider whether a reconstituted
jury will be in a position to meaningfully evaluate and
discuss the case. "No bright line rule in respect of the
length of jury deliberations triggers a finding that
deliberations have progressed too far to permit the
substitution of an alternate." [Williams, 171 N.J. at
169.] Instead, the court should consider such factors as
the timing of the juror's departure, his or her
explanation of the problem prompting the inquiry, and
any communications from the jury that may indicate
whether deliberations have progressed to the point at
which a reconstituted and properly charged jury will be
unable to conduct open and mutual deliberations.
[Id. at 149.]
In Ross, our Supreme Court offered guidance to trial courts in determining
whether a reconstituted jury will meaningfully deliberate. It explained:
First, the trial judge should conduct any inquiry of the
juror seeking to be excused with caution, and should
direct the juror not to reveal confidential jury
30 A-4452-14T1
communications. Second, the trial court may consider
the duration of the jury's deliberations prior to the
departure of the juror. Without applying an inflexible
rule that would preclude substitution after a specific
amount of time has elapsed, the trial court should
determine whether the jury appears to have progressed
to a stage at which issues have been decided and
deliberations cannot commence anew. Third, if a
partial verdict has been rendered, or the circumstances
otherwise suggest that jurors have decided one or more
issues in the case, the trial court should not authorize a
juror substitution, but should declare a mistrial.
Finally, if the trial court permits the substitution
of an alternate juror for an excused juror, it must
instruct the newly composed jury before its
deliberations. The trial court should charge the jury
that the excused juror's departure was prompted by
personal issues, rather than by his or her view of the
case or relationships with other jurors, that the
reconstituted jury should not speculate on the reasons
for the juror's departure, and that the jury should begin
deliberations anew by setting aside their previous
discussions so that the reconstituted jury may conduct
full and complete deliberations.
[Id. at 151 (citations omitted).]
Applying these principles to this case, we are satisfied that the judge's
decision to remove juror fifteen for misconduct and substitute the alternate did
not constitute an abuse of discretion. Defendant does not dispute that juror
fifteen was properly removed for personal reasons based on her
misrepresentations during jury selection about her prior criminal conviction and
"DYFS" involvement and her resulting emotional state as reported by juror
31 A-4452-14T1
seven. See Jenkins, 182 N.J. at 130 (holding the trial court could have properly
excused the juror due to her bias where the juror refused "to abide by her sworn
oath to follow the law due to her emotional identification with defendant");
Miller, 76 N.J. at 406-07 (holding the trial court properly substituted an alternate
for juror who "stated that in his then nervous and emotional condition, he did
not think he could render a fair verdict"); State v. Trent, 157 N.J. Super. 231,
235-36, 240 (App. Div. 1978) (authorizing replacement of juror who cited her
"nervous" and "emotional" condition because defendant reminded her of her
son), rev'd on other grounds, 79 N.J. 251 (1979).
After thoroughly examining every remaining juror individually, the judge
determined that the jury had not been tainted or prejudiced by juror fifteen's
comments and could remain fair and impartial. The judge also concluded that
no communications with the original jury suggested that any juror had reached
a determination on a factual or legal issue, or that the jury was unable to engage
in open-minded discussions after the substitution that would deprive the new
juror of a realistic opportunity to share in the deliberative process . In that
regard, the judge dismissed juror eight's question about the consequence of a
deadlock because the question was posed by a single juror as a hypothetical on
a day when the jury was not deliberating. The judge replaced juror fifteen with
the alternate and provided instructions to the newly constituted jury in
32 A-4452-14T1
accordance with the Model Criminal Jury Charge. We presume that the judge's
instructions were followed. See State v. Winder, 200 N.J. 231, 256 (2009).
Thereafter, the newly constituted jury rendered a verdict after deliberating for a
period sufficient to permit an open and thorough discussion of the issues.
Here, there was no "partial verdict" as in State v. Corsaro, 107 N.J. 339,
340-42, 354 (1987), where the Court determined it was plain error "to substitute
a juror after a partial verdict ha[d] been returned and to allow the reconstituted
jury to reach a final verdict on [the] remaining charges." Additionally, here,
there was no indication during the judge's questioning that any of the jurors had
already made up their minds as in Jenkins where the Court determined "a mistrial
should have been declared" because "minds were closed when the alternate
joined the deliberations." 182 N.J. at 133. Indeed, in appropriate circumstances,
even the specter of a deadlocked jury would not preclude substitution. See Ross,
218 N.J. at 154-55 (overruling State v. Banks, 395 N.J. Super. 205, 218-20 (App.
Div. 2007), "to the extent that it generally barred trial courts from substituting a
juror and directing new deliberations, by virtue of the fact that the original jury
had reached an initial impasse and was charged in accordance with [State v.
