RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1137-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS PENDLETON, a/k/a
ZACHARY PENEDLETON,
Defendant-Appellant.
_____________________________
Submitted May 26, 2020 – Decided September 3, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-04-0877.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard Woodley Bailey, Designated
Counsel, on the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Maura Murphy Sullivan,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Marcus Pendleton appeals from an August 7, 2017 judgment
of conviction and his twenty-four year sentence that was entered after a jury
found defendant guilty of charges arising from his beating of a woman with
whom he lived and had a dating relationship, and from his attempts to hide
evidence of his crime and persuade the victim not to bring charges against him
or testify in court. On appeal, he argues the following points:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S
REQUEST TO CHARGE THE JURY WITH
INTOXICATION AS A DEFENSE.
POINT II
THE COURT ERRED IN PROHIBITING
[DEFENDANT'S] EXPERT WITNESS TO TESTIFY
ABOUT DEFENDANT'S INTOXICATION AND THE
EFFECT IT HAD ON HIS ABILITY TO ACT
PURPOSELY AND KNOWINGLY.
POINT III
THE COURT ERRED IN PREVENTING
DEFENDANT FROM CALLING HIS MOTHER AS A
WITNESS TO ESTABLISH THE EXISTENCE OF
TEXT MESSAGES THAT SHOWED [THE VICTIM]
WAS AWARE OF [DEFENDANT'S] ALCOHOL
PROBLEM.
A-1137-17T3
2
POINT IV
THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE.
POINT V
THE SENTENCE IMPOSED WAS EXCESSIVE.
In a supplemental pro se brief, defendant also argued the following:
POINT I
COUNT 1 OF THE INDICTMENT IS FATALLY
FLAWED IN THAT IT FAILS TO CHARGE AN
OFFENSE AGAINST THE DEFENDANT. [U.S.
CONSTITUTION AMENDMENTS V AND XIV; N.J.
CONSTITUTION, ARTICLE 1, PARAGRAPHS 8,9,
10, AND 11].
....
POINT II
A GENERAL VERDICT OF GUILT WAS
RETURNED FOR COUNT 1 AND COUNT 2 OF THE
INDICTMENT WITHOUT AN UNDERSTANDING
OF WHICH PARTICULAR OFFENSE WAS THE
SUBJECT OF THE JURY'S DETERMINATION.
[U.S. CONSTITUTION, AMENDMENTS V AND
XIV; N.J. CONSTITUTION, ARTICLE 1,
PARAGRAPHS 8, 9, 10, AND 11].
....
A-1137-17T3
3
POINT III
THE TRIAL COURT'S CHARGE TO THE JURY
CONVEYED A MISINFORMATION OF THE LAW
[U.S. CONSTITUTION, AMENDMENTS V AND
XIV; N.J. CONSTITUTION, ARTICLE 1,
PARAGRAPHS 8, 9, 10, AND 11].
A. COUNT 2 – N.J.S.[A.] 2C:28-5(a)(5) –
TAMPERING WITH WITNESSES AND
INFORMANTS; RETALIATION AGAINST THEM.
B. COUNT 4 – N.J.S.[A.] 2C:28-5(a) –
TAMPERING WITH WITNESSES AND
INFORMANTS; RETALIATION AGAINST THEM.
N.J.S.[A.] 2C:2-4 – EVIDENCE OF MENTAL
DISEASE OR DEFECT.
POINT IV
THE TRIAL COURT ERRED IN ITS COMPOSITION
OF THE VERDICT SHEETS. [U.S. CONSTITUTION,
AMENDMENTS V AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPHS 8, 9, 10, AND 11].
A. COUNT 1 – N.J.S.[A.] 2C:12-l(b)(l) –
AGGRAVATED ASSAULT.
B. COUNT 2 – N.J.S.[A.] 2C:28-5(a)(5) –
TAMPERING WITH WITNESSES AND
INFORMANTS; RETALIATION AGAINST THEM.
POINT V
THE TRIAL COURT ERRED IN FAILING TO SUA
SPONTE CHARGE THE JURY WITH APPLICABLE
LAW/DEFENSES. [U.S. CONSTITUTION,
A-1137-17T3
4
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPH 10].
A. N.J.S.[A.] 2C:2-3(b) – CAUSATION.
B. N.J.S[A.]. 2C:2-8(e)(2) – INTOXICATION.
C. N.J.S.[A.] 2C:3-4(a) – USE OF FORCE IN
SELF-PROTECTION; N.J.S.[A.] 2C:3-6(a) – USE OF
FORCE IN DEFENSE OF PREM[ISES] OR
PERSONAL PROPERTY.
POINT VI
THE FINDING OF GUILT FOR EACH COUNT OF
THE INDICTMENT WAS BASED ON
INSUFFICIENT EVIDENCE [U.S. CONSTITUTION,
AMENDMENTS V AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPHS 8, 9, 10, AND 11].
....
POINT VII
THE KNOWING USE OF PERJURED TESTIMONY
BY THE STATE DENIED . . . DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL [U.S. CONSTITUTION,
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPH 10].
POINT VIII
THE SENTENCING JUDGE ERRED IN FAILING TO
CONSIDER APPROPRIATE AGGRAVATING AND
MITIGATING FACTORS BASED ON THE
RECORD. [U.S. CONSTITUTION, AMENDMENT
VI AND XIV; N.J. CONSTITUTION, ARTICLE I,
PARAGRAPH 10].
A-1137-17T3
5
A. THE SENTENCING JUDGE COMMITTED AN
ABUSE OF DISCRETION IN ERRONEOUSLY
ATTRIBUTING AGGRAVATING FACTORS IN
DETERMINING DEFENDANT'S SENTENCE.
B. THE SENTENCING JUDGE ERRED IN
FAILING TO CONSIDER MITIGATING FACTORS
THAT WERE AMPLY BASED ON THE RECORD.
POINT IX
THE DEFENDANT WAS IMPROPERLY
SENTENCED TO AN EXTENDED TERM OF
IMPRISONMENT. [U.S. CONSTITUTION,
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPH 10].
POINT X
THE TRIAL JUDGE ERRED IN ALLOWING
PREJUDICIAL EVIDENCE. [U.S. CONSTITUTION,
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE 1, PARAGRAPH 10].
A. PREJUDICIAL VIDEO OF . . . DEFENDANT.
B. PREJUDICIAL PHOTOGRAPHS OF THE
VICTIM.
POINT XI
THE DEFENDANT'S RIGHT TO A FAIR TRIAL
WAS VIOLATED BY IMPROPERLY CONDUCTED
VOIR DIRE PROCEEDINGS. [U.S.
CONSTITUTION, AMENDMENT VI AND XIV; N.J.
CONSTITUTION, ARTICLE I, PARAGRAPH 10].
A-1137-17T3
6
POINT XII
THE DEFENDANT'S RIGHT AGAINST DOUBLE
JEOPARDY WAS VIOLATED BY THE TRIAL
JUDGE'S IMPROPER DECLARATION OF A
MISTRIAL. [U.S. CONSTITUTION, AMENDMENT
V, VI AND XIV; N.J. CONSTITUTION, ARTICLE I,
PARAGRAPH 11].
POINT XIII
THE TRIAL JUDGE ERRED IN NOT INCLUDING
THE DEFINITION OF NEGLIGENT WHEN
CHARGING THE JURY. [U.S. CONSTITUTION,
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPH 10].
POINT XIV
THE FINDING OF GUILT AS TO COUNT 4 OF THE
INDICTMENT WAS BASED ON ILLEGALLY
OBTAINED EVIDENCE AND AN ENTRAPMENT
PERPETRATED BY THE VICTIM. [U.S.
CONSTITUTION, AMENDMENT IV AND XIV; N.J.
CONSTITUTION, ARTICLE I, PARAGRAPH 7 AND
10].
POINT XV
THE CUMULATIVE EFFECT OF NUMEROUS
ERRORS RESULTED IN AN UNFAIR TRIAL FOR
THE DEFENDANT. [U.S. CONSTITUTION,
AMENDMENT VI AND XIV; N.J. CONSTITUTION,
ARTICLE I, PARAGRAPH 10].
