STATE OF NEW JERSEY v. MARK LITTLE MARK STEVENSON

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. MARK A. LITTLE, a/k/a MARK STEVENSON, Defendant–Appellant.

DOCKET NO. A–2180–10T2

-- January 23, 2014

Before Judges Yannotti, Ashrafi and St. John. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Defendant Mark A. Little was tried before a jury and found guilty of murder and other offenses.   He appeals from the judgment of conviction entered by the trial court on May 21, 2010.   For the reasons that follow, we affirm defendant's convictions and the sentence imposed but remand to the trial court for entry of a corrected judgment of conviction.

I.

Defendant was charged under Atlantic County Indictment No. 08–12–3029 with murder, N.J.S.A. 2C:11–3(a)(1) and (2) (count one);  felony murder, N.J.S.A. 2C:11–3(a)(3) (count two);  robbery, N.J.S.A. 2C:15–1 (counts three and four);  possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d) (count five);  theft of movable property, N.J.S.A. 2C:20–3 (count six);  and credit card theft, N.J.S.A. 2C:21–6(c) (count seven).

In June 2008, Howard Lawson was residing in a condominium complex in Egg Harbor Township.   On June 17, 2008, one of Lawson's neighbors reported a foul odor and insects near Lawson's home.   Officers from the Egg Harbor Township Police Department (EHTPD) responded to Lawson's home and entered the residence.

The officers found Lawson's body on the floor of the second-floor bedroom.   His body was in the advanced stages of decomposition.   There were numerous bloodstains on the bed and headboard.   Blood was splattered on plastic bags, the wall, the closet area and on the bed.   Lawson's head was covered in plastic.

Forensic evidence revealed that Lawson had been killed by repeated blows to the head from a blunt instrument.   The shapes of the wounds were consistent with the shapes of the end of a lug wrench and a hammerhead.   The State introduced into evidence a two-foot piece of copper pipe found in a stream nearby Lawson's residence.   The pipe contained no fingerprints.

DNA evidence revealed that defendant and Lawson had consumed alcoholic and non-alcoholic beverages in the kitchen of Lawson's home.   A liquor store receipt, dated May 24, 2008, was found in a trash can in the kitchen.   Five Newport cigarette butts with defendant's DNA were found in the third-floor bedroom.

According to the forensic evidence, Lawson died two weeks before his body was found.   Detective Ian Finnimore, an expert in crime scene investigations and reconstructions, believed Lawson died on June 3 or June 4, 2008.

Officer Michael Niceta of the EHTPD arrived at Lawson's residence.   He recalled that in June 2007, Lawson filed a complaint against defendant in the municipal court, alleging harassment and theft of various items, including an area rug.   Lawson had also claimed that defendant failed to pay him $10,000, as evidenced by an I.O.U. that defendant had signed.   Defendant was found not guilty of the charges.

Officer Sidney Terrell of the EHTPD checked defendant's record and found two outstanding warrants for minor traffic offenses.   He decided to execute the warrants.   Terrell and other officers located defendant and his girlfriend, Acilla Brenner, at the residence of Herbert Chavis, where defendant and Brenner were living at the time.

Defendant was questioned at police headquarters.   He waived his Miranda 1 rights and responded to the inquiries.   Among other things, defendant stated that he and Lawson had been friends for about two years.   In 2007, defendant resided with Lawson for four months.   He claimed that he last saw Lawson on June 3, 2008, when Lawson drove to defendant's house, but he also said he had last seen Lawson on June 2 at a restaurant they frequented together.   Defendant did not recall when he last phoned Lawson, but he believed it was in May 2008.

Defendant had Lawson's credit card in his wallet.   He said Lawson gave him the credit card, but later stated that he had taken the card some time ago, after Lawson filed a complaint against him.   Defendant told the investigators he never used the card.   Defendant initially said he never borrowed money from Lawson.   He admitted that he wrote the $10,000 I.O.U., but said he did not owe Lawson the money.   He conceded, however, that he borrowed money from Lawson one time.