Czachor, 82 N.J. 392 (1980)]").
Defendant argues that his case "is akin" to State v. Williams, 377 N.J.
Super. 130 (App. Div. 2005). In Williams, we held that a mistrial should have
33 A-4452-14T1
been declared where "the jury had been deliberating for approximately twelve
hours" before the substitution and deliberated for "fifty-nine minutes" after the
substitution before convicting defendant of two counts of sexual assault. Id. at
150. We noted that "the length of the deliberations was substantially longer
prior to the removal and substitution . . . than afterwards[,]" and that it was
"highly doubtful that the jury could have been expected to begin its deliberations
anew as opposed to the deliberating jurors simply informing the substituted juror
of their respective positions . . . and then continuing deliberations from that
point." Ibid. However, we must hew to the guidance in Ross that "[n]o bright
line rule in respect of the length of jury deliberations triggers a finding that
deliberations have progressed too far to permit the substitution of an alternate."
218 N.J. at 149 (quoting Williams, 171 N.J. at 169).
Here, in denying defendant's motion for a mistrial, the judge considered
all relevant factors. We discern no abuse of discretion and defer to the judge's
evaluation following his thorough voir dire that there was no taint, and
conclusion that the reconstituted jury was able to engage in open and mutual
deliberations after the substitution. The judge determined the relevant facts
without compromising the integrity of the jury's deliberations, and meticulously
followed the guidance provided in Ross. "In challenging circumstances, the
[judge] ensured that defendant received a fair trial." Id. at 155.
34 A-4452-14T1
IV.
In Point III, relying on extensive social science research on false
confessions, defendant challenges "[t]he current model charge on statements
made by defendants, which was given in this case," as "insufficient to instruct
the jury as to the dangers of false confessions." According to defendant, "unlike
the current Model Jury Charge On Identification, . . . the Model Charge on
Statements provides absolutely no reference to any specific factors, much less
any scientifically valid factors, for the jurors to employ in determining the
credibility of the statement." Thus, defendant "proffers that the trial court . . .
erred by . . . failing to recognize the inherent dangers relative to confession
evidence, and . . . failing to properly charge the jury about the dangers of false
confessions."
Because defendant did not object to the charge as given, or request any
alternate or additional instruction on confessions during the charge conference,
we review his contention for plain error and reverse "only if the error was
'clearly capable of producing an unjust result.'" State v. Ross, 229 N.J. 389, 407
(2017) (quoting R. 2:10-2). "The possibility of an unjust result 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.'" State v. Williams, 168 N.J. 323,
336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
35 A-4452-14T1
Here, we find no error, much less plain error. As defendant admits, the
judge's instruction mirrored the Model Jury Charges (Criminal), "Statements of
Defendant" (rev. Jun. 14, 2010). "It is difficult to find that a charge that follows
the Model Charge so closely constitutes plain error." Mogull v. CB Commercial
Real Estate Grp., Inc., 162 N.J. 449, 466 (2000). Moreover, any sua sponte
deviation from the model jury charge by the judge may have undermined the
defense strategy, which relied on the truth of defendant's confession. In fact,
defense counsel repeatedly acknowledged the confession's veracity throughout
the trial. In her opening statement, defense counsel stated that she was "not
going to suggest" that defendant was not "responsible for his daughter's death,
because he [was]. He took responsibility for it. He never blamed anyone else."
She further explained, "[w]e're not here to tell you that he lied in his confession,
he confessed to what happened." In her summation, she reiterated:
The core of what you have to decide is really what my
client's intentions were at the time that these events
happened. Because as you have to be aware at this
point, there's really no dispute concerning the fact that
he caused the injury that caused her death[.] He
confessed to it. He said he did it.
We also reject defendant's reliance on social science research and studies
that were never presented to the judge or subjected to cross-examination by the
State. Thus, there is no developed record for us to consider. See State v.
36 A-4452-14T1
Herrera, 187 N.J. 493, 501 (2006) (declining to consider argument to expand
law regarding identification evidence admissibility because the defendant failed
to raise argument to trial court and failed to develop record incorporating current
research).
