Opinion
DOCKET NO. A-0454-13T1
03-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIM MCGEACHY, a/k/a TIMOTHY MC GEACHY, Defendant-Appellant.
Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, on the brief). Rookmin Cecilia Beepat, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Beepat, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1064. Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, on the brief). Rookmin Cecilia Beepat, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Beepat, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
On June 15, 2010, a Hudson County grand jury returned an indictment charging defendant Tim McGeachy with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and four); first-degree robbery, N.J.S.A. 2C:15-1 (count three); and second-degree burglary, N.J.S.A. 2C:18-2 (count five). Defendant filed two unsuccessful motions to dismiss the indictment, and the matter proceeded to trial before a jury. At the close of the State's case, the trial judge denied defendant's motion for a judgment of acquittal.
At the conclusion of the trial, the jury found defendant guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included offense of murder (count one); and fourth-degree burglary (count five). The jury found defendant not guilty of counts two, three, and four.
The judge denied defendant's subsequent motion for a new trial, and granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:43-6(f). The judge sentenced defendant to an extended twenty-year term on count one, subject to the 85% parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and to a consecutive eighteen-month term on count five. The judge also directed that defendant serve the sentence on count five first. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
AT THE CONCLUSION OF THE EVIDENTIARY PHASE OF THE TRIAL THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CHARGES. ALTERNATIVELY, THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II
THE TRIAL COURT INADEQUATELY INSTRUCTED THE JURY ON THE ISSUE OF CAUSATION (Not Raised Below).
POINT III
THE COURT ERRED IN PERMITTING THE MEDICAL EXAMINER TO GIVE AN OPINION AS TO THE CAUSE OF DEATH IN THIS CASE BECAUSE WHAT THE DOCTOR TESTIFIED TO WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR AND BECAUSE THE DOCTOR'S OPINION WAS NOT BASED ON MEDICAL EVIDENCE AND AS SUCH IT WAS NOTHING MORE THAN A PROHIBITED NET OPINION.
POINT IV
THE PROBATIVE VALUE OF THE 911 CALL WAS FAR OUTWEIGHED BY ITS GROSSLY PREJUDICIAL IMPACT AND SHOULD HAVE BEEN STRICKEN PURSUANT TO EVID. R[ULE] 403. (U.S. CONST. AMEND. V, VI[,] XIV; N.J. CONST. ART. I, ¶¶ 1, 9[,] 10.)
POINT V
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTION. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 10.
POINT VI
THE COURT VIOLATED STATE V. ELLIS WHEN IT IMPOSED A HARSHER SENTENCE, CONTAINING AN
EIGHTEEN-YEAR PAROLE INELIGIBILITY TERM, CONSECUTIVE TO A FLAT 18-MONTH TERM WITHOUT PROVIDING VALID REASONS FOR PROLONGING [DEFENDANT'S] INCARCERATION.
POINT VII
THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED DEFENDANT'S PRIOR RECORD IN IMPOSING A MAXIMUM EXTENDED-TERM SENTENCE AND IN ORDERING THAT IT BE SERVED CONSECUTIVELY.
Defendant raised the following issues in his pro se supplemental brief:
POINT [1]
TRIAL COUNSEL WAS PER SE INEFFECTIVE IN THIS MATTER THEREBY VIOLATING DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A. TRIAL COUNSEL'S FAILURE TO CALL A MEDICAL EXPERT ON BEHALF OF THE DEFENDANT CONSTITUTES DENIAL OF RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL PROVIDED ACTUAL INEFFECTIVE ASSISTANCE BY FAILING TO CALL A MEDICAL EXPERT ON BEHALF OF THE DEFENDANT THEREBY VIOLATING HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
POINT 2
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT 3
[] DEFENDANT'[S] MOTION TO DISMISS THE INDICTMENT AS BEING MANIFESTLY DEFICIENT AND PALPABLY DEFECTIVE SHOULD HAVE BEEN GRANTED.
POINT 4
THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM.
POINT 5
THE TRIAL COURT ERRED BY ALLOWING IMPROPER TESTIMONY OF M.E. STASH WHEN M.E. STASH PROVIDED SAID TESTIMONY DENIED DEFENDANT['S] RIGHT TO A FAIR TRIAL [SIC].
POINT 6
THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY.
