Opinion
DOCKET NO. A-5438-07T4
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS NEVIUS, Defendant-Appellant.
Joseph Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the briefs). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-10-0985.
Joseph Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
Tried by a jury, defendant Thomas Nevius, who represented himself at trial, was convicted of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; and third-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2. He was sentenced to an aggregate of sixty-five years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requirement of 55 years, three months and one day before parole eligibility. Defendant appeals, and we affirm.
Defendant was originally indicted for capital murder; however, the State withdrew the aggravating factors, which declassified the case from a capital case.
Defendant was found not guilty of third-degree possession of a knife with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d), and conspiracy to commit murder, N.J.S.A. 2C:11-3a(1) and (2) and N.J.S.A. 2C:5-2.
According to the State's proofs, Ruth Walker, the homicide victim, was a fifty-two-year-old woman living alone in a one-bedroom apartment at the Chestnut Square Apartment complex in Vineland. On Tuesday, July 30, 2002, her daughter Janira Walker-Castro, who was visiting from Florida, and her extended family spent the day in Wildwood. Ruth, however, stayed home because she was tired.
At 8:19 p.m., Janira called her mother on the cell phone she left with her, letting her know when the family would arrive for a dinner that Ruth planned to cook. Surveillance video at the Chestnut Square Apartment complex showed Ruth pulling into her parking space at 8:22 p.m., and exiting the van. When Janira phoned her mother again close to 10:00 p.m., there was no answer.
Later, the family arrived at Ruth's apartment and found it dark; the outside and inside doors were locked. No one had a key so Anthony Reyes, the victim's son, using a knife from his nearby home, eventually opened the outside door, and then easily gained entry to the inner door.
Janira's husband went into the bedroom and discovered the victim, who was clothed and wearing necklaces, lying on her back on the floor. She had no pulse. The bedroom was in disarray; the folding closet doors were on the floor, a table was broken, and the bedding was disheveled.
There was a blood-stained white, Fruit of the Loom T-shirt, size XXXL, on the bed, along with a bracelet. According to Janira, who was familiar with her mother's wardrobe, the victim did not wear or even own white Fruit of the Loom T-shirts. Police also found $391 in cash on top of the kitchen table, along with a cell phone and Ruth's keys. All of the windows were found to be locked and the sliding glass door secure; however, the rear kitchen screen had a small incision in it, but it was in a locked down position, and no entry could have been gained from it. There was a pot of water on the stove and meat defrosting in the sink, which led Vineland police officer Robert DeMarchi to surmise that as the victim started to prepare dinner, she heard a noise in the bedroom and took a knife with her to investigate.
Dr. Elliott Gross, the Cumberland County Medical Examiner at the time, performed an autopsy the next day. He determined that the victim, who was five-feet-six inches tall and weighed 225 pounds, was stabbed three times in the neck, with one of the stab wounds transecting the jugular vein and going through two of the vertebrae, which caused blood and air to reach the heart causing death. Due to the way the blood seeped down the victim's breasts, Gross believed the neck wounds were caused while she was standing.
Additionally, the victim's hyoid bone (in the neck) was fractured. That fracture, combined with petechiae in the victim's eyes, and necklace imprints around her neck, led Gross to conclude that the victim also had been strangled. Gross could not say for sure whether the strangulation had been done manually or with a ligature, but said both could have been used. Specifically, the T-shirt found on the bed could have been used as a ligature. Gross thought it likely that the person who strangled the victim was standing behind her because the marks did not extend all the way around her neck.
The injuries--the stab wound and the strangulation--occurred nearly concurrently, and each was capable in and of itself of causing her death. Gross believed that the victim's death was caused by more than one person because the two competing causes of death occurred nearly simultaneously and it would not have been likely that one person could have strangled her from behind and stabbed her from the front. In addition to the two fatal wounds, the victim had abrasions, bruises and cuts on her body that indicated she struggled with her attacker or attackers and tried to defend herself. Gross testified that a wooden-handled knife with a serrated edge, later recovered and identified as the victim's, could have caused the fatal stab wound.