A-1137-17T3
7
POINT XVI
THE DEFENDANT SUFFERED AN UNFAIR TRIAL
DUE TO INEFFECTIVE ASSISTANCE OF
COUNSEL. [U.S. CONSTITUTION, AMENDMENT
VI AND XIV; N.J. CONSTITUTION, ARTICLE I,
PARAGRAPH 10].
We are unpersuaded by defendant's contentions and for the reasons that
follow, we affirm.
I.
Defendant and the victim started dating in 2013 and began living together
in September 2014 in a second-floor apartment that defendant leased. At the
time of the incident, according to the victim, defendant did not drink alcohol as
he was a recovering alcoholic who attended Alcoholic Anonymous meetings
and, for that reason, alcohol was not kept in the apartment. In fact, she never
saw defendant drink alcohol at any time. On December 31, 2014, there was
nothing about defendant that made the victim think defendant had been drinking.
On that day, when the victim left for her 1:00 p.m. to 10:00 p.m. shift at work,
she believed she had her apartment keys with her. After her shift ended, the
victim went to a bar with coworkers to celebrate her recent promotion. The
victim earlier informed defendant that she would be going out with her
coworkers after her shift ended. Her failure to return home after work upset
A-1137-17T3
8
defendant who was already concerned that the victim was not being faithful to
him.
When the victim arrived back at home at approximately midnight, she
realized she did not have her keys, so she started to knock on the door, and called
defendant on her cell phone. Defendant never responded so the victim decided
to lean against the door and sleep on the floor.
At approximately 5:00 a.m., the victim woke up when defendant opened the
door. Defendant immediately started to yell at her and as she got up, defendant
pulled at her jacket, attempted to push her over the staircase railing, pulled her
into the apartment, slammed the door shut, sat on the victim, and started slapping
her in the face with an open hand.
While defendant was slapping the victim, he stated "that this [was] all [the
victim's] fault, that he [did not] want to do this, but [she] made him do this to
[her]." Anytime the victim attempted to get free, defendant would sit on her
chest harder, pin her arms back, or bend her legs so she could not move. She
could not scream for help, as defendant also kept putting "his hand over [her]
mouth." Defendant started to choke the victim, which caused her to pass out.
After she woke up, defendant attempted to console the victim before resuming
the beatings by punching her until he eventually got up, locked the front door,
A-1137-17T3
9
dragged the victim to their bedroom, and continued to beat her on the bed. The
victim believed that defendant was going to kill her.
When the beatings suddenly ended, defendant told the victim to go to the
bathroom, where he had opened the medicine cabinet so she could not see herself
in the mirror. Defendant gave her a washcloth to clean herself, and then he
"cleaned up some of the blood that was . . . splattered everywhere." Defendant
then grabbed the victim's personal belongings, including her cell phone,
computer, credit cards, identification, and the bloody bed sheets on the bed. As
he left for work, he told the victim that "it wouldn't be good for [her] to go to
the police department or to the police."
When he was gone, the victim was listening for defendant's car to leave when
he suddenly stormed back into the apartment and accused her of taking his cell
phone. Defendant once again started slapping the victim but stopped when he
realized his cell phone was in his pant pocket, which he was wearing at the time.
After defendant left for the second time, the victim waited for defendant to
leave before she went to the police station that was across the street from the
apartment. At the station, Officer Daniel Kinkler observed that the victim was
bleeding onto the floor, and that her "face was extremely swollen, black and
blue, [with] eyes swollen so much [he] could just see a slit. [He] couldn't make
A-1137-17T3
10
out the color of the eyes or anything like that," and because of how bad the
injuries were, at first, Kinkler could not even determine if the victim was male
or female. The officer radioed for ambulance assistance. Prior to its arrival, the
victim informed the officer that defendant was the one that "did this to" her, and
Kinkler photographed the victim's face.
After the ambulance left, Kinkler went to the apartment and was joined by
then Patrol Sergeant Michael Scardino. There, the officers "noticed blood on a
door jamb[,] . . . a little bit of blood on the floor," and that the bed sheets were
not on the bed. While at the apartment, Kinkler also observed that there were
no bottles of alcohol. Before leaving, Scardino took photographs of the scene.
At the hospital, then Detective Sergeant Bruce Koch and prosecutor's
Detective Jose Rosado interviewed the victim. The interview ended when the
victim, who was feeling pain everywhere, got sick to her stomach and vomited
up blood. The officers were able to obtain information about defendant's
location.
A doctor at the hospital treated the victim for multiple contusions and bruises
to the face. The victim did not experience any fractured bones. It was ultimately
determined that she suffered from Post-Concussive Syndrome, headaches, had
A-1137-17T3
11
undergone six sessions of occupational therapy, and was being treated by a
neurologist for chronic headaches.
In the meantime, after defendant left the apartment, and before going to work,
he allegedly went to a friend's residence at approximately 5:30 a.m. The friend
had known him for over twenty years and knew what he was like when he got
drunk. According to the friend, defendant was drunk when she saw him as he
was slurring his words, stumbling, and she could smell alcohol on him. She was
concerned about defendant driving to work and working while intoxicated.
Later that day, Koch and Scardino arrested defendant at his place of
employment.1 Scardino read defendant his Miranda rights2 and obtained
permission from defendant to search defendant's vehicle, which resulted in the
discovery of the bed sheets and the victim's personal items, but no bottles of
alcohol.
At the police station, Kinkler processed defendant, and, based on his training,
the officer concluded defendant was not under the influence of alcohol at that
time and that a blood alcohol test was not necessary. Scardino provided
1
On the same day, a municipal court entered a temporary restraining order
under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to
-35, barring defendant from having any contact with the victim.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1137-17T3
12
defendant with his Miranda rights and also concluded that he could not detect
alcohol in defendant's system, although he did not know whether defendant was
drinking the night before. Rosado stated that there was nothing to make him
believe defendant had recently drank after the incident.
Koch and Rosado then interviewed defendant. The interview was recorded
on video tape. According to Koch, defendant's speech was clear, and at no time
did Koch think defendant was under the influence of alcohol. In the video
statement, defendant stated that prior to December 31, 2014, he told the victim
not to come back to the apartment because they had trust issues. According to
defendant, the victim had been inappropriately talking to another man. The trust
issues led the victim to install a tracking application on her cell phone so she
could regain his trust.
Defendant stated that on December 31, 2014, the victim was supposed to
come back to his apartment after work but because she went out with her friends,
he told her not to come back. He stated that the situation was too much for him,
which caused him to drink. Defendant stated, "that he had [drank] very heavily
during the night before he came across [the victim] and that he had blacked out."
According to defendant, because he had not consumed any alcohol for over a
A-1137-17T3
13
year and because he drank so much, he did not recall many of the things that
took place when the victim returned home.
Nevertheless, defendant explained how the victim tried to force her way back
into the apartment, he tried to get her back out, and he "panicked and . . . tried
to cover her face," which caused the victim to start hitting defendant. After
looking at her phone and seeing that she deleted text messages, he "started
hitting her in her face" with an open hand. He admitted to hitting her more than
once and to tracking her on the cell phone application. Defendant stated that he
hit the victim approximately eight times and he recalled the conversation they
had while he was hitting her. He even recalled opening the medicine cabinet to
prevent the victim from seeing her face start to swell and getting her a bag of
french fries from the freezer to help with the swelling. Defendant further stated
that he took the bed sheets with him to work "[b]ecause [he] knew how much it
meant to her" since "she was really excited to get [it] as a gift." He also admitted
to taking the victim's personal items but could not recall why he did that.
Defendant denied telling the victim not to go to the police but stated that he
knew she was going to go to the police. He said he felt "shame for . . . hitting
her," and "that it wasn't [his] intention to seriously hurt" the victim.
A-1137-17T3
14
In the meantime, after leaving the hospital, the victim stayed with a friend
until she returned to the apartment on January 2, 2015. When she returned, she
did not notice any alcohol in the apartment.
A few days after her return, defendant, who had been ordered not to contact
the victim, called the victim while he was in jail and told her not to talk to the
police. The call was video and audio taped by corrections officers.
During the call, defendant asked the victim to "hear [him] out," the victim
stated "[y]ou're not supposed to call me," defendant apologized for what he did,
and stated that he was "going to kill [himself]," and he could not live like this.
Defendant started to state that "[i]t hurt [him] so bad when [he] found out" what
the victim did to him and again reiterated that the victim "hurt [him] so bad."
