STATE OF NEW JERSEY VS. CARL JONES (17-02-0116, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1994-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL JONES, a/k/a DEAN
JONES,

Defendant-Appellant.
_________________________

Submitted October 28, 2019 – Decided December 17, 2019

Before Judges Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 17-02-0116.

Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the briefs).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.
PER CURIAM

After a fifteen-day jury trial, defendant Carl Jones was found guilty of

first-degree murder of a homeless heroin addict. Defendant was also found

guilty of second-degree burglary for breaking into the victim's Jeep and selling

some of its contents, and other lesser offenses. The trial court imposed a sixty -

year sentence on the murder count, plus a consecutive eight-year custodial term

on the burglary count.

On appeal, defendant challenges the admissibility of statements he gave

to the police, the court's failure to instruct the jury as to lesser-included offenses,

the admission of evidence of certain recorded telephone conversations of jail

inmates, the admissibility of the medical examiner's testimony, the weight of the

evidence supporting the second-degree burglary conviction, and the claimed

excessiveness of his sentence.

For the reasons that follow, we affirm defendant's conviction and his

sentence, except for a limited remand to correct monetary assessments that were

imposed.

I.

The State's proofs adduced the following pertinent facts. The State's case

was largely based upon the testimony of a co-defendant and two jail house

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informants, coupled with defendant's admissions of burglary and theft during

his police interrogations.

The Initial Investigation

On August 30, 2013, Paterson police officers were dispatched to an

abandoned four-story brick factory building, which at one time had been the site

of a brewery. On a cement patio at the rear of the building they found the body

of a young man resting in a pool of blood.

An investigator from the medical examiner's office arrived on the scene,

which she described as an overgrown open area that was littered with concrete

blocks, drug paraphernalia, and human feces. The dead man was lying on his

right side, face into the ground. The decomposition of the body indicated that

he had been there for some time. There were abrasions on the man's knees and

elbows, bruising under his right eye, and bruising on the inside of his upper

forearm. There was also a wound on his chest that appeared to be from a rusty

chain that was lying underneath his body.

An examination of the man's pockets produced a drivers license, bank

card, birth certificate, state syringe access card, and Social Security card, all in

the name of Timothy Linnartz. Money, car keys, and five packages of heroin

were also found in Linnartz's clothing.

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 The police personnel on the scene concluded Linnartz probably died from

a drug overdose. His body was removed and taken to the medical examiner's

office.

The Autopsy

An autopsy was performed that evening by Dr. Abraham Phillip. 1

Although there was no external evidence of a skull injury, once Linnartz's scalp

was pulled back a roughly circular, depressed fracture above the right eyebrow

ridge became apparent. There was extensive hemorrhaging around the muscles

in his neck, his right ninth rib was fractured, the right side of his liver was

lacerated, and there was free blood in his abdominal cavity.

From the circular configuration of Linnartz's head wound and the force

required to inflict it, the medical examiner believed that the weapon used may

have been a hammer. Linnartz's neck injuries could have been caused by blunt

force trauma or strangulation; his broken rib, which was the cause of the liver

laceration, was likely due to a blow to the lower right chest with a heavy

instrument or a kick. Morphine, a break-down product of heroin, was found in

1
At the time of trial, Dr. Phillip was no longer employed by the medical
examiner's office. Testimony concerning the autopsy was presented instead by
Dr. Andrew Falzon, State Medical Examiner of New Jersey, based upon his
independent review of Dr. Phillip's notes, reports, and photographs. We discuss
the admissibility of Dr. Falzon's testimony, infra, in Part II.E.
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Linnartz's blood and vitreous fluid at levels consistent with a chronic drug user

and was not likely the cause of death.

Dr. Phillip concluded the cause of Linnartz's death was blunt force injuries

to the head, neck and torso, and the manner of death was a homicide . The

injuries were not instantly fatal and Linnartz may have lived anywhere from

thirty minutes to two hours after sustaining them. Indeed, from the condition of

weeds surrounding the body, it appeared that Linnartz may have lain there for

some time struggling to get up. Given the state of the body's decomposition,

Linnartz's time of death was estimated to be at least twenty-four hours before

police arrived on the scene.

Further Investigation

On August 31, 2013, the police instituted a homicide investigation,

returning to the factory to look for witnesses and other evidence. A detective

from the crime scene unit retrieved a cell phone from the ground near where

Linnartz's body was found but was unable to extract any fingerprints from it .

The detective then entered an abandoned grain silo at the rear of the property

and found an older man sleeping inside. The man, Samuel Pauling, had alcohol

on his breath but was coherent and cooperative. At the back of the silo next to

Pauling's sleeping area, officers found two hammers.

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 Investigators observed that neither footprints nor drag marks were visible

in the overgrown ground where Linnartz was found. Further, none of the trash

in the area was disturbed so as to suggest that his body had been dragged .

The Discovery of the Victim's Jeep

Detectives who notified Linnartz's family of his death reported that the

family had received a phone call from the Sheriff's Office on August 30, 2013,

informing them that two men had been pulled over driving Linnartz's Jeep

Cherokee. The men had said they were friends of Linnartz and had permission

to drive the Jeep.

Investigating that claim, detectives learned the Jeep had been stopped

because the driver was not wearing his seat belt. When asked for his driver's

license, the driver, who said his name was Carl Jones, admitted that he did not

have one. A passenger in the vehicle identified himself as Christopher Daut.

Both men were friendly and non-belligerent. They claimed the Jeep belonged

to a friend of theirs.

The officer who stopped the vehicle observed that the Jeep was very dirty,

with garbage strewn all over. The front passenger-side window was broken and

there was glass on the front seats. The ignition was being started with a

screwdriver. A records check revealed the Jeep was not reported as stolen and

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that the registered owner was Linnartz.

The officer asked defendant to call Linnartz to come get the Jeep.

Defendant said that Linnartz was in the Bergen County Jail, but when the officer

contacted the jail he learned that Linnartz had been released. Defendant then

gave the officer the phone number of Linnartz's parents, with whom the officer

spoke. After this conversation, the officer had the impression that defendant

had permission to use the vehicle. The Jeep was towed from the scene, and

defendant and Daut were released on foot.

Detectives looked into the information that Linnartz had been held in the

Bergen County Jail earlier in the week. They learned that on August 27, 2013,

a patrolman in Fairfield Township had responded to a complaint about a woman

panhandling in front of a market. The patrolman stopped two people leaving the

scene in a Jeep. The vehicle's occupants – a man, who identified himself as

Linnartz, and a woman, who identified herself as Brandi Pasquoche – looked

disheveled and appeared to be homeless. Both were very thin and both had fresh

needle marks on their arms. Because Linnartz and Pasquoche had multiple

warrants for their arrest, the patrolman took them into custody. Pasquoche was

ultimately released to the Morris County Sheriff's Department, while Linnartz

remained in Bergen County.

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 Linnartz was released from jail on the afternoon of August 28, 2013. At

10:54 p.m. that night the Paterson Police License Plate Reader System recorded

Linnartz's Jeep parked on a dead-end street next to the factory.

On September 1, 2013, a detective went to the Morris County Correctional

Facility to speak to Pasquoche and obtained photographs of defendant and Daut .

The police searched for them throughout that day and found them panhandling

near Route 46 that evening. They were arrested and taken to the detective bureau

for interrogation.

Defendant's Statements to the Police

After waiving his Miranda2 rights, defendant was questioned for several

hours in the early morning of September 2, 2013, and again in the evening of

September 3, 2013.3 In the interrogations, which were ultimately played for the

jury at trial, defendant explained to the police that he, Daut, Linnartz, and

Pasquoche had been living on the second floor of the factory, in an area they

called "the loft," for several months. Defendant initially explained that

Pasquoche was incarcerated in Bergen or Morris County, and he had no idea

2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
We discuss the circumstances of defendant's interrogations in more detail in
Part II, infra.
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where Linnartz was. He speculated that Linnartz may have entered

rehabilitation at Straight and Narrow, a treatment center located near the factory.

Defendant stated that the four of them used the factory for shelter while

they got high on drugs. He had been using heroin and cocaine for several years

and needed to panhandle to get money to buy drugs so he would not be "drug

sick." At the time of his arrest, he was using ten bags of heroin a day. Linnartz

had a very heavy heroin habit, using as much as a brick 4 of heroin daily.