Ian Hood, who was qualified as an expert in forensic pathology, reviewed Gross's autopsy report and photographs from the scene, and examined the recovered knife. He concurred with Gross's determination of the causes of death, that the knife presented was consistent with the stab wounds, that the T-shirt could have been used as a ligature, and that the victim was standing up and struggling when she was strangled from behind and stabbed from the front by two different people.
Police investigation quickly focused on William Boston, who lived next door to the victim. Their apartments shared a common outer door. In July 2002, Damien Stratton lived with Boston, Boston's mother, and Boston's step-father. He was "trying to get [him]self together" after having been in prison for convictions on burglary and drug possession charges. Stratton knew defendant, and said that the day the victim was killed, defendant and Boston were together all day, and in the evening, they were "messing with" the screen in the victim's kitchen window; defendant had a knife and Boston had a box cutter. Stratton told Boston's step-father that the men were messing with the screen and at the step-father's insistence, Boston went inside. Boston went out again to rejoin defendant before Stratton left for the evening. Stratton admitted to having had "some drinks" that night.
The day after the victim was killed, Vineland Police Detective Luis Negron spoke to defendant at the Parktown Apartments, which were next to the Chestnut Square Apartments, and where he had lived for about two years. Negron described defendant as "big" and "very muscular." Defendant admitted to having been at Boston's residence the day before, and recalled the victim giving Boston's mother mangoes earlier in the day. After leaving, defendant returned to Boston's apartment at about 9:00 p.m., with Tyrone Beals. However, defendant denied any knowledge of the homicide.
On the day of the homicide, from 1:15 p.m. to 4:30 p.m., Boston did "community service" in one of the apartments (37A) at the Parktown Apartments, helping the maintenance worker Jose Lopez clean the vacant roach-infested premises for re-renting. Earlier, on July 29, Lopez had applied boric acid powder to all of the surfaces in the apartment, including the kitchen cabinets, and found nothing on top of them. The next day, which was the day after the homicide, Boston worked from 3:00 p.m. until 5:00 p.m. No one had access to the apartment besides Lopez and Boston, and Boston did not have a key. A week later, Lopez reentered the apartment and found a wooden-handled knife with a six-to-eight-inch blade, sitting on top of a kitchen cabinet; it had no boric acid powder on it. Lopez turned the knife over to police, which Janira said looked "exactly like" the one used by her mother.
Boston was arrested on August 2, 2002, and charged with the homicide. At that point, Stratton, Beals, and Cesar Caban, a large friend of Boston's who could have fit the XXXL T-shirt, were suspects; defendant was not. At some later time, Stratton was eliminated as a suspect because his alibi was confirmed, and forensic tests on DNA found on the bloody T-shirt did not compare to Stratton's profile. Subsequently, it was also determined that the DNA on the T-shirt and a palm print did not match Boston's, Beals' or Caban's profiles. However, police believed that Boston did not act alone due to his limited intelligence, and the fact that he was not a big person and would not fit an XXXL T-shirt.
The DNA analysis also excluded the victim's son, Reyes, as a contributor to the DNA on the T-shirt.
On September 10, 2003, Vineland Police Detectives Shane Harris and Negron asked defendant to come to the station, and he complied. When they asked him to provide buccal swabs, defendant's body started to shake and his eyes watered. Defendant then said he felt like he was being set up, but he would provide the swabs because if he did not, it would seem like he was hiding something. Several weeks later, under court order, defendant provided a palm print impression. When confronted with the court order for the palm print, defendant got upset and said that he had never been in the victim's apartment.
Leslie Wanko, a supervisory forensic analyst for the FBI, conducted tests on the latent palm print found in the victim's bedroom, and determined with "100% certainty" that it matched defendant's palm print. Maureen Lo-Beer, an expert in toxicology, biochemistry and DNA analysis at the New Jersey State Police forensic laboratory, conducted DNA testing on the white XXXL T-shirt and found that she "could not exclude" defendant as the contributor of the DNA material found on the white T-shirt. The profile she found could be expected to be found in 1 of 480 million African-Americans, one in 786 million Caucasians, and 1 in 1.46 billion Hispanics.
Defendant was arrested on October 10, 2003. He gave a taped statement to police in which he denied ever being in the victim's apartment. At the end of the statement, Detective John Berry of the Cumberland County Prosecutor's Office asked defendant how, if he was never in her apartment, did his DNA get in her apartment. Defendant went into a "tirade" and said he was not there, he should not have consented to the buccal swab sample and that the police planted the evidence.