He asked the victim that "[i]f [he did not] talk to . . . anybody else again, just let
everybody know that . . . [he] love[s] them." After the victim stated that she
was going to press charges, defendant stated "[p]lease don't do that." He further
stated "just please don't testify in court. Please just don't." Defendant indicated
that he and his family could not "take this." Afterwards, the victim spoke to
Koch about the phone call she received from defendant. Defendant was later
charged with an additional offense relating to the call.
A-1137-17T3
15
Thereafter, a Grand Jury returned an indictment charging defendant with
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count 1); third-
degree tampering with witness and informants, N.J.S.A. 2C:28-5(a) (Count 2);
fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(a)(1) (Count 3); third-
degree tampering with witnesses and informants, N.J.S.A. 2C:28-5(a)(1) (Count
4); and fourth-degree criminal contempt, N.J.S.A. 2C:29-9(b) (Count 5). 3
Defendant's first trial ended in a mistrial on February 22, 2017. 4 The second
trial began on May 2, 2017. At the end of the State's case, defendant moved for
a judgment of acquittal, which the court denied. The jury convicted defendant
of Counts 1 through 4. The State moved to dismiss Count 5, which the court
granted. On July 21, 2017, the trial court granted the State's motion for
sentencing in the extended term, and then imposed an aggregate sentence of
twenty-four years, subject to a parole ineligibility period under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
3
Counts 1 to 3 related to the events of December 31, 2014, while Counts 4 to 5
related to the phone call defendant made to the victim on January 6, 2015.
4
As the trial court found at the time, the mistrial was required after Koch
mistakenly mentioned the domestic violence restraining order in response to a
question on direct examination that did not call for its disclosure.
A-1137-17T3
16
II.
Intoxication
A.
We begin our review by addressing defendant's arguments stated in Point I
of his merits brief and in Point V of his supplemental brief relating to his claim
that he was too intoxicated at the time he beat the victim to be held accountable
for his actions. His first contention is that the trial court committed reversable
error by refusing to charge the jury with Model Jury Charges (Criminal),
"Intoxication Negating an Element of the Offense (N.J.S.A. 2C:2-8a)" (rev. Oct.
8, 2005). Defendant asserts that his video statement and the testimony of his
friend with whom he met with after beating the victim supported his request for
the charge. He argues that with this evidence, "a rational jury could find his
faculties were so prostrated by his consumption of alcohol that he was rendered
incapable of purposeful or knowing conduct." We disagree.
In refusing to charge the jury with the intoxication defense, because there
was insufficient evidence to support the defense, the trial court relied heavily
upon the detailed statement defendant gave to the police about the incident.
Those details included what he said while he beat the victim, the different
manners in which he struck her, the description of the victim's injuries he saw
A-1137-17T3
17
develop during the encounter, the precise food he took from the refrigerator to
give to her when the beating stopped, and the description of how and why he
removed the sheets and the items he took from the victim before leaving. Yet,
in the same statement, defendant never mentioned any details about how much
alcohol he consumed, where or when he acquired it, and over what time he
consumed the alcohol.
It is well settled that "[a]ppropriate and proper [jury] charges are essential"
in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613
(2004) (first alteration in original) (quoting State v. Green, 86 N.J. 281, 287
(1981)). Jurors must be instructed on the defense of intoxication where "the
requisite culpability for a crime is that the person act 'purposely' or 'knowingly,'
[and there is] evidence of voluntary intoxication [that] is admissible to disprove
that requisite mental state." State v. Cameron, 104 N.J. 42, 53 (1986).
In order to disprove the requisite mental state, the evidence must demonstrate
"that defendant's 'faculties' were so 'prostrated' that he or she was incapable of
forming an intent to commit the crime." State v. Mauricio, 117 N.J. 402, 418-
19 (1990). "[U]nless the evidence [meets] that standard, the issue should not be
presented to the jury." State v. Zola, 112 N.J. 384, 424 (1988) (citing Cameron,
104 N.J. at 54-57). Before refusing to deliver the requested instruction, a trial
A-1137-17T3
18
court must determine whether "viewing the evidence and the legitimate
inferences to be drawn therefrom in the light most favorable to defendant , . . .
there is no suggestion in the evidence that defendant's faculties were so
[affected] . . . as to render [defendant] incapable of purposeful or knowing
conduct." Ibid. (second and fourth alterations in original) (quoting State v.
Breakiron, 108 N.J. 591, 617 (1987)).
In Cameron, the Supreme Court addressed the extreme level of intoxication
necessary to satisfy the "prostration of faculties" test. 104 N.J. at 54. The Court
stated:
[I]t is not the case that every defendant who has had a
few drinks may successfully urge the defense. The
mere intake of even large quantities of alcohol will not
suffice. Moreover, the defense cannot be established
solely by showing that the defendant might not have
committed the offense had he been sober. What is
required is a showing of such a great prostration of the
faculties that the requisite mental state was totally
lacking. That is, to successfully invoke the defense, an
accused must show that he was so intoxicated that he
did not have the intent to commit an offense. Such a
state of affairs will likely exist in very few cases.
[Ibid. (alteration in original) (citation omitted) (quoting
State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman, J.,
concurring and dissenting)).]
A-1137-17T3
19
Further, the Court described "some of the factors pertinent to the
determination of intoxication sufficient to satisfy the test of 'prostration of
faculties.'" Id. at 56. Those factors included:
[T]he quantity of intoxicant consumed, the period of
time involved, the actor's conduct as perceived by
others (what he said, how he said it, how he appeared,
how he acted, how his coordination or lack thereof
manifested itself), any odor of alcohol or other
intoxicating substance, the results of any tests to
determine blood-alcohol content, and the actor's ability
to recall significant events.
[Ibid.]
Applying the "prostration of faculties" test, we previously held that a
defendant's statement that he drank excessively at the time the crime was
committed was "entirely insufficient to establish the extremely high level of
intoxication required by the [c]ourt to qualify as a defense as well as to create a
jury question on defendant's intoxication." State v. R.T., 411 N.J. Super. 35,
50-51 (App. Div. 2009), aff'd, 205 N.J. 493 (2011). Similarly, the Supreme
Court has held that a defendant's reliance upon a doctor who stated, "defendant
had been increasingly dependent on drugs and alcohol; on evidence that
defendant had stolen and used a gram of methamphetamine on the day of the
crime; and on the testimony of defendant's girlfriend that she knew defendant
A-1137-17T3
20
frequently used methamphetamine and had often seen him using marijuana" was
insufficient to warrant the charge. Zola, 112 N.J. at 423-24.
Applying the test here, we conclude the trial court correctly denied
defendant's request to charge the intoxication defense because there was
insufficient evidence to support the request. Here, the victim testified that she
had never seen defendant drink alcohol and when he attacked her, she did not
sense an odor of alcohol, or observe any bottles or anything else to indicate that
defendant was under the influence at that time. Moreover, the search of
defendant's apartment and car did not yield any evidence of alcohol
consumption. Other than defendant and his friend, every witness "who observed
him . . . before [and after] the crime testified that he did not appear to be
intoxicated and defendant's [recorded statement to police] showed a clear and
detailed recollection as to the events." Zola, 112 N.J. at 425. In defendant's
detailed statement, he not only admitted to hitting the victim, but he also
described how he hit the victim, where he hit the victim, what he did to clean
the apartment, and what he did when he left the apartment. The only evidence
of defendant's intoxication was his statement to police and his friend's
observations, neither of which demonstrated a prostration of defendant's
A-1137-17T3
21
faculties. We have no cause to disturb defendant's conviction based on this
contention.
B.
Next, we consider defendant's arguments in Point II of his merits brief about
the limitations imposed by the trial court on the scope of his expert's, Dr. Peter
Oropeza, testimony at trial. Prior to trial, the court conducted a Rule 104 hearing
to determine the extent of Oropeza's testimony. Oropeza, a forensic
psychologist, testified that he was asked to conduct a psychological evaluation
of defendant in 2016. Based on his evaluation, Oropeza concluded that
defendant suffered from a bipolar disorder.
After reviewing defendant's personal history dating back to the 1990s,
Oropeza opined that defendant had "a longstanding history of . . . untreated
mental illness[ and] very poor coping skills." He testified defendant "was not
able to knowingly and purposefully act out" on December 31, 2014 "due to a
combination of his mental illness and his . . . substance abuse, including
alcohol." In reaching that conclusion, Oropeza relied upon defendant telling
him that "he drank approximately half a gallon of vodka" on December 31, 2014,
up until the point that he passed out, which prevented defendant from recalling
what happened.