Defendant said that Pasquoche made a lot of money panhandling. She

usually went out with Linnartz, who drove her to panhandling locations, while

defendant and Daut remained back at the loft. Pasquoche and Linnartz would

leave the loft, panhandle, buy drugs, and return to get high, repeating this cycle

about five times over the course of a day. The last time defendant saw

Pasquoche was on the afternoon of either August 26, 2013, or August 28, 2013, 5

when she and Linnartz left the loft to panhandle. Defendant believed that they

must have been arrested because there were warrants out for them. At first, he

claimed that he learned of their arrests from Linnartz, who came back to the

4
A "brick" of heroin consists of fifty glassine bags.
5
The dates given by defendant were inconsistent throughout his statements and
do not agree with the police records, which indicate that Pasquoche and Linnartz
were arrested on August 27, 2013.
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factory after being released from custody. Defendant later changed that claim,

saying that he never saw Linnartz, and that he only said that he did to make it

seem like he had permission to drive the Jeep.

Defendant and Daut woke up "drug sick" on the morning of August 29,

2013, because they had not had heroin since the day before. They left the loft to

panhandle. They did not see Linnartz's Jeep when they walked by its usual

parking spot. They first saw the Jeep around 5:00 p.m. that day when returning

to the loft.

Later that night, defendant brought a hammer that he kept in the loft down

to the Jeep to break the window, but decided not to do it because the police

patrolled the area at night. He dropped the hammer by the fence, and later

learned that Pauling, who lived in a silo behind the factory, had collected it as

scrap.

According to defendant, on the morning of August 30, 2013, defendant

and Daut were again "drug sick." They left the loft and noticed that the Jeep

was still there. Defendant threw a rock through the Jeep's window, removed the

radio and some tools, and sold them to a scrap dealer for drug money. They got

about $25 for the radio, bought drugs and returned to the loft to get high.

When leaving the loft to panhandle again they saw the body, which was

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surrounded by flies. Neither of them recognized the dead man as Linnartz.

When defendant saw the body, he "freaked" and "weirded out" because he had

never seen a dead body before. He did not want to get close to it.

Defendant and Daut discussed calling the police to report the body, but

decided to wait until they could clear their needles and drugs out of the loft.

Later that afternoon, Daut used a pay phone to call in a report of a man lying on

the ground behind the factory. Shortly after Daut made the call they were pulled

over for the seatbelt violation and the Jeep was towed.

Defendant claimed he must have walked past the body a few times without

seeing it. He insisted that he did not recognize who it was and that he only

looked at it for "half a second." He thought it was someone who had overdosed.

When the detectives revealed that the dead man was Linnartz, defendant

expressed disbelief. He adamantly denied killing Linnartz.

Defendant admitted, however, to getting into a fight with Linnartz "a

while ago." He said that Linnartz came at him and he hit Linnartz in the chin.

They did not speak for a few days, but then things got back to normal. He further

admitted that he and Daut had been planning on calling the police and having

Linnartz arrested on his warrants "because he was an asshole."

Defendant's statements had inconsistencies and implausibilities that were

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challenged by the detectives. For example, at first defendant could not explain

how, if he had not seen Linnartz on August 28 or 29, 2013, he knew that Linnartz

and Pasquoche had been arrested in Bergen County. He thereafter explained,

however, that the officer who pulled him over for driving without a seatbelt gave

him that information. That explanation changed when he later claimed that he

and Daut went to the Paterson police complex on August 29, 2013, to ask about

Pasquoche and Linnartz, and the officer at the desk said they had been arrested

in Clifton.

Detectives paid particular attention to defendant's inconsistent recitation

of dates and events, which, as discussed previously, was seriously confused.

The only notable consistency in defendant's statements was his denial of having

anything to do with Linnartz's murder.

Other Prosecution Witnesses

Margaret Linnartz

Linnartz's mother, Margaret, 6 testified that her son was twenty-nine years

old when he died. He was addicted to heroin and had been in and out of

rehabilitation programs several times. When sober he worked as an electrician

and lived at home, but he always slipped back into addiction. She eventually

6
For clarity we refer to the mother by her first name, intending no disrespect.
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asked him to leave the house and told him not to return until he completed a

rehabilitation program.

On August 27, 2013, Margaret received a call from the Fairfield police,

informing her that Linnartz had been arrested for panhandling. She and her

husband picked up his Jeep from the police station and drove it home. The Jeep

was messy inside, but the windows were intact, the radio was in place, and it

operated with keys.

Margaret thought that Linnartz would be transferred to the Bergen County

Jail on outstanding motor vehicle warrants and was surprised to learn that he

was being released on August 28, 2013. She met him at the jail around 9:30

p.m. that night. She brought him his Jeep and gave him $100. He told her that

he had been accepted into Straight and Narrow, starting the next Monday. She

told him to call her once he entered the program. She did not hear from him

again.

Margaret recalled that at their last meeting Linnartz seemed extremely

frightened. She had never seen him act so scared. He wanted to come back

home, but she refused. She hoped a "tough love" approach would force him into

rehabilitation.

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 Brandi Pasquoche

Pasquoche testified that as of the time of trial she had been sober for

almost three years. In the summer of 2013, however, she was using heroin and

crack cocaine daily. She was living in the factory with defendant, Daut, and

Linnartz.

Pasquoche described Daut as her "common law husband" with whom she

had had a relationship for almost twenty years. She had known defendant for

about four years. She met Linnartz in 2011.

The four drug addicts lived in tents in the loft on the second floor of the

factory. There was no electricity and no running water. Other people lived in

the factory from time to time, but no one other than the four of them stayed on

the second floor. An older man, Pauling, lived behind the factory. Pauling was

an alcoholic who collected aluminum cans and other metal, which he would sell

as scrap.

When they first moved into the loft, defendant met a man who claimed

that the factory was his property. The man said he had no problem with the

group staying there, however, if they secured the building. To that end he gave

defendant a hammer, nails and plywood. The hammer became defendant's; only

he used it; he slept with it under his pillow. Pasquoche identified a hammer that

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had been recovered from Pauling's silo as the one belonging to defendant.

Pasquoche, defendant, Linnartz, and Daut were using heroin and cocaine

four or five times a day. According to Pasquoche, defendant used eight to ten

bags of heroin every day; Linnartz used twenty. They were always "drug sick"

and irritable when they woke up in the morning.

Pasquoche explained that the group made money for drugs by

panhandling. In the beginning, all four of them would go out in Linnartz's Jeep

to parking lots and gas stations where there was a lot of traffic. Pasquoche

would always be the one interacting with passers-by because she was better at

gaining people's trust and asking for money. Having so many people in the car,

however, was stressful. Eventually only Pasquoche and Linnartz went out to

panhandle, while defendant and Daut waited in the loft for them to return with

drugs.

Pasquoche recounted it took about an hour of panhandling for her to make

$80, which she used to buy a $40 bundle of heroin and two $20 vials of crack

cocaine. She typically would share the drugs with defendant and Daut when she

got back to the loft. She was the one "in charge" because she made the money

and she controlled the drugs. If one of the men did not listen to her, she would

withhold drugs from him.

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 Tensions arose among the group as Pasquoche and Linnartz came to resent

the fact that they were "floating" defendant and Daut. Linnartz drove the Jeep

and Pasquoche begged, while defendant and Daut stayed in the loft to take care

of the group's kittens. At the same time, defendant and Daut worried that

Pasquoche would not return with drugs or would not share the drugs if she did

come back.

According to Pasquoche, a day or two before the arrests of her and

Linnartz on August 27, 2013, defendant and Linnartz got into a fight. The

addicts were angry and frustrated because they could not decide who would go

panhandling. They all knew that Pasquoche had an outstanding warrant for

failure to pay child support and that there was a risk that she would be arrested

if she went out.

As recalled by Pasquoche, Linnartz and defendant started pushing each

other. Defendant punched Linnartz in the head, breaking his glasses. Linnartz

did not hit back; he simply exclaimed, "What the hell is wrong with you?"

Pasquoche yelled for the fight to stop. Daut backed into a corner and did not

get involved. Defendant then warned Linnartz: "If you ride around with her

and . . . she [gets] lock[ed] up, do not come back without her because I'm going

to beat you to death and kill you."

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 After the fight, the four of them continued to live together. Pasquoche

recalled defendant and Linnartz got along "for the most part."

On the afternoon of August 27, 2013, Linnartz asked to borrow

defendant's cell phone so that he could call his drug dealer. Defendant gave it

to him. Linnartz and Pasquoche then went to a market parking lot to panhandle.

They were arrested as they tried to drive away. Linnartz was wearing his glasses

at the time of his arrest. He needed them to see, and Pasquoche could not recall

ever seeing him without them.

Christopher Daut

Daut also testified as a witness for the prosecution. Daut had entered into

a plea agreement under which the State dismissed the felony murder charge

pending against him, and he pled guilty to second-degree burglary and second-

degree endangering an injured victim. The sentencing recommendation for the

second-degree charges was fifteen years, with an eighty-five percent parole

disqualifier. In exchange for testifying truthfully at defendant's trial, however,

the State agreed to reduce that recommendation to six years with an eighty-five

percent parole disqualifier. Daut explained that he wanted this agreement very

much because he hoped to return to Pasquoche, whom he considered to be his

wife.