Under authority of a search warrant, Detective Lieutenant James Parent of the Cumberland County Prosecutor's Office conducted a search of defendant's bedroom on October 10, 2003. One of the items found was an XXXL Fruit-of-the-Loom T-shirt, which Parent described as "like a muscle shirt with the sleeves cut off" and "sort of what was found at the crime scene." Other sizes and types of T-shirts were also found, but only the XXXL shirt had cut-off sleeves. Gina Mave, who knew defendant through her position as the rental manager at the Parktown Apartments where defendant had resided, said defendant often wore shirts with the sleeves cut off, as he was a weight lifter. When shown the shirt recovered from his apartment, Mave agreed that it was the type of shirt defendant frequently wore. Parent identified the shirt found in the victim's apartment and the shirt found in defendant's bedroom as both being white XXXL T-shirts with the sleeves cut off.
Stephanie Beine of Genetics Technologies, Inc., testified as an expert for the defense. Her laboratory used the same processes as the State Police laboratory to test DNA. Under instruction from defendant's previous attorney, Beine focused on three areas of the T-shirt that had blood stains. She did not perform any DNA analysis on the other biological fluid or "epithetical cells" that may have been present, despite seeing "areas of fluorescence on the garment that would indicate possible other biological fluids being present." Beine found bloodstains "A" and "C" to contain a mixture of DNA from two contributors, one male and one female, but the genetic material detected from the male contributor fell below the laboratory's reporting threshold, and thus, she was not able to "include or exclude" defendant as a contributor.
Defendant, who represented himself at trial, testified on his own behalf. He admitted to being at Boston's apartment on July 30, 2002, but denied having anything to do with the victim's death. When asked how his DNA was found in the victim's apartment, he stated, "[m]y DNA is not nowhere in nobody's apartment." He also stated: "[m]y [palm] print is nowhere inside nobody's apartment except for my own." Defendant maintained that he had a job, as did his fiancée at the time, so he did not need "to steal from nobody." He admitted wearing T-shirts with the sleeves cut off as he was a weightlifter, but claimed that some of the shirts in his bedroom belonged to his step-son. He did not know how a bloody T-shirt got into the victim's apartment. He believed the prosecutor "put . . . up" the laboratory witnesses to lie. Defendant declared his innocence and said he did not know who killed the victim.
On appeal, defendant, through counsel, raises the following arguments:
I. THE TRIAL COURT VIOLATED N.J.R.E. 803(c)(25) AND DEFENDANT'S DUE PROCESS RIGHT TO PRESENT A DEFENSE WHEN IT REFUSED TO ADMIT WILLIAM BOSTON'S STATEMENTS ADMITTING HIS OWN INVOLVEMENT IN THE CRIME AND NAMING TYRONE BEALS AS HIS ACCOMPLICE.
II. THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED BY THE STATE'S USE OF HEARSAY TESTIMONY ABOUT HOW TYRONE BEALS, DAMIEN STRATTON, AND CESAR CAB[A]N HAD BEEN ELIMINATED AS SUSPECTS. (Not Raised Below).
A. The Prosecution Violated Melendez-Diaz v. Massachusetts By Presenting Testimony From A
Laboratory Supervisor About The Results Of Tests Performed By Another Lab Employee.III. DEFENDANT'S RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL WAS VIOLATED BY AN OFF-THE-RECORD COMMUNICATION BETWEEN THE JUDGE AND THE JURY FOREPERSON WHICH RESULTED IN THE FOREPERSON BEING REPLACED BY JUROR NO. 2. (Not Raised Below).
B. The Defendant's Right To
Confrontation Was Violated By Det. Negron's Testimony That As A Result Of Interviews [W]ith "Various Individuals," Damien Stratton And Cesar Cab[a]n Had Been Eliminated As Suspects.
IV. BECAUSE THE STATE TRIED THE CASE ON THE THEORY THAT DEFENDANT AND BOSTON WERE ACCOMPLICES, AND BECAUSE THE EVIDENCE WAS UTTERLY UNCLEAR ABOUT WHICH ACTOR HAD DONE WHAT, THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY, WHICH WAS CLEARLY INDICATED BY THIS RECORD. (Not Raised Below).