A-1137-17T3
22
On cross-examination, Oropeza, acknowledged that he did not "review
anything with regard to [defendant's] blood alcohol content," but instead relied
upon what defendant had told him in the evaluation and the statement defendant
gave to the police. The doctor could not determine whether defendant acted
recklessly, as he was not asked to make that determination. While the doctor
conceded that his report never opined about whether defendant purposely or
knowingly removed all of the victim's items from the apartment, removed the
sheets, and cleaned off the blood from the apartment, he testified that "[i]t
sounds like he[ knew] what he[ was] doing in reference to that."
The trial court found Oropeza to be credible, and "by the thinnest of . . .
testimony," the court "permit[ted] the doctor to testify as to the diminished
capacity defense, that there [was] a mental disease or defect that may negate the
mental state that is an element of the offense." The court would however, "not
permit[] testimony as to [defendant's] alcohol consumption [on the night of the
incident] absent an[y] support." The court permitted Oropeza to testify that
"defendant could not knowing[ly], purposely or was not able to form . . . the
requisite intent due to his mental illness."
At trial, Oropeza again testified to the information and opinions he discussed
at the Rule 104 hearing, including his statements about defendant's history of
A-1137-17T3
23
alcohol abuse. He also explained in preparing his report that he spoke to
defendant and defendant's mother, he reviewed defendant's psychiatrist's
opinions, and that "[a]t the time of the offenses," defendant had an "untreated"
"bi[]polar disorder" and "[a]n alcohol dependency problem." In his professional
opinion, defendant could "not knowingly and purposely attempt to cause serious
bodily injury."
On cross-examination, Oropeza again stated that defendant told him that he
had "ingested an approximate level of a half gallon of vodka" on December 31,
2014. He also stated that while he was asked to opine on whether defendant's
"mental issues or his alcohol intake effected his ability to act purposely or
knowingly," he was never asked to prepare a report about whether defendant
acted recklessly. Oropeza explained that it was the "combination of an untreated
bi[]polar condition and . . . severe alcohol intoxication [that led] to [his] opinion
that there wasn't knowing or purposeful attempts to cause severe bodily injury."
On appeal, defendant argues that the trial court should not have prevented
defendant's "expert from testifying that intoxication was part of the foundation
for his medical opinion," "[e]ven with [the] court finding that intoxication
should not be charged." By only allowing Oropeza to testify about defendant's
bipolar disorder, and not to testify about defendant's "prior alcohol
A-1137-17T3
24
dependenc[y], his addiction to alcohol and his intoxication [on] that night" of
the incident, did not allow the jury to fully understand "the true nature of
[Oropeza's] expert opinion" and his diminished capacity.
We conclude that the premise of defendant's argument about Oropeza is
simply incorrect. Here, the trial court permitted Oropeza to testify about how
defendant's history of mental disorder and substance abuse could have impacted
defendant on the night of the incident. Even though the witness had been
previously barred from testifying that defendant drank on the night of the
incident, the doctor told the jury what defendant had told him about the amount
of alcohol he consumed that night. The trial court specifically stated that unlike
determining whether defendant's "faculties were [so] prostrated" to warrant the
intoxication defense charge, the lack of proof of intoxication was not a bar to
Oropeza testifying about the effects of defendant's alcoholism and mental
disorder. For that reason, Oropeza was permitted to testify about defendant's
allegation that he consumed alcohol and how defendant's psychological and
substance abuse issues prevented defendant from purposely or knowingly
committing an aggravated assault. Contrary to defendant's contention, the trial
court did not impede the doctor's testimony or defendant's defense and later it
appropriately charged the jury with diminished capacity. Model Jury Charges
A-1137-17T3
25
(Criminal), "Evidence of Mental Disease or Defect (N.J.S.A. 2C:4-2)" (rev. June
5, 2006).
C.
Next, we address defendant's contention in Point III of his merits brief that
the trial court improperly barred his mother from testifying at trial to rebut the
victim's testimony that she never saw defendant drink alcohol. The court's
ruling arose after it ordered witnesses to be sequestered at the beginning of the
trial, and defendant's mother, who was not identified as potential witness, sat
through each day's proceedings, but was then proffered as a rebuttal witness by
defendant. Specifically, counsel wanted to introduce, through the mother, text
messages that she exchanged with the victim on August 30, 2014, about their
mutual concern that defendant had possibly gone on a "binge."
In response to the proffer, the trial court initially ruled that to allow the
mother to testify would be a violation of its sequestration order. Moreover, it
found that the text messages did not "indicate anything other [than] that there
was a concern that [defendant] was missing and [the messages did not] indicate
in there that [the victim] had seen him drink or that he was drinking." Therefore,
the messages did not "say anything . . . that would be different than what [the
victim] testified to." Furthermore, since the mother would not be able to
A-1137-17T3
26
separate what she already heard from her proposed testimony, the trial court
would not allow her to testify.
The next day, before the victim's cross-examination began, the court
discussed the text messages having reviewed them again the night before. The
court read a specific portion of the messages, in which both the mother and the
victim expressed concerns about defendant's whereabouts at the time, and, as
the mother stated, that, defendant was "going on a binge . . . and [she was] sick
with worry." Although the victim shared the concern, she never stated in the
text messages that she saw defendant drinking at any time.
After reading the text messages, the trial court reiterated its ruling from the
prior day that the messages were inadmissible, and the mother could not testify.
The court stated that the messages were "lacking of completeness," as they did
not have time stamps from the messages, the court was skeptical about whether
it was given the full text of the conversation, and it did not find the messages to
be reliable. These concerns in combination with the mother being present in the
courtroom resulted in the court barring the mother from testifying or admitting
the text messages in as evidence. However, the court allowed defense counsel
to cross-examine the victim about the text messages, but the victim expressed
difficulty in remembering the exchange.
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27
On appeal, defendant argues that even with the sequestration order in place,
it was reversible error not to allow defendant's mother to rebut the victim's
testimony that the victim never saw defendant drink alcohol. He further argues
that the trial court "should have considered alternative remedies," such as a jury
instruction about the mother's violation of the order.
We conclude that defendant's contentions are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We only observe that
even if there was an error in barring the mother from testifying or admitting the
text messages, see State v. Dayton, 292 N.J. Super. 76, 91 (App. Div. 1996);
State v. Horton, 199 N.J. Super. 368, 373-74 (App. Div. 1985), the error, if any,
was harmless. R. 2:10-2. As the trial court concluded, there was nothing in the
proffered text messages to support any contention that defendant was intoxicated
at the time he repeatedly beat the victim four months after the text message
exchange or that the victim ever witnessed defendant drink alcohol. Moreover,
nothing prevented defendant from naming his mother as a witness with
knowledge about history of alcoholism. Had he done so, she too would have
been sequestered and would have been allowed to testify. The trial court's order
in this regard was consistent with the purposes of sequestration, see N.J.R.E.
615; State v. Williams, 404 N.J. Super. 147, 159-60 (App. Div. 2008); State v.
A-1137-17T3
28
Miller, 299 N.J. Super. 387, 399 (App. Div. 1997), and did not constitute an
abuse of the trial court's discretion.
III.
Additional Jury Charges
Defendant contends in Points V and XIII of his supplemental brief, that the
trial court failed to "sua sponte charge the jury with causation with respect to"
how the victim acquired her migraines and headaches because the jury may have
found that the victim caused her own injuries. He also argues that the trial court
should have instructed the jury on self-protection, N.J.S.A. 2C:3-4(a) and use of
force in defense of premises and personal property, N.J.S.A. 2C:3-6(a). Finally,
defendant contends that the trial court failed to include negligence as one of the
mental states required for aggravated assault.
Here again, we conclude defendant's contentions are without any merit and
do not warrant further discussion. R. 2:11-3(e)(2). Succinctly, no request was
ever made for these charges and defendant did not interpose an objection to the
court's charge as delivered, other than the omission of the intoxication defense.
"A claim of deficiency in a jury charge to which no objection is interposed 'will
not be considered unless it qualifies as plain error . . . .'" State v. R.B., 183 N.J.
308, 321 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).