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 Daut's testimony about the circumstances and conditions of life at the loft

was substantially consistent with that of Pasquoche. According to Daut,

Linnartz moved into the loft in June or July 2013. Defendant complained to

Daut that "a lot changed" after Linnartz moved in, and that he was getting less

drugs. Defendant also complained that Linnartz and Pasquoche were leaving

him out of things.

Daut described a fight between Linnartz and defendant that occurred

around August 21, 2013. Linnartz was calling defendant names and taunting

him. Defendant taunted back. Linnartz ran towards defendant, who punched

him and knocked his glasses off. Pasquoche became hysterical and the fight

stopped. Linnartz told defendant that he could never ride in the Jeep again.

According to Daut, on August 27, 2013, defendant did not want Pasquoche

to go out with Linnartz. Linnartz planned to drop Pasquoche off to panhandle

while he went to his parents' house to get money, but Pasquoche was afraid she

would be arrested and did not want to be left alone. Defendant warned Linnartz

that if he did not come back with Pasquoche, something would happen to him .

Daut recalled defendant saying, "If you don't come back with Brandi I'm going

to hit you with something."

As Daut described it, Linnartz and Pasquoche left around 4:30 p.m. that

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day. Defendant and Daut waited in the loft for them to come back with drugs .

When they did not return after four hours, defendant and Daut went out to

panhandle. Later they walked to a donut shop by the police station to get

something to eat from the trash bins.

Daut walked into the station to ask if Pasquoche and Linnartz had been

arrested. He asked the officer to call Pasquoche's phone to see if she answered,

but she did not.

Defendant and Daut woke up "drug sick" on August 28, 2013, although

defendant appeared much sicker than Daut. They went to panhandle, got drugs,

and went back to the loft. Defendant remained at the loft while Daut went out

to panhandle and procure drugs in the afternoon.

At about 3:30 a.m. on August 29, 2013, Daut saw the Jeep pull up to the

dead-end street near the factory. He then saw Linnartz come through the fence.

Defendant, who also saw Linnartz, said that he wanted to talk to him and went

outside to meet him. Daut followed.

Defendant walked up to Linnartz, asking him what he was doing and

saying, "I don't want you on the property here no more." Linnartz refused to

leave. Defendant then demanded drugs or money, but Linnartz responded that

"you don't own the place" and "I'm not giving you shit." Defendant punched

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Linnartz in the eye. Linnartz went down on his knee and put his hands up, asking

"Why are you hitting me for?" Daut told defendant to leave Linnartz alone, but

defendant hit Linnartz in the head with a hammer.

Daut identified the hammer that had been recovered from Pauling's silo,

which was orange with a black handle, as the hammer with which defendant hit

Linnartz. Daut did not know where defendant got the hammer. According to

Daut, defendant always had the hammer with him and slept with it under his

pillow. Daut had never seen anyone other than defendant use it.

When Linnartz dropped to the ground, Daut ran outside the fence to where

the Jeep was parked. Defendant followed him, but he no longer had the hammer

with him. Defendant said that now that they had the Jeep, they could break into

it to get money for dope. Defendant threw a rock through the passenger side

window and removed the radio and a tool chest from inside. Defendant and

Daut went to an auto body shop, waited for it to open, and sold the radio for $25

and the tools for $10 or $15. They bought heroin and cocaine and went back to

the factory to get high. They walked past Linnartz, who was lying there dead.

Later, Daut left defendant at the loft and went out to panhandle. When he

returned, he and defendant returned to the Jeep and spoke to a man who gave

them a device to rip out the Jeep's ignition. After using the device, they were

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able to insert a screwdriver into the ignition and start the Jeep. They drove to

Clifton, panhandled, got money, bought drugs, and returned to the loft to get

high.

Daut estimated that he and defendant walked by Linnartz's body three

times prior to his calling 9-1-1 on the morning of August 30, 2013. Before he

made the call, however, he and defendant vacated the loft and moved to a spot

near the Salvation Army where they had lived before. They took all of their

belongings as well as the kittens.

On cross-examination, the defense questioned Daut about various

inconsistencies in his testimony. For instance, Daut admitted that in neither of

the statements he gave to the police did he say that he saw defendant kill

Linnartz. Further, he admitted that he told the police that he and defendant saw

Linnartz's Jeep when they returned to the loft on the evening of August 28, 2013,

and that they assumed Linnartz must have checked in to Straight and Narrow.

Daut also acknowledged on cross that, in a letter that he wrote to defendant

while they were incarcerated in the county jail, he claimed that the prosecutors

wanted him to lie on the witness stand.

Daut agreed that the version of events that he related in his plea allocution

differed from his testimony at trial—at least in the details—but he insisted he

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told the truth both times. When presented with the transcript of his plea hearing,

Daut admitted that he told the court that he and defendant were attempting to

break into Linnartz's Jeep on August 29, 2013, when Linnartz confronted them.

He said that he made a mistake when he said the confrontation happened at the

Jeep, and that it really happened at the rear of the building. Daut also admitted

he was incorrect when he said that defendant used the hammer to break the Jeep's

window, rather than a rock. He said he was confused when he gave his plea and

did not know what he was thinking. He said that when the prosecution team was

preparing him for trial they pointed out the areas where he was confused and

then he remembered things differently.

Bryant Castillo

Bryant Castillo also testified for the State pursuant to a cooperation

agreement. Under his plea bargain, Castillo pled guilty to possession of heroin

with intent to distribute. In exchange for his truthful testimony at defendant's

trial, his period of parole ineligibility would be cut from three years to eighteen

months. Castillo had been deported twice, and he understood the cooperation

agreement did not protect him from another deportation when he was released

from prison.

According to Castillo, he and defendant were housed together at the

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Passaic County Jail for four or five months. Defendant spoke to Castillo about

his case several times, and Castillo took notes of what he said.

As recounted by Castillo, defendant revealed to him that he was being

charged with the murder of Linnartz. Defendant stated he and Linnartz got into

an argument and were struggling in some grass near the factory. Defendant said

he hit Linnartz with "a piece of metal," which he later described as a hammer.

Linnartz covered his head with his hands and fell. Defendant searched Linnartz

and found some money and bags of heroin. He took Linnartz's glasses because

Linnartz was unable to see without them. He did not want Linnartz to go looking

for help.

Defendant told Castillo he discarded the hammer in an area of the factory

where some tanks were located. A homeless man who lived in the tanks had a

cart and would go about picking up everything he could find. Defendant knew

the man would take the hammer.

Eduardo Perales

Eduardo Perales also testified for the State pursuant to a cooperation

agreement. He pled guilty to third-degree possession of a controlled dangerous

substance with intent to distribute and received a five-year sentence with two-

and-a-half years of parole ineligibility. In exchange for testifying truthfully at

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defendant's trial, his sentence would be reduced to three years with an eighteen -

month parole disqualifier.

Perales and defendant were housed together at the Passaic County Jail

from March 31, 2016, until January 5, 2017. Perales had some limited legal

knowledge and would sometimes help other inmates prepare documents for

court. Defendant brought Perales information about his case and wanted Perales

to help him revise letters he had written, which Perales did.

Defendant frequently talked about his case with Perales. He told Perales

that he, Pasquoche, Daut, and Linnartz had been living on the second floor of an

abandoned factory. Defendant said he hated Pasquoche because, while they

were living together, he helped her with burglaries to support her drug habit, but

now she was encouraging her boyfriend, Daut, to tell the prosecutor's office that

he (defendant) beat Linnartz to death. Defendant kept asking Perales if Daut

could be used as a witness against him.

Knowing that Perales was about to be released on bail, defendant asked

him for help. He wanted Perales to look for a hammer that was in a construction

glove, thrown near the silos behind the factory. He said that the hammer might

be gone because a "bum" who lived in the silos picked up metal in a shopping

cart. He also asked Perales to try to find the eyeglasses he took from Linnartz .

A-1994-17T4
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 Defendant told Perales that after the fight, he took eyeglasses, money,

some packs of heroin, and a syringe kit from Linnartz. The heroin was not good

quality, however, so defendant used the money to buy better drugs. After his

purchase, defendant remembered that he had Linnartz's eyeglasses in his pocket.

He took them out and threw them toward the river. The glasses did not fall in

the water, but landed in the dirt near the riverbank. Defendant told Perales was

worried that if the police found the glasses, they could detect his DNA on them.

A few days before Perales made bail, defendant drew him a map showing

the area where the bum lived, where the dead body was lying, where he tossed

the glasses, and where he purchased drugs. On the back of the map, Perales

wrote down defendant's personal information and details about the detective

who arrested defendant.