POINT 7
[THE] TRIAL COURT ERRED IN FAILING TO HAVE A COMPLETE PSI REPORT TO RELY ON, THE SENTENCE [CANNOT] STAND.
POINT 8
THE CUMULATIVE EFFECT OF THE ISSUES COMPLAINED OF RENDERED THE TRIAL UNFAIR.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence. However, we remand to the trial court to again consider its sequencing of the consecutive sentences in light of State v. Ellis, 346 N.J. Super. 583, 597 (App. Div. 2002), aff'd, 174 N.J. 535 (2002).
I.
The State developed the following proofs at trial. During the afternoon of November 24, 2009, defendant called Bruce Adams, a friend and car-service operator, and asked for a ride to his "office" on Dales Avenue. Adams agreed and picked defendant up at an address on Clinton Avenue. Gretta Nyangoro accompanied the two men on the ride to Dales Avenue. At approximately 4:30 p.m., the group arrived at their destination. Defendant got out of the car and spoke with the victim, J.S., who was standing in front of his residence on Dales Avenue. Adams and Nyangoro remained in the car.
Adams told the police that defendant approached J.S. to talk to him. J.S. then started walking toward his house and defendant yelled, "You better get my money." Adams testified that the two men began arguing and then started "scuffling." When he next saw them, J.S. was on the ground and defendant was "pounding him" and saying, "Get me my money." Defendant then ran into J.S.'s house. Adams saw defendant leave the house a few minutes later, carrying a box with a picture of a phone on it.
Nyangoro testified that she was sitting in the back seat of the car and defendant was in the front when Adams drove them to the address on Dales Avenue. After defendant got out of the car, she moved to the front seat to speak with Adams. When she next looked over to where defendant was, she saw him arguing with J.S. Nyangoro testified that she saw J.S. take a phone from his pocket to answer a call and heard defendant say that the phone was his.
Nyangoro stated that the argument continued and developed into a fist fight. When the fight started, she and Adams got out of the car. J.S. tried to run into the house, but defendant grabbed J.S. and hit him, knocking him to the ground, where defendant continued to hit him in the face and chest. Defendant then entered the residence, came out, and searched J.S.'s pockets. Not finding anything, he went back in the house and came out with a box with a picture of a cell phone on it. On his way back to the car and as he passed J.S., he told him that he was a "[g] down." In her statement to police, Nyangoro claimed that while defendant was on his way back to the car he yelled, "Yeah I'm an overactive nigger. And you['re] still . . . [$]1500 down."
The victim's neighbor, Karen Key, who was familiar with defendant from the neighborhood, testified that she was on Dales Avenue and saw J.S. talking on his cell phone behind the gate to his residence. Key then saw defendant get out of a car and approach J.S. Key stated that defendant told J.S. that a UPS package had arrived at that location and someone had signed for it.
J.S. continued to talk on his phone after defendant twice repeated that someone signed for the package. J.S. then turned to run up the steps leading to the house. Defendant ran behind him, grabbed him by his shirt, and pulled him down the steps. Both men fell and J.S. hit his head on the gate. As J.S. lay unconscious, defendant kept hitting him and asking, "Where's my shit?"
Key ran for help. When she returned, she remained across the street from J.S.'s residence and witnessed defendant exit the house with some items under his arm. As he passed J.S. who was unconscious on the ground, defendant hit him again and said, "Where's my shit? I want my shit." Defendant then got in the car with a man and a woman, and they drove away.
While at his residence on Dales Avenue, E.G., J.S.'s sister's fiancé, received a call from his daughter at around 4:30 p.m. She told him that J.S. was on the ground bleeding and that she was trying to communicate with him. E.G. arrived at the scene moments later and found J.S. on the ground with his head and neck propped up against his gate. There was blood on the ground and J.S.'s face was swollen and covered in blood. E.G. tried to talk to J.S., but J.S. only emitted moans.
Bystanders called 911. In one of the calls played for the jury, the caller said, "Someone fuck[ed] him up really good. He's almost dead."
At around 4:30 p.m., the police responded to Dales Avenue. Officers Khareem Miller and Ricardo Reyes found J.S. lying semi-conscious in front of the home inside the gate. His eyes and head were swelling rapidly. The officers immediately called emergency medical services, which transported J.S. to a hospital trauma unit.