A-1137-17T3
29
"[V]iew[ing] . . . the totality of the entire charge, not in isolation," State v.
Chapland, 187 N.J. 275, 289 (2006), we find no prejudicial error, State v.
Coruzzi, 189 N.J. Super. 273, 312 (App. Div. 1983), or anything in the record
to warrant that any of the cited charges be given to the jury. Defendant's
contention about negligence is without any legal basis.
IV.
Weight of the Evidence
We turn our attention next to defendant's contention in Point IV of his
merits brief and Point VI of his supplemental brief that the trial court erred by
denying his motion for "a new trial at the conclusion of the State's case." He
argues the State failed to meet its burden of establishing a prima facie case, and
to not set aside the jury verdict would be a "manifest denial of justice under the
law." As to the indictment's first count, he argues that the injuries sustained by
the victim did not "create a risk of death or cause the victim any permanent
injury." He asserts that the State failed "to satisfy the injury requirement of
N.J.S.[A.] 2C:21-1(b)(1)," and therefore he cannot be found guilty of aggravated
assault. Instead, defendant contends that he should have been found guilty of
simple assault.
A-1137-17T3
30
As to the tampering counts, defendant first argues that Count 2, N.J.S.A.
2C:28-5(a) and Count 3, N.J.S.A. 2C:28-6(1) do not apply to his conduct as
defendant "never had any reason to believe that 'an official proceeding or an
investigation [was] pending or about to be instituted or [had] been instituted, '"
when he demanded the victim not go to the authorities. As to Count 4, defendant
asserts that the phone call made while in prison does not provide evidence that
defendant "requested or attempted to get the victim 'to testify or inform falsely'"
under N.J.S.A. 2C:28-5(a)(1).
At the outset, we conclude that to the extent defendant contends that the
verdict was unsupported by the evidence at trial, we will not consider his
contention as he never filed a motion for a new trial. See R. 2:10-1; State v.
Fierro, 438 N.J. Super. 517, 530 (App. Div. 2015). We therefore limit our
review to the question of whether the trial court correctly denied his motion for
acquittal at the end of the State's case, after giving the State on its case "the
benefit of all its favorable testimony" and "all of the favorable inferences . . . ,
a reasonable jury could find guilt . . . beyond a reasonable doubt." State v.
Wilder, 193 N.J. 398, 406 (2008) (second alteration in original) (quoting State
v. Reyes, 50 N.J. 454, 459 (1967)); R. 3:18-1.
A-1137-17T3
31
As to the charge of aggravated assault, the victim and the investigating police
officers testified to the victim's injuries, which were also illustrated by
photographs taken at the time. In her testimony, the victim explained not only
how defendant beat and choked her until she passed out, but also because of
what defendant did to her, she continued to suffer from headaches and
migraines, which began shortly after the incident, and for which she received
treatment from a neurologist who prescribed medication as well. She also began
working with an occupational therapist who helped with her inability to recall
and "processing information from multiple sources at one time." There were
days the pain was so bad that she could not even stand to hear her therapist speak
to her. Although she had improved somewhat by the trial date, the victim still
experienced difficulty processing information. Moreover, although the victim
stated that her neurologist initially thought that the victim's use of a pain reliever
may have caused some of her headaches, after she stopped taking the
medication, the headaches and migraines still continued.
Contrary to defendant's contentions on appeal we conclude from our de novo
review, State v. Dekowski, 218 N.J. 596, 608 (2014); State v. Williams, 218 N.J.
576, 593-94 (2014), that there was sufficient evidence to warrant the denial of
his motion as to Count 1. That count charged defendant with second-degree
A-1137-17T3
32
aggravated assault by "[a]ttempt[ing] to cause serious bodily injury to another,
or caus[ing] such injury purposely or knowingly or under circumstances
manifesting extreme indifference to the value of human life recklessly causes
such injury." N.J.S.A. 2C:12-1(b)(1). The jury ultimately found defendant
guilty for causing the victim to sustain a serious bodily injury.
"Serious bodily injury," is defined as "bodily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ."
N.J.S.A. 2C:11-1(b) (emphasis added); see State v. Bey, 129 N.J. 557, 579-80
(1992) (explaining that attempting to strangle "a form of violence designed and
likely to kill a victim, and" more significant than attempting "to inflict serious
bodily injury"), supplemented by 137 N.J. 334 (1994); State v. Turner, 246 N.J.
Super. 22, 27 (App. Div. 1991) (holding that a laceration to a victim's throat
"unquestionably subjected the victim 'to a substantial risk of death'" (quoting
State v. Williams, 197 N.J. Super. 127, 132 (App. Div. 1984))). In considering
what constitutes a serious bodily injury, courts should consider "the injury . . .
in the eyes of the beholder," "how the injury affected the victim's daily life and
normal activities," and how the "condition was protracted, prolonged or
extended in time." State v. Kane, 335 N.J. Super. 391, 398-99 (App. Div. 2000).
A-1137-17T3
33
Applying these guiding principles to the testimony and other evidence
adduced on the State's case, we conclude that there was sufficient evidence "to
warrant a conviction" on the charge of aggravated assault. Defendant's act of
repeatedly beating the victim to the point she was not recognizable, attempting
to throw the victim over the staircase railing, and choking the victim, which
caused her to pass out and created a substantial risk of death. Similarly, the
testimony at trial confirmed that the victim suffers from ongoing pain and
suffering through her migraines, headaches, and difficulty processing
information. The severity of victim's pain constitutes a protracted loss of bodily
function that has persisted for years since the incident.
We reach a similar conclusion as to the tampering related charges. In Count
2, defendant was charged with subsections one, two, and five of tampering with
witnesses, N.J.S.A. 2C:28-5(a), which are third-degree offenses if a person
"believing that an official proceeding or investigation is pending or about to be
instituted . . . cause[s] a witness or informant to . . . [t]estify or inform
falsely; . . . [w]ithhold any testimony, information, document or thing; . . .
or . . . [o]therwise obstruct, delay, prevent or impede an official proceeding or
investigation." Ibid. Further, in Count 3, defendant was charged with tampering
with physical evidence, N.J.S.A. 2C:28-6(1). That section of the criminal code
A-1137-17T3
34
makes it a fourth-degree offense where a person who "believ[es] that an official
proceeding or investigation is pending or about to be instituted, . . . [a]lters,
destroys, conceals or removes any article, object, record, document or other
thing of physical substance with purpose to impair its verity or availability in
such proceeding or investigation." Ibid.
At trial, on the State's case, the victim testified that defendant told her not to
go to the police and took her personal belongings, including her cell phone, and
in defendant's recorded statement, he admitted that he removed the bloody bed
sheets from the scene, which provided sufficient evidence to sustain convictions
for tampering with a witness and physical evidence under Count 2 and Count 3.
Defendant's argument on appeal that he did not know a proceeding was about to
be instituted is belied by the record. In defendant's statement to the police that
was played for the jury, he specifically stated that he knew the victim was going
to go to the police. The denial of his acquittal motion in this regard is
unassailable.
Last, we consider defendant's arguments as to Count 4 that charged him with
tampering with a witness, N.J.S.A. 2C:28-5(a)(1). According to defendant, the
phone call he made while in jail did not provide sufficient evidence that
A-1137-17T3
35
defendant "requested or attempted to get the victim 'to testify or inform falsely'"
under N.J.S.A. 2C:28-5(a)(1). We disagree.
On this count, defendant was charged under N.J.S.A. 2C:28-5(a)(1), which
involves engaging in conduct that "a reasonable person would believe would
cause a witness or informant to . . . [t]estify or inform falsely." In order to be
guilty of this crime, a defendant need only "approach[] the witness rather
than . . . successfully convincing that witness not to testify or to alter such
testimony." State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999).
When defendant made the jailhouse phone call to the victim, he was under a
court order not to contact her. At the time, he was fully aware that there was at
least an investigation being conducted as he already participated in it by giving
his statement to police, and he intended through the phone call to persuade the
victim to inform the police that what she had already told them was not true.
V.
Validity of the Indictment and the Verdict Sheet
In the arguments stated in Point I through IV of his supplemental brief,
challenging the language of the indictment and contents of the verdict sheet,
defendant cites to alleged flaws in both that were never raised before the trial
court. Under these circumstances, we review his contentions for plain error, that
A-1137-17T3
36
is, error "clearly capable of producing an unjust result." R. 2:10-2; State v.