A supermarket surveillance video recorded a person attempting to purchase food and Newport cigarettes on June 10, 2008, using Lawson's credit card.   After the police reviewed the video, they obtained a warrant to search defendant's residence.   There, they found clothing resembling the clothing worn by the person shown on the video.   They also found a World Series pin, which was thought to belong to Lawson because he was an avid collector of baseball memorabilia.

Lawson's automobile, a black Infiniti, was found at the Renaissance Plaza parking lot in Atlantic City on June 18, 2008.   A head light and a tail light had been smashed and the vehicle was dented.   André Hardy's name appeared on receipts dated June 6 and 7 that were found in the car.   Hardy had numerous drug convictions in the 1980s and 1990s.   He met defendant in May 2008.

Hardy told the police that he saw defendant on June 4, 2008, shooting dice with some of his friends.   Defendant watched the game and later asked Hardy if he needed a ride.   Hardy said he did.   They got into defendant's red van and drove to the Infiniti, which was in a supermarket parking lot in Ventnor Heights.   Defendant gave Hardy the keys to the car and told him to keep it for a few days.   They exchanged phone numbers.

Hardy said he called defendant several times to return the vehicle but defendant kept telling him to use the car.   Hardy went to defendant's home to return the car but defendant told Hardy to keep it.   Three or four days after defendant gave him the car, Hardy opened the glove compartment and saw the vehicle's registration, which identified Lawson as the owner.

Hardy did not know Lawson.   Hardy testified that, while the vehicle was in his possession, someone hit the car with a bat.   Hardy had also gotten into an altercation with a woman at the Renaissance Plaza parking lot and she kicked several lights out.   Hardy was unable to have the car fixed, and he decided to leave the car in the parking lot.

Herbert Chavis testified that Brenner informed him that Lawson called the house about three or four times a day, but the calls stopped the first week of June 2008.   Records showed that between April 1 and June 4, 2008, 111 calls were made between Lawson's cell phone and Chavis's landline.

Lawson made his last two calls to Chavis's residence on June 3, at 6:22 p.m. and 8:54 p.m. Chavis said he last saw defendant and Lawson in a red van two weeks before June 17, at approximately 7:00 p.m. or 8:00 p.m., but conceded he may have seen Lawson and defendant together on June 2 rather than June 3.

Robert Blackford, a waiter at a restaurant that Lawson frequented, testified that Lawson ate dinner there alone on June 3. He arrived at around 6:30 p.m., and was still in the restaurant when Blackford's shift ended around 7:30 p.m. or 8:00 p.m. Blackford said he saw Lawson and defendant dining in the restaurant on occasion.

Cedric Williams, an inmate paralegal, spoke to defendant while they were both incarcerated.   Defendant told Williams he was in jail for a stolen credit card and had been questioned in connection with a car theft.   Defendant said Lawson had given the credit card to him to hold.   Defendant also said he “beat the shit” out of Lawson with a tire iron on June 3, 2008.   Defendant told Williams that the police would not find any DNA evidence connecting him to Lawson's death because he was in the cleaning business and knew “all about chemicals.”

At the time of the trial, Williams was waiting to be sentenced on his guilty plea to the charges of theft and obstruction of the administration of the law.   He testified that he had not been promised a reduced sentence in exchange for his testimony.   On cross-examination, Williams admitted he was a “career criminal” and agreed that he was a perpetual jailhouse snitch.

Defendant testified in his own defense.   He denied murdering Lawson.   He said he met Lawson during the summer of 2006.   They shared some common interests, including baseball, jazz, and classic movies.   Defendant believed Lawson was lonely and “wanted to get to know black culture.”

In 2007, defendant started working for a cleaning service company and a supermarket.   He did not work on Mondays and Tuesdays.   He paid monthly child support and smoked Newport cigarettes.   Defendant described his relationship with Lawson as akin to “Batman and Robin.”