V. THE DEFENDANT'S 65-YEAR SENTENCE IS DISPARATE WITH THE 55-YEAR SENTENCE IMPOSED ON HIS CO-DEFENDANT, AND SHOULD BE REDUCED.
In addition, defendant pro se, presents the following issue:
GIVEN THE CIRCUMSTANCES OF THE DEFENDANT'S CASE, HE HAS ESTABLISHED THE CONDITIONS FOR THE PERFORMANCE OF FORENSIC DNA TESTING [AS SET] FORTH IN N.J.S.A. 2A:84-32a ET SEQ., AND THEREFORE, IS ENTITLED TO SUCH TESTING AS A MATTER OF LAW.
I
Defendant argues the court violated N.J.R.E. 803(c)(25) and his due process right to present a defense by excluding Boston's statements to police admitting his own involvement in the crime and implicating someone else other than defendant. We disagree.
Some background is in order. According to proofs adduced at Boston's Miranda hearing, when first questioned by Detective Steven O'Neill on August 1, 2002, two days after the homicide, Boston said that on the night of July 30, he was with two individuals and one of them, Tyrone Beals, went to the front of the victim's residence and broke into the apartment while he and the other unidentified individual remained in the back. When the victim unexpectedly returned home, she was confronted by Beals, who panicked, grabbed a big chef's knife from the kitchen, and stabbed her several times. Boston "might have taken the knife with him."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Later, when the questioning was turned over to Detectives Negron and Harris, Boston admitted entering the apartment after Beals jimmied opened the doors; that the victim returned home; and that he hid inside the bedroom closet while Beals struggled with, and then stabbed, the victim. According to Boston, Beals then wiped the knife with a T-shirt.
When O'Neill, who had re-entered the room, told Boston that he was going to be charged based on the information provided, Boston stated he would tell him more and that he "wasn't going to go down for all this." Boston continued to give more details, claiming that Beals was responsible for stabbing and strangling the victim, but that Beals "made" Boston wipe off the knife with the T-shirt.
In the written statement that followed, Boston claimed that the night before the crime, when he, Beals, and Stratton were behind the victim's apartment and saw that the victim's house was "pitch black[,]" Beals tried to get Boston "to break into the apartment, but [he] did not want to do it." Beals was "cutting the screen with a Swiss knife when the victim caught him in the window."
On Tuesday, the night the victim was killed, Beals told Boston that they were "going to hit this apartment." Boston refused to do so, but Beals said that if he got caught, he would tell the police that Boston was the one who had broken in. Beals used a screwdriver to open both doors. As Beals looked around "for something to steal[,]" he asked Boston to be the lookout. When, from the victim's bedroom window, Boston saw the victim drive up, he left the apartment; he greeted the victim and thanked her for mangoes she had given his family earlier in the day. Boston was outside at the back of the victim's apartment when he heard screaming. He went into his own kitchen and got a butter knife, then entered the victim's apartment in an attempt to ward off Beals. However, Beals gave him "a rib shot." The victim followed Beals into her bedroom, where Beals stabbed her in the neck and chest. Then Beals used his shirt to "gag" her. Boston took the shirt off her neck as she "laid on the floor." Beals used the shirt to wipe the knife. Beals "ran off with the knife" after telling Boston to take it, but Boston wanted "nothing to do with it." He concluded his statement by saying, "I am not a murderer!" and "I did not want to break into the apartment!"
Boston's statements were admitted against him in his own trial.
During the trial, while cross-examining Detective Negron, defendant referred to Boston's "nine-page statement" and asked Negron, "isn't it true that Mr. Boston told you that Tyrone Beals killed Ms. Walker?" The prosecutor objected. The judge ruled that the statement was "hearsay" and instructed the jury to disregard the question.
At the conclusion of the State's case, defendant represented that Boston would not testify, and offered Boston's statement as "a statement against penal interest." At this point, the prosecutor noted that after Boston was in prison, he gave a written statement to another inmate, Barrick Wesley, in which he said that Boston told him that he and defendant had committed the crime. In fact, Wesley had testified in Boston's trial that Boston had told him that he intentionally changed the actors in his written narrative to the police, and that whatever he had said Beals had done, he had actually done, and whatever he said he had done, defendant had actually done.