Munafo, 222 N.J. 480, 488 (2015) (quoting R. 2:10-2). A conviction will be
reversed under this standard only if the error is "sufficient to raise a reasonable
doubt as to whether [it] led the jury to a result it otherwise might not have
reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon,
57 N.J. 325, 336 (1971)).
Applying that standard, we conclude defendant's claims here, including his
constitutional challenge to N.J.S.A. 2C:12-1(b), are also without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2). Although defendant
attempts to couch some of his arguments as claims that the indictment did not
charge him with certain offenses, as discussed in Rule 3:10-2(d), they are
actually assertions of defects in the indictment as provided for under Rule 3:10-
2(c). As such, his claims are waived because he did not raise those concerns
before trial, and he has failed to establish any good cause for a waiver of that
requirement. See R. 3:10-2(c) ("[O]bjections based on defects . . . in the
indictment . . . must be raised by motion before trial."). Additionally, to the
extent defendant argues that the trial court delivered outdated jury charges as to
N.J.S.A. 2C:28-5 in Point III of his supplemental brief, we conclude any such
error was harmless in that requiring the juror to determine his guilt in accordance
A-1137-17T3
37
with a charge that imposed on the State a higher burden of proof did not cause
an unjust result. 5
VI.
Admission of Evidence
In Points X and XIV of his supplemental brief, defendant argues that the trial
court erred by admitting into evidence the photographs of the victim's injuries
and the video of him in prison garb making the telephone call to the victim . He
also asserts that testimony about the phone call should not have been admitted
because he was entrapped through the victim's unauthorized use of his credit
card in accepting the call from him and through law enforcement's involvement
in the call. Here, again defendant raises arguments that were not brought to the
trial court's attention.
5
The model jury charge pre-2008, see Model Jury Charges (Criminal),
"Tampering with Witnesses and Informants (N.J.S.A. 2C:28-5a) (Cases arising
before September 10, 2008)" (rev. Jan. 12, 2009), required the State to prove
that "beyond a reasonable doubt that defendant . . . knowingly caused [witness]
[informant] to" commit some act. Ibid. (second and third alteration in original).
The post-2008 jury charge required only that defendant "knowingly engaged in
conduct that a reasonable person would believe would cause a [witness]
[informant] to" commit a certain act. See Model Jury Charges (Criminal),
"Tampering with Witnesses and Informants (N.J.S.A. 2C:28-5a) (Cases arising
after September 10, 2008)" (rev. Mar. 16, 2009) (alterations in original)
(emphasis added).
A-1137-17T3
38
We again conclude defendant's arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, we discern
no error, let alone plain error, in the admission of the video or the photographs
which were admitted into evidence without any objection, and apparently were
highly probative of elements of the crimes with which defendant was charged.
As to entrapment, assuming his claim is viable, we cannot find any evidence in
the record to support defendant's contention. See State v. Johnson, 127 N.J. 458,
464 (1992) (stating a defense of entrapment can arise "whenever a defendant
introduces evidence of the government's involvement in the crime through
initiation, solicitation, or active participation").
VII.
Voir Dire
We turn our attention to defendant's arguments in Point XI of his
supplemental brief about the selection of the jury. According to defendant, voir
dire proceedings were improperly conducted as "prospective jurors were
disproportionately excused by the [t]rial [court] in a discriminatory fashion
based on their revealed biases." Specifically, he contends that the trial court
"disproportionately excus[ed] jurors for revealed biase[s] against believing law
enforcement while not doing the same for those with revealed bias for believing
A-1137-17T3
39
law enforcement." Defendant asserts that the trial court's actions forced his
counsel to use peremptory challenges in a number of instances.
Defendant was given twenty peremptory challenges and the State was given
twelve. During voir dire, individuals that were biased for and against law
enforcement were excused from the jury panel.
In one instance, defense counsel challenged a juror for cause who he believed
was biased, after the prospective juror stated that her daughter was a corrections
officer but that it would not "affect [her] ability to be fair and impartial in this
case," even though she was unsure of whether she would give more weight to
the testimony of law enforcement over another witness. However, when the
court asked her whether she would be able to "listen to all the testimony that's
presented . . . and make a decision upon . . . [t]estimony as it's presented
regardless if they're law enforcement or not law enforcement," the prospective
juror said she could.
Defense counsel followed up and asked the prospective juror whether she
thought "a person who works for law enforcement[ was] more likely to be
truthful when they testify as opposed to somebody who doesn't work in law
enforcement." The juror responded by stating that "I would say I would hope to
believe that . . . [law enforcement] would be more truthful." The court wanted
A-1137-17T3
40
to clarify what the prospective juror meant and asked, "would you tend to believe
that law enforcement would be more likely to tell the truth merely because they
are law enforcement," to which she stated "[y]es." She then stated that she
"would . . . be able to wait and listen to the testimony and make a decision based
upon how someone testifies whether it be law enforcement or . . . not law
enforcement."
At sidebar, defense counsel challenged the juror for cause, stating that
"because this woman clearly ha[d] a . . . preconceived notion that law
enforcement is more likely to tell the truth." The court stated that her conflicting
answers were due to the manner in which defense counsel asked his question,
and the court believed the prospective juror would be fair and impartial.
Defendant used a peremptory challenge to excuse the juror and later exhausted
his remaining challenges.
In a different situation, the trial court excused a potential juror for cause after
he stated that "police officers protect police officers," and in his experience with
police officers, he "just [saw] them to be less truthful, because they choose
things that are discriminatory in [his] mind." The prospective juror was excused
even though he stated that he would "pray" he could separate his opinions from
his consideration of the evidence. At the time the juror was excused, defense
A-1137-17T3
41
counsel stated that it was improper to dismiss the prospective juror without
allowing him a chance to rehabilitate the juror. The court disagreed.
We begin our review by acknowledging that jury selection plays an integral
role in ensuring a defendant "is constitutionally guaranteed the right to trial by
an impartial jury." State v. Bianco, 391 N.J. Super. 509, 517 (App. Div. 2007).
In our review of decisions relating to the jury, we are guided by the principle
that "[a] defendant's right to be tried before an impartial jury is one of the most
basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). "A
trial is poisoned at its inception if the jurors deciding the case cannot review the
evidence dispassionately, through the light of reason." Ibid. (quoting State v.
Fortin, 178 N.J. 540, 575 (2004)). Litigants are entitled to "an unbiased jury
and . . . a fair jury selection process." Pellicer ex. rel. Pellicer v. St. Barnabas
Hosp., 200 N.J. 22, 40 (2009).
We leave the selection and management of the jury to the sound discretion of
the trial court. State v. Brown, 442 N.J. Super. 154, 182 (App. Div. 2015). "This
standard respects the trial court's unique perspective and the traditional
deference we accord to [it] in 'exercising control over matters pertaining to the
jury.'" Ibid. (quoting State v. R.D., 169 N.J. 551, 560 (2001)).
A-1137-17T3
42
Voir dire determinations "are traditionally within the broad discretionary
powers vested in the trial court and 'its exercise of discretion will ordinarily not
be disturbed on appeal.'" State v. Murray, 240 N.J. Super. 378, 392 (App. Div.
1990) (quoting State v. Williams, 113 N.J. 393, 410 (1988)). In the selection of
a jury, "trial courts must be allotted reasonable latitude when conducting voir
dire and, therefore, [our] examination . . . focus[es] only on determining
whether 'the overall scope and quality of the voir dire was sufficiently thorough
and probing to assure the selection of an impartial jury.'" State v. Winder, 200
N.J. 231, 252 (2009) (quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)).
Accordingly, we will not reverse a trial court's decision regarding removal of a
juror for cause "unless the court has abused its discretion." State v. DiFrisco,
137 N.J. 434, 459 (1994).
"'[A] thorough voir dire,' . . . presupposes that prospective jurors will provide
complete and accurate responses . . . ." Bianco, 391 N.J. Super. at 517 (citation
omitted). Generally,
[t]he purpose of jury selection is to obtain a jury that
can decide the case without bias against any of the
involved parties, that will evaluate the evidence with an
open mind, and that will apply the law as instructed by
the judge. Voir dire practices must be geared to
eliciting meaningful information from prospective
jurors so those with a real potential for bias can be
excused.