Lawson called him every day.   They ate together at certain restaurants, and Lawson paid for defendant's meals.   Defendant and Lawson also went together to concerts, sporting events, and Lawson's medical and legal appointments.   According to defendant, Lawson gave many people money.   Defendant said he would not let these individuals take advantage of Lawson.

In September 2007, defendant moved in with Lawson and remained for approximately four or five months.   He lived in the third floor bedroom and helped Lawson with his medications.   Defendant moved out after Lawson refused to shower and said he thought his home was being bugged by the FBI and CIA.

A week later, defendant was served with Lawson's complaint, which was dismissed after trial in the municipal court.   Defendant stated that he “never” had any “hard feelings” about the complaint.   He said that, when the case was tried in the municipal court, Lawson “was still a great friend of” his.   After the trial, Lawson asked defendant if he wanted a ride home, and the two began “hanging out” again.

Defendant said that on June 2, 2008, defendant and Lawson went to a restaurant and liquor store together.   They then went to Lawson's home, where defendant helped Lawson with his entertainment system.   On June 3, after 9:00 p.m., Lawson arrived at defendant's residence in Lawson's car with three other men, including Hardy.

Defendant told Lawson to come inside.   He asked Lawson “why are you bringing these guys around my house.”   While inside, Lawson showed defendant some cash and gave him his credit card.   Defendant explained to Lawson that he could not go out with him for drinks because he had to work the next day.   Defendant put the credit card in his wallet and went home.   He said he remained there with Brenner for the remainder of the night.   On June 4, defendant worked and afterward went directly home.

Defendant said that, in the past, Lawson gave him his credit card so that he could purchase a bed.   Defendant also stated that Lawson gave him the baseball pin found in defendant's room.   Defendant intended to give the pin to his son, but he decided to keep it because his son loses things.

Defendant further testified that Hardy's testimony about Lawson's car was “one of the stupidest stories” he had ever heard.   He said he was not acquainted with Hardy.   Defendant admitted telling Williams “[e]verything besides ․ taking the tire iron and killing [Lawson].”

Defendant additionally testified about his interview with the detectives at the Egg Harbor Township police station.   He said he “told [the detectives] what they wanted to hear because they didn't want to hear the truth[.]”  He testified that “[he] was telling [the detectives] the truth, but [he] wanted to go home.   So [he] told them what they wanted to hear.”

On cross-examination, defendant stated that he told the detectives that he stole Lawson's credit card because they were not “hearing what [he] had to say.”   Defendant admitted using Lawson's credit card on June 9 and June 10 at a supermarket and automatic cash withdrawal machine.   Defendant testified that he thought he could use the credit card because Lawson owed Brenner money.

The jury found defendant not guilty of felony murder (count two), robbery (counts three and four), and credit card theft (count seven).   However, the jury found defendant guilty of murder (count one), possession of a weapon for an unlawful purpose (count five), and theft of movable property (count six).   The trial judge thereafter denied defendant's motion for a new trial, and sentenced defendant on count one to life imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. The judge also imposed concurrent four-year terms on counts five and six.

Defendant appeals and raises the following arguments for our consideration:

POINT ONE

BECAUSE THE QUESTIONING OFFICERS FAILED TO HONOR DEFENDANT'S REQUEST TO END THE QUESTIONING, THE BULK OF HIS STATEMENT, TAKEN AFTER ONE OR MORE SUCH REQUESTS, MUST BE SUPPRESSED.   U.S. CONST., AMENDS.   V., XIV. (NOT RAISED BELOW).

POINT TWO

THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN ADMITTING EVIDENCE OF A PRIOR, DISMISSED COMPLAINT MADE BY THE VICTIM AGAINST HIM, AND BOTH FAILED TO SANITIZE THE EVIDENCE, AND ADMINISTERED INSUFFICIENT LIMITING INSTRUCTIONS, NECESSITATING REVERSAL.

