STATE OF NEW JERSEY v. DAVID CONNOR (2011)

A jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11–4a;  second-degree aggravated assault, N.J.S.A. 2C:12–1b(1);  second-degree disturbing or desecrating human remains, N.J.S.A. 2C:22–1a(1);  third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b;  and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a.   At sentencing, the trial court denied defendant's motion for a new trial, which was based upon the court's failure to instruct the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957).   The parties agreed that for sentencing purposes, the weapons offenses and the aggravated assault offense merged into the aggravated manslaughter offense.   The court found three aggravating factors and no mitigating factors.   In addition to fines and penalties, the court imposed a custodial term of twenty-five years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, on the aggravated manslaughter charge, and a consecutive ten-year custodial term on the desecration of human remains conviction.   The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

UNDER THE “TOTALITY OF THE CIRCUMSTANCES” TEST, ADMISSION OF THE DEFENDANT'S UNRECORDED ORAL STATEMENT MADE TO DETECTIVE SMITH ON SEPTEMBER 18, 2006, RESULTED IN A VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM THE ADMISSION, AS SUBSTANTIVE EVIDENCE OF GUILT, OF AN UNRECORDED AND UNMEMORIALIZED ORAL INCRIMINATION THAT UNDERMINED HIS FIFTH AMENDMENT RIGHT AGAINST SELF–INCRIMINATION AND HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON HOW TO ASSESS THE DEFENDANT'S INCRIMINATORY ORAL STATEMENTS.

POINTT III

THE TRIAL COURT ERRED IN ADMITTING TESTIMONY THAT JANICE LEGGARD WAS IN FEAR FOR HERSELF AND HER CHILDREN TO SHOW HER “STATE OF MIND.”

POINT IV

THE PROSECUTOR COMMITED REVERSIBLE ERROR BY ARTICULATING AN ERRONEOUS AND MISLEADING STANDARD OF “PROOF BEYOND A REASONABLE DOUBT” IN SUMMATION.

POINT V

THE AGGREGATE BASE CUSTODIAL SENTENCE OF [THIRTY–FIVE] YEARS WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE TRIAL COURT'S SENTENCING DISCRETION.

(A)

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING AGGRAVATING FACTOR N.J.S.A. 2C:44–1(A)(1) APPLICABLE.

(B)

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERMS.

(C)

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE AND THREE CONSECUTIVE TO EACH OTHER.

We have carefully analyzed the record in light of the arguments advanced on appeal and are satisfied that none of defendant's contentions merit reversal of his conviction or the sentence imposed.   We, therefore, affirm.

The evidence at trial from which the jury reached its verdict is as follows.   Defendant operated an auto repair establishment.   He employed a number of people, including the victim, Benjamin Law. On the morning of August 18, 2006, defendant picked up one of his employees, Philip Leggard (Philip),¹ and proceeded to work.   Once there, he called Tareek Gillian,² who sold used cars from the fenced-in lot that surrounded defendant's auto shop, and asked Gillian to come to the shop because he had money for him.   Gillian and defendant had an arrangement in which defendant agreed to pay Gillian for the use of Gillian's inventory in exchange for being responsible for Gillian's insurance bill.

Gillian arrived at the shop around noon and saw defendant outside of the shop, seated in a Sebring with a six-pack of Heineken on the passenger seat.   Defendant did not appear sober.   The two men went inside the office where defendant asked Gillian whether he had heard that Law had been selling drugs.   According to Gillian, defendant told him that he was going to “fuck [Law] up.”   Defendant pulled out two guns:  a chrome, .38–caliber Smith & Wesson revolver and black automatic handgun.   Believing that defendant was “out of his mind” and intoxicated, as well as being concerned for his own safety, Gillian took the black automatic gun for protection.

Gillian and defendant exited the office and defendant approached Law, who was seated in a chair wiping sweat off of his face.   Defendant leaned over him and started cursing at him.   He then struck Law with the gun three or four times.   Law stood up and pushed defendant back.   Gillian testified that he saw defendant shoot Law once in the neck.   He then left the shop before Law hit the floor and joined his cousin, Rasheen Koonts, who was outside.   The two men ran to Gillian's vehicle and drove away.   Gillian turned over the handgun to his cousin, whom he believed could get rid of the gun easier than he could.