A-1137-17T3
43
[Ibid. (quoting Administrative Directive #21-06,
"Approved Jury Selection Standards" (Dec. 11,
2006)).]
Although a trial court is "not obliged to ask any particular question or indulge
the defendant's requests absolutely," State v. Lumumba, 253 N.J. Super. 375,
394 (App. Div. 1992), when "clear and accurate answers from prospective jurors
are not encouraged through a thorough and meaningful process, counsel may be
hampered, if not foreclosed, from learning of a basis for excusing the
prospective juror for cause or by peremptory challenge," Bianco, 391 N.J. Super.
at 518 (quoting Administrative Directive #21-06).
The decision to remove a juror for cause in response to a prospective juror's
answers to the court's questions requires a showing that the juror's views would
"prevent or substantially impair the performance of that juror's duties in
accordance with the court's instructions and the juror's oath." DiFrisco, 137 N.J.
at 469. The goal is to seat a juror who, despite a disclosed and acknowledged
bias, commits himself or herself to being impartial and following the judge's
instructions. See Winder, 200 N.J. at 251-53; State v. Fuller, 182 N.J. 174, 203-
04 (2004); State v. Williams, 93 N.J. 39, 61 (1983); Brown, 442 N.J. Super. at
182-84.
A-1137-17T3
44
In order "for [a] forced expenditure of a peremptory challenge to constitute
reversible error . . . , a defendant must demonstrate that a [partial] juror"
participated in deliberations "as a result of . . . defendant's exhaustion of
peremptories." DiFrisco, 137 N.J. at 470. To prove that error,
defendant must show (1) that the trial court erred by
failing to remove a juror for cause; (2) that the juror in
question was eliminated by the exercise of defendant's
peremptory challenge and that defendant exhausted his
remaining challenges; and (3) that at least one of the
remaining jurors that sat on the jury was a partial juror.
[Id. at 471.]
Applying these guiding principles here, the trial court did not err by not
removing her for cause. Moreover, defendant used a peremptory challenge on
that prospective juror, and defendant failed to establish that any of the seated
jurors were partial. Under these circumstances, we have no cause to disturb the
outcome of defendant's trial.
VIII.
Sentencing
In Point V of defendant's merits brief and Point VIII and IX of his
supplemental brief, he challenges his sentence as being excessive. He argues
that "the court failed to consider appropriate mitigating factors and other
circumstances that would have personalized [defendant], and justified a less
A-1137-17T3
45
severe sentence," and that it "failed to consider [defendant's] mental condition
and his alcohol problem as a valid mitigating factor." He also contends that the
court erred when it made "the decision to impose two of the four counts
consecutively," which "was primarily based upon only one of the
[applicable] . . . factors." According to defendant, he should have received "a
consecutive sentence for either Count [2] or Count [4,] but not both," as Count
4 should have been concurrent to Count 2. Instead, "the court double counted
[the same] aggravating factors when it determined to impose the consecutive
sentences" that it had already relied on when sentencing defendant to the
extended term and in imposing "a sixteen-year sentence on Count [1] that could
have been as low as five years." Accordingly, defendant contends his sentence
should be reduced pursuant to the guidelines of State v. Yarbough, 100 N.J. 627
(1985) and policies against excessive sentences. We disagree.
At sentencing, defendant argued sentencing in an extended term was not
appropriate and that the court should take into consideration defendant's "long
history of mental illness." He urged for the court to consider the expert
testimony about defendant's bipolar disorder and alcohol abuse, which did not
absolve defendant of guilt, but explained that these problems in combination
with the "history of suicide in his family" and the medication he was currently
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on, warranted a lesser sentence. Defense counsel also stated, he would "not
argue with the fact that the [c]ourt must impose a consecutive sentence on the
witness tampering but [he did] argue with the fact that the [c]ourt should impose
a discretionary extended term."
In addressing the sentencing factors under N.J.S.A. 2C:44-1(a) and (b), the
court found aggravating factor (a)(1) applicable, "[t]he nature and circumstances
of the offense," as defendant's attack on plaintiff was "committed in an
especially heinous, cruel and depraved manner." The assault occurred for
several hours and defendant later attempted to "make it impossible for the victim
to call for help or seek assistance." The court rejected the State's request to
apply aggravating factor (a)(2), "[t]he gravity and seriousness of the harm
inflicted," as it believed its application would be "double counting." It then
found applicable and gave great weight to aggravating factor (a)(3), "[t]he risk
that . . . defendant [would commit] another crime," since defendant "had many
contacts with the court system resulting in three . . . convictions, all on different
dates." It also found applicable aggravating factor (a)(6), "[t]he extent of
[defendant's] prior criminal record and the seriousness of [those] offenses" and
noted that one of defendant's convictions dealt with domestic violence. On
"[t]he need [to] deter[] . . . defendant and others," aggravating factor (a)(9), the
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court also gave "this factor great weight" because defendant's actions
demonstrated that he was violent, uncontrolled, devious, and calculating.
The court then reviewed each of the mitigating factors under N.J.S.A. 2C:44-
1(b) and explained why none of them were applicable in light of defendant
having acted without provocation, his having an extensive criminal history,
there being no restitution, or anything to justify defendant's actions. It then
found that the aggravating factors outweighed the mitigating factors.
The court, relying on State v. Thomas, 195 N.J. 431 (2008), granted the
State's motion to sentence defendant on his aggravated assault conviction in the
extended term as a persistent offender under N.J.S.A. 2C:44-3(a). In doing so
the court recognized that although the State's motion did not specify which count
it sought for imposition of the extended term, the "minimum statutory predicates
for subjecting . . . defendant to an extended term [had] been met," and defendant
was on notice that the State pursued an extended term.
Additionally, because defendant was at least twenty-one when he committed
the crime, he had been convicted before when he was at least eighteen, and in a
prior conviction of defendant he stipulated to an extended term, the court
concluded an extended term was appropriate in this matter. The court then stated
the following:
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The [c]ourt specifically finds and emphasizes the need
for the protection of the public and society in imposing
its sentence today. This protection of the public
standard is specifically referenced in State v. Pierce[,
188 N.J. 155, 166-68 (2006),] and in accordance with
Pierce this [c]ourt makes said findings after noting
defendant's eligibility for extended term and after
finding of the aggravating factors previously noted.
The court found defendant was "a true menace to society and . . . the public
[would] only be safe from . . . defendant if he was in jail."
Relying on Yarbough, 100 N.J. at 643-44, the court imposed consecutive
sentences on Counts 2 and 4 and stated:
The crimes committed by . . . defendant occurred on
December 31[], 2014 and January 6, 2015. The crimes
committed on each of these dates are independent of
each other. They are separate and distinct crimes.
The crimes and their objectives on each of these dates
were independent of each other, involved separate acts
and were committed at different times and places,
therefore, the witness tampering charge in [C]ounts [2]
and [4 would] be sentenced consecutively as [was]
required under statute.
Further, since Counts 2 and 3 were fundamentally similar and committed
at or about the same time, the court held that the sentences on those two counts
would run concurrent to each other.
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The trial court then revisited the extended term issue and stated that its
finding was based on defendant's prior conviction for aggravated assault in
another matter that involved domestic violence. The court concluded that:
In determining the sentence [the court was] about to
impose and in addition to the aggravating and
mitigating factors and . . . defendant's qualifications for
an extended term the [c]ourt considered the following.
The nature and degree of the crimes, the need for
punishment and deterrence, the defendant's prospects
for rehabilitation, the adult pre-sentence report,
[defendant's] previous involvement in the criminal
justice system, the interest of the public and the
submissions and/or arguments of Counsel.
The court sentenced defendant to sixteen years as to Count 1, subject to a
parole ineligibility period under NERA, and a consecutive four-year term on
Counts 2, an eighteen-month term on Count 3, concurrent to Count 2, and as to
Count 4 it imposed a second four-year term consecutive to Count 1 and Count
2.
We review a trial court's imposition of a sentence for abuse of discretion.
State v. Robinson, 217 N.J. 594, 603 (2014). In our review, we "are . . . not to
substitute [our] judgment for those of our sentencing courts." State v. Case, 220
N.J. 49, 65 (2014). If a sentencing court has followed the sentencing guidelines,
based its determination of aggravating and mitigating factors on competent,
credible evidence, and applied the sentencing "guidelines to the facts of [the]
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case" in a manner that does not make the sentence so clearly unreasonable so as
to shock the judicial conscience, "an 'appellate court must affirm the sentence.'"