Thereafter, Officer Joseph Walsh entered J.S.'s residence through an open door and observed a computer desk and computer knocked to the floor in the front room. In the bedroom, dresser drawers were open, with some of their contents strewn on the floor.
When J.S. arrived at the hospital, he was treated immediately because of a "high probability of imminent or life-threatening deterioration in [his] condition." On November 26, 2009, J.S.'s progress notes indicated that he was in a coma with acute delirium, and had suffered an orbital fracture. Shortly after his admission, it was noted that J.S. had human immunodeficiency virus (HIV) and very little ability to fight infection.
Detective James Benko testified that he checked on J.S.'s condition in the hospital on two occasions in November 2009. On November 28, J.S. was in intensive care and listed in critical condition. J.S. was unable to speak because he was sedated and had a tube down his throat. The next day, Detective Benko returned and found that J.S. remained in critical condition, sedated, and unable to speak.
Around December 1, 2009, J.S. developed a sepsis infection. A December 3 progress note indicated that J.S. was following simple commands and answering questions appropriately. However, he remained in intensive care, continued to have "slurred speech," was described as "agitated," and was disoriented as to time and place. On December 7, J.S. remained intubated and his mental status did not improve. Doctors were concerned about J.S.'s open wound and the fracture which increased the possibility of infection.
On December 16, 2009, J.S. went into septic shock. Although neurologists were consulted during his stay, J.S. did not suffer a major brain injury and did not receive neurosurgical intervention.
E.G. testified that he visited J.S. in the hospital every day, but J.S. never regained consciousness. On December 25, 2009, J.S. died in the hospital. His treating doctors certified his death as being from natural causes, including a sepsis infection and acquired immune deficiency syndrome (AIDS).
J.S.'s body was released to a funeral home, where it was embalmed. At that point, the Homicide Unit of the Hudson County Prosecutor's Office arranged for the body to be transferred to the medical examiner's office in Newark. Forensic pathologist John A. Stash, MD, performed an autopsy on J.S. on December 29, 2009, and testified as an expert in forensic pathology at trial.
The autopsy, consisting of an internal and external exam, lasted over two hours. Dr. Stash observed that J.S.'s medical history included HIV, fractures of the bones around his eye and nose, a laceration of the eyebrows, and swelling of the face. During the autopsy, Dr. Stash noticed multiple bruises on J.S.'s head and bedsores on his body. He concluded that the cause of death was complications of blunt force head trauma, with HIV as a contributing factor. Dr. Stash determined that the manner of death was homicide.
Dr. Stash explained his evaluation and conclusions as follows:
In a case like this, you have to look at what your initial event is until the person died. And also, any . . . underlying things, like . . . the HIV virus.
In this case, when he was -- the injuries put him in the hospital. So, all the lacerations, being intubated . . . any
injuries are what we call potentially fatal injuries.
Even though it might not be like a gunshot wound to the head, it's still a potentially fatal injury, because you can get infections.
Now, in his case, because he has an underlying immune problem, he's in the hospital. So, being intubated, having the lacerations, IVs, being bedbound and getting bed sores, all contribute to his underlying death, and they're all happening because of the initial injuries he sustained. Yeah, you can't just look at the proximate cause of death.
So, basically what happens is he's -- has these injuries, he ends up in the hospital. You end up getting intubated and everything. You're put at a risk for infection. He has an underlying disease process that furthers his risk of infection. And, ultimately, he dies because he becomes septic while in the hospital.
Dr. Stash further explained that J.S. never returned to his baseline level of functioning after the beating. He stated that from a medical examiner's perspective, lacerations are considered potentially fatal injuries because of the possibility of infection. Because defendant's actions set in motion the chain of events that lead to J.S.'s death, Dr. Stash classified J.S.'s death as a homicide.
Defendant did not testify at trial, and he did not present any expert testimony. The funeral director testified on defendant's behalf and described the embalming process. Defendant also called a UPS driver, who testified that, at 1:10 p.m. on November 24, 2009, he delivered five packages from T-Mobile to J.S.'s residence. The driver's records indicated that the delivery was accepted by a person who signed as "J.S."
II.