Referring to all the statements, the judge said, "I don't know how one gets in and the others don't . . . ." Defendant responded, "if the other statement has to come in then so be it. I won't argue with that just as long [as] the first initial statement gets in that he made to police that got him charged . . . ." The prosecutor argued that the written statement to Detective O'Neill was not against Boston's penal interest, and therefore should not be admitted, but if it was admitted, all of the statements, including the one implicating defendant, had to be admitted. The judge reiterated that if the statement to O'Neill was admitted, the statement to Wesley would be admitted as well. Defendant refused to withdraw his request to admit the statement, and said again that if both statements were admitted, "so be it."
The judge found that the statement to O'Neill was hearsay, and that it did not matter whether Boston was available to testify. He found that while the statement contained "a certain level of prejudice against the interest of Mr. Boston, the declarant[,]" nevertheless,
this was a homicide investigation. He, at best, makes himself in that statement, an unwilling and reluctant participant in a burglary, in which Tyrone Beals committed a homicide, if one were to believe the statement.
This statement is made to exculpate him from the greater of the offenses, that which was probably at one time, a capital murder charge. There can be no greater penal interest in the Court's mind. So, it lacks a certain reliability that would normally be associated with a statement against penal interest. It isn't in there that he said, "We murdered her." It's in there that Tyrone Beals did it. It . . . seeks to place the blame on a third party that is not the declarant, that is the more heinous crime. And to believe that Tyrone Beals, for this Court to be able to find that Tyrone Beals had a -- you get a street sense of accomplice liability that may -- or felony murder, or any other legal theory that would subject him to the -- that would subject him to penal consequences of homicide, which is the greater issue here, is -- would stretch the imagination.
The judge concluded that Boston's statement to O'Neill had "little, if any, probative value" and that it would be "absolutely unfair and inappropriate to allow its admission into evidence" without allowing the statement to Wesley, which he found to be inadmissible. The judge then noted that the statement would be beneficial to defendant because it would allow him to argue to the jury that Boston gave a statement to police saying that someone besides him was involved in the crime, but it would be unfair to the State to allow Boston's statement to O'Neill without admitting his statement to Wesley.
At issue on appeal then is: (1) whether Boston's hearsay statements were inculpatory of the declarant in the sense of so far exposing him to criminal liability that but for their truth, the declarations would not have been made; and (2) whether that part of the statement claimed to be exculpatory of defendant is so inextricably related as to permit it to tag along with the inculpatory part under N.J.R.E. 803(c)(25). These are questions addressed in the first instance to the trial court's sound discretion. State v. White, 158 N.J. 230, 240 (1999); State v. Abrams, 72 N.J. 342, 343 (1977) (Clifford, J., concurring and dissenting); Id. at 344-45 (Conford, P.J.A.D., concurring and dissenting); see also In re Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369 (2010). See generally N.J.R.E. 403; Benevenga v. Digregoria, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).
So measured, the trial judge's conclusion that Boston's statements, viewed in their entirety, were not plausibly inculpatory as to warrant admission into evidence represents an unexceptionable exercise of his discretion. Therefore, we need not take the extra step to determine whether the so-called exculpatory portion is so intrinsically linked or associated therewith. But even if Boston's declarations were determined to be self-incriminating, we find his criminal liability did not depend on the identification of his confederate, so that the part supposedly exonerating defendant neither strengthened nor bolstered Boston's penal exposure.
Statements made out of court which are offered to prove the truth of the matter asserted are hearsay. N.J.R.E. 801. Hearsay evidence is not admissible at trial because it is considered untrustworthy and unreliable. N.J.R.E. 802. However, some exceptions to the hearsay rule have been made on the basis that "the circumstances under which the statements were made provide strong indicia of reliability." State v. Phelps, 96 N.J. 500, 508 (1984). One such exception is made for a declaration or statement against interest under N.J.R.E. 803(c)(25):
A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to
civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.
"The statement-against-interest exception is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably." White, supra, 158 N.J. at 238. "Consequently, statements that so disserve the declarant are deemed inherently trustworthy and reliable." Ibid.