Perales testified that he saw an inmate deliver a letter to defendant that

was written by Daut. Perales read the letter at least five times. In it, Daut

claimed the prosecutor's office wanted him to lie.

Perales explained that defendant's best friend in and out of jail was

Richard Horn.7 Defendant had asked Horn to try to get in touch with Daut, who

7
Richard Horn is sometimes referenced in the transcripts as Richard Hawn. In
their briefs, defendant has adopted the appellation "Hawn," while the State uses
A-1994-17T4
25
was housed in a different area of the jail. Perales saw defendant use the phones

located in the jail to call Horn. He later provided the prosecutor's office with

the telephone number defendant had given him for Horn.

Telephone Records and Recordings from The County Jail

Detectives from the Passaic County Prosecutor's Office obtained

telephone records from the jail for every call made to or from the phone number

provided by Perales. The records did not specifically identify which inmate

made a particular call, but they did show the inmate number and the pin number

associated with that inmate. Based on information contained in the records, the

detectives subpoenaed audio recordings of ten telephone calls involving Horn's

number. Portions of two of those calls, each lasting no more than five minutes,

were played for the jury. We discuss those calls in more detail, infra, in Part

II.C of this opinion.

Defendant's Proofs

Defendant elected not to testify. He presented two witnesses on his behalf,

Ricky Ortiz and Commander David Stillman from the Passaic County Sheriff's

Department.

"Horn." Because "Horn" is the most frequent spelling in the transcripts, we use
that version of the name.

A-1994-17T4
26
 Ortiz testified that he worked at General Carbon, a company located next

to the abandoned factory where Linnartz's body was found. The garage door at

the back of the General Carbon building opens onto the dead-end street where

Linnartz normally parked his Jeep.

One day at the end of August 2013, Ortiz noticed a lot of police activity

in the back yard of the abandoned factory. The day before that, Ortiz had been

working near the open garage door when he saw a Jeep parked on the dead-end

street and a man standing next to it who looked like he needed help. Ortiz

approached the man, who said he was trying to get into the car. Ortiz assumed

he was locked out. Ortiz could not remember what the man looked like, nor

could he remember whether he gave him a tool to help him get inside . Ortiz

returned to work, and when he went back outside about twenty minutes later,

the Jeep was gone. He recalled seeing broken glass on the ground where the

Jeep was parked.

Looking at various photographs, the only person Ortiz could definitively

identify was Pasquoche, whom he described as someone who lived at the factory

and fed cats living there.

Stillman, the records custodian at the Passaic County Jail, also testified

for defendant. He identified an inmate grievance form filed by defendant on

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27
February 25, 2017. That form, designated as D-22, was admitted into evidence

in its entirety. In it, defendant claimed other inmates took his personal and legal

papers following a shakedown of their living quarters in January 2017. The

grievance was dismissed by the jail as untimely.

II.

On appeal, defendant raises the following arguments:

POINT ONE

DEFENDANT'S STATEMENTS WERE NOT THE
PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO
REMAIN SILENT AND, THEREFORE, SHOULD
HAVE BEEN SUPPRESSED BY THE TRIAL
COURT.

POINT TWO

THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY AS TO THE LESSER INCLUDED
OFFENSES OF AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER WAS PLAIN
ERROR (Not Raised Below).

POINT THREE

THE ADMISSION OF OTHER CRIMES EVIDENCE
CONSISTING OF RECORDINGS OF JAIL
TELEPHONE CALLS DENIED DEFENDANT A
FAIR TRIAL.

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 POINT FOUR

THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S JUDGMENT OF ACQUITTAL AND
NEW TRIAL MOTIONS REGARDING THE CRIME
OF SECOND-DEGREE BURGLARY.

POINT FIVE

THE TESTIMONY OF THE MEDICAL EXAMINER
SHOULD HAVE BEEN STRICKEN AS AN
INADMISSIBLE "NET OPINION."

POINT SIX

THE AGGREGATE SENTENCE OF 68 YEARS IN
PRISON, SUBJECT TO THE NO EARLY RELEASE
ACT, WAS EXCESSIVE.

Defendant adds the following points in his reply brief:

REPLY POINT ONE

DEFENDANT'S STATEMENTS WERE NOT THE
PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO
REMAIN SILENT AND, THEREFORE, SHOULD
HAVE BEEN SUPPRESSED BY THE TRIAL
COURT.

REPLY POINT TWO

THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY AS TO THE LESSER INCLUDED
OFFENSES OF AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER WAS PLAIN
ERROR.

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Lastly, in a pro se supplemental brief, defendant makes these arguments:

SUPPLEMENTAL POINT I

THE STATEMENT ALLEGEDLY MADE BY
APPELLANT SHOULD HAVE BEEN SUPPRESSED
BECAUSE THE PROCEDURES UTILIZED BY LAW
ENFORCEMENT OFFICERS, DURING THE
CUSTODIAL INTERROGATION OF MR. JONES,
FAILED TO COMPLY WITH MIRANDA V.
ARIZONA, VIOLATING THE FIFTH, AND THE
FOURTEENTH AMENDMENT, OF THE UNITED
STATES CONSTITUTION, AND ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.

SUPPLEMENTAL POINT II

THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN FAILING TO CHARGE THE JURY ON
THE LESSER INCLUDED OFFENSES OF
AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER, THIS
DEPRIVED APPELLANT OF A FAIR TRIAL AND
DUE PROCESS OF LAW. U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. ART I, PARS. I, 10.

SUPPLEMENTAL POINT III

THE DEFENDANT-PETITIONER WAS
SUBJECTED TO EXTENSIVE UNDUE PREJUDICE
RESULTING FROM THE INTRODUCTION OF
EXCESSIVE INADMISSIBLE OTHER-CONDUCT
EVIDENCE THAT SHOULD NOT HAVE BEEN
ADMITTED PRIOR TO COFIELD/MARRERO
TESTS, AND IF ADMITTED SHOULD HAVE BEEN

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30
 SANITIZED AND FOLLOWED BY MANDATORY
LIMITED-USE INSTRUCTIONS.

SUPPLEMENTAL POINT IV

THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION FOR JUDGMENT OF
ACQUITTAL, AND THE MOTION FOR A NEW
TRIAL.

SUPPLEMENTAL POINT V

THE TRIAL COURT SHOULD NOT HAVE
PERMITTED THE RECORDINGS OF THE
TELEPHONE CALLS WITHOUT FIRST
CONDUCTING A WADE HEARING TO IDENTIFY
THE VOICE RECORDINGS. (not raised below).

SUPPLEMENTAL POINT VI

THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL
UNFAIR.

We have carefully considered each of these arguments in light of the

record and the applicable law. For the reasons we now amplify, none of them

have merit.

A.

Defendant argues that the admission of statements he made following his

arrest violated the privilege against self-incrimination guaranteed by the Fifth

Amendment to the United States Constitution. This issue was the subject of a

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31
two-day pretrial hearing under Rule 104.

Specifically, defendant contends that even though he was suffering the

effects of heroin withdrawal during questioning, the detectives did not provide

him with medical treatment. He claims the detectives were utilizing his pain

and discomfort to aid them in their interrogation. He asserts these circumstances

resulted in a statement that "provided the State with a suspicious, disjointed

scenario, the product of a mind that was 'fried' . . . to be presented to the jury. "

Defendant argues the denial of medical care in order to induce physical pain

coerced him. The trial court rejected these contentions of involuntariness after

the Rule 104 hearings. We sustain that ruling.

Sergeant Todd Pearl, who led the investigation into Linnartz's murder,

testified concerning defendant's interrogations. Sergeant Pearl explained that

defendant and Daut were arrested, handcuffed, transported to police

headquarters, and placed in separate interview rooms. Defendant's first

interrogation began about two hours later, in the early morning hours of

September 2, 2013, and continued for approximately three hours. The

interrogating officers were Pearl, a Lieutenant Ribeiro, and a Captain Rodriguez.

Pearl read defendant his Miranda rights from the Paterson Police Miranda

form. Defendant was asked if he understood his rights, he nodded, and he wrote

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"yes" on the form, indicating that he did understand. Pearl then read the waiver

portion of the form aloud and asked defendant if he wished to waive his rights .

Defendant wrote "yes" on the form, indicating that he wished to make a

statement and to waive his right to an attorney. Pearl recalled that defendant

spoke coherently at this time and gave no indication that he did not know what

was going on.

During the interrogation, defendant sometimes seemed confused and

complained that his brain was "screwed up" or "fried." His overall demeanor

nevertheless appeared to be coherent and alert. He looked the detectives in the

eye when they spoke to him and answered their questions directly.