In Point I, defendant asserts that the trial judge improperly denied his motion for a judgment of acquittal at the end of the State's case-in-chief, and that the jury's verdict after its consideration of all of the proofs was against the weight of the evidence. Defendant argues that "the State failed to present sufficient evidence to prove causation beyond a reasonable doubt." We disagree.
A motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.
On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.We have stated that "the trial judge is not concerned with the worth, nature[,] or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).
[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
In considering whether a guilty verdict was against the weight of the evidence produced at trial, "our task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting R. 2:10-1), certif. denied, 134 N.J. 476 (1993). "We must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). Our objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). We do not evaluate the evidence and determine anew how we might have decided the issues.
Applying these standards, we conclude that the State presented sufficient proofs both in its case-in-chief and in the full trial to establish beyond a reasonable doubt that defendant recklessly caused the victim's death.
As defendant correctly points out, causation is an essential element of the offense of reckless manslaughter under N.J.S.A. 2C:11-4(b)(1). State v. Campfield, 213 N.J. 218, 233 (2013). This causation element has two components. The first is a threshold "'but-for' test under which the defendant's conduct is ' deemed a cause of the event if the event would not have occurred without that conduct . . . .'" State v. Pelham, 176 N.J. 448, 460 (2003) (quoting State v. Martin, 119 N.J. 2, 11-13 (1990)), cert. denied, 540 U.S. 909, 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003). The "but-for" test of causation is defined in N.J.S.A. 2C:2-3:
a. Conduct is the cause of a result when:
(1) It is an antecedent but for which the result in question would not have occurred; and
(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law defining the offense.
However, in certain cases, where an intervening cause may have affected a defendant's liability for his actions, a "culpability assessment" must also be made. Pelham, supra, 176 N.J. at 460. This part of the definition of "causation" is set forth in N.J.S.A. 2C:2-3(c), which provides:
When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.Under the culpability assessment,
[w]hen the actual result is of the same character, but occurred in a different manner from that designed or contemplated, it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result. Although the jury may find that the defendant's conduct was a 'but-for' cause of the victim's death . . . [,]it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated or that the death was too remote, accidental in its occurrence, or dependent on another's volitional act to justify a . . . conviction.
[Martin, supra, 119 N.J. at 13.]
Here, defendant concedes that the State "established the 'but for' element of causation" because if defendant had not assaulted the victim, he "would not have been exposed to infections while he was hospitalized." Contrary to defendant's argument, however, we conclude that the State proofs were sufficient to survive the culpability assessment as well.
The State's three eyewitnesses, Adams, Nyangoro, and Key, described defendant's vicious assault upon J.S. in excruciating detail. Defendant "pound[ed]" the victim, hit him in the face and chest, knocked him to the ground, and continued to strike him after he lay bleeding and unconscious on the ground. The severity of the beating was corroborated by E.G., who found J.S. on the ground covered in blood; the two first responders, Officers Miller and Reyes, who observed J.S. lying semi-conscious on ground; and the 911 caller, who described J.S. as "almost dead."
During his hospital stay, J.S. remained in critical condition in the intensive care unit. He was in a coma for a time and, when he regained consciousness, he had to be sedated and intubated. While defendant states that one progress note for December 3, 2009 indicated that J.S. could follow simple commands and answer questions, after that his speech was slurred, he was disoriented, and he went into septic shock about nine days before his death. Dr. Stash opined that the cause of J.S.'s death was complications of blunt force head trauma, with HIV as a contributing factor.
Defendant argues that he did not cause J.S.'s death because the victim's preexisting HIV made him susceptible to infection. This argument lacks merit. It is well-established that "a defendant's criminal liability is not lessened by the existence in the victim of a medical condition that, unbeknownst to the defendant, made the victim particularly vulnerable to attack." Pelham, supra, 176 N.J. at 467 (citing State v. Hofford, 169 N.J. Super. 377 (App. Div. 1979)).
Based upon the State's proofs, we are satisfied that a jury could reasonably find that J.S.'s death was a probable result of defendant's conduct, whether it arose from the injuries J.S. sustained during defendant's violent assault, or a subsequent infection following his hospitalization. Because "the actual result [was] of the same character," it was within the province of "the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it [would be] unjust to find that" defendant's actions caused J.S.'s death. Martin, supra, 119 N.J. at 13. Under these circumstances, we discern no basis for disturbing the judge's decision denying defendant's motion to acquit, or the jury's verdict after considering all of the evidence presented at trial.