A. The Trial Court Erred In Admitting Evidence of the Complaint, and In Failing To Adequately Sanitize It.

B. The Court's Single, Final Limiting Instruction as to the Prior Complaint was Inadequate and Confusing.

POINT THREE

THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY ADMITTING GRUESOME AND IRRELEVANT PHOTOGRAPHS OF THE VICTIM.   U.S. CONST.   AMEND.  VI, XIV;  N.J. CONST.   ART. 1, PAR. 1, 10.

POINT FOUR

PROSECUTORIAL MISCONDUCT, PARTICULARLY IN THE STATE'S OPENING STATEMENT, BUT THROUGHOUT THE TRIAL, WAS SUFFICIENTLY EGREGIOUS AND PREJUDICIAL TO REQUIRE REVERSAL.   U.S. CONST.   AMEND.  XIV;  N.J. CONST.   ART. 1, PAR. 10.  (NOT RAISED BELOW).

POINT FIVE

THE TRIAL COURT ADMITED INFLAMMATORY EVIDENCE, A COPPER PIPE PRESENTED AS A POSSIBLE MURDER WEAPON, WHICH LACKED ANY SUBSTANTIAL CONNECTION TO THE HOMICIDE, NECESSITATING REVERSAL.  (NOT RAISED BELOW).

POINT SIX

REVERSAL IS NECESSITATED BY THE CUMULATION OF ERROR IN THIS CASE.

POINT SEVEN

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE NECESSITATING REDUCTION.

II.

Defendant first argues that the trial judge erred by admitting his statement to the detectives who were investigating Lawson's murder.   Defendant contends that his Miranda rights were violated when the detectives continued to question him after he asked for a lawyer several times during his interrogation.

The record indicates that, during a pretrial conference, the assistant prosecutor stated that defense counsel had no objection to admitting defendant's statement.   The following colloquy ensued:

[DEFENSE COUNSEL]:  Your, Honor, that's accurate.   Mr. Little during his [four]-and-a-half hour statement to the police, Egg Harbor Township detective, Atlantic City detective, and two prosecutor's detectives, he adamantly denied his involvement in the homicide.   So as far as that, we have no problem with that—

THE COURT:  So it is—

[DEFENSE COUNSEL]:—coming in.

THE COURT:—a matter of strategy on your part then ․ that you believe the statement would help as much, if not more, than it might hurt Mr. Little?

[DEFENSE COUNSEL]:  That is correct, Your Honor.

The invited error doctrine precludes defendant from arguing on appeal that admission of his statement deprived him of a fair trial.   A “defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.”  State v. Pontery, 19 N.J. 457, 471 (1955).

Even if defendant's argument was not barred by the invited error doctrine, his contention that admission of the statement was plain error is without merit.   In his statement, defendant denied any involvement in Lawson's murder, but made inconsistent statements about his relationship with Lawson.

Defendant chose to testify at trial.   He denied the charges and attempted to explain the inconsistencies in the statement.   It was up to the jury to determine whether defendant's testimony was credible.

Moreover, the jury was properly charged as to the weight it should give the statement.   The instructions were given when the statement was admitted and during the judge's final charge.   We must presume the jury followed the judge's instructions.  State v. Nelson, 173 N.J. 417, 469 (2002).

As indicated previously, the State presented extensive circumstantial evidence at trial in support of the charges.   In light of that evidence, which provided the jury with more than enough evidence to support its verdict, we conclude that the admission of the statement was not clearly capable of producing an unjust result.   R. 2:10–2.

III.

Defendant contends the trial judge erroneously permitted the jury to hear testimony concerning the complaint that Lawson filed against him, failed to sanitize this evidence, and improperly instructed the jury as to the permissible uses of this evidence.

A. Admission of Evidence Regarding Lawson's Complaint.

Prior to trial, the State moved to admit Lawson's complaint pursuant to N.J.R.E. 404(b), and defendant opposed the motion.   The judge found that the evidence was admissible as proof of “a motive based on retribution by the defendant against the victim for having brought him to court on a criminal complaint.”

The judge reserved decision on whether the substance of the complaint could be admitted to show malice toward the victim or intent.   The judge stated that he was inclined to admit the substance of the complaint, but he would limit it to the charges “without the detail.”   The judge ultimately admitted the substance of the complaint.