Toward the end of the interview, Captain Rodriguez referred to

defendant's heroin addiction and said: "As soon as your habit starts to kick in,

as soon as that pain – you know that pain. I'm going to tell you about it. As

soon as that pain starts coming in and you start fucking with that—start–he's

[Daut's] fucking you." Rodriguez asked defendant how many bags of heroin he

used a day, then said: "Oh, you're going to feel pain, a lot of pain. You're going

to go through a lot of pain." He added that once Daut began feeling that pain,

he would talk.

When the interrogation was finished, defendant was taken to the cell block

A-1994-17T4
33
at the Paterson Police holding facility. He remained there until his next

interrogation, which occurred on the evening of September 3, 2013, and lasted

about two hours. The interrogating officers at this session were Sergeant Otero,

Detective Lugo, Detective Alba, and Sergeant Pearl.

Otero asked if defendant remembered his rights and still wanted to talk to

them, and defendant said that he did. In general, the questioning was less heated

than in the first interrogation, with the detectives doing most of the talking .

Defendant appeared sick at this time. When the detectives were not in the room,

he rested his head on the table and later started spitting up into a trash can .

While being questioned, he rocked in the chair with his arms wrapped tightly

around his chest.

Pearl testified that defendant was not examined by medical personnel prior

to the interrogations. He pointed out that Otero was with him throughout the

interviews and that she had extensive training as an emergency medical

technician. However, he did not think she performed a physical examination on

him. He was aware that defendant was a heroin addict and acknowledged that

it was possible that defendant was going through withdrawal while being

interrogated. Indeed, Pearl thought withdrawal was very likely by the time of

the second interview. He testified that defendant never requested medical

A-1994-17T4
34
treatment, never asked to be taken to the hospital, and never appeared to be in

medical distress.

The trial judge found Pearl's testimony at the Rule 104 hearing to be

credible. Based on his review of the video recordings of both interrogations, the

judge found there was a clear and unambiguous manifestation of defendant's

desire to waive his rights. The judge observed that defendant was a middle-aged

man who could read and write English and who had a great deal of experience

with the criminal justice system. The judge found the police questioning was

not prolonged and did not involve physical or mental abuse.

As to defendant's argument that he was feeling sick during the

interrogations, the judge stated: "I don't find that his lack of using drugs

contributed, in any way, to . . . giving any statement as a result of being

uncomfortable." The judge stated that it was clear that defendant might not have

felt well, but no discomfort was manifested in the interviews. Accordingly, the

judge concluded that defendant's statements would be admissible in the State's

case in chief. The statements consequently were presented to the jury.

Our review of the trial judge's decision on admissibility of evidence is

deferential. State v. Hubbard, 222 N.J. 249, 269 (2015) ("an appellate tribunal

must defer to the factual findings of the trial court when that court has made its

A-1994-17T4
35
findings based on the testimonial and documentary evidence presented at an

evidentiary hearing or trial."). Where, as here, the evidence consists of

testimony of one or more witnesses and a videotaped recording of a statement

by a witness or a suspect, "an appellate court is obliged to review the entire

record compiled in the trial court to determine if the factual findings are

supported by substantial credible evidence in the record." Ibid.

The governing law is well established. "Miranda safeguards come into

play whenever a person in custody is subjected to either express questioning or

its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

There is no question here that defendant's statements were taken while he was

in police custody. Thus, for them to be admissible, the prosecutor was required

to prove beyond a reasonable doubt that defendant's waiver was knowing,

intelligent and voluntary. State v. A.M., 237 N.J. 384, 398 (2019).

"A determination of voluntariness depends on an 'evaluation of the totality

of all the surrounding circumstances.'" State v. Roach, 146 N.J. 208, 227 (1996)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)); State v. L.H.,

239 N.J. 22, 42 (2019). "In the totality-of-the-circumstances analysis, we

consider such factors as the defendant's 'age, education and intelligence, advice

as to constitutional rights, length of detention, whether the questioning was

A-1994-17T4
36
repeated and prolonged in nature and whether physical punishment or mental

exhaustion was involved.'" State v. Nyhammer, 197 N.J. 383, 402 (2009)

(quoting State v. Presha, 163 N.J. 304, 313 (2000)).

Here, there is no dispute that Miranda rights were clearly and

appropriately explained to defendant, and that he expressed his desire to waive

them. The question is whether the interrogations produced voluntary statements.

That question has two parts: (1) whether Captain Rodriguez's alleged taunts

about defendant's "pain" constituted overbearing psychological pressure; and (2)

whether failing to provide defendant with medical attention and interrogating

him while he was experiencing heroin withdrawal constituted physical

punishment.

Courts have recognized that an involuntary confession can result from

psychological as well as physical coercion. State v. Galloway, 133 N.J. 631,

654 (1993). Confessions derived from "'very substantial' psychological

pressures that overbear the suspect's will" are not voluntary. Cook, 179 N.J. at

563 (quoting Galloway, 133 N.J. at 656). Nevertheless, use of a

psychologically-oriented technique is not, in and of itself, inherently coercive.

State v. Knight, 183 N.J. 449, 463 (2005); Galloway, 133 N.J. at 654. "The real

issue is whether the person's decision to confess results from a change of mind

A-1994-17T4
37
rather than from an overbearing of the suspect's will." Galloway, 133 N.J. at

655.

Here, Rodriguez's references to the pain that defendant would be

experiencing, while arguably insensitive, did not rise to the level of overbearing

psychological pressure under the applicable law. Rodriguez did not promise to

do anything to alleviate defendant's pain in exchange for his cooperation.

Rather, Rodriguez was suggesting that Daut would turn on defendant once the

pain of withdrawal started, and that it would be in defendant's interests to be the

first to talk.

Moreover, Rodriguez's questioning did not manifestly cause defendant to

change his statement. The fact that Rodriguez's alleged taunts may have caused

defendant emotional distress is not legally sufficient to render his statements

involuntary. See, e.g., State v. Faucette, 439 N.J. Super. 241, 259-61 (App. Div.

2015) (describing an interrogator's threat to incarcerate the defendant in the

same jail where a co-defendant was housed as a "psychological ploy" that did

not strip the defendant of his capacity for self-determination).

Long ago in State v. Wade, 40 N.J. 27 (1963), the Supreme Court made

clear that "[a] confession made by a person while under the influence of drugs

is not per se involuntary." Id. at 35. Because the defendant in Wade had

A-1994-17T4
38
received a Demerol injection an hour and a half before answering detectives'

questions, the Court phrased the issue of voluntariness as whether the Demerol

deprived the defendant "'of a rational intellect and a free will.'" Ibid. (quoting

Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). Despite medical testimony

that the defendant was almost certainly under the influence of Demerol at the

time of questioning, the trial court credited the testimony of the interrogators

who stated that the defendant appeared normal and spoke coherently. Id. at 36.

The Court affirmed, finding that the State had carried the burden of proving that

the defendant's will had not been overborne. Ibid.

Similarly, in State v. Warmbrun, 277 N.J. Super. 51, 61-64 (App. Div.

1999), this court rejected the defendant's argument that he was too intoxicated

to have voluntarily waived his Miranda rights. In so doing, it concluded that

there was substantial credible evidence in the record to support the trial court's

finding that although the defendant was very intoxicated, "he was capable of

communicating and that he was responsive to answering questions and could

answer correctly questions such as his name, age, etc." Id. at 64.

Although in a slightly different context, the United States Supreme Court

has held that "a defendant's mental condition, by itself and apart from its relation

to official coercion, should never dispose of the inquiry into constitutional

A-1994-17T4
39
'voluntariness.'" Colorado v. Connelly, 479 U.S. 157, 164 (1986). In Connelly,

the defendant, who suffered from chronic schizophrenia, moved to suppress his

confession because he claimed that the "voice of God" had compelled him to

confess. Id. at 161. The Court rejected that argument, finding there needed to

be some link between coercive activity on the part of the State and the resulting

confession. Id. at 165-66, 170. The Court held that "[t]he voluntariness of a

waiver of [the Fifth Amendment] privilege has always depended on the absence

of police overreaching, not on 'free choice' in any broader sense of the word."

Id. at 170.

The reasoning of Wade, Warmbrun, and Connelly is consistent with the

trial court's conclusion that defendant's statements to the police were voluntary.

While defendant was possibly experiencing heroin withdrawal during the first

interrogation and likely was having those symptoms during the second, he never

requested medical treatment. He said he was sick only once, at the end of the

second interview, when asked why he reacted badly to a photograph of

Linnartz's body. Shortly thereafter, questioning stopped. Throughout the

interrogations, defendant spoke coherently, answered questions fully, and even

verbally sparred with the detectives.

When asked by police about inconsistencies in his statements, it is true

A-1994-17T4
40
that defendant said his brain was "fried" and that he was confused. Nevertheless,

he was alert to his surroundings, and after being informed that the dead body

was that of Linnartz, he realized that he was being questioned about the murder

and understood the gravity of the situation. At no point did he manifest a lack

of a rational intellect or free will.

Because being under the influence of drugs does not render a statement

per se involuntary, the demeanor of defendant and the content of his responses

supports the trial court's finding that he was capable of knowingly, intelligently,

and voluntarily answering waiving his Miranda rights and answering the

detectives' questions. The finding was largely based on the court's credibility

determinations, to which we owe deference. We therefore affirm the trial court's

ruling.

B.

Defendant argues that the court erred in not charging the jury as to

aggravated manslaughter, passion/provocation manslaughter, and manslaughter

as lesser-included offenses to homicide. He admits that his defense counsel

requested that lesser-included offenses not be charged but claims that the court's

failure to issue those charges, sua sponte, was plain error. He contends that the

states of mind required to support such lesser-included jury charges were

A-1994-17T4
41
established by evidence of Linnartz's habit of saying things that angered people,

defendant's chronic dope sickness, and defendant's conduct in telling Castillo

that he and Linnartz were struggling with one another. We are not persuaded by

these contentions of error.

At the initial charge conference, defense counsel requested that the court

charge lesser-included offenses for the burglary and theft offenses. Regarding

murder and felony murder, defense counsel stated the lesser included charges

conceivably would be aggravated manslaughter or manslaughter, but that he and

defendant would have to decide whether to request those charges. Counsel

stated that he believed that any decision in that regard prior to the close of the

evidence was premature.

At a second charge conference, the court again asked defense counsel for

his position on the lesser included offenses. Defense counsel replied that

defendant "does not want lesser includeds on the homicide included in the jury

charge, or on the jury verdict sheet." The prosecutor acknowledged that the

court must charge any lesser-included offenses that apply but argued that none

applied and requested that none be given.

The next day, defendant was personally questioned by defense counsel

and the court out of the jury's presence. Defendant testified that he had spoken

A-1994-17T4
42
with defense counsel about the lesser-included offenses of aggravated

manslaughter and manslaughter. They had "strategic discussions" and reviewed

the advantages and disadvantages to lesser included offenses. After giving it

thought, defendant told the court he did not want to charge the jury with lesser-

included offenses to murder. He said that he reached that decision freely and

voluntarily.

Later, at the close of defendant's case, the court read a portion of the

proposed jury charge to counsel, explaining what lesser-included offenses were

and how they would be applied to the burglary and theft charges. Counsel had

no objections.

Accordingly, the court charged the jury as to burglary and theft and

included an instruction as to those lesser-included offenses. It charged the jury

as to felony murder and murder but did not include an instruction as to lesser

included offenses. Counsel took no exceptions to the charge.

It is well established that "[t]rial errors which were induced, encouraged

or acquiesced in or consented to by defense counsel ordinarily are not a basis

for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.

1974). "The defendant cannot beseech and request the trial court to take a course

of action, and upon adoption by the court, take his chance on the outcome of the

A-1994-17T4
43
trial, and if unfavorable, then condemn the very procedure he sought and urged,

claiming it to be error and prejudicial." Ibid. (quoting State v. Pontery, 19 N.J.

457, 471 (1955)). See also State v. A.R., 213 N.J. 542, 561 (2013) (similarly

applying the doctrine of "invited error"). In order to warrant a reversal when

the claimed error was invited by defense counsel, "a defendant must show that

the error was so egregious as to cut mortally into his substantive rights." State

v. Ramseur, 106 N.J. 123, 282 (1987) (internal quotations omitted).

When determining whether a court erred in failing to issue an included

offense charge, the first consideration is whether the charge would have satisfied

the definition of an included offense that is set forth in N.J.S.A. 2C:1-8(d).8

State v. Thomas, 187 N.J. 119, 130-31 (2006). That initial requirement is met

8
N.J.S.A. 2C:1-8(d) provides that an offense is "included" when:

(1) It is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged; or

(2) It consists of an attempt or conspiracy to commit the
offense charged or to commit an offense otherwise
included therein; or

(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.
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here. The offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and

manslaughter, N.J.S.A. 2C:11-4(b)(1), conceptually are lesser-included offenses

to murder, N.J.S.A. 2C:11-3(a)(1) and (2). See, e.g., State v. Jenkins, 178 N.J.

347, 360-61 (2004); State v. Purnell, 126 N.J. 518, 540 (1992); State v. Ramsey,

415 N.J. Super. 257, 263-64 (App. Div. 2010).

The next consideration is whether such a jury charge was requested by the

State, the defense, or neither. Thomas, 187 N.J. at 131-32. Here, no one

requested a lesser-included offense instruction on the murder charge.

"An unrequested charge on a lesser included offense must be given only

where the facts in evidence clearly indicate the appropriateness of that charge."

State v. Savage, 172 N.J. 374, 397 (2002) (emphasis added) (internal quotations

omitted); accord State v. Walker, 203 N.J. 73, 86 (2010). Simply stated, "a trial

court has no duty to instruct the jury sua sponte on an included offense charge

if the evidence does not clearly indicate or warrant such a charge." Thomas,

187 N.J. at 132 (internal quotations omitted). The court is not required to scour

the statutes to determine if there are some uncharged offenses of which the

defendant may be guilty. Savage, 172 N.J. at 397.

If a lesser-included charge is clearly indicated by the evidence, however,

the court has a "supervening responsibility" to issue it, even if it is contrary to

A-1994-17T4
45
defendant's trial strategy. State v. Taylor, 350 N.J. Super. 20, 38 (App. Div.

2002) (internal quotations omitted). The critical question here, then, is whether

there was evidence in the record that "clearly indicated" the appropriateness of

the manslaughter charges. We conclude the record lacks such requisite proof.

Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2), for "purposely" or "knowingly" causing the death of Linnartz, or

inflicting "serious bodily injury resulting in death" upon him.

In Jenkins, 178 N.J. at 361-64, the Court distinguished the elements of

"SBI" (Serious Bodily Injury) murder, N.J.S.A. 2C:11-3(a), from those of

manslaughter, N.J.S.A. 2C:11-4. The Court explained:

To be guilty of SBI murder, the defendant must have
knowingly or purposely inflicted serious bodily injury
with actual knowledge that the injury created a
substantial risk of death and that it was "highly
probable" that death would result.

The Court continued:

In aggravated manslaughter, by contrast, the defendant
must have caused death with an "awareness and
conscious disregard of the probability of death."

Lastly:

If, instead, the defendant disregarded only a
"possibility" of death, the result is reckless
manslaughter.

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46
 [178 N.J. at 363 (citing State v. Breakiron, 108 N.J.
591, 605 (1987); State v. Pearson, 318 N.J. Super. 123,
136 (App. Div. 1999)).]

The primary evidence against defendant came from several fact witnesses:

(1) Pasquoche, who testified that defendant had threatened to kill Linnartz if he

returned to the loft without her; (2) Daut, who testified that he witnessed

defendant confront Linnartz and hit him in the head with a hammer; and (3)

Castillo, who testified that defendant told him that he hit Linnartz in the head

with a hammer during a struggle. There was also circumstantial evidence from:

(4) Margaret Linnartz, who testified that her son was afraid to return to the loft

after he was released from jail on August 28, 2013; (5) Pasquoche and Daut,

who identified the hammer found in the silo as belonging to defendant; (6)

Perales, who testified that defendant drew him a map showing where to find the

hammer and Linnartz's eyeglasses; and (7) the officer who stopped defendant

for a seatbelt violation, who testified that defendant phoned Linnartz's parents

to prove he had permission to drive the Jeep rather than phoning Linnartz

himself.

This evidence cumulatively supports a conviction for murder under

N.J.S.A. 2C:11-3(a) (1) or (2), because it bespeaks of defendant's purposeful or

knowing plan to cause death or serious bodily injury to Linnartz. However, it

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47
does not "clearly" support a manslaughter conviction under either N.J.S.A.

2C:11-4(a) or (b).

Aggravated manslaughter requires that "[t]he actor recklessly causes

death under circumstances manifesting extreme indifference to human life."

N.J.S.A. 2C:11-4(a)(1). 9 Nothing in the evidence, however, suggests that

defendant's behavior was reckless. Either he purposely initiated the

confrontation with Linnartz and hit him in the head with a hammer, or he did

not. There is no evidence that defendant simply disregarded the probability tha t

hitting Linnartz with the hammer would kill him. Jenkins, 178 N.J. at 363.

Likewise, non-aggravated manslaughter requires that the homicide be

committed recklessly or be committed in the heat of passion resulting from a

reasonable provocation. N.J.S.A. 2C:11-4(b)(1) and (2). Again, there was no

evidence of recklessness and although Linnartz was described as argumentative,

there is no evidence of provocation on Linnartz's part before the confrontation.