"The appropriate test for admissibility is whether, in the context of the whole statement, the particular remark was plausibly against the declarant's penal interest, even though it might be neutral or even self-serving if considered alone." State v. Abrams, 140 N.J. Super. 232, 236 (App. Div. 1976), aff'd o.b., 72 N.J. 342 (1977). The statement, however, must on the whole be so far against the declarant's interest that a reasonable person in the declarant's position would not have made the statement unless he believed it to have been true. White, supra, 158 N.J. at 238. It is, after all, the "statement's self-incriminatory character which renders a declaration against interest." Id. at 240.
Although defendant only moved to admit Boston's written statement to Detective O'Neill, neither that statement nor his earlier oral statements to the officers is truly self-inculpatory as to the declarant. On the contrary, these statements, considered either individually or collectively, are inherently self-serving and obviously tainted by the motive to exculpate the declarant from liability for the capital murder charge he was possibly facing. Indeed, the entire gist of Boston's accounts was that he a reluctant, hapless, if not coerced, participant in the initial plan to burglarize the victim's apartment, who quickly withdrew from the conspiracy and abandoned the plot. According to Boston, he returned, only in an attempt to disarm and physically remove Beals but, despite his best efforts, could not prevent the victim's homicide. In fact, Boston not only minimized, if not totally diluted, his responsibility for the burglary, but repeatedly denied either stabbing or strangling the victim and insisted that he even refused to take the knife from Beals when they left the apartment.
Taken as a whole, Boston's self-serving statements made after the victim's homicide and shifting blame to another provide "too much opportunity for contrivance to warrant admission." State v. Gomez, 24 6 N.J. Super. 209, 215-16 (App. Div. 1991). Under the circumstances, we cannot conclude that the trial judge's finding them too unreliable and untrustworthy to qualify as declarations against interest under N.J.R.E. 803(c)(25) and therefore inadmissible was an abuse of his sound discretion.
But even assuming some inculpatory thrust to Boston's statements, those portions that defendant alleges exculpate him from criminal liability are not necessarily admissible as a matter of course. Oftentimes, a statement offered under N.J.R.E. 803(c)(25) "contains material both adverse and favorable to the declarant." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(25) (2011); see also 5 Wigmore on Evidence § 1477 (Chadbourn rev. 1974). When the declarant is the defendant himself, courts have routinely precluded self-serving portions of statements made after the commission of the crime. See, e.g.. State v. DeRoxtro, 327 N.J. Super. 212, 221-24 (App. Div. 2000); Gomez, supra, 246 N.J. Super. at 216-17. And, as already noted, where the declarant is someone other than the defendant and the other portions of the statement do not expose the declarant to criminal liability, then the exculpatory aspects of the declarant's statement will also be inadmissible. State v. Brown, 170 N.J. 138, 151 (2001).
The issue arises, however, where the criminal defendant seeks to introduce a declarant's inculpatory statement that, in addition, contains material exculpatory to the defendant. Of course, the exculpatory material may not, on its face and when viewed strictly, be against the declarant's interest. Nevertheless, the entire statement may be admissible "if the exculpatory portions strengthen the incriminating effect of the inculpatory portions." Biunno, supra, comment 6 on N.J.R.E. 803(c)(25). In other words, it is not necessary that "each discrete part of the statement . . . imply involvement in a crime." State v. Bell, 24 9 N.J. Super. 506, 511 (Law Div. 1991). Rather, the appropriate test is whether statements that exculpate the defendant "are sufficiently related to other statements that incriminate the declarant so that the defendant-exculpatory statements may also be viewed as self-inculpatory statements of the declarant, thereby rendering them reliable." White, supra, 158 N.J. at 240. As the Court in White held:
In sum, we hold that a declarant's statements exculpating a defendant should be admitted as evidence under the statement-against-interest exception to the hearsay rule if, when considered in the light of surrounding circumstances, they subject the declarant to criminal liability or if, as a related part of a self-inculpatory statement, they strengthen or bolster the incriminatory effect of the declarant's exposure to criminal liability.
[Id. at 244.]