At trial, Officer Niceta testified that Lawson “made a walk-in complaint” about defendant on June 14, 2007, alleging theft and harassment.   Lawson filled out a three-page statement of probable cause.   Lawson also completed a property-loss report, in which he listed “ten items” that defendant had allegedly stolen, including an area rug.   The bottom portion of that report stated that defendant failed to repay Lawson a $10,000 loan.   In November 2007, a trial was held in the municipal court, and defendant was found not guilty of the charges.

N.J.R.E. 404(b) provides:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.   Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Generally, evidence of other crimes, wrongs, or bad acts must be excluded unless it meets four requirements:

1.  The evidence of the other crime must be admissible as relevant to a material issue;

2.  It must be similar in kind and reasonably close in time to the offense charged;

3.  The evidence of the other crime must be clear and convincing;  and

4.  The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]

Defendant concedes that the first and third Cofield requirements were satisfied.   The complaint suggested there might be animosity between Lawson and defendant, and thus a motive for Lawson's murder.   Therefore, the complaint was relevant to a material issue in the case.   In addition, there was clear and convincing evidence that Lawson had filed the complaint.

Defendant contends, however, that the second and fourth Cofield requirements were not satisfied.   Lawson's complaint was filed in June 2007, and it was resolved in November 2007.   Lawson was murdered in June 2008.   Thus, Lawson's complaint and its resolution were reasonably close in time to the charges on which defendant was tried.

Regarding the fourth requirement, “greater leeway is given when the evidence is proffered on the issue of motive, and there must be a ‘very strong’ showing of prejudice to exclude evidence of a defendant's motive.”  State v. Castagna, 400 N.J.Super. 164, 180 (App.Div.2008) (quoting State v. Covell, 157 N.J. 554, 570 (1999)).   The evidence regarding Lawson's complaint may have prejudiced the defense but the prejudice did not outweigh the significant probative value of this evidence.

In addition, “[a]n important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue.”  State v. Oliver, 133 N.J. 141, 151 (1993).   Although defendant notes that there was other evidence indicating that he and Lawson had a “turbulent relationship,” the other evidence did not have probative value that was comparable to the complaint.

Defendant further argues the trial judge erred because he failed to sanitize the evidence.

Here, the evidence regarding Lawson's complaint was sanitized sufficiently because Officer Niceta only referred generally to the charges and did not testify about the details.   See State v. Eatman 340 N.J.Super. 295, 300 (App.Div.) (finding proper sanitization where court allowed general reference prior incidents and barred testimony concerning the details), certif. denied, 170 N.J. 85 (2001).

We therefore conclude that the trial judge did not err by admitting the evidence regarding Lawson's complaint.   We also conclude that the judge properly sanitized the evidence.

B. Instructions to the Jury.

Defendant contends that the judge's final charge concerning the 404(b) evidence was “inadequate and confusing.”   He also argues that the judge erred by failing to give a N.J.R.E. 404(b) charge at the time Niceta testified.

If evidence is introduced under N.J.R.E. 404(b), a jury must be told “ ‘precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.’ ”  State v. Marrero, 148 N.J. 469, 495 (1997) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).   Ordinarily, these instructions must be given when the N.J.R.E. 404(b) evidence is admitted and during the closing charge to the jury.  State v. Barden, 195 N.J. 375, 390 (2008).

In its final instructions to the jury, the trial judge stated in pertinent part:

Now, normally evidence that a person has or that a[d]efendant has committed another civil wrong or crime is not admitted into evidence because it has the possibility or likelihood of the jury misusing that evidence.   There are, however, circumstances which would allow the jury to hear evidence that the person charged may have committed a civil wrong or crime previously.   It is wrong for this evidence to be admitted only for the purpose of showing that the [d]efendant has a disposition or tendency to do wrong and, therefore, must be guilty of the charges that he is on trial for.