Although Castillo testified that defendant told him that defendant and Linnartz

had been struggling, Castillo did not say anything about who started the fight.

According to the evidence, the only person wielding a weapon was defendant.

9
N.J.S.A. 2C:11-4(a)(2) involves causing a death while eluding law
enforcement and is not relevant here.
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 In sum, neither side requested the lesser-included jury instructions on the

murder charge. The court had no independent duty to issue them if the evidence

did not clearly indicate that such charges were appropriate. Thomas, 187 N.J.

at 132. Because the evidence did not support a conviction under either N.J.S.A.

2C:11-4(a) or (b), the court's failure to issue such jury charges, sua sponte, was

not plain error.

C.

Defendant contends he is entitled to a new trial because the trial court

admitted into evidence, over his objection, two recordings of telephone calls

placed to and from inmates at the Passaic County jail while the charges against

defendant were pending. Defendant was a party to one of those taped

conversations. 10 The other conversation involved defendant, but he did not

participate in it.

The first call took place on December 20, 2016, at 11:56 a.m. While the

voices are not specifically identified, Voice 1 is apparently Jeff Kemp, a friend

of Horn's who was housed with Daut, Voice 2 is apparently Horn, and Voice 3

is apparently Daut.

10
In his brief on appeal, defendant erroneously states that both recordings were
between him and Richard Horn.
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 In this conversation, Horn asks Daut, "You're not talking are you?" to

which Daut replies, "No." Horn then says, "No, just write the kid, man. Because

he's flipping, man. He's losing his composure, bro. . . . And he loves you, bro,

like a brother, man." Daut denies cooperating, while Horn promises to get him

whatever he needs for trial. When Daut says he does not know what is going on

and "they're going to try to have me sign some, or what . . . ," Horn warns "you

can't sign . . . that's going to implicate him." Horn tells Daut to rely on Kemp

because "that's my dude. You know, stay white type shit, you know." Horn

closes the call by again pleading, "Please write him, though, man, please." Daut

promises that he will.

The next call played for the jury took place on the same day, December

20, 2016, at 12:39 p.m. Voice 1 is apparently defendant and Voice 2 is

apparently Horn.

In the conversation, Horn tells defendant that he spoke to Daut and told

him to write to defendant right away. Defendant worries that Daut is a problem

and will testify against him, but Horn insists that Daut is not cooperating . The

following exchange then takes place:

Voice 1: He can't cop out without me. It's impossible.
Unless he's testifying.

Voice 2: I - - I understand that. I told him that. I said,

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 "You can't do nothing without him." So, he said, "I
know." He said, "But, this is what they offered me."
Then, he says, you know, "I'm signed to it."

Voice 1: He signed it?

Voice 2: And, I said, "No. Don't sign." No, he didn't.
And I said, "When you go back, don't sign."

Voice 1: He's going to . . . he made a story about me.
There's no ifs, no ands, no buts. There's no way around
it.

Voice 2: So, I mean, I don't want to make it worse,
want my dude to get at him? Or, what do I do?

Voice 1: I don't know what to do, bro.

The following context is pertinent to the court's admission of these two

recordings. During cross-examination at trial by defense counsel, Daut testified

that he wrote defendant a letter in which he stated that the prosecutors wanted

him to lie on the stand. Perales corroborated Daut's testimony, saying that

defendant showed him the letter and in it, Daut wrote that the prosecutor's office

wanted him to lie. The State initially sought to admit the telephone recordings

to show the circumstances under which Daut wrote that letter.

Defendant objected to the admission of the telephone recordings, arguing

they were irrelevant and served no purpose except for "making [defendant] look

bad." The court listened to the audio recordings of the phone conversations and

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overruled defendant's objections. First, it found that evidence of the existence

of Daut's letter was admissible. It also found that the jail's call logs fell under

the business records exception to the rule against hearsay. See N.J.R.E.

803(c)(6).

As to the substance of the recorded conversations themselves, the court

found a logical connection between the State's proffer and facts at issue

concerning Daut's letter. Among other things, the court found the recordings

showing discussions about Daut's cooperation with the State were relevant to a

material issue in dispute. In particular, the conversations were deemed relevant

to explain a possible reason for the variance between Daut's testimony at trial

and his testimony at his plea allocution. In addition, the court found that the

evidence of the conduct on the calls was clear and convincing, and that the

probative value of the calls outweighed any prejudice arising from unpleasant

language on the calls.

As part of its ruling, the court also tracked elements of State v. Cofield,

127 N.J. 328 (1992), concerning the admissibility of "other bad acts" evidence

under N.J.R.E. 404(b). The court presumably did so because defense counsel

had invoked Rule 404(b) in his objection. After applying the Cofield factors, the

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court agreed with the State that they were also admissible evidence of

defendant's consciousness of guilt.

Our scope of review of the court's evidential ruling is limited. In general,

we defer to a trial court's rulings on the admissibility of evidence unless the

appellant demonstrates the court abused its discretion or made a "clear error of

judgment." State v. J.A.C., 210 N.J. 281, 295 (2012); State v. Brown, 170 N.J.

138, 147 (2001). Defendant fails to make such a demonstration.

We agree with the trial court the recordings were relevant proof to counter

the defense's efforts to show Daut had made false accusations about defendant

in his dealings with the prosecution. The recordings tend to show attempts were

made, or at least discussed, with Horn's assistance, to dissuade Daut from

cooperating with the State. Those efforts could explain why Daut's testimony

at defendant's trial was at variance in some respects with his plea colloquy

testimony, at which he had more pointedly inculpated defendant. The activities

and discussions may well have caused Daut to have misgivings about his

cooperation. The probative value of this relevant proof was not substantial ly

outweighed by undue prejudice. See N.J.R.E. 403.

To a lesser degree, we also agree that the second recording (i.e., the one

in which defendant is one of the speakers) was relevant evidence for the State

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of defendant's alleged consciousness of guilt. We recognize that at one point

during the call defendant expressed a worry that Daut had "made a story" about

him, and did not explicitly state that he had taken part in the killing. Even so,

that only signifies the second call is open to competing interpretations, which

were for the jury to assess.

We also reject defendant's argument that the trial court provided the jurors

with an inadequate instruction about the evidential use of the recordings. The

court expressly cautioned the jury that it could "not use this evidence to decide

that [he] has a tendency to commit crimes, or that he is a bad person." The court

also admonished the jurors that if they found defendant had taken part in phone

calls from the jail, they could not infer "he must be guilty of the present crimes."

This instruction is consistent with the "anti-propensity" prohibition of N.J.R.E.

404.

Notably, neither party at trial objected to the court's issuance of the

instruction, or its sufficiency. Because of that lack of objection, defendant must

now establish plain error that is "clearly capable of producing an unjust result."

Afanador, 151 N.J. 41, 54 (1997); see R. 2:10-2. Defendant fails to demonstrate

such plain error.

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 Defendant complains for the first time on appeal that the trial court should

have specified a particular use or uses of the recordings as "other bad acts"

evidence. However, the recordings were not necessarily used as proof of "other

bad acts" by defendant, but instead counterproof by the State to explain why

Daut's trial testimony had varied from his plea colloquy. Moreover, even if the

evidence is analyzed strictly as Rule 404(b) evidence, we are not persuaded the

omission of further specification in the court's instruction was clearly capable

of producing an unjust verdict. No plain error occurred.

D.

Defendant further challenges the sufficiency of the State's evidence to

support his conviction of the count charging him with second-degree burglary.

He raised this argument unsuccessfully before the trial court three times: first,

through a motion for judgment of acquittal at the close of the State's case -in-

chief; second, with a similar motion for acquittal at the close of all evidence,

and, third, with a post-verdict motion for a new trial.

The trial court soundly rejected each of these motions. Viewing the

record, as the court must, see State v. Reyes, 50 N.J. 454, 459 (1967), in a light

most favorable to the State, there was ample evidence for the jury to find beyond

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a reasonable doubt that defendant committed second-degree burglary in

violation of N.J.S.A. 2C:18-2(b).

A person is guilty of burglary if, with purpose to commit an offense

therein he enters a structure without license or privilege to do so. N.J.S.A.

2C:18-2(a)(1).

Burglary is a crime of the second degree if in the
course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts,
attempts to inflict or threatens to inflict bodily injury
on anyone; or

(2) Is armed with or displays what appear to be
explosives or a deadly weapon.

[N.J.S.A. 2C:18-2(b).]

The evidence reasonably supported the jury's finding of guilt under this

statute. First, there was Daut's testimony at the plea allocution hearing, which

was described during his cross-examination and read into the record during

redirect. The parties dispute whether Daut actually testified at his plea

allocution that Linnartz was killed after Daut and defendant attempted to break

into his Jeep or whether that fact was merely implied by the inartful questioning

of his then-counsel. Either way, the jury was presented with a scenario that

reasonably could be interpreted as defendant attempting to enter the Jeep using

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the hammer, when he then turned and wielded it against Linnartz.