Philip, who witnessed defendant striking Law, heard a shot go off as he was walking out of the shop.   When he turned around, he saw Law falling and smoke and a flame coming from defendant's gun.   When Philip arrived home, he told his brother, Lamar, what happened, but they did not call police.   Later that evening, Lamar told his wife, Janice, what happened.

Defendant went to the Leggard residence following the shooting on August 20 and 21, seeking help, which the Leggards refused to provide.   On the second occasion, Lamar noticed that defendant was wearing the same clothing he had been wearing the day before.   He testified that although he had “never smelled a dead body ․ that's what [defendant] smelled like, it smelled like a heavy stink.”   Defendant told him:  “I got that shit out of my shop ․ I got it in my trunk.”   Defendant never explained what he meant by “shit,” but admitted to Lamar that the body had stiffened and he had to “break the leg to put it in the trunk and he also showed [Lamar] the blood that was on his shirt.”   Defendant wanted to leave his vehicle parked on the Leggards' street, but Lamar told him he could not do so.   As he left, Lamar noticed that defendant was driving a Cadillac.   The next day he and his wife notified police.

Prior to the Leggards notifying police about the incident, Law's ex-wife had already contacted police because she had not received her daily phone call from him.   Therefore, she believed he was missing.   An arrest warrant for assault and weapons offenses was issued for defendant on August 24.   His vehicle was recovered and a search of the trunk revealed blood.   A DNA analysis later confirmed that the blood samples taken from defendant's vehicle were consistent with Law's DNA. Police were unable to locate Law.

On September 28, police learned that defendant had been arrested in Washington, D.C., by the U.S. Marshals Service.   Detective Christopher ³ Smith, a member of the Essex County Prosecutor's Office, had been involved in the investigation since Law's ex-wife reported him missing.   Detective Kristine Witkowski, also employed by the Essex County Prosecutor's Office, and Detective Smith traveled to D.C. to transport defendant back to New Jersey.

At the beginning of the drive, Detective Smith initiated a conversation with defendant during which he apprised defendant of the status of the investigation.   Defendant told the detectives that he wanted to talk to them but wanted to wait until they arrived back in New Jersey.   From that point on, Smith conversed with defendant on other topics, including sports and the fact that defendant's sister was a member of the New York City Police Department.   They stopped at least twice for a food, bathroom, and cigarette break.

When Detective Smith first met defendant in D.C., defendant was advised of his Miranda ⁴ rights and initialed and signed a Miranda waiver form.   Upon arrival in Essex County, the detectives took defendant to a conference room in the Homicide Squad office.   When Detective Smith was alone in the room with defendant, he again administered Miranda warnings, which were taped.   However, defendant requested that the detective turn off the tape recorder because he did not want to have the conversation recorded.   Although the room was equipped with a concealed video camera, Detective Smith chose not to employ that device.

According to Detective Smith, defendant

told [him] that there was a physical altercation, a fight, that he and Tar [e]ek Gillian had gone and gotten—each had gotten some guns, had come back.   Benjamin Law was sitting in part of the garage, the part of the garage where we recovered the Speedy Dry, sitting in a chair.

Both of them had gone up to Ben and started beating him with the guns, hitting him with the guns[,] and during this physical confrontation, the defendant's gun went off and Benjamin Law fell to the ground.

Detective Smith recorded this admission in his continuation report, which was submitted on February 4, 2008.

After this five-minute conversation, Detective Smith allowed defendant to call his ex-wife.   The detectives then drove defendant, at his direction, to a vacant lot on Dey Street, located within minutes of the Leggard residence.   Defendant told the detectives that the body was located “[i]n the back.”   At first the detectives were unable to find a body but continued their search and, upon lifting up some sheet rock, found a badly decomposed body, later identified through dental records as that of Law. Defendant was subsequently charged with homicide.

An autopsy performed upon the body revealed a “gunshot wound and blunt force trauma.”   Because the skull was fully skeletonized, the medical examiner could not determine the number of times Law had been struck.   Trauma was also found on Law's left second finger and to the cervical spine.   Additionally the “arch of the four cervical vertebra[,] which is one of the kind of midpoints of the vertebra[,] was completely broken.”   A nine millimeter bullet weighing 128.5 grains and consisting of five lands and grooves with a five right twist was recovered from Law's clothing.   The State's ballistic expert testified that the bullet could have been fired from a revolver.

I.