Now, I have admitted into this case evidence that the victim, Howard Lawson, filed a complaint charging the [d]efendant with harassment and theft.   This evidence has been admitted for a limited purpose and that is for your consideration as possibly providing bias, malice or motive on the part of the [d]efendant to commit the crimes charged in the Indictment.   Whether this evidences does, in fact, demonstrate bias, malice or motive is for you to decide.   You may decide that the evidence does not demonstrate such purposes and is not helpful to you at all.   In that case, you must disregard the evidence.

On the other hand, you may decide that the evidence does demonstrate those purposes and you may use it for that specific purpose.   However, you may not use this evidence to decide that the [d]efendant has a tendency to commit crimes or that he is a bad person.   That is, you may not decide just because he may have committed other crimes or wrong[s], he must be guilty of the present crimes.

Again, I have admitted the evidence only to help you decide the specific issues of bias, malice or motive.   You may not consider this evidence for any other purpose and may not find the [d]efendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts.

The judge's charge substantially complied with Model Jury Charge (Criminal), “Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))” (June 4, 2007).

Since defendant did not object to the charge, we consider whether the instructions were erroneous and, if so, whether the error was clearly capable of producing an unjust result.   R. 2:10–2.

First, defendant claims the judge erred by stating that “[i]t is wrong for this evidence to be admitted only for the purpose of showing that the [d]efendant has a disposition or tendency to do wrong and, therefore, must be guilty of the charges that he is on trial for.”  (Emphasis added).   Defendant contends that use of the word “only” suggests that the N.J.R.E. 404(b) evidence could be considered to prove defendant's criminal disposition.

However, the portion of the charge at issue is substantially similar to the following part of the model charge:  “Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses.”   Model Jury Charge (Criminal), “Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))” (June 4, 2007).   Furthermore, the judge instructed the jury several times that the evidence could not be considered as proof of defendant's predisposition to commit the charged offenses.

Defendant additionally argues that the judge erred by instructing the jury that it could consider bad acts that were not proven.   Again, we disagree.   Here, the evidence was introduced to show that Lawson filed a complaint alleging that defendant committed certain offenses, and the charges were dismissed at trial.   The evidence was admitted on the issues of bias, motive and intent.   It was not admitted to show that defendant actually committed the offenses.

Defendant also argues that a N.J.R.E. 404(b) charge should have been given at the time Niceta testified.   Although it would have been the better practice for the judge to provide an instruction at that time, the failure to do so was not plain error because the instructions in the final charge were sufficient to guide the jury's deliberations.

We conclude that the trial judge did not err by admitting the evidence regarding Lawson's complaint, and the judge properly instructed the jury regarding its use of that evidence.

IV.

Defendant contends the trial judge erred by admitting photographs of Lawson's body and a copper pipe that might have been the murder weapon.

A. Photographs

The State moved to admit two photographs of Lawson's decomposing body.   Defendant objected on the grounds that the photos were “too graphic.”   In ruling on the State's motion, the judge stated that the pictures had probative value concerning the medical examiner's testimony about his “inability ․ to determine whether or not there were facial injuries.”

When the photos were admitted, the judge instructed the jury as follows:

I want to caution you that you should not be inflamed to the extent that this crime already difficult or most serious crime, it takes on added significance to you because of the graphic nature of these pictures.   After all, what you see now is really a result of decomposition more than it is the injuries actually inflicted by the assailant.   So please make every effort on your part to not be so emotionally affected that you not consider the evidence calmly without bias, passion, prejudice or sympathy.

The judge reiterated the instruction in general terms during his final charge.

A murder victim's photographs are admissible if relevant unless “ ‘their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.’ ”   State v. Johnson, 120 N.J. 263, 297 (1990) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

Here, defense counsel questioned the State's witness, Dr. Hydrow Park, who was qualified as an expert in forensic pathology, about his ability to determine whether Lawson suffered facial injuries.   Dr. Park testified that he could not discern whether Lawson's face was injured because “[a]ll of the soft tissues [were] gone.”   Thus, to the extent the defense had challenged Dr. Park's credibility, the photographs were relevant since they corroborated his findings.