V.
Defendant argues in Point IV that even if the individual errors "did not
alone violate fundamental constitutional rights, in the aggregate these errors
denied [him] a fair trial under the State and Federal Constitutions." See State v.
Orecchio, 16 N.J. 125, 129 (1954) (holding that where "the legal errors are of
such magnitude as to prejudice the defendant's rights or, in their aggregate have
rendered the trial unfair, our fundamental constitutional concepts dictate the
granting of a new trial before an impartial jury"). However, because we
conclude there were no reversible errors, defendant's cumulative error argument
must fail.
VI.
Finally, in Point V, defendant challenges his sentence "to the maximum
life term" as "excessive and unduly punitive," arguing the judge's "methodology
was flawed" and "exemplified prohibited double counting," mandating "a
remand for resentencing." We disagree.
37 A-4452-14T1
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). We will
affirm the sentence unless (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."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
In sentencing defendant on the murder conviction, the judge found
aggravating factor one, "[t]he nature and circumstances of the offense, . . .
including whether or not it was committed in an especially heinous, cruel [,] or
depraved manner[,]" N.J.S.A. 2C:44-1(a)(1); aggravating factor two, "[t]he
gravity and seriousness of harm inflicted . . . , including whether or not the
defendant knew . . . that the victim . . . was particularly vulnerable or incapable
of resistance due to . . . ill-health, or extreme youth," N.J.S.A. 2C:44-1(a)(2);
aggravating factor three, "[t]he risk that the defendant will commit another
offense[,]" N.J.S.A. 2C:44-1(a)(3); and aggravating factor nine, "[t]he need for
deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-
1(a)(9). Based on the fact that defendant's two prior arrests did not result in
convictions, the judge found mitigating factor seven, "[t]he defendant has no
38 A-4452-14T1
history of prior delinquency or criminal activity[,]" N.J.S.A. 2C:44-1(b)(7).
However, the judge "apportion[ed] so much weight to the vulnerability of the
victim . . . and to the need to deter defendant and others, that [the] aggravating
factors vastly outweigh[ed] [the] mitigating factor[.]"
Defendant challenges the judge's findings as to aggravating factors one
and three. In finding aggravating factor one, the judge explained that "[t]he
blows inflicted and the injuries caused by those blows, according to the
evidence, were many more than the blows necessary to cause her death." The
judge acknowledged that "[it was] not double counting" to consider "those extra
blows" that defendant "reigned down upon [his daughter.]" Contrary to
defendant's assertion, the judge's finding was supported by "competent credible
evidence" in the record, State v. O'Donnell, 117 N.J. 210, 215 (1989), and did
not constitute impermissible double counting. "[A] sentencing court may justify
the application of aggravating factor one, without double-counting, by reference
to the extraordinary brutality involved in an offense." Fuentes, 217 N.J. at 75.
In finding aggravating factor three, referring to defendant's admission that
he struck his daughter out of anger, the judge queried:
How can that risk [that defendant will commit another
offense] be discounted when . . . defendant, in a
murderous rage, killed his own flesh and blood? What
evidence is there to detract from the proposition that,
confronted once more with someone who [piques] his
39 A-4452-14T1
anger, he will not lash out at them as well, violently.
And therefore, there is the risk that he'll commit another
offense.
The judge also pointed to the fact that "[defendant] expressed no remorse," and
his "nonchalan[t]" attitude during police questioning "[was] astounding."
Defendant argues that the judge erred in finding aggravating factor three
when he had "no prior indictable convictions and all other contacts with law
enforcement resulted in dismissals." However, aggravating factor three "can be
based on assessment of a defendant beyond the mere fact of a prior conviction,
or even in the absence of a criminal conviction." State v. Thomas, 188 N.J. 137,
154 (2006). Moreover, "[a]dult arrests that do not result in convictions may be
'relevant to the character of the sentence . . . imposed.'" State v. Rice, 425 N.J.
Super. 375, 382 (App. Div. 2012) (quoting State v. Tanksley, 245 N.J. Super.
390, 397 (App. Div. 1991)).
We are "bound to affirm a sentence, even if [we] would have arrived at a
different result, as long as the trial court properly identifies and balances
aggravating and mitigating factors that are supported by competent credible
evidence in the record[,]" as occurred here. O'Donnell, 117 N.J. at 215.
Accordingly, on this record, we discern no basis to intervene.
Affirmed.
40 A-4452-14T1