Defendant urges that under the totality of the circumstances, his unrecorded oral statement should not have been admitted, notwithstanding the court's determination that police satisfied the Miranda requirements.   We disagree.

Rule 3:17(a) provides that “all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with ․ second degree aggravated assault” unless an exception applies.   One exception to the recordation requirement occurs when “a statement is made during a custodial interrogation by a suspect who indicated, prior to making the statement, that he ․ would participate in the interrogation only if it were not recorded[.]”  R. 3:17(b)(iv).   Furthermore, “[t]he failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement․”  R. 3:17(d).  Prior to adoption of this rule, “whether a statement is memorialized or not [was] but a factor contributing to the overall determination of a statement's voluntariness.”   State v. Cook, 179 N.J. 533, 552 (2004).   As such, the State was required to “introduce independent proof of facts and circumstances that tend to generate a belief in a statement's trustworthiness.”  Ibid.

Defendant was informed of the charges and advised of his Miranda rights prior to leaving Washington, D.C., and then again when he arrived at the Homicide Squad conference room at the Essex County Prosecutor's Office.   Defendant made no claim that he was not properly advised of his Miranda rights or that his waiver was invalid.   The trial court found the testimony surrounding the circumstances under which defendant gave his oral statement credible and rejected defendant's contention that exception (iv) to Rule 3:17 did not apply because Detective Smith “had the ability to have the defendant video recorded.”   He also noted that “[t]he fact that the memorialization of the interrogation was not done for almost a year and [one] half ․ is not in any way fatal to whether or not the State has proven beyond a reasonable doubt that [defendant] was properly Mirandized.”

In reviewing a trial court's decision on a Miranda motion, this court engages in a “searching and critical” review.  State v. Patton, 362 N.J.Super. 16, 43 (App.Div.) (internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003).   We will not, however, engage in an independent assessment of the evidence as if we are a court of first instance, but will defer to the trial court's findings of fact.  State v. Locurto, 157 N.J. 463, 471 (1999).

There is sufficient credible evidence in the record to support the trial court's conclusion that defendant was properly Mirandized and that he then waived his right to remain silent by having a conversation with Detective Smith during which he told Detective Smith about the physical altercation involving Law and the discharge of his weapon.

II.

Defendant contends the trial court erred when it denied his motion for a new trial based upon the court's failure to sua sponte instruct the jurors in accordance with Hampton and Kociolek.   We reject this contention.

In Hampton, the Court held that a trial judge's determination that a suspect's statement was voluntarily given under circumstances demonstrating a knowing, voluntary, and intelligent waiver of his rights is only a preliminary determination and that the trial judge must instruct the jurors to disregard the statement if they find the statement is not credible.  61 N.J. at 271–72.   A Kociolek charge “involves the general reliability of a defendant's statements.”  State v. Feaster, 156 N.J. 1, 72 (1998).   Thus, “when a defendant's oral statements have been introduced against him, the trial court must instruct the jury that it should consider such evidence with caution ‘in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer.’ ”   Ibid. (quoting State v. Kociolek, supra, 23 N.J. at 421).

The failure to give a Hampton /Kociolek charge, “is not reversible error per se.”  State v. Jordan, 147 N.J. 409, 425 (1997).   Rather, “[i]t is reversible error only when, in the context of the entire case, the omission is ‘clearly capable of producing an unjust result․’ ”  Ibid. (quoting R. 2:10–2).   The omission will likely be clearly capable of producing an unjust result “when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility.”  Ibid. On the other hand, if the statement “is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt ․ the failure to give a Hampton [/Kociolek ] charge would not be reversible error.”  Id. at 425–26.

As the trial court observed in denying defendant's new trial motion:

Here, in addition to defendant's alleged oral statement, the evidence against [him] consisted of:  One, the sworn written statement of Phil[ ]ip Leggard, an eyewitness who was employed at the auto repair shop where the homicide occurred, [in] which Mr. Leggard states he observed the defendant shoot the victim.[5]

Secondly, a sworn tape[-]recorded statement of Tareek Gillia[n], the defendant's co-conspirator[,][in] which Mr. Gillia[n] admits to being at the scene of the shooting and identified the individual who shot and killed the victim.   Three, the testimony of two eyewitnesses implicating the defendant as the person who shot and killed the victim.   Four, evidence of the victim's blood/DNA was located in the defendant's car, in his place of business.