Moreover, Dr. Park testified that he could not “tell what weapons or what object were used[.]”  The photographs also corroborated that testimony.   In addition, the trial judge told the jury that the photographs, while relevant to Lawson's injuries, were not representative of the appearance of those injuries at the time of his death, thereby minimizing any prejudice to defendant from the admission of this evidence.

B. Copper Pipe

Defendant argues that the judge erred by admitting the copper pipe into evidence.   The pipe was found in a lake or pond nearby Lawson's residence in early January 2009.   Since defendant did not object, we consider whether admission of this evidence was plain error.   R. 2:10–2.

The copper pipe was relevant because there was sufficient evidence to show that it may have been the murder weapon.   Dr. Park testified that Lawson's wounds were consistent with the shapes of the end of a lug wrench and a hammerhead.   The copper pipe also lent credence to Williams's testimony that defendant told him he disposed of the murder weapon in a creek nearby Lawson's residence.   Thus, the evidence was admissible.

V.

Defendant contends that prosecutorial misconduct deprived him of a fair trial.   Again, we disagree.

Reversal for prosecutorial misconduct is required only when the misconduct

was so egregious that it deprived the defendant of a fair trial.   In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and degree of responsiveness of both counsel and the court to improprieties when they occurred.   Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks;  (2) whether the remarks were withdrawn promptly;  and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them․

[State v. Frost, 158 N.J. 76, 83–84 (1999) (internal quotations and citations omitted).]

“Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness.”  State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817 (2008).  “[T]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.”  Frost, supra, 158 N.J. at 83 (citing State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L. Ed.2d 653 (1993)).

Defendant argues that remarks made by the prosecutor during his opening statement were improper.   Defendant cites the following statements.   The prosecutor said this case involved a “human horror.”   The prosecutor stated that defendant took advantage of Lawson's “loneliness and neediness” by taking everything he could from Lawson, including his dignity, money, peace of mind and ultimately his life.   The prosecutor also referred to the “overwhelming power” of the circumstantial evidence that would be presented during the trial.

These remarks essentially pertained to the facts the State intended to prove at trial.   None of the aforementioned comments, whether singly or in the aggregate, denied defendant a fair trial.   Moreover, any potential prejudice arising from the remarks was cured by the judge's preliminary and final charges, both of which instructed the jury that the parties' opening statements were not evidence.

Defendant further argues that the prosecutor improperly stated that he intended to give the jurors everything they would “need to come to the right decision” and “do the right thing here by finding [defendant] is the killer here.”   The State concedes that these comments were improper.   We are convinced, however, that the comments did not deprive defendant of a fair trial.   The prosecutor's statements were tempered by his assertion that the jury must decide defendant's guilt or innocence based upon the evidence.

Defendant also argues that the prosecutor made inappropriate references to God and religion during his opening statement.   However, these remarks pertained to companionship, which was a relevant issue because Lawson and defendant were companions.   Defense counsel did not object to the comments, indicating that he did not view them as prejudicial at the time the remarks were made.  Frost, supra, 158 N.J. at 84.

Moreover, at the beginning and end of the trial, the judge instructed the jurors that it was their “duty to weigh the evidence calmly without bias, passion, prejudice or sympathy and to decide all of the issues on the merits.”   Therefore, even if the prosecutor's comments were improper, they did not deprive defendant of a fair trial.

Defendant additionally argues that the prosecutor made various statements that denigrated the defense.   We disagree.   The prosecutor's comments were forceful advocacy, and he did not disparage the defense.   Since defense counsel did not object to these comments, we must assume that counsel did not consider the comments to be prejudicial.  Ibid.

In addition, defendant argues that the prosecutor impermissibly elicited hearsay testimony on direct and re-direct examination.   He further contends that the prosecutor improperly used leading questions during the direct examination of certain witnesses for the State.   These arguments are without sufficient merit to warrant discussion.   R. 2:11–3(e)(2).

VI.

