NOT FOR PUBLICATION WITHOUT THE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-5173-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL K. DAVIS, a/k/a
KEVIN S. DAVIS,
Defendant-Appellant.
_________________________
Submitted June 6, 2017 — Decided July 18, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 12-12-1189.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the
briefs).
Sean F. Dalton, Gloucester County Prosecutor,
attorney for respondent (Joseph H. Enos, Jr.,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Samuel K. Davis appeals from his May 22, 2015
judgment of conviction after a jury convicted him of the first-
degree crime of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1),
of an elderly woman in her home. He was acquitted of murder and
weapons charges in connection with the crime. Because the jury
question as to whether mere presence at the scene was sufficient
was not answered properly, we reverse and remand for a new trial.
Defendant was indicted for first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); third-degree possession of a golf club for
an unlawful purpose, N.J.S.A. 2C:39-4(d); second-degree assault,
N.J.S.A. 2C:12-1(b)(1); third-degree possession of a knife for an
unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful
possession of a golf club, N.J.S.A. 2C:39-5(d); and fourth-degree
unlawful possession of a knife, N.J.S.A. 2c:39-5(d).
The charges stem from the killing of seventy-nine-year-old
Thirza Sweeten on March 18, 2012. The trial testimony revealed
the following facts. Sweeten's daughter, Ms. Montalto, who lived
nearby, checked on her mother, discovering the back door ajar
before finding Sweeten's body.
Montalto testified that her brother Barry lived with their
mother in the home, but had been in the hospital at the time of
her death. Barry had a history of drug abuse and had people
"com[ing] in and out" of the house.
2 A-5173-14T3
Ms. Burgos was Sweeten's friend and had visited Sweeten the
night of her death around 10:15 p.m. to ensure the elderly woman
had taken her medication. While Burgos was visiting with Sweeten,
Burgos heard a "thump" from Barry's room. Burgos went into Barry's
room, but did not initially see anything. She remained there to
make a phone call, and then heard the bedroom window slide open
and saw defendant through the window. According to Burgos, she
told defendant "What the F are you doing? Barry's not here. He's
at the hospital." Defendant left and she then closed the window
and pulled the window's safety tabs to ensure the window could not
be raised more than a couple of inches.
Defendant's presence at the window "creeped [Burgos] out"
because she did not know it was common for him come to the window
when he was looking for Barry. Barry explained that he frequently
let defendant and his other friends in and out through his bedroom
window.1 One print taken from the outside of Barry's window
matched defendant.
Nicholas Schock, a detective with the Gloucester County
Prosecutor's Office, conducted a "walk through" of the scene. He
observed Sweeten lying on her back in the doorway between the
front bedroom and the living room with her shirt and bra pulled
1
Montalto's husband, Derrick, confirmed it was a common practice
for visitors to tap on the living room window to get Sweeten's
attention and to tap on Barry's window to get Barry's attention.
3 A-5173-14T3
up, exposing her stomach and breasts. There was evidence of trauma
to Sweeten's head, chest, hands, and neck. The detective also
noticed a broken phone cord in the living room and a golf club,
which had blood on it. There was a notepad in the living room
that had "drugger Kevin" scrawled on it.
According to the medical examiner, Sweeten had two stab wounds
in her chest, an injury to her neck that was consistent with
strangulation with a cord, and a three-inch laceration on her head
that was consistent with being struck with a golf club. Although
the precise cause of death was unknown, the medical examiner
testified that either the stab wounds or the blunt force trauma
to Sweeten's head and neck could have caused her death.
Detective Schock "documented" evidence at the scene – like
the phone cord, golf club, and notepad – but did not collect those
items until after he returned from the morgue later that evening.
Schock collected Sweeten's clothing at the morgue. He brought the
victim's clothing back to her home.
The following morning, Schock returned to Sweeten's home to
assist investigators in searching for additional evidence. During
this visit, the following items were collected: a broken knife
found on a kitchen chair; a pink plastic bag used to package drugs,
which was found in the living room; beer, soda, and liquor bottles;
cigarette butts; and dried blood scrapings from a kitchen chair.
4 A-5173-14T3
Schock left Sweeten's home and returned to the prosecutor's
office, where defendant was being interviewed, in order to collect
defendant's clothing. While photographing defendant's clothing
the following day, Schock noticed stains on the inside of the rear
waistband of defendant's pants, which testing indicated was blood.
The day after the killing, defendant provided an extensive
statement to the police denying his involvement in Sweeten's death.
Defendant stated he did not have a permanent residence and
occasionally slept in one of the junk cars parked in Conrad
Campbell's yard. According to defendant, Campbell also
occasionally employed defendant for odd jobs.2
Defendant initially told the police that he went to sleep
early around 9:00 p.m. on the evening of March 18, 2012, but when
confronted with the fact that someone had seen him near Barry's
house around 11:00 p.m., defendant explained he had in fact been
at Marlene Waller's house. Defendant further explained he did not
want to admit where he was because he and Waller "got high"
together and he did not want to be a "snitch." He said he left
Waller's house around 11:30 p.m. Waller told him to return around
midnight. Defendant returned then, but Waller refused to let him
inside. Waller later testified that she refused to let him inside
2
Campbell had known defendant for more than thirty years, and
never had any problems with him, testifying defendant was "a good
worker."
5 A-5173-14T3
because her boyfriend was about to come home. After defendant was
denied entry into Waller's home, he went to sleep in the truck
that was in Campbell's yard.
Defendant explained to the police that he knew Barry because
he and Barry were both "drug runners," although they worked for
different people, and they occasionally would "get high" together.
Defendant also explained he knew Sweeten because she was home when
he visited Barry. He stated the last time he saw Barry was two
weeks before, when Sweeten told him Barry had a heart-attack and
was in the hospital. She told defendant not to come around
anymore. Defendant denied involvement in Sweeten's murder, but
did insinuate that another one of Barry's associates from his drug
running could have had something to do with it.
The cigarette butts, pink plastic bag, broken knife, blood
scraping from the kitchen chair and bottles were not forensically
tested. Sweeten's clothing, Davis' clothing, the golf club, the
phone cord, hair fragments found on the victim and the sexual
assault kit were submitted for forensic analysis. The evidence
was examined by a trace evidence examiner and a forensic
serologist, both from the New Jersey State Police Office of
Forensic Sciences. Defendant was not identified as the source of
the hair fragments. No textile fibers transferred between
6 A-5173-14T3
defendant's clothing and Sweeten's clothing, the samples taken
from the sexual assault kit, the golf club, or the telephone cord.
The forensic serologist collected a saliva sample from
Sweeten's bra, a blood sample from the head of the golf club, and
two blood samples from defendant's clothing, one from a bloodstain
on the left thigh of defendant's pants and another from the lower,
right front of defendant's shirt. She also swabbed the golf club
and phone cord for skin cells. She found no evidence of a sexual
assault.
Another expert from the New Jersey State Police Laboratory
conducted a DNA analysis on the blood, saliva samples, and skin
cell samples. The expert identified Sweeten as the source of the
major DNA profile on the blood found on the golf club. The expert
also identified Sweeten as a possible contributor to the DNA
profile for the skin cells that were found on the golf club handle,
and was able to conclude defendant was not a contributor to the
DNA profile. Samples from the phone cord revealed two DNA
profiles: one from Sweeten and one from an unidentified male who
was not defendant. Two DNA profiles were found on the blood sample
from defendant's pants: Sweeten was the source of the major DNA
profile and defendant the minor DNA profile. The expert was unable
to identify the source of the mixed DNA profile obtained from
defendant's shirt.
7 A-5173-14T3
In defense counsel's summation, he argued defendant was
truthful in his statement to law enforcement. He also argued
defendant was not the assailant because his DNA was conclusively
excluded from the DNA samples taken from the golf club and the
phone cord. As for the bloodstain on defendant's pants, counsel
explained that the blood could have stained the pants by cross-
contamination during evidence collection. The detective did not
initially notice the blood on the pant-leg, although noticing a
spot on the waistband that was not tested. Counsel argued that
if defendant had been the killer, more than a stain of Sweeten's
blood would have been found on defendant's clothing, given the
type of blunt force trauma she experienced. Moreover, counsel
argued defendant had no motive for the crime – it was not a robbery
and there was no evidence of sexual assault.
The day after the jury began deliberating, it sent the trial
court a note asking, "Do charges include the suspect's presence
at the time of the crime, without placing the weapon in his hand?"
The court interpreted the question to mean defendant "was there,
[but] someone else did it[.] Someone else had the weapon and
struck the blows." Defense counsel urged the court to respond
that "mere presence at or near the scene does not make a person a
participant in the crime; nor, does the failure of a spectator to
interfere make him or her a participant in the crime" and that
8 A-5173-14T3
"[i]t depends upon the totality of circumstances that appear from
the evidence." The State objected, reasoning that defense
counsel's instructions came from the charge for accomplice
liability and defendant was neither charged as an accomplice nor
was his defense that he was an accomplice.
While the court and counsel conferred on the response to the
jury, the jury sent another note asking if they would get a break
for lunch as they were getting hungry. Before sending the jury
for lunch, the court delivered its response to the jury's question.
The court acknowledged that it could not comment on the evidence
but "reminded [the jury] that the State bears the burden of proof
to prove each and every essential element of the crimes charged,
in each count, beyond a reasonable doubt." The court also stated
that the jury "must determine . . . whether the crimes charged in
the Indictment were committed by the defendant." The court did
not reread the charge, but encouraged the jurors to review the
copy of the charge that had been provided to them.
After returning from lunch, the jury returned its verdict,
finding defendant guilty of aggravated manslaughter, a lesser-
included offense of murder, and acquitting defendant of all other
charges including possession of the golf club, the weapon recovered
9 A-5173-14T3
at the scene covered in blood. The court sentenced defendant to
prison for life without parole.3
On appeal defendant raised the following points:
POINT I: THE JURY'S QUESTION INDICATED THAT
THE JURY DID NOT KNOW HOW TO DETERMINE GUILT
OR INNOCENCE IF IT CONCLUDED THAT DAVIS WAS
PRESENT AT THE SCENE OF THE HOMICIDE BUT DID
NOT CAUSE THE VICTIM'S DEATH BY HIS OWN
CONDUCT. THE JUDGE'S RESPONSE, WHICH SIMPLY
REITERATED, IN GENERAL AND ABSTRACT TERMS,
WHAT THE BURDEN OF PROOF IS IN A CRIMINAL CASE,
FAILED TO PROVIDE THE JURY WITH THE GUIDANCE
IT NEEDED TO PROPERLY REACH A VERDICT ON THE
HOMICIDE COUNT.
POINT II: THE TRIAL COURT ABUSED ITS
DISCRETION BY SENTENCING DAVIS TO LIFE IN
PRISON. IN THE ALTERNATIVE, THE COURT ERRED
IN ORDERING DAVIS TO SERVE HIS SENTENCE
WITHOUT THE POSSIBILITY OF PAROLE BECAUSE LIFE
WITHOUT PAROLE IS NOT A PERMISSIBLE SENTENCE
UNDER N.J.S.A. 2C:44-3A.
On appeal, defendant takes issue with the trial court's
instruction after the jury asked a question inferring defendant
was at the scene but did not cause the victim's death. Quoting
State v. Middleton, 299 N.J. Super. 22, 30 (App. Div. 1997),
defendant argues a "trial court must respond substantively to
questions asked by the jury during deliberations." While defendant
3
This sentence, imposed as a discretionary extended term, is not
statutorily authorized. N.J.S.A. 2C:43-7(a)(1). Defendant was
eligible for a life term under the No Early Release Act, N.J.S.A.
2C:43-7.2(d)(2) (NERA). NERA explains "a sentence of life
imprisonment shall be deemed to be 75 years." N.J.S.A. 2C:43-
7.2(b). Life without parole is not authorized.
10 A-5173-14T3
acknowledged the court did not have to read his proposed
instruction on "mere presence," it "needed, at a minimum, to
forcefully convey to the jury that [defendant] could not be found
guilty of murder or any lesser homicide offense unless it was
convinced that Sweeten's death was caused by [defendant's] own
conduct and not by the conduct of another."
"'[W]hen a jury requests a clarification,' the trial court
'is obligated to clear the confusion.'" State v. Savage, 172 N.J.
374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157
(App. Div.), certif. denied, 97 N.J. 650 (1984)). "[T]he trial
judge is obliged to answer jury questions posed during the course
of deliberations clearly and accurately and in a manner designed
to clear its confusion, which ordinarily requires explanation
beyond rereading the original charge. The court's failure to do
so may require reversal." Pressler & Verniero, Current N.J. Court
Rules, comment 7 on R. 1:8-7 (2017). Our Supreme Court recently
held in similar circumstances, where the defendant was not charged
as an accomplice nor was the accomplice liability instruction
given to the jury, that a "mere presence" instruction should have
been provided to the jury. State v. Randolph, __ N.J. __, __
(2017) (slip op. at 3). In Randolph defendant was found hiding
in an apartment above the apartment where the drugs were found
that formed the bases for the criminal possession charges. Id.
11 A-5173-14T3
at 5-7. The Court stated, "the better course would have been to
give the charge to disabuse the jury of any possible notion that
a conviction could be based solely on defendant's presence in the
building." Id. at 31.
Here, defendant was not convicted of possession of the murder
weapon, nor was forensic evidence presented linking him to the
bloody golf club or the phone cord. Another male's DNA was found
on the phone cord. The jury asked a question which the court
interpreted to mean defendant "was there, [but] someone else did
it[.] Someone else had the weapon and struck the blows." Rather
than answering that question directly as defendant requested, the
court repeated basic jury charges regarding the State's burden of
proof and told the jury to reread the other charges, none of which
included the answer to their question:
Mere presence at or near the scene does not
make one a participant in the crime, nor does
the failure of a spectator to interfere make
him/her a participant in the crime. It is,
however, a circumstance to be considered with
the other evidence.
[Model Jury Charge (Criminal), "Liability for
Another's Conduct" (N.J.S.A. 2C:2-6) (May
1995).]
In Randolph, in light of the charges given on joint and
constructive possession, the Court found the error harmless.
Randolph, supra, slip op. at 3, 31. Considering the jury's
specific question and its verdict, we cannot find the failure to
12 A-5173-14T3
answer the jury's question harmless, especially as the evidence
tying defendant to the crime was not overwhelming.
Reversed and remanded for a new trial on the charge of
aggravated manslaughter. We do not retain jurisdiction.
13 A-5173-14T3