III.
In Point II, defendant contends for the first time on appeal that the judge failed to properly instruct the jury on the issue of causation as it related to the lesser-included offense of reckless manslaughter. We again disagree.
It is well settled that "'[a]ppropriate and proper charges are essential for a fair trial.'" State v. Baum, ___ N.J. ___ (2016) (slip op. at 21) (quoting Reddish, supra, 181 N.J. at 613). Jury instructions must give a "'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 21-22 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). The judge must instruct the jury as to each element of the offense. See State v. Vick, 117 N.J. 288, 290-91 (1989).
"[I]n reviewing any claim of error relating to a jury charge, the 'charge must be read as a whole in determining whether there was any error[.]'" State v. Gonzalez, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 8-9) (quoting State v. Torres, 183 N.J. 554, 564 (2005)). If, like here, defense counsel did not object to the jury charge at trial, the plain error standard applies. State v. Singleton, 211 N.J. 157, 182-83 (2012). We reverse only if the error was "clearly capable of producing an unjust result," id. at 182 (quoting R. 2:10-2), and consider the totality of the circumstances when making this determination. State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Against these standards, we conclude that there was no error, let alone plain error.
Here, the trial judge followed the Model Jury Charge for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1). We have consistently held that a jury charge that tracks the language of the governing statute, and which is consistent with the applicable Model Jury Charge, is not plainly erroneous. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). However, defendant argues that the judge failed to summarize "the evidence relevant to recklessness, including any contrasting accounts of events by the defense and the State" as permitted by the model charge.
This contention is not supported by the record. Immediately prior to his instructions on reckless manslaughter, the judge presented defendant's and the State's theories of causation to the jury in his discussion of the first-degree murder charge. The judge stated:
Now, causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt:
First, that but for the defendant['s] . . . conduct, [J.S.] would not have died[; a]nd, second, [J.S.'s] death must have been within the design or contemplation of the defendant. If not, it must involve . . . the same kind of injury . . . or harm as that designed or contemplated. And must also not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his[] offense.Thus, taking the charge as a whole, we conclude the judge adequately instructed the jury on the issue of causation and the parties' respective positions concerning it.
In other words, the State must prove beyond a reasonable doubt that [J.S.'s] death was not so unexpected or unusual that it would be unjust to find the defendant, Timothy McGeachy, guilty of murder.
Now, the fact that the victim of an assault is in a weakened condition or suffers from a disease and as a result, succumbs to [a] blow, which might not be fatal to a person in perfect health, does not lessen the criminal responsibility for causing death. Okay?
Now, obviously here defendant has argued that the disease of AIDS and infection of sepsis, unrelated to the head injury, caused [J.S.'s] death. The State has argued but for the head trauma, [J.S.] would not have died of the AIDS and sepsis on December 25th, 2009.
Defendant also argues that the judge failed to explain his defense that the sepsis infection, rather than J.S.'s head injuries, caused the victim's death. As noted above, however, the judge specifically told the jury that "defendant has argued that the disease of AIDS and infection of sepsis, unrelated to the head injury, caused Mr. J.S.'s death." Thus, this argument also lacks merit.
Finally, defendant asserts that the judge improperly "highlighted the State's theory of [defendant's] criminal liability" when he told the jury that the fact J.S. was "in a weakened condition or suffer[ed] from disease . . . does not lessen the criminal responsibility for causing death." However, the judge's instruction was an accurate statement of the rule, as already noted above, that "a defendant's criminal liability is not lessened by the existence in the victim of a medical condition that, unbeknownst to the defendant, made the victim particularly vulnerable to attack." Pelham, supra, 176 N.J. at 467. Therefore, we reject defendant's contention on this point.
IV.
In Point III, defendant argues that the judge erred in permitting Dr. Stash, the medical examiner, to render an opinion as to the cause of J.S.'s death. Defendant asserts that expert testimony was not necessary because the alleged cause of death was not beyond the understanding of the average juror. Defendant also alleges that Dr. Stash's testimony was merely a net opinion. These contentions lack merit.