The fact that such a plausible scenario was inconsistent with Daut's direct

examination testimony at trial did not prevent the jury from adopting it during

deliberations. The trial court appropriately instructed the jury pursuant to Model

Jury Charge (Criminal), "Prior Contradictory Statement of Witnesses (Not

Defendant)" (1994), that

[e]vidence, including a witness's statement or
testimony prior to trial, showing that a prior time a
witness has said something which is inconsistent with
the witness's testimony at the trial may be considered
by you for the purpose of judging the witness's
credibility. It may also be considered by you as
substantive evidence, that is, proof of the truth of what
is stated in the prior inconsistent contradictory
statement.

An instruction under this model charge is warranted in cases such as this one,

where prior inconsistent statements are relied upon as substantive evidence.

State v. Hammond, 338 N.J. Super. 330, 339-40 (App. Div. 2001). Thus, the

jury could have properly relied on Daut's plea allocution testimony in finding

defendant guilty of second-degree burglary.

Moreover, there was sufficient evidence to prove the elements of second-

degree burglary even if the jury disregarded Daut's plea allocution testimony.

During his police interrogations, defendant offered an account of the burglary

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in which he admitted going to the Jeep with his hammer to break the window.

Although he claimed that he abandoned the attempt and left his hammer by the

fence, there were grounds for the jury to disbelieve him. Indeed, Pasquoche and

Daut both testified that defendant never went anywhere without his hammer, and

that he slept with it under his pillow.

The timing of defendant's entry into the Jeep was never established during

the interrogations, but, according to Daut, defendant went to the Jeep

immediately after striking Linnartz with the hammer. The jury could have

reasonably believed that defendant used the hammer to break into the vehicle at

that time. If he did, the hammer could be considered a "deadly weapon" as

contemplated by N.J.S.A. 2C:18-2(b).

A deadly weapon is defined in the Criminal Code as

any firearm or other weapon, device, instrument,
material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used,
is known to be capable of producing death or serious
bodily injury or which in the manner it is fashioned
would lead the victim reasonably to believe it to be
capable of producing death or serious bodily injury.

[N.J.S.A. 2C:11-1(c) (emphasis added).]

The definition can include devices or instruments other than firearms, provided

(1) they are capable of causing death or serious bodily injury, and (2) are used

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or intended to be so used, "or are so fashioned to lead the victim of a crime to

believe they can be so used." State v. Riley, 306 N.J. Super. 141, 147 (App.

Div. 1997).

The jury could have reasonably concluded that defendant had immediate

access to the hammer and intended to use it in a way capable of producing

serious bodily injury. According to Daut's trial testimony, immediately after

striking Linnartz in the head with the hammer defendant ran through the fence

and to the Jeep. Perales, meanwhile, testified that defendant took Linnartz's

eyeglasses, which suggested that defendant thought Linnartz might be able to

get up to follow him.

Viewed in the light most favorable to the State, the evidence showed that

while breaking into the Jeep, defendant was armed with a hammer – which he

had just used to inflict serious bodily injury on Linnartz and which he intended

to so use again if Linnartz tried to stop him from entering the Jeep. Under the

circumstances, the hammer qualified as a "deadly weapon" as defined in

N.J.S.A. 2C:11-1(c).

In a related argument, defendant contends his conviction for second-

degree burglary must be set aside because it allegedly is inconsistent with the

jury's finding that he was not guilty of felony murder. We disagree. It is well -

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established under case law that inconsistent verdicts may be tolerated, so long

as the evidence was sufficient to establish guilt on the counts of an indictment

for which the defendant was convicted. State v. Goodwin, 224 N.J. 102, 116

(2016); State v. Banko, 182 N.J. 44, 53 (2004). Such evidential sufficiency is

present here.

E.

We reject defendant's argument that the trial court was required to exclude

the trial testimony of Dr. Falzon, the medical examiner who succeeded Dr.

Phillip in this case.

The trial court reasonably found that Dr. Falzon's independent findings

were sufficiently based upon his own personal knowledge. See State v. Bass,

224 N.J. 285, 318-19 (2016) (recognizing a qualified forensic pathologist may

testify as an expert when serving as an independent reviewer of an autopsy

performed by a different coroner). Dr. Falzon had access to reports, notes,

photos, radiographs, and laboratory tests sufficient to enable him to reach his

own independent opinions about manner of the victim's death.

We also concur with the trial court that Dr. Falzon's testimony was not

inadmissible "net opinion." The expert sufficiently expressed the "whys and

wherefores" underlying his conclusions, in compliance with case law. See, e.g.,

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Townsend v. Pierre, 221 N.J. 36, 55 (2015); Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 410 (2014). For example, Dr. Falzon explained the body's

state of decomposition, the appearance of the skull, how the brow ridge

deformed the impact impression, the results of blood testing, why the level of

morphine in the abdominal blood was artificially high, and how the broken rib

lacerated the liver. He supported this testimony with autopsy photographs,

clinical notes, and laboratory testing. This is the sort of evidence u pon which

experts in the field of forensic pathology typically rely.

Dr. Falzon did not speculate and did not express an opinion personal to

himself. When questioned on cross-examination, he was able to articulate the

grounds for his conclusions. His testimony was clearly not excludable net

opinion.

Lastly, we reject defendant's claim that he is entitled to a new trial because

Dr. Falzon did not explicitly couch his opinions as being rendered within a

"reasonable degree of medical certainty." Defendant did not interpose any

objection to the omission of this phraseology in the expert's testimony.

Moreover, the "reasonable degree" language is not "talismanic" or "magical

words" that must be uttered by every expert. Eckert v. Rumsey Park Assocs.,

294 N.J. Super. 46, 51 (App. Div. 1996). Here, Dr. Falzon expressed reasonable

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confidence in his conclusions, and his omission of the stock phrase was harmless

under the circumstances.

F.

Defendant contends his aggregate sixty-eight-year sentence is excessive.

In particular, he complains that the trial court found aggravating factor one,

N.J.S.A. 2C:44-1(a)(1), applicable. He also challenges the imposition of a

consecutive sentence on the burglary count. These arguments are unavailing.

Aggravating factor one was reasonably found in this case because the

killing of the victim – who was bludgeoned and then left dying behind a factory

building in the dark of night – was "especially heinous, cruel, or depraved."

N.J.S.A. 2C:44-1(a)(1). The other aggravating factors identified by the court

were also appropriate, particularly given defendant's extensive prior criminal

record. Moreover, the consecutive sentence imposed for the burglary offense

was justified under State v. Yarbough, 100 N.J. 627 (1985).

We are satisfied that defendant's sentence, while lengthy, does not "shock

our conscience" or represent a manifest abuse of the trial court's discretion.

State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Roth, 95 N.J. 334, 364-65

(1984). We will not disturb it.

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 G.

Finally, we remand solely to correct the monetary assessment imposed on

defendant. At sentencing, the trial court initially imposed the following fines

on the second-degree burglary charge: a $50 VCCB (Victims of Crime

Compensation Board) Assessment; $75 for the Safe Neighborhood Services

Fund; and $30 for the Law Enforcement Officers Training and Equipment Fund.

In response to a question from the prosecution, the court changed the VCCB

assessment to $100. On November 16, 2017, the court filed a judgment of

conviction which reflected the sentencing proceedings, except that it imposed a

$50 VCCB assessment on the second-degree burglary charge, the colloquy at

sentencing notwithstanding.

The court's imposition of a $100 VCCB fine for the second-degree

burglary charge is consistent with N.J.S.A. 2C:43-3.1, which states "any person

convicted of a crime of violence . . . shall be assessed at least $100.00."

(emphasis added). While "crime of violence" is not a well-defined term under

New Jersey law, see, e.g., Cannel, New Jersey Criminal Code Annotated,

comment 3 on N.J.S.A. 2C:43-3.1 (2018), second-degree burglary requires a

threat of physical harm to person or property or the use of a deadly weapon.

N.J.S.A. 2C:18-2(b). Moreover, the underlying facts justifying the conviction,

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as discussed infra, can clearly support the imposition of the increased penalty

for a crime of violence.

Regardless, "[i]n the event of a discrepancy between the court's oral

pronouncement of sentence and the sentence described in the judgment of

conviction, the sentencing transcript controls and a corrective judgment is to be

entered." State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016).

Accordingly, the matter is remanded so that the court can either conform the

judgment of conviction to the oral pronouncement of sentence or otherwise

clarify the amount of assessment that is being imposed.

H.

The balance of defendant's remaining points, including his claim of

cumulative error, lack sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(2).

Affirmed in part and remanded in part to correct the sentence.

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