Whether such a declaration takes on an inculpatory character is, of course, fact-sensitive and must be considered in the context of the entire statement or series of statements sought to be admitted. Clearly, where the crime in question was known to have been committed by a single person, a confession by a person other than the defendant, clearly an inculpatory statement, would have a strong tendency to exculpate the defendant and would, therefore, be admissible. See Abrams, supra, 140 N.J. Super. at 236; see also State v. Koedatich, 112 N.J. 225, 311 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Conversely, such a confession might be less conclusive if the crime was committed by more than one person. State v. Allen, 139 N.J. Super. 285, 287-88 (App. Div. 1976). But even then, the statement may be admissible. For instance, in White, supra, the Court held that statements by the declarant that he and another person had robbed the victim and then bragged about it to the defendant simultaneously inculpated the declarant and supported the inference that the defendant was not involved; therefore the exculpatory portion of the statement was not extricable or marginal and had the effect of strengthening the incriminatory effect of the inculpatory portion. 158 N.J. at 244-46.
Here, in contrast, the portions of Boston's statements that implicate Beals in the criminal episode do not necessarily exonerate defendant of any wrongdoing. But even if they may be said to have such an exculpatory effect inferentially, those aspects of Boston's statements are not sufficiently linked or related to the self-inculpatory portions as to render them reliable by association. On the contrary, they are marginal and extricable because Boston's criminal culpability does not depend on the particular identity of his confederate or confederates and therefore the accusatory features of Boston's declarations do not strengthen the criminal effect of his admissions, or increase his exposure to criminal prosecution. If anything, the accusatory shifting of blame to Beals served to exculpate not only defendant but Boston as well and it is for this very reason that Boston's statements are inherently untrustworthy and therefore inadmissible under N.J.R.E. 803(c)(25).
For these very same reasons, defendant was not deprived of his due process right to present a defense by exclusion of the challenged material. While a defendant has a Sixth Amendment right to offer evidence that refutes guilt or bolsters his claim of innocence, Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312-13 (1973); State v. Harris, 156 N.J. 122, 177 (1988), cert. denied sub nom., 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); State v. Jamison, 64 N.J. 363, 378-79 (1974), that evidence must be competent, relevant and not unduly prejudicial. State v. Garfole, 76 N.J. 445, 452-53 (1978). As noted, Boston's out-of-court accusation against Beals is self-serving hearsay having little or no relevance to the issue of a third party's guilt. The trial court properly barred these statements under N.J.R.E. 803(c)(25) and such exclusion did not deprive defendant of a fair trial.
II
Broadly stated, defendant contends that his Sixth Amendment right to confrontation was violated in two separate instances by the State's use of hearsay about the elimination of others as suspects. The first instance concerns a forensic laboratory supervisor who testified about the results of a DNA test performed by another laboratory employee. The second involves a detective who testified that as a result of interviews with "various individuals," Stratton and Caban had been eliminated as suspects. We conclude that to the extent there were errors, they were not clearly capable of producing an unjust result and therefore harmless beyond a reasonable doubt.
Once again, some background is in order. As previously noted, the police initially considered Boston, Stratton, Caban, and Beals as suspects, and submitted their buccal swabs to the State Police laboratory, along with a blood control sample from the victim, for forensic comparison with the DNA taken from the bloody T-shirt. Marlene Strauss, a forensic scientist, tested the material and produced two reports. In the first, Strauss set forth the results of her tests, and concluded that, assuming two contributors to the DNA on the bloody rag, Boston, Beals and Caban were excluded as contributors to the DNA material on the T-shirt, and in the second she concluded that Stratton and Reyes were excluded as well.
Prior to trial, the judge conducted a Frye [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] hearing, which established the scientific reliability of the "STR" type of DNA test.
At trial, the State produced Joseph Petersak, who at the time was the Assistant Chief Forensic Scientist at the New Jersey State Police DNA laboratory and Strauss's supervisor, as an expert in biochemistry and DNA analysis. Defendant did not object to Petersak's qualifications. The expert noted that Strauss had "moved on to another part of the [State Police] laboratory[,]" and then proceeded to explain the science of DNA testing, the general testing procedures in the State laboratory, and the specific steps Strauss took in conducting the tests. As part of his "peer review," Petersak "looked at [Strauss's] results to make sure that the conclusions and all the things that are necessary to write a report were done properly." Based on his review of her work, which he initialed, Petersak "concur[red]" with the ultimate findings in Strauss's reports, namely that Stratton, Caban, Beals, and Reyes were not contributors to the DNA sample.