Five, the testimony of Lamar Leggard that the defendant told him that he dumped the victim's body and had to snap the victim's arm [sic] to fit the corpse into the trunk of his car, and that a stench of death was emanating from the defendant's clothing during this conversation.   Six, evidence of defendant's flight from New Jersey to Washington, where he was apprehended and taken into custody.   Seven, the testimony and photographs establishing that the defendant directed Detective Christopher Smith to the decomposed skeletonized body of the victim in Jersey City. Eight, testimony from forensic witnesses from the Regional Examiner's Office establishing the victim was both beaten and shot to death.

And[,] finally, testimony from Gina Hart, a[f]orensic [a]nthropologist who testified that she examined the victim's skull and she entered evidence of blunt force trauma.

We are in complete agreement with the trial judge's conclusion that the “abundance of independent evidence” linking defendant to the shooting, as well as the corroboration of his statement by leading the detectives to the victim's corpse, militates against a finding that defendant's statement was necessary to prove his guilt.

III.

Defendant argues that permitting Janice Leggard to testify that she called police out of fear for herself and her children was reversible error.   Specifically, defendant contends the testimony was not relevant to any of the issues before the jury because there was no evidence in the case that defendant threatened the Leggards and this testimony was designed to impermissibly appeal to the jurors' emotions.   While we cannot conclude from the record that the State deliberately introduced this evidence to appeal to the jurors' emotions, we do agree that the evidence was irrelevant to the issues before the jury.   Nonetheless, any error in admitting this testimony was harmless.

The testimony before the jury was that defendant approached the Leggards on two occasions seeking help and, on the second occasion, appeared in the early morning hours asking permission to leave his car, which he told Lamar contained the body of the victim, on the Leggards' street.   Given this evidence, the jury would have reasonably concluded that the circumstances generated fear in Janice and led to her telephone call to police.   Moreover, the court instructed the jurors that Janice's testimony was relevant only to her state of mind and that the jury was “not to infer that her state of mind was based upon any threats or statements made by [defendant] because there is no evidence that [defendant] made any threats or statements.”

IV.

During his summation, the prosecutor stated:

The standard of proof in this case is proof beyond a reasonable doubt.   During jury selection we had all these questions of proof beyond a reasonable doubt, what does it mean to you?   Proof beyond a reasonable doubt is important.

I submit what happened to the victim in this case was important too.   Proof beyond a reasonable doubt is a standard of proof that deals with reasonableness.   The key word is reasonable.   Nothing that the defendant did in this case was reasonable.   I am asking you to come to a reasonable verdict based upon the totality of what you have heard in this case.   Nothing mysterious or ominous about proof beyond a reasonable doubt.   It's a working standard of proof that is used and adhered to in courtrooms every day.   It's a standard of proof and you will hear more instructions from the [j]udge about it.   You need to be firmly convinced that what [defendant] did was unlawful, unreasonable.

We have proven this case beyond a reasonable doubt.   He killed the man.   He killed his mechanic, dumped him like garbage and then he fled to Washington D.C.

The state has proven its case and I would ask you to convict on all charges.

[Emphasis added.]

Defense counsel objected, arguing the prosecutor “tried to equate proof beyond a reasonable doubt with reasonableness.”   Before excusing the jury for lunch, the trial court instructed the jury that the charge it would receive from the court would be the law that the jury must accept rather than “someone else's theory of the law[.]”  During its charge, the court properly instructed the jury on the meaning of reasonable doubt in accordance with the Model Jury Charge (Criminal), “Reasonable Doubt” (1997), and made clear that it was each element of the offense for which defendant had been indicted that required proof beyond a reasonable doubt.   The court also charged the jury that it was bound to accept the law in accordance with his instructions.

V.

Defendant's final arguments address the sentence imposed, which included a twenty-five-year sentence on the aggravated manslaughter conviction and a consecutive ten-year custodial sentence on the disturbing human remains conviction.   Other than the court's consideration of aggravating factor one, “[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[,]” N.J.S.A. 2C:44–1a(1), we find the arguments advanced without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add the following brief remarks.

In considering aggravating factor number one, the court stated:

[Defendant]'s actions were obviously just the opposite of the questions that were posed by Hamlet.   By that, I mean, instead of thinking of Mr. Law as being noble, [defendant] thought Mr. Law was useless.   Instead of Mr. Law being admirable as an employee of his, he instead thought of him as worthless.   And instead of being a paragon of being, Mr. Law was valueless.   So valueless that he treated his body like a piece of trash to be thrown out with the garbage in a vacant lot in Jersey City.