The admissibility of evidence, including that of expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011); see also State v. Summers 176 N.J. 306, 312 (2003); State v. Fortin, 189 N.J. 579, 597 (2007). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
Applying this standard, we perceive no error in the judge's determination to permit Dr. Stash's testimony. As defendant concedes in the opening points of his brief, causation was a major issue in this case and, therefore, expert testimony on that issue was plainly appropriate. See N.J.R.E. 702 (stating that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise").
Defendant argues that Dr. Stash "never stated that the [victim's] head injuries themselves were severe enough to cause death." However, the State's theory of the case was that the beating started the chain of causation that ultimately led to the victim's death, and Dr. Stash's testimony was needed to establish and explain the links in the causation chain. The medical examiner's expert testimony obviously related "to a relevant subject that [was] beyond the understanding of the average person of ordinary experience, education, and knowledge" and, therefore, was properly admitted in evidence. State v. Sowell, 213 N.J. 89, 99-100 (2013) (quoting State v. Odom, 116 N.J. 65, 71 (1989)).
Dr. Stash's testimony also did not constitute a net opinion. "[T]he net opinion rule . . . forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). Here, Dr. Stash enumerated the facts and data he relied upon in formulating his opinion. His testimony explained in detail the basis for his conclusion that the victim's death was caused by complications of blunt force head trauma, with HIV as a contributing factor. Therefore, defendant's contention on this point lacks merit.
V.
In Point IV, defendant argues that the judge erred by permitting the State to introduce one of the 911 calls into evidence and play it to the jury. In referring to J.S., the caller stated, "Someone fuck[ed] him up really good. He's almost dead." Defendant alleges that the probative value of the call "was far outweighed by its grossly prejudicial impact . . . ." We disagree.
As already noted, a trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting the evidence. State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div.), certif. denied, 174 N.J. 546 (2002). Here, the judge properly admitted the 911 call under the excited utterance exception to the hearsay rule. N.J.R.E. 803(c)(2). We discern no basis for disturbing the judge's reasonable determination, under N.J.R.E. 403, that the probative value of this evidence outweighed any prejudicial impact. The probative value of the call was that defendant viciously beat J.S., thus underscoring the brutality of the encounter. Thus, the evidence was extremely relevant to the question of defendant's state of mind and whether he intended, or recklessly caused the victim's death. Therefore, we reject defendant's argument on this point.
VI.
Defendant argues in Point V that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected defendant's argument that any reversible error occurred during his trial, we also reject his cumulative error argument.
VII.
In Point 1 of his supplemental brief, defendant contends that he was denied the effective assistance of counsel at trial. Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)). Because defendant's claim of ineffective assistance of counsel rests upon evidence outside the record, it is not ripe for direct review.
The remaining arguments raised in defendant's supplemental brief largely repeat the points raised by his appellate counsel. These contentions are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
VIII.
In Points VI and VII of his brief, defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code, including the imposition of an extended term on count one and consecutive sentences on counts one and five. The sentences the judge imposed do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
However, we agree with defendant that the judge failed to make sufficient findings to support his decision to require defendant to serve the less restrictive, flat eighteen-month prison term on count five before serving the more restrictive, twenty-year NERA term on count one. After reviewing the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) concerning his decision to impose consecutive decisions, the judge briefly turned to the sequencing of the sentences, and stated:
In applying the same Yarbough factors, pursuant to [Ellis, supra, the] criminal trespass sentence should be served first. And that directly affects his parole eligibility many years down the line to his detriment. And I find pursuant to the Yarbough analysis that pursuant to [Ellis], that's an appropriate sentence. And that justice will be done accordingly in that fashion.
However, our decision in Ellis states that the trial court must make "specific findings" before requiring a defendant to serve a sentence with a period of parole ineligibility after a sentence that is not so burdened. Ellis, supra, 346 N.J. Super. at 597. The court must "explain the consequence of any sequencing and . . . justify its exercise of discretion to impose the specific real-time consequence based on the court's finding and weighing of aggravating factors." State v. Pierce, 220 N.J. 205, 205 (2014) (summarily remanding to the trial court for resentencing consistent with Ellis). This did not occur in this case.
Therefore, although we affirm the judge's decision to impose consecutive sentences, we remand to the trial court to consider anew the sequencing of the sentences in accordance with our decision in Ellis.
IX.
In sum, we affirm defendant's conviction and sentence, but remand so that the trial court may again consider, and make detailed findings concerning, the sequencing of the sentences under Ellis, supra. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION