SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1849-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Cross-Appellant,
vs.
DONALD LOFTIN,
Defendant-Appellant/
Cross-Respondent.
Argued December 5, 1995 - Decided January 12, 1996
Before Judges Michels, Baime and Villanueva.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County.
Susan Herman and Daniel V. Gautieri,
Assistant Deputy Public Defenders, argued the
cause for appellant (Susan L. Reisner, Public
Defender, attorney; Ms. Herman and Mr.
Gautieri, of counsel and on the brief).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Mr. Heinzel, of counsel and on the
brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D.
Defendant Donald Loftin appeals from his conviction of third degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count one); second degree possession of a firearm with a purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a
(count two); second degree burglary while armed with a deadly
weapon, contrary to N.J.S.A. 2C:18-2 (count three); first degree
armed robbery, contrary to N.J.S.A. 2C:15-1 (count four); felony
murder, contrary to N.J.S.A. 2C:11-3a(3) (count five); and
purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1),(2) (count six). The State cross-appeals, arguing that the
robbery conviction should not have been merged with the
previously merged felony murder conviction. We affirm the
convictions but remand to the trial court to merge the conviction
of possession of a firearm with a purpose to use it unlawfully
into the burglary, robbery or murder conviction; reverse the
merger of the robbery conviction; and order the trial court to
restructure the consecutive sentence.
On the evening of March 28, 1992, Sophia Fetter, a sixty-nine year old woman employed as a chambermaid at Harrah's Casino
Hotel in Atlantic City, was shot in the head and killed while
cleaning Room 1134 of the hotel's Harbor Tower.
Harrah's utilized a security system by which every insertion
of a key, whether a guest key or a specially designated master
key like the one Ms. Fetter was issued when she began her evening
shift, was logged in a computer which identified the exact key
used, the door and the time of insertion. The security system
records, together with interviews, enabled the police to
reconstruct the following history for Room 1134 on the day of the
murder.
At 7:46 p.m., the door to the room was opened by one of the
keys issued to new guests, at which time room service was
notified that the beds were unmade. Ms. Fetter was contacted by
beeper and assigned to clean the room. The established procedure
for all chambermaids was for them to jam a wooden stopper against
the bottom of the room door to insure that the door remained wide
open while the room was being cleaned. The maid would then pull
her four-foot wide cleaning cart in front of the door, close to
the threshold, to prevent entry by anyone else.
The computer records indicate that Ms. Fetter entered Room
1134 at 8:18 p.m. She immediately logged her personalized
identification code into the room telephone, thus informing the
maintenance department of her whereabouts. The room was entered
a second time at 8:25 p.m. At approximately 8:30 p.m. a houseman
walked by Room 1134 and observed that the door was closed and the
maid's cart was down the hall between two other rooms. Room 1134
was reentered with Ms. Fetter's master key at 8:49 p.m.
The next entry into the room was at 10:27 p.m. when Mrs.
Johnson, the prior occupant, mistakenly opened the door. She
immediately closed it upon seeing someone else's luggage in the
room. Although it was later determined that Ms. Fetter's body
could be seen from the doorway, Mrs. Johnson saw only what she
believed to be wine spilled on the floor. The computer records
indicate that Mrs. Johnson then opened her own door across the
hall.
By 10:30 p.m., Ms. Fetter's supervisor, Rashesh Rangrej,
began to suspect that something was wrong. He contacted hotel
security who opened the room at 11:36 p.m. and discovered Ms.
Fetter's body on the floor between the two beds. An autopsy
later revealed the cause of death to be a single gunshot wound to
the head and brain.
Two bullets, one of which had missed Ms. Fetter, were
recovered from Room 1134. Although the New Jersey State Police
ballistics laboratory determined that the bullets had been fired
from a .380 caliber semi-automatic pistol, possibly manufactured
by Bryco, no spent shell casings were recovered. Ms. Fetter had
$5 in her pocket and was wearing her jewelry when police
discovered her body. The only item that appeared to be missing
was Ms. Fetter's key caddy.See footnote 1
During the subsequent investigation, detectives met with
bellman Donald Rasheed who had taken luggage to Room 1134 between
7:00 and 7:30 p.m. Rasheed stated that sometime during that
evening he had reported to his bell captain that a "sneaky" and
"suspicious" individual seemed to be following him. The man who
was well dressed in a grayish-blue suit with a dark-patterned red
tie, was black, of medium build, with glasses, mustache and
short-cropped hair. Rasheed recalled that between 7:30 and 9:00
p.m. the man appeared whenever Rasheed carried luggage to a room,
regardless of the floor. Rasheed stated that every time he
attempted to get a good look at the man, who was sometimes as
close as ten feet away, the man would quickly turn aside and
pretend to be occupied with something else. Rasheed gave
conflicting testimony as to whether he ever saw the man on the
eleventh floor of the Harbor Tower.
A composite sketch was prepared from Rasheed's description.
Subsequently, security and law enforcement officers reviewed
hundreds of hours of videotapes from the cameras which surveil
the public areas of Harrah's to see if anyone resembling the man
depicted in the composite sketch appeared on camera. It soon
became apparent that such a man appeared on various videotapes in
various locations in a time sequence matching relevant events.
To obviate the need to review each of the videotapes in their
entirety, Atlantic City police personnel prepared a composite
videotape showing sequentially all segments in which this man
appeared.
The composite videotape, which we reviewed, revealed the
following events. At 6:18 p.m., the suspect is seen wearing a
black trench coat, walking through the garage lobby, and heading
toward the crosswalk which links the garage to the hotel. Six
minutes later he is seen returning over the crosswalk toward the
garage. At 6:31 p.m., he again comes into view, dressed in a
suit. He appears in the garage lobby at 6:34 p.m., where he
rides the elevator to the top floor of the garage and looks over
the wall toward the Harrah's complex. At 6:37 p.m., he rides
back down to the second floor and walks toward the crosswalk and
back to the hotel, proceeding in the same direction as pedestrian
traffic.
The suspect is next seen at 7:15 p.m. in the concourse area.
At 7:16 p.m., he enters the Harrah's gift shop where he remains
until 7:17 p.m.See footnote 2 During this sequence, the suspect comes
clearly into view and the pattern on his necktie is visible. The
suspect is next seen at 7:18 p.m. boarding a Harbor Tower
elevator. He does not reappear on the videotape composite until
8:30 p.m. when he exits an Atrium Tower elevator at a place
providing a direct route out of the complex. At 8:33 p.m., he is
seen walking on the side of the center rail against the flow of
pedestrian traffic toward the garage. At 8:37 p.m., the suspect
is seen descending a set of steps; at 8:39 p.m., he is seen
returning over the crosswalk back toward the hotel where he
summons a Harbor Tower elevator and paces the floor. The suspect
is next seen at 9:00 p.m. leaving the complex, walking with the
flow of pedestrian traffic along the proper side of the
crosswalk.
Rasheed reviewed the composite videotape and told police
that he was certain that the person shown was the man who had
followed him that night. At trial, he identified defendant as
the man who had followed him.
No further progress was made on the case until sometime in
May 1992, when Atlantic County Detective Joseph Friedrich read a
newspaper article in the Philadelphia Inquirer reporting the
arrest of a man and the seizure of a .380 caliber semi-automatic
handgun from his car. Friedrich contacted the State Police
ballistics laboratory which was in possession of the gun. From a
ballistics test, it was conclusively determined that the gun was
the one used to kill Ms. Fetter.
The events leading to defendant's arrest were as follows.
On May 9, 1992, defendant attempted to purchase a computer system
with a credit card issued in the name of Gary Marsh,See footnote 3 at a Sears
store in the Oxford Valley Mall in Middletown, Pennsylvania.
When the clerk attempted to obtain authorization from the Sears
credit department, he was told to detain defendant since the
credit card had been reported stolen four days earlier. The
Sears security department was notified and security cameras were
then focused on defendant, whose movements over the next fifteen
minutes were captured on videotape. Defendant's arrest by the
Middletown police is shown briefly on the videotape.
When the police searched defendant's wallet, they discovered
Marsh's credit card and driver's license and also a receipt for a
Bryco .380 caliber semi-automatic weapon.See footnote 4 The police then
obtained search warrants for defendant's home and two vehicles.
They discovered a gun carrying case in defendant's home, together
with 500 rounds of shells and various paraphernalia used to
reload spent cartridges. In their search of defendant's car that
was parked at the Oxford Valley Mall, police found one full and
one partially full magazine for a .380 semi-automatic in the
glove compartment; a rubber face mask and a gun concealed under
the dashboard on the driver's side with one round chambered in
the gun; and a shoulder holster behind the driver's seat. The
gun was sent to the New Jersey State Police for ballistics
testing and was later returned to the Mercer County authorities
since the crimes against Marsh occurred in Lawrence Township.
On September 22, 1993, the jury found defendant guilty on
all counts. After defendant's motions for a new trial and to
interview jurors were denied, defendant was sentenced on count
six to a term of life imprisonment with thirty years parole
ineligibility and committed to the custody of the Commissioner
of the Department of Corrections. Defendant was sentenced on
count two to a seven-year term consecutive to the sentence on
count six; to a four-year term on count one to run concurrently
with the sentence on count six; to a four-year term on count
three to run concurrently with the sentences on counts one and
six. Counts four and five were merged with count six.
Defendant's aggregate sentence was therefore life imprisonment
plus seven years, with a thirty-year parole disqualifier, and an
aggregate $350 V.C.C.B. penalty.
Defendant appeals. The State cross-appeals, arguing that
the robbery conviction should not have been merged with the
previously merged felony murder conviction.
On appeal, defendant argues:
POINT I OTHER CRIMES EVIDENCE PERMEATED THE TRIAL
INCLUDING A VIDEOTAPE OF THE DEFENDANT COMMITTING
AN UNRELATED OFFENSE WHICH WAS PLAYED ON MULTIPLE
OCCASIONS. SUCH PREJUDICIAL EVIDENCE, ADMITTED
WITHOUT ANY LIMITING INSTRUCTION, DEPRIVED
DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND.
XIV; N.J. CONST. ART. 1, PARAS. 1, 9, 10.
(Partially raised below.)
POINT II DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
AND DUE PROCESS OF LAW WERE VIOLATED BY NUMEROUS
UNDULY PREJUDICIAL ERRORS INVOLVING THE
PREPARATION, SHOWING AND INTERPRETATION OF THE
HARRAH'S COMPOSITE VIDEOTAPE, REQUIRING REVERSAL
OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMEND.
XIV; N.J. CONST. ART. I, PARAS. 1,
9 AND 10.
(Partially raised below.)
A. The composite videotape was not properly
authenticated, as required by N.J.R.E.
1001(d), and it should not have been admitted
because it was incomplete and incorrect,
making its integrity suspect. (Partially
raised below.)
B. It was reversible error for the trial court
to permit a law enforcement fact witness to
narrate the videotape, including providing
his opinion as to the identity and guilty of
the defendant, and to neglect to instruct the
jurors regarding their evaluation of his
testimony. (Not raised below.)
C. The Prosecutor improperly distorted facts
concerning the videotape in summation,
reinforcing the above errors.
POINT III DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
AND DUE PROCESS OF LAW WERE VIOLATED BY THE TRIAL
COURT'S ABUSE OF DISCRETION IN EXCLUDING EVIDENCE
OF THIRD PARTY GUILT OFFERED BY DEFENDANT, THEREBY
DEPRIVING DEFENDANT OF HIS RIGHT TO PRESENT A
DEFENSE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
ART. I, PARAS. 1, 9, 10.
POINT IV THE VOIR DIRE OF THE PROSPECTIVE JURORS WAS
INADEQUATE TO ASSURE DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL AS THE COURT FAILED TO EXPLORE: THE
JURORS' PRIOR KNOWLEDGE OF THE CASE; WHETHER ANY
JURORS HAD PREVIOUSLY SERVED IN A CIVIL CASE;
WHETHER THE JURORS WOULD BE ABLE TO APPLY THE
COURT'S LEGAL INSTRUCTIONS IF THEY DISAGREED WITH
THEM; AND WHETHER THE JURORS HAD ANY RACIAL
PREJUDICES OR BIASES. (Not raised below.) U.S.
CONST. AMENDS. VI, XIV; N.J CONST. ART. I, PARAS.
1, 9, 10.
POINT V THE DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE
BEEN GRANTED BECAUSE THE JURY COMMITTED MISCONDUCT
IN DETERMINING THAT DEFENDANT WAS REPRESENTED BY A
PUBLIC DEFENDER, A FACT REFLECTING DEFENDANT'S
INDIGENCY WHICH WAS NOT REVEALED BY THE EVIDENCE
AT TRIAL.
POINT VI IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO
REFUSE TO CHARGE THE LESSER-INCLUDED OFFENSE OF
MURDER, ENTITLING DEFENDANT TO A NEW TRIAL.
POINT VII DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, AS COUNSEL MADE NUMEROUS ERRORS,
INCLUDING THE FAILURE TO OBJECT: TO OTHER CRIMES
EVIDENCE; TO A DETECTIVE'S IMPROPER OPINION
TESTIMONY REGARDING DEFENDANT'S LOCATION WHEN HE
WAS NOT VISIBLE ON HARRAH'S VIDEOTAPE; AND TO THE
INADEQUATE VOIR DIRE OF PROSPECTIVE JURORS. (Not
raised below).
POINT VIII EVEN IF THE INDIVIDUAL ERRORS AS SET FORTH
IN POINTS I THROUGH VII (OR ANY COMBINATION
THEREOF) DO NOT CONSTITUTE REVERSIBLE ERROR, THE
ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR
TRIAL. (Not raised below).
POINT IX DEFENDANT'S SENTENCE OF LIFE IMPRISONMENT WITH A
PAROLE DISQUALIFIER OF THIRTY YEARS ON COUNT SIX
AND A CONSECUTIVE SENTENCE OF SEVEN YEARS ON COUNT
TWO, WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE,
REQUIRING MODIFICATIONS. (Not raised below).
Defendant argues that he was deprived of a fair trial because the jury was made aware of other crimes that he had
committed; they watched a videotape showing him committing a
crime and being arrested; defendant did not receive the benefit
of the procedural safeguards intended to limit the use of other
crimes evidence, e.g., a hearing pursuant to N.J.R.E. 104, a
weighing of the probative value against the prejudicial effect of
the evidence pursuant to N.J.R.E. 403; and the trial court
offered no limiting instruction with regard to the evidence.
A. Evidence of Other Crimes, Wrongs or Acts
Defendant contends that there was no valid purpose for
permitting the "tremendous amount" of other crimes evidence
adduced at trial and urges that the State produced such evidence
in violation of N.J.R.E. 404(b), which provides as follows:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that he 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.
However, defendant's contention that the face mask, bullets and involvement of State and Mercer County police constitute other wrongs or acts is unsupported under our case law. Evidence of the other wrong or act may involve affirmative, volitional conduct on the part of the defendant. See, e.g., State v. Davidson, 225 N.J. Super. 1, 10-13 (App. Div.), certif. denied, 111 N.J. 594 (1988) (permitting testimony going to the defendant's motive, plan and intent, that a month before the commission of the crime of ethnic terrorism for which defendant
was being tried, he had contaminated the gas tanks of the
victims' cars); see also State v. Elmore,
205 N.J. Super. 373
(App. Div. 1985).
Frequently, the wrong or act appertains to an
instrumentality of the crime or an element of the crime itself.
See, e.g., State v. Rose,
112 N.J. 454, 488-89 (1988) (testimony
concerning defendant's reason for purchasing a shotgun, although
inflammatory, was admissible to show that the murder of a police
officer was not accidental); State v. McMenamin,
133 N.J. Super. 521, 525 (App. Div. 1975) (it was relevant to intent to admit six
live marijuana plants growing on defendant's premises where
defendant was charged with possession of marijuana); State v.
Wood,
130 N.J. Super. 401, 410 (App. Div. 1973), aff'd,
66 N.J. 8
(1974) (where cause of death in a murder case was by gunshot
wound, other wrongful act evidence was allowed to show that
defendant had possessed a gun similar to the one used for the
murder).
In contrast, the rubber mask, the bullets, and the testimony
revealing that defendant's gun was in possession of the
authorities from another jurisdiction bear no resemblance to the
other wrongs or acts addressed by the courts with respect to
N.J.R.E. 404(b). It is neither illegal nor wrongful to possess a
rubber mask or ammunition. In addition, since defendant was
arrested in Pennsylvania, the fact that another jurisdiction
retained possession of the gun is not, in and of itself, of
particular significance; no ready inference can be drawn
therefrom with respect to defendant's predisposition to commit
the crime of murder with which he was charged. However, even had
these items constituted other crimes evidence, their introduction
was appropriate since each tended to prove a material fact in
issue.
1. The Face Mask Found in Defendant's Automobile
The State contends that the presence of the mask in
defendant's car supports the argument that defendant was inclined
to utilize a disguise during the commission of a crime.
Defendant was shown in the Sears videotape wearing eyeglasses as
was the suspect in the Harrah's videotapes. Those glasses were
never recovered by the police and defendant was never seen
wearing glasses after his arrest. Moreover, all forms of
identification found in defendant's wallet showed him without
glasses.
Although defense counsel objected to the admission of the
mask into evidence, the trial court properly admitted it. Since
the mask could indicate defendant's inclination to resort to
disguises, its introduction was appropriate.
2. The Ammunition Seized from Defendant's Home
Defense counsel made no objection at trial to the
introduction of the ammunition found in defendant's home, i.e.,
500 rounds of .380 caliber semi-automatic cartridges. However,
defendant now argues that his possession of this "huge number of
bullets" reflects upon his "future dangerousness" without making
it any more logical that he was the person who fired the single
bullet which killed the victim.
The State introduced the ammunition to demonstrate that the
defendant had an available supply that could be fired from the
gun seized from his car, thereby proving that he was equipped to
commit this murder. See State v. Davis,
96 N.J. 611, 619 (1984)
(evidence is relevant where it renders a desired inference more
probable than it would be without the evidence). The State never
stated that possession of the ammunition was improper or illegal,
nor did it imply that it was a reflection of "future
dangerousness." Rather, this evidence was introduced by the
State during an item-by-item inventory of all the items seized
from defendant's car and home.
Since the jury was made aware of these other incriminating
items--none of which was objected to by defense counsel--the jury
could not have been deflected from a fair evaluation of the
evidence based on the introduction of the ammunition.
3. Mercer County's Possession of the Murder Weapon
Defendant's complaint concerning the jury's awareness that
Mercer County retained custody of the gun used to murder Ms.
Fetter is two-fold. First, defendant claims that mention that
his gun, after being recovered by Pennsylvania authorities, was
turned over to Mercer County authorities strongly suggested to
the jury that he utilized the gun to obtain the credit card used
at Sears. Second, Detective Friedrich's testimony that "the gun
was already being tested at the State Police Ballistics
Laboratory," suggested that the gun had been fired during a
Mercer County offense.
Defendant's conclusory arguments are pure speculation and
incorrectly portray the evidence. The prosecution adduced no
evidence concerning police procedures or the significance of
another police agency's continuing custody of the gun. Thus the
jury would have had no basis to attribute significance to Mercer
County's possession of the gun.
During the trial, defense counsel raised no objection to any
of the testimony which defendant's appellate counsel now contends
was extremely prejudicial to defendant. Prior to trial, the
parties stipulated that no mention would be made of the Mercer
County murder or that defendant was awaiting trial for the murder
of Gary Marsh. Thus, counsel, at least at trial, apparently
perceived no violation of the stipulation.
Where evidence contains information that could cause a jury
to associate defendant with another murder, admission of that
evidence is not an abuse of discretion so long as the trial court
disallowed direct evidence regarding the other murder. State v.
Koedatich,
112 N.J. 225, 313-14 (1988), cert. denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L.Ed.2d 803 (1989).
B. The Sears Videotape
Although other crimes, wrongs or acts evidence is not
admissible to create an inference of defendant's predisposition
to commit the crime for which he or she is on trial, such
evidence is admissible where it is relevant to any substantial
issue in the case. State v. Cofield,
127 N.J. 328, 335-36
(1992); State v. Harvey,
121 N.J. 407, 433 (1990), cert. denied,
499 U.S. 931,
111 S. Ct. 1336,
113 L. Ed.2d 268 (1991); State v.
Stevens,
115 N.J. 289, 300-02 (1989).
The issue of the identity of the man shown in the Harrah's
videotapes was critically significant to this case and vigorously
disputed throughout the trial. The State used the videotape
showing defendant at a Sears store to establish his identity as
the suspect shown in the Harrah's videotapes. The Sears
videotape provided the only reliable means for an accurate
comparison of defendant to the suspect since the jury was able to
see, among other things, that defendant appears to be wearing the
same eyeglasses, suit and tie in the Sears videotape as the
suspect in the Harrah's videotapes.
In addition, the prosecution utilized the videotapes to
scrutinize and compare the physical characteristics, mannerisms
and demeanor of the subjects of the videotapes and the
distinctive qualities of the clothing worn. Even defense counsel
in his opening and closing statements admitted the importance of
the Harrah's videotapes when he urged the jurors to observe the
videotapes closely to determine for themselves whether the
suspect shown on the videotapes was the defendant. Therefore,
the Sears videotape was properly admitted as proof of identity.
N.J.R.E. 404(b).
That the Sears videotape constituted a reliable control
specimen which allowed the jury to make comparisons and identify
defendant as the suspect on the Harrah's videotapes was made
clear during jury deliberations. At that time, the jury asked
not only to view the Sears tape, but to view simultaneously on
separate monitors the Sears videotape and the Harrah's gift shop
videotape. The jury also made a request "to have the close up
freeze-frame full front picture of [defendant at] Harrah's,
specifically where they showed the close up of the tie and the
face."
Since the Sears videotape shows defendant's arrest on the
unrelated Sears offense, defendant claims that the presumption of
innocence is diluted in the same way it would have been had
defendant appeared in prison clothes before the jury. We
disagree. That portion of the videotape showing defendant's
arrest was so brief and unremarkable that it had little, if any,
potential to prejudice the jury.
Prior to the trial, defense counsel agreed to the
introduction of the Sears videotape; he also had "[n]o objection"
during the trial. Defendant is bound by his stipulation of the
videotapes as evidence and is now barred from raising the issue
on appeal. State v. Nobles,
79 N.J. Super. 442, 447-48 (App.
Div. 1963); State v. McMahon,
217 N.J. Super. 182 (Law Div.
1986). Admission of the videotapes was not error, much less
error "clearly capable of producing an unjust result." R. 2:10-2.
C. Probative Value Weighed Against Undue Prejudice
The probative value of the Sears videotape as an aid by
which to ascertain the identity of the Harrah's suspect far
outweighed its prejudicial effect. N.J.R.E. 403. The mask and
the ammunition, offered to show defendant's inclination to use a
disguise and his preparedness to commit the crime, require a
greater balancing of the probative value versus the prejudicial
effect. Given, however, that both the murder weapon and the
receipt for its purchase just prior to the murder were seized
from defendant's car, these other items were not unduly
prejudicial. See State v. Thompson,
59 N.J. 396, 421 (1971) (to
justify exclusion of relevant evidence, it must be shown that the
probative value is "so significantly outweighed by [its]
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").
Under Evid. R. 4 (now N.J.R.E. 403), the admissibility of
potentially prejudicial evidence is committed to the discretion
of the trial court, State v. McDougald,
120 N.J. 523, 577-78
(1990), and that discretion is broad, State v. Wilson,
135 N.J. 4, 20 (1994); State v. Sands,
76 N.J. 127, 140 (1978). Only
where there has been "a clear error of judgment" should an Evid.
R. 4 determination be overruled. Koedatich, supra, 112 N.J. at
313. Otherwise, the decision of the trial court must be upheld
unless "its finding was so wide of the mark that a manifest
denial of justice resulted." State v. Carter,
91 N.J. 86, 106
(1982). No such error occurred in this case.
D. Lack of Limiting Instruction to the Jury
Upon admitting evidence of prior crimes, a trial court
should instruct the jury on the limited use of such evidence.
Cofield, supra, 127 N.J. at 340-41; Stevens, supra, 115 N.J. at
304. However, when no request for such a charge is made,
defendant must show that the failure to give such an instruction
sua sponte constituted an error "clearly capable of producing an
unjust result." R. 2:10-2; see State v. Brown,
138 N.J. 481,
534-35 (1994) (holding that a failure to give limiting
instructions sua sponte is only reviewable for plain error).
Defendant here does not satisfy this standard.
It seems unlikely to us that a juror would have been so
affected by the sight of defendant engaging in the act of credit
card fraud that she or he would have been moved to convict
defendant of the violent crime of murder. See, e.g., State v.
DiFrisco,
137 N.J. 434, 498 (1994) (rejecting claims of prejudice
arising from evidence that a defendant accused of murder had
stolen an automobile on a separate occasion). Moreover, since
there was substantial evidence that defendant was guilty of
murdering Ms. Fetter, the failure to give a limiting instruction
was harmless beyond a reasonable doubt, State v. Macon,
57 N.J. 325, 341 (1971), and did not have a clear capacity of producing
an unjust result, R. 2:10-2.
Defendant argues that Harrah's composite tape was inadequately authenticated and its presentation to the jury improper. A composite videotape condensed from VHS videotapes taken from the Harrah's surveillance videotape library represented all footage, excluding the gift shot videotape and anything from the gaming areas, of an individual matching a description provided by bellman Donald Rasheed.
The court, over a defense objection limited to authenticity, allowed the State to play the composite videotape accompanied by Detective Daniel Ballance's narration. Ballance identified the various areas of the hotel shown on the tape, and, with the aid of the time display, demonstrated the suspect's movements through the hotel. Ballance also directed the jury's attention to various details in the videotape which he, in his experience as a police officer and as supervisor of State Police operations at Harrah's, determined were significant.
On appeal, defendant repeats his authenticity challenge and, for the first time, objects to (i) various aspects of Ballance's narration, (ii) the lack of any instruction regarding Ballance's testimony, and (iii) an isolated comment in the prosecutor's summation.
A. Authentication of the Composite Videotape Under N.J.R.E. 1001(d)
Since a videotape falls within the definition of a "writing" under N.J.R.E. 801(e), a videotape containing relevant evidence
is "generally admissible" if properly authenticated. State v.
Wilson, supra, 135 N.J. at 16-17. Authentication of a videotape
is much like that of a photograph, that is, testimony must
establish that the videotape is an accurate reproduction of that
which it purports to represent and the reproduction is of the
scene at the time the incident took place. Id. at 15.
Here, Al Paris, shift supervisor in Harrah's videotape
surveillance department and the person in charge of storing
videotapes, testified as to the mechanical aspects of the
casino's surveillance procedures. Upon learning of the murder,
Paris personally directed and confirmed the setting aside of all
videotapes recorded from 1:00 p.m. on that day to 1:00 a.m. the
next morning.
After a State Police artist completed a composite sketch
based upon Rasheed's description of the man who had been
following him, Paris, Detective Ballance and Atlantic County
Detective Ray Bollis reviewed hundreds of hours of videotapes in
search of a man resembling the sketch.
Paris testified that it ultimately became apparent that an
individual matching Rasheed's description appeared on various
videotapes in various locations. After the police and Harrah's
personnel segregated the twelve to fourteen videotapes in which
the suspect appeared, Detective Friedrich then made a single
composite videotape showing each appearance of the suspect in
chronological order. He testified that other than this editing
process, no other alterations, deletions or changes of any kind
were made to the videotapes.
Defendant's authenticity argument clearly has no merit. R.
2:11-3(e)(2); Balian v. General Motors,
121 N.J. Super. 118, 125
(App. Div. 1972), certif. denied,
62 N.J. 195 (1973). All that
is required for authenticity is proof that the matter is what its
proponent claims. N.J.R.E. 901. That is what was furnished
here.
B. Detective Ballance's Narration
Defendant claims that Detective Ballance's interpretation of
the videotape usurped the function of the jury. Defendant
claims, first, that Ballance improperly drew the conclusion that
the suspect on the Harrah's tape was defendant, and second, that
Ballance should not have been permitted to draw conclusions as to
what defendant was doing while on and off camera.
It was proper for Ballance to state his opinion that the
suspect in the composite sketch was the defendant. See State v.
Carbone,
180 N.J. Super. 95 (Law Div. 1981) (allowing a lay
witness who had personal knowledge of defendant's appearance to
identify him from surveillance photographs even though the
witness was not present during the robbery). Moreover, any
prejudice arising from Ballance's opinion was dissipated by the
jurors' ability to view and review the videotapes for themselves.
See Ricks v. State,
520 A.2d 1136, 1141 (Md. Ct. App.), aff'd,
537 A.2d 612 (1987) (rejecting the claim of abuse of discretion
in allowing the authenticating witness to identify people shown
in the videotape since the jury saw the videotape and could make
its own determination as to whether the detective's narration was
accurate).
Ballance's opinions, to which there were no objections, were
entirely proper since they satisfied both prongs of N.J.R.E. 701,
which provides:
If a witness is not testifying as an expert,
the witness' testimony in the form of
opinions or inferences may be admitted if it
(a) is rationally based on the perception of
the witness and (b) will assist in
understanding the witness' testimony or in
determining a fact in issue.
First, his opinions were based on his own perception of
defendant's actions as seen on the videotape. Police officers
are permitted "to testify as lay witnesses, based on their
personal observations and their long experience in areas where
expert testimony might otherwise be deemed necessary." See State
v. LaBrutto,
114 N.J. 187, 198 (1989); Trentacost v. Brussel,
164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd,
82 N.J. 214 (1980).
Second, without the benefit of Ballance's opinions, the jury
may not have been able to ascertain the significance of the
suspect's movements. Although Ballance's testimony might
constitute theorizing, as pointed out by defense counsel on
cross-examination of Ballance, nonetheless it was rationally
based upon his own perceptions, N.J.R.E. 701(a), and therefore
admissible.
C. The Prosecutor's Summation
During summation, the prosecutor remarked that the videotape
"shows everything we need to know and it does not furnish
[defendant] with any alibi. It doesn't show him sitting at a
roulette table for three hours while something is going on up on
the eleventh floor." Defendant now contends that this
unchallenged statement misled the jury by "creat[ing] an
impermissible inference that . . . law enforcement personnel had
studied the casino tapes, and concluded that defendant was not in
the casino at the time of the homicide."
Although the prosecutor's statement may have exceeded the
bounds of fair comment, it could not have resulted in any
unfairness to defendant. Both defense counsel and Detective
Ballance made it clear to the jury that no one had reviewed the
casino videotapes. It is unreasonable to conclude that the jury
seized upon this one statement and arrived at an impermissible
inference so as to render defendant's trial unfair. See State v.
Ramseur,
106 N.J. 123, 322 (1982) (holding that a remark of
questionable propriety does not warrant reversal unless it was
"so egregious that it deprived defendant of a fair trial").
Where no objection is raised at trial, "remarks usually will not
be deemed prejudicial." Id. at 323; see also State v. Macon,
supra, 57 N.J. at 333.
This one remark could not so taint the jury that they were
unable to "fairly assess the persuasiveness of [defendant's]
case," State v. Williams,
113 N.J. 393, 452 (1988).
Early on March 29, 1992, Steve Hagar approached Harrah's employee Kim Herman Schwartz in the hotel lobby and began to flirt with her. According to Schwartz, Hagar told her that he had a permit to carry a gun and that "where he's from . . . you shoot first and ask questions later." Testifying at a N.J.R.E. 104 hearing out of the presence of the jury, Schwartz stated that Hagar appeared drunk, that he seemed to be trying to impress her and that she did not take his comments seriously until after she heard about the murder. She had not reported him to Harrah's security because when she asked him if he had the gun on him, he said that he "ha[d] it [put] away and he pointed toward the safety deposit boxes." She reported this incident to Detective Ballance after learning of the murder.
Gregory Anderson, a detective with the Harrah's investigation unit, recalled that in the hours following the murder, Hagar "hung around" during the investigation and acted "a little strange." Anderson subsequently learned that approximately six months earlier, Hagar, who is a rated gambler, had reported that $32,000 was stolen from his room at the Trump Plaza Hotel and Casino. Police investigating the theft determined that the chief suspect was a young, black female, employed as a chambermaid, who had disappeared the night of the theft and had not been seen since then. Hagar sought the maid's address, stating that he would "take care of the situation."
This threat was not taken seriously, and it was not even
mentioned in the theft report. Anderson testified that even
after becoming aware of the Trump Plaza incident, he never
considered Hagar a suspect in this murder case.
The trial court found that defendant's proffer of evidence
failed to establish even a remote connection between Hagar and
Ms. Fetter or her murder and ruled that the evidence of alleged
third-party guilt was inadmissible. Defendant claims that this
ruling constitutes an abuse of discretion.
A defendant may attempt to demonstrate his or her innocence
by presenting evidence tending to show that someone else
committed the crime charged. Koedatich, supra, 112 N.J. at 297;
State v. Sturdivant,
31 N.J. 165, 179 (1959), cert. denied,
362 U.S. 956,
80 S. Ct. 873,
4 L. Ed.2d 873 (1960). However, a
defendant "may not do so where the proffered evidence of motive
simply affords a 'possible ground of suspicion against another
person.'" Koedatich, supra, 112 N.J. at 305 (quotations
omitted). Defendant contends that "Hagar's presence at the scene
and his self-proclaimed possession of a gun at the time of the
crime . . . provide a legitimate inference that a third person
committed the crime, and thereby provide the required nexus under
Koedatich."
None of the State's evidence against defendant was
undermined by defendant's proffer of third-party guilt, and
Hagar's presence was "[in]capable of raising a reasonable doubt
on the issue of defendant's guilt," State v. Millett, 272 N.J.
Super. 68, 100 (App. Div. 1994). For example, Hagar's possible
possession of a gun is irrelevant since it was conclusively
determined that the murder weapon was the .380 caliber Bryco
acquired by defendant two days prior to the murder. Here, the
trial court did not abuse its discretion in finding that there
was no direct "link between the evidence and the victim or the
crime," as required by Koedatich, sufficient to permit this issue
to go before the jury. Koedatich, supra, 112 N.J. at 307.
Defendant claims that the trial court's jury voir dire was deficient because the court failed to question whether any juror had prior knowledge of defendant or his case; to ask whether any juror had served on a jury in a civil case; and to inquire sua sponte into juror racial bias.
The trial court's voir dire did not deny defendant a fair trial. The essence of the questions and the manner in which the trial court conducted the voir dire were sufficiently thorough to guarantee a fair and impartial jury and to allow defendant to determine whether any jury panel member had prior knowledge of the incident or was prejudiced or unable to follow the trial court's instructions as to the law.
A. Pretrial Publicity
More than one year before defendant's Atlantic County trial, three newspaper articles appeared in The Press of Atlantic City
indicating that defendant was a suspect in the Mercer County
murder of Gary Marsh.
At the outset of the jury selection process, the trial court
asked the jury whether the nature of the case would impair
anyone's ability to be fair and impartial. In response to this
question, three jurors revealed that they had prior knowledge of
the case and each was excused. Since the trial court made it
eminently clear that anyone with prior knowledge "could not be
fair and should not be sitting as a juror in the case," no juror
could have misunderstood the court's command that prior knowledge
amounted to a serious impediment toward a juror's ability to
deliberate in a fair and impartial manner. This message served
as the equivalent to a specific inquiry; any potential juror with
prior knowledge would have come forward. See United States v.
Armendariz-Mata,
949 F.2d 151, 156 (5th Cir. 1991), cert. denied,
504 U.S. 945,
112 S. Ct. 2288,
119 L.Ed.2d 212 (1992) (stating
that where "the overall conduct of voir dire protects a
defendant's rights, the trial court's actions will be upheld").
Defendant complains that the remaining members of the panel
"may have been tainted by their exposure to the fact that the
jurors who knew about the case were unable to be fair." However,
the trial court made it clear that prior knowledge did not equate
automatically with an inability to be fair when it asked one
juror whether he could put aside the information in the newspaper
and arrive at a verdict based solely on the evidence. It was
only when the juror responded in the negative that the trial
court excused him.
B. Questions Mandated
Defendant contends that State v. Lumumba,
253 N.J. Super. 375, 391-94 (App. Div. 1992), and State v. Oates,
246 N.J. Super. 261, 267-69 (App. Div. 1991), mandate that certain questions be
asked at voir dire. This argument is clearly without merit, R.
2:11-3(e)(2), and it requires little discussion.
Although Oates sets forth five areas which are important to
a proper examination of potential jurors, no set rules exist with
respect to what questions a judge must ask during voir dire. See
State v. Oates, supra, 246 N.J. Super. at 269 (finding that the
court must conduct "[a] thorough voir dire, as necessary as is
required for the particular matter on trial"). Lumumba and Oates
do not require, without a specific request, that the voir dire
questions discussed therein must be asked precisely. To the
extent these two cases so require, we disagree.
C. Racial Prejudice
Defendant argues that the trial court failed to ask even a
single question regarding potential racial bias or prejudice,
despite the fact that the defendant was black and was charged
with the murder of an elderly white woman. Although defendant
never requested that the trial court make inquiry of the jury
regarding racial prejudice, defendant, on appeal, asks us to
expand our holding in State v. Horcey,
266 N.J. Super. 415, 418-19 (App. Div. 1993), i.e., that a trial judge at defendant's
request should make inquiry as to the jurors' respective racial
attitudes where racial or ethnic prejudice may affect
deliberations. We decline to do so.
The United States Supreme Court rejected the notion that, in
the absence of a request from defendant, a court should make sua
sponte a specific inquiry into racial bias. Turner v. Murray,
476 U.S. 28, 37-38,
106 S. Ct. 1683, 1689,
90 L.Ed.2d 27, 37
(1986). The New Jersey Supreme Court similarly has refused to
require such questioning. See State v. Perry,
124 N.J. 128, 157-58 (1991).
Here, the trial court was under no compulsion to inject the
issue of racial bias into the voir dire. This case -- a murder
incident to a robbery -- had no particular racial overtones, much
less "special circumstances," to warrant such an inquiry, State
v. Perry, supra, 124 N.J. at 157-58.
The trial court's examination of the venire was adequate to
ensure that defendant was tried by a fair and impartial jury
untainted by bias or extraneous influences.
A. Defendant's Post-Trial Motion
When the parties appeared for sentencing, the trial court
addressed defendant's motion for either a new trial, pursuant to
R. 3:20-1, or an order directing the recall of the jury to
subject them to post-trial interviews, pursuant to R. 1:16-1.
The basis for the application was a conversation between defense
counsel and the prosecutor approximately two weeks after the
jury's discharge, during which the prosecutor recounted a chance,
post-trial encounter with one of the jurors.
Defense counsel's affidavit, which provided the factual
basis for the motion, was based entirely on multiple hearsay
statements. According to counsel's recollection, the prosecutor
related to him that the jury had discussed among themselves why
defense counsel chose to represent defendant and whether or not
counsel was appointed or retained. Counsel further stated,
without factual support, that the juror also advised the
prosecutor that another member of the panel, prior to the return
of the verdict, contacted the Office of the Public Defender in
Mays Landing to determine whether defense counsel was a member of
that staff.
At the hearing, the prosecutor -- the sole source of defense
counsel's information -- provided his own recollection of the
conversation with the juror. The prosecutor stated that the
juror had approached him in a shopping mall, briefly discussed
the case with him, and
then volunteered to me that it was pretty
obvious that [defense counsel] was a member
of the Public Defenders [sic] staff, and . .
. indicated to me that the jury had guessed
that [defense counsel] was a Public Defender.
We spoke for a matter of a few moments.
Never did I discuss the deliberations, never
did I discuss the substance of the case.
The prosecutor's first-hand account of the conversation clearly
did not corroborate defense counsel's allegation that the juror
confided that another member of the jury telephoned the Public
Defender's office.
The trial court properly denied defendant's motion for a new
trial, stating that defendant's submission did not "clearly and
convincingly" establish that there was a "manifest denial of
justice under the law," R. 3:20-1. Moreover, defendant's
proffer, since it was supported exclusively by multiple hearsay,
was equivalent to a "clear violation of R. 1:6-6." See Cafferata
v. Peyser,
251 N.J. Super. 256, 263 (App. Div. 1991).
Furthermore, the court properly denied defense counsel's
request for post-trial juror interviews pursuant to R. 1:16-1.
The trial court stated that the fact that a juror revealed that
the panel had guessed that defense counsel was a public defender
would not "justify or require the court to bring the jurors back
for inquiry or questioning."
Post-trial jury interrogation "is an extraordinary procedure
which should be invoked only upon a strong showing that a
litigant may have been harmed by jury misconduct." State v.
Athorn,
46 N.J. 247, 250 (1966), cert. denied,
384 U.S. 962,
86 S. Ct. 1589,
16 L.Ed.2d 674 (1966); see also Koedatich, supra,
112 N.J. at 289. Rule 1:16-1 provides:
Except by leave of court granted on good
cause shown, no attorney or party shall
directly, or through any investigator or
other person acting for the attorney
interview, examine, or question any grand or
petit juror with respect to any matter
relating to the case.
In State v. Koedatich, supra, the Supreme Court specified
two scenarios which would constitute "good cause" under this
rule: first, where racial or religious bigotry is manifest in
deliberations; or second, where a juror "informs or misinforms
his or her colleagues in the jury room about the facts of the
case based on his personal knowledge of facts not in evidence."
112 N.J. at 288 (citing State v. Levitt,
36 N.J. 266 (1961));
State v. Kociolek,
20 N.J. 92 (1955). Here, the prosecutor's
explanation of the conversation with the juror adequately
rebutted the allegations of defense counsel and proved them
unfounded. Indeed, had the scenario occurred as presented by
defense counsel, the prosecutor, as an officer of the court,
would have been under a duty to report the conversation
immediately to the court. Moreover, even if the jurors guessed
that defendant was represented by a public defender, such
conjecture does not have a manifest capacity to prejudice the
jury. State v. Kociolek, supra, 20 N.J. at 100; State v. Young,
181 N.J. Super. 463 (App. Div. 1981), certif. denied,
91 N.J. 222
(1982). Such knowledge by a juror does not taint the jury
verdict or the defendant's right to a fair trial.
B. Constitutionality of Rule 1:16-1
Defendant, for the first time in his reply brief, contends
that R. 1:16-1 amounts to an abridgment of his First Amendment
and Sixth Amendment rights under the United States Constitution
as well as those rights provided by Article I, paragraphs 6 and
10, of the New Jersey Constitution.
Although the constitutionality of R. 1:16-1 has not been
judicially determined, similar rules in other jurisdictions have
uniformly withstood challenges based on the assertion that they
violate the free speech rights of litigants or their attorneys.
See Tasin v. SIFCO Industries, Inc.,
553 N.E.2d 257, 263 (Ohio
1990) (finding that the rule supported the strong governmental
interest in "insulating the deliberative process"); Haeberle v.
Texas Int'l Airlines,
739 F.2d 1019 (5th Cir. 1984) (holding that
the jurors' interest in privacy and a well-administered justice
system outweighed other interests); Journal Publishing Co. v.
Mechem,
801 F.2d 1233, 1236 (10th Cir. 1986) (recognizing that
while courts "may broadly proscribe" contact with former jurors
by attorneys and litigants, the press may not be so restricted).
The essence of R. 1:16-1 is recognition of the need to
"`insure free debate in cases to come,'" State v. Scher,
278 N.J.
Super. 249, 261 (App. Div. 1994), certif. denied,
140 N.J. 276
(1995) (quoting State v. LaFera,
42 N.J. 97, 106-07 (1964)), and
to "prevent the unsettling of verdicts after they have been
recorded," State v. Athorn, supra, 46 N.J. at 251. In allowing
attorneys and litigants to question jurors for good cause, the
rule provides a remedy for those extraordinary situations where
an injustice might otherwise result, e.g., juror misconduct which
taints the verdict. State v. LaFera, supra, 42 N.J. at 107. In
placing limitations solely on the attorney and the parties, the
rule accommodates the fundamental First Amendment rights of the
press to have access to jurors for post-trial interviews. See
United States v. Antar,
38 F.3d 1348 (3d Cir. 1994) (finding
restrictions imposed on press' access to jurors a violation of
the First Amendment).
The rule is not unconstitutional and the court did not err
in denying defendant's request for post-trial juror interviews.
Defendant contends that his right to a fair trial was
compromised by the trial court's refusal to charge either
aggravated manslaughter, N.J.S.A. 2C:11-4a, or reckless
manslaughter, N.J.S.A. 2C:11-4b(1), as lesser-included offenses
to the charge of purposeful or knowing murder.
Here, the perpetrator fired a handgun at close range into
Ms. Fetter's head and was necessarily aware that death or serious
bodily injury would be "practically certain" to follow, State v.
Rose, supra, 112 N.J. at 484. Thus, there was no rational basis
to conclude that the evidence warranted aggravated or reckless
manslaughter charges since there was no evidence of a struggle or
of an accidental discharge of the gun into the victim's head.
See N.J.S.A. 2C:1-8e.
Defendant contends that he was deprived of effective assistance of counsel due to various failings of defense counsel. We find no reason to depart from the general policy against raising ineffective-assistance-of-counsel claims on direct appeal
because such claims involve allegations and evidence that lie
outside the trial record. State v. Preciose,
129 N.J. 451, 460
(1992). Our decision here is without prejudice to defendant's
right that he may have to raise this issue in post-conviction
relief proceedings.
The impact of defendant's claims of error could not have had a prejudicial impact, either individually or in the aggregate, on the trial's outcome.
Parties are not entitled to a perfect trial but only to a fair trial. Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565, 1570, 36 L. Ed.2d 208, 215 (1973); Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed.2d 476, 484 (1968) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 604 (1953)); State v. Mallozzi, 246 N.J. Super. 509, 518 (App. Div.), certif. denied, 126 N.J. 331 (1991). Defendant received a fair trial.
Defendant's aggregate sentence was a term of life imprisonment, with a mandatory thirty-year parole disqualifier, and a consecutive term of seven years. Regarding the consecutive sentences on counts six and two, the trial court found that the possession of a firearm with a purpose to use it unlawfully (count two) did not merge with the murder conviction (count six).
The court found four aggravating factors, N.J.S.A. 2C:44-1a(2),
(3), (9), and (12) and no mitigating factors.
A. The Life Sentence
Defendant contends that the appropriate aggregate sentence
should have been only thirty years with a thirty-year parole
disqualifier. We find that the trial court did not abuse its
discretion in imposing the life sentence and a consecutive
sentence even though the one it chose, possession of a firearm
with a purpose to use it unlawfully, was illegal. See infra.
State v. O'Donnell, supra, 117 N.J. at 215-16; State v. Gardner,
113 N.J. 510, 516 (1989); State v. Roth,
95 N.J. 334, 365 (1984).
B. Merger of Count Two
Defendant is correct in his argument that absent a special
verdict by the jury indicating a finding of a purpose broader
than to murder and rob Ms. Fetter, his conviction of possession
of a firearm with a purpose to use it unlawfully must be merged
with his conviction for burglary, robbery or murder.
In the absence of a special verdict by the jury finding that
the unlawful purpose was broader than the substantive offenses
for which the defendant was convicted, possession of the firearm
with a purpose to use it unlawfully must merge into one of the
substantive offenses. R. 3:19-1(b); State v. Lado,
275 N.J.
Super. 140, 158 (App. Div. 1994); State v. Williams,
213 N.J.
Super. 30, 35-37 (App. Div. 1986), certif. denied,
107 N.J. 104
(1987).
Although the State urges that broader purposes existed
because "defendant at first targeted bellhop Donald Rasheed for
his crimes," there is no way of determining without special
interrogatories whether the jury found this to be one of the
unlawful purposes. R. 3:19-1(b).
Here, since the unlawful purpose for possession of the
firearm was restricted to the underlying crimes for which
defendant was ultimately convicted and the facts did not plainly
indicate a broader purpose than merely to burglarize, rob or kill
Ms. Fetter, the unlawful purpose count must be merged with one of
the burglary, robbery or murder convictions.
Defendant was convicted, inter alia, of purposeful or
knowing murder, felony murder and first degree armed robbery. At
sentencing, the trial court merged defendant's felony murder
conviction into his conviction for purposeful or knowing murder,
and then merged the robbery conviction into the previously merged
felony murder conviction.
Defendant agrees that the trial court should not have merged
the robbery conviction. State v. Brown, supra, 138 N.J. at 561-62. In addition, the sentence imposed on the armed robbery must
be corrected since it is an offense which requires a Graves Act
parole disqualifier. See N.J.S.A. 2C:43-6c.
We affirm all the convictions, reverse the merger of the robbery into the murder and reinstate the robbery conviction; merge possession of a firearm with a purpose to use it unlawfully into the burglary, robbery or the murder conviction;