The prohibition against using evidence both for sentencing purposes and to establish an element of an offense is well-settled.  State v. Kromphold, 162 N.J. 345, 353 (2000).   See also State v. Pineda, 119 N.J. 621, 627–28 (1990) (holding that since death is an element of the offense of death by auto, the victim's death could not be considered as an aggravating factor for sentencing purposes);  State v. Pillot, 115 N.J. 558, 564 (1989) (holding that where use of BB gun elevated robbery from second-degree to first-degree crime, use of weapon could not be considered aggravating factor for sentencing purposes);  State v. Jarbath, 114 N.J. 394, 404 (1989) (considering a child's death as support for the seriousness-and-gravity-of-harm aggravating factor impermissibly double-counted this factor because the child's death was an element of the offense of second-degree manslaughter).

Applied here, the manner in which defendant assaulted the victim and subsequently shot him did not occur in a particularly heinous manner.   Further, treating the victim's body as “a piece of trash,” as the court characterized defendant's conduct, is encompassed by the unlawful disposition charge.   Nonetheless, removing aggravating factor number one from the court's sentencing considerations does not justify reversal of the sentence and remand for resentencing.

The court found three additional aggravating factors:  (1) aggravating factor number three, “[t]he risk that the defendant will commit another offense [,]” N.J.S.A. 2C:44–1a(3);  (2) aggravating factor number six, “[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]” N.J.S.A. 2C:44–1a(6);  and (3) aggravating factor number nine, “[t]he need for deterring the defendant and others from violating the law[,]” N.J.S.A. 2C:44–1a(9).   The court found no mitigating factors.   There was substantial credible evidence in the record to support imposition of greater than the minimum base terms for the offenses for which he was convicted.

Likewise, the court did not abuse its discretion in sentencing defendant to a consecutive custodial sentence on the disturbing human remains conviction.   The consecutive ten-year sentence imposed satisfied the guidelines set forth in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986).   First, the two crimes, aggravated manslaughter and disturbing human remains, have very different objectives.   The objective of the latter crime was to get rid of evidence linking defendant to the former.   Second, the crimes consisted of separate acts of violence.   The first was an act of violence committed against Law, and the second was an act of violence (breaking the leg to fit it into the trunk), committed against Law's body.   Last, the crimes were committed at different times.   Defendant waited two days to deal with Law's body, thus suggesting that he had time to contemplate what to do with it.

Our review of a sentence is limited.  State v. Roth, 95 N.J. 334, 364 (1984).   When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision.  State v. Cassady, 198 N.J. 165, 181 (2009);  State v. Jabbour, 118 N.J. 1, 5 (1990).   Indeed, an appellate court “ ‘does not sit to substitute its judgment for that of the trial court.’ ”  Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).   So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence.  Ibid. We are “expected to assess the aggravating and mitigating factors to determine whether they ‘were based upon competent credible evidence in the record.’ ”  State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364–65).   A sentence will be found improper when it “shock[s] the judicial conscience.”  Roth, supra, 95 N.J. at 365.   Applying these standards, we discern no reason to disturb the sentence.

Affirmed.

FOOTNOTES

FN1. Because Philip, his brother Lamar, and his sister-in-law Janice share the same last name, Leggard, we refer to them by first name and intend no disrespect in doing so..  FN1. Because Philip, his brother Lamar, and his sister-in-law Janice share the same last name, Leggard, we refer to them by first name and intend no disrespect in doing so.

FN2. Also spelled Gilliam in the record..  FN2. Also spelled Gilliam in the record.

FN3. Also spelled Kristopher in the record..  FN3. Also spelled Kristopher in the record.

FN4. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN4. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

FN5. Philip's actual testimony was that he “heard a shot go off while [he] was on [his] way out of the door and when [he] turned around, [he] seen [Law] falling.”   He also saw “[t]he flame and the smoke from the gun.”.  FN5. Philip's actual testimony was that he “heard a shot go off while [he] was on [his] way out of the door and when [he] turned around, [he] seen [Law] falling.”   He also saw “[t]he flame and the smoke from the gun.”

PER CURIAM