Defendant also argues that the cumulative effect of the trial judge's errors warrant reversal of his conviction and require a new trial.

“In determining whether a defendant has been denied a fair trial, [courts] necessarily look to the significance of the trial errors in light of the evidence presented to the jury.”  State v. Blakney, 189 N.J. 88, 96–97 (2006).   A defendant's conviction must be reversed if the aggregate errors had the clear capacity to cause an unjust result.  Id. at 97.

We are convinced that the cumulative effect of any errors that the judge made during the trial do not warrant reversal under this standard, particularly in light of the strong circumstantial evidence presented by the State in support of the charges.

VII.

Defendant further contends that the sentence imposed by the trial judge is excessive.   Again, we disagree.

At sentencing, the judge found four aggravating factors:  the risk defendant would commit another offense, N.J.S.A. 2C:44–1(a)(3);  the need to deter defendant and others from violating the law, N.J.S.A. 2C:44–1(a)(9);  the fact that the offense was committed against a person who defendant knew or should have known was sixty years of age or older, N.J.S.A. 2C:44–1(a)(12);  and defendant used or possessed a stolen vehicle while committing the crime or in flight thereafter, N.J.S.A. 2C:44–1(a)(13).   The judge found no mitigating factors and determined that the aggravating factors substantially outweighed the mitigating factors.

The judge sentenced defendant to life imprisonment on the murder conviction, with an eighty-five percent parole disqualifier, as prescribed by NERA.2 The judge additionally sentenced defendant to concurrent four-year terms on the weapon and theft convictions.

Defendant argues that the judge erred by not finding mitigating factor seven, which applies when “[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]”  N.J.S.A. 2C:44–1(b)(7).

The judge noted that defendant had two prior disorderly persons offenses and the present offenses are his first indictable convictions.   The judge also noted that defendant has had prior complaints of assault and terroristic threats with an active final restraining order against him obtained by the mother of his eldest child.

The judge found that, while defendant's offenses were minor, he nevertheless had a criminal record.   The presentence report supports the judge's findings.   Indeed, it cannot be said that defendant led a law-abiding life for a substantial period of time before he committed the charges for which he was tried in this case.   Thus, the judge did not err by failing to find mitigating factor seven.

In addition, defendant argues that because his criminal history only involved minor offenses, the judge should have accorded minimal weight to aggravating factor three, the risk of re-offense.   The judge found aggravating factor three based in part upon “the brutal nature of this murder and the display of defendant's contempt for the value of human life,” which suggested “an underlying pathology that places him at a greater risk of re-offending.”   The record supports the judge's findings and, in view of the serious nature of the offenses involved in this case, the judge was not required to give limited weight to this factor.

Defendant further argues that the judge should have taken his employment history and adult children into consideration at sentencing.   The contention is without sufficient merit to warrant discussion.   R. 2:11–3(e)(2).   We note, however, if the judge had taken these matters into consideration, they would not have justified a shorter sentence.

Finally, defendant argues the judge erroneously considered aggravating factor one, N.J.S.A. 2C:44–1(a)(1).   That factor is mentioned in the judgment of conviction, but was not mentioned at sentencing.   The sentencing transcript controls.  State v. Rivers, 252 N.J.Super. 142, 147 n.1 (App.Div.1991);  State v. Murray, 338 N.J.Super. 80, 91 (App.Div.), certif. denied, 169 N.J. 608 (2001).   We therefore remand the matter to the trial court for entry of a corrected judgment of conviction to delete the finding of aggravating factor one.

Accordingly, we conclude that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience.  State v. O'Donnell, 117 N.J. 210, 215–16 (1989);  State v. Roth, 95 N.J. 334, 363–65 (1984).

Affirmed and remanded to the trial court for entry of a corrected judgment of conviction.

FOOTNOTES

1.  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

2.  FN2. NERA provides that, for purposes of calculating the minimum period of parole ineligibility, a life sentence is deemed to be seventy-five years.   N.J.S.A. 2C:43–7.2(b).

PER CURIAM

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