State v. Miller, 237 N.J. 15, 28 (2019) (alteration in original) (quoting State v.
Fuentes, 217 N.J. 57, 70 (2014)).
"In exercising its authority to impose [a] sentence, the trial court must
identify and weigh all of the relevant aggravating factors that bear upon the
appropriate sentence[, see N.J.S.A. 2C:44-1(a),] as well as those mitigating
factors[, see N.J.S.A. 2C:44-1(b),] that are 'fully supported by the evidence.'"
State v. Blackmon, 202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182
N.J. 494, 505 (2005)).
Under the persistent offender statute, N.J.S.A. 2C:44-3(a), a sentencing court
has "discretion to impose an extended sentence when the statutory prerequisites
for an extended-term sentence are present." Pierce, 188 N.J. at 161. "Pursuant
to the persistent offender statute, a court 'may, upon application of the
prosecuting attorney, sentence a person who has been convicted of a crime of
the first, second or third-degree to an extended term of imprisonment' if the
individual is found to be a persistent offender." State v. Hudson, 209 N.J. 513,
526 (2012) (quoting N.J.S.A. 2C:44-3).
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As to consecutive sentences, at the outset, we observe that for the charges set
forth in Counts 2 and 4, imposition of sentences that are consecutive to the
underlying charge is mandatory. N.J.S.A. 2C:28-5(e). Defendant acknowledges
this fact, and only contends that the two charges while necessarily consecutive
to Count 1, should have been concurrent to each other, resulting in a sentence
of twenty years instead of twenty-four. We disagree.
Certain well-established guidelines govern a trial court's decision to impose
consecutive sentences. These considerations are as follows:
(1) [T]here can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) [T]he crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of violence or
threats of violence;
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be
imposed are numerous;
(4) there should be no double counting of aggravating
factors; [and]
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(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense.
[State v. Cuff, 239 N.J. 321, 347-48 (2019) (third
alteration in original) (quoting Yarbough, 100 N.J. at
643-44).]
When a trial court imposes a consecutive sentence, "[t]he focus should be on the
fairness of the overall sentence." State v. Abdullah, 184 N.J. 497, 515 (2005)
(alteration in original) (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
Applying those factors, "a sentencing court may impose consecutive
sentences even though a majority of the Yarbough factors support concurrent
sentences," State v. Carey, 168 N.J. 413, 427-28 (2001), but the court must state
its reasons for imposing consecutive sentences, State v. Miller, 205 N.J. 109,
129 (2011). If "a sentencing court properly evaluates the Yarbough factors in
light of the record, the court's decision will not normally be disturbed on appeal."
Ibid. "However, if the court does not explain why consecutive sentences are
warranted, a remand is ordinarily needed for the judge to place reasons on the
record." Ibid.
Turning first to defendant's contentions about the trial court failing to
consider mitigating factors under N.J.S.A. 2C:44-1(b)(3) and (b)(4), we
conclude that the court correctly determined that there was no evidence that
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defendant acted under a "strong provocation," State v. Jasuilewicz, 205 N.J.
Super. 558, 576 (App. Div. 1985) (quoting N.J.S.A. 2C:44-1(b)(3)) (stating that
this mitigating factor arises from actions of the victim and not the mental state
of the defendant), or that "[t]here were substantial grounds tending to excuse or
justify the defendant's conduct, though failing to establish a defense," N.J.S.A.
2C:44-1(b)(4). A "trial court [is] not . . . required to consider . . . intoxication
as a mitigating factor." State v. Setzer, 268 N.J. Super. 553, 567 (App. Div.
1993). "Crimes committed under the influence of alcohol or drugs do not detract
from the seriousness of the offense." Id. at 567-68 (quoting State v. Towey, 244
N.J. Super. 582, 595 (App. Div. 1990)). Further, mental illness is to be
considered as a mitigating factor only when a "[d]efendant's deficient mental
and emotional condition" prevents he or she from "comprehend[ing] that [he or]
she had committed a crime that deserved a prison term, or that [he or] she could
modify [his or] her behavior based on [the] imprisonment." State v. Jarbath,
114 N.J. 394, 408-09 (1989). The court's decision to not apply these factors was
a proper exercise of its discretion.
We reach the same conclusion as to the trial court's imposition of consecutive
sentences on the other two counts. The court specifically noted that the Count
2 and Count 4 offenses were separate crimes, committed on separate dates, and
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were committed by defendant from separate locations. See State v. Mejia, 141
N.J. 475, 504 (1995) (explaining that the trial court properly sentenced
defendant to consecutive terms of imprisonment as the offenses were separate,
even though they occurred around the same time and involved the same victim),
overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997); State v.
Ghertler, 114 N.J. 383, 391-92 (1989) (upholding consecutive sentences because
the trial court "had a working familiarity with the [Yarbough] criteria," and
because the crimes occurred at distinct times, were independent from each other,
and there were multiple victims); State v. Bauman, 298 N.J. Super. 176, 211-12
(App. Div. 1997) (affirming an extended term and consecutive sentences
because the crimes were separate and occurred over a three-day period).
Here, as in Mejia, Bauman, and Ghertler, the trial court did not rely on the
statutory sentencing factors to determine whether consecutive sentences were
warranted. The court clearly placed its findings as to Yarbough factors on the
record that warranted the imposition of consecutive terms. The judge carefully
considered the appropriate factors and law in determining that consecutive
sentences were warranted. We have no cause to disturb the sentence on this
basis either.
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We also conclude that defendant was properly sentenced in the extended term
as to Count 1. We find no merit to his contention that defendant was not
adequately notified the State would be seeking enhanced sentencing
A court may sentence a defendant to an extended term of imprisonment,
upon application of the prosecutor, if:
The defendant has been convicted of a crime of the first,
second or third degree and is a persistent offender. A
persistent offender is a person who at the time of the
commission of the crime is [twenty-one] years of age
or over, who has been previously convicted on at least
two separate occasions of two crimes, committed at
different times, when he [or she] was at least [eighteen]
years of age, if the latest in time of these crimes or the
date of the defendant's last release from confinement,
whichever is later, is within [ten] years of the date of
the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
The trial court must consider a four-part test when determining whether
to give defendant an extended sentence. State v. Dunbar, 108 N.J. 80, 89 (1987).
First, the sentencing court must determine whether the
minimum statutory predicates for subjecting the
defendant to an extended term have been met. Second,
the court must determine whether to impose an
extended sentence. Third, it must weigh the
aggravating and mitigating circumstances to determine
the base term of the extended sentence. Finally, it must
determine whether to impose a period of parole
ineligibility.
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[Ibid.]
Where a prosecutor fails to specifically identify in a motion the count that
it seeks sentencing in the extended term, if at sentencing, he or she clarifies the
count to which the motion applied, no error is committed. See Thomas, 195 N.J.
at 436-37 (approving the oral clarification but remanding for reasons when the
trial court applied the extended term to a different count than requested by the
prosecutor). We discern no error warranting any change to defendant's sentence.
IX.
Ineffective Assistance of Counsel
In Point XVI of his supplemental brief, defendant argues that he was
provided the ineffective assistance of counsel (IAC) because his attorney never
sufficiently challenged the indictment based on the "the fact that multiple counts
failed to charge offenses," numerous errors in the verdict sheet and the jury
charges, the illegal search of defendant's apartment, that he "unknowingly
waived certain rights" because of defendant's actions, and that defense counsel's
requirement that defendant pay certain fees put him under duress.
We conclude that the claims defendant raises in this argument are better left
to a petition for post-conviction relief (PCR). R. 3:22-1. "Our courts have
expressed a general policy against entertaining [IAC] claims on direct appeal
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57
because such claims involve allegations and evidence that lie outside the trial
record." State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose,
129 N.J. 451, 460 (1992)). A PCR proceeding would "provide[ a better]
developed record upon which to evaluate defendant's claims" as the present
record is insufficient for that purpose. Ibid.
X.
To the extent we have not specially addressed any of defendant's remaining
arguments, including those in Points VII, XII, and XV of his supplemental brief,
we conclude they are without sufficient merit to warrant discussion on a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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