Petersak detailed the four step process that Strauss utilized in generating the raw data. Petersak "reviewed, approved, and agreed with" the procedure used by Strauss.
Significant for present purposes, Petersak, as Strauss's supervisor, did not "sit there and watch every single thing" that she did. His job was
to look at the results that are created, the reports that are generated, and to look at the data that was generated from the analysis that was conducted . . . to assure that the work was done correctly, that the protocols were carried out correctly, and that conclusions and the results that were made by the scientist were absolutely correct.Strauss's reports were later admitted into evidence without objection by defendant, who had engaged in a probing cross- examination of Petersak about the results of the laboratory testing.
The State also produced another forensic scientist, Maureen Lo-Beer, who conducted an analysis of defendant's DNA and concluded, in a report admitted into evidence, that the DNA found on the bloody T-shirt was a mixture of two individuals and, assuming there were only two contributors to the mixture, one of which was the victim, defendant could not be excluded as a partial contributor to the mixed DNA profile.
A.
"[T]he Confrontation Clause contained in the Sixth Amendment, which applies to the states by way of the Fourteenth Amendment, provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" State v. Rehmann, 419 N.J. Super. 451, 454 (App. Div. 2011).
In Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of "[t]estimonial statements of witnesses absent from trial" except "where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." The opinion detailed the "core class of 'testimonial' statements" as:
affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
[Id. at 51-52, 124 S. Ct. at 1364, 159 L. Ed. 2d at 193 (internal quotation marks and citations omitted).]
The Court interpreted Crawford in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). In that case, police seized evidence from the suspects. Id. at ___, 129 S. Ct. at 2530, 174 L. Ed. 2d at 320. At trial, the police placed into evidence "three 'certificates of analysis' showing the results of the forensic analysis performed on the seized substances[,]" to be cocaine. Id. at ___, 129 S. Ct. 2531, 174 L. Ed. 2d at 320. "The certificates were sworn to before a notary public by analysts at the State Laboratory" where the tests were performed. Id. at ____, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. The petitioner objected to the admission of the certificates, claiming that they violated his right to confront witnesses against him, as expressed in Crawford. Id. at ____, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. The Supreme Court agreed with the petitioner, finding that there was "little doubt that the documents at issue in this case fall within the 'core class of testimonial statements'" described in Crawford because the certificates were "affidavits." Id. at ____, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court found that the certificates were "functionally identical to live, in-court testimony . . . ." Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court concluded that unless the "analysts were unavailable to testify at trial and that [the] petitioner had a prior opportunity to cross-examine them, [the] petitioner was entitled to 'be confronted with' the analysts at trial." Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322.
Recently, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), the United States Supreme Court addressed Melendez-Diaz. In Bullcoming, the petitioner was arrested on charges of driving while intoxicated, and the main evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was above the legal threshold. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615-16. At trial, the prosecution did not call as a witness the analyst who signed the certification, but rather, called "another analyst who was familiar with the laboratory's testing procedures, but [who] had neither participated in nor observed the test on Bullcoming's blood sample." Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 616. The Supreme Court held that the "surrogate testimony" of a person who did not "sign the certification or perform or observe the test" did not meet the constitutional requirements. Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616.
However, the decision was made by only five of the nine members of the court. In a concurrence, Justice Sotomayor stressed the "limited reach" of the majority's holding. Id. at ___, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J., concurring). Specifically, she observed that the Court had not resolved several issues, including whether the defendant's right of confrontation would have been satisfied "if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629 (Sotomayor, J. concurring). She also noted that the situation in Bullcoming was not one "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." Id. at ____, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629 (Sotomayor, J. concurring).
After its opinion in Bullcoming, the Supreme Court granted certiorari in Williams v. Illinois, ___ U.S. ___, 131 S. Ct. 3090, 180 L. Ed. 2d 911 (2011). The question presented in the petition for certiorari was: "Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause." 2010 U.S. S. Ct. Briefs, LEXIS 4627 (Dec. 17, 2010) (Petition for Writ of Certiorari).
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Given the state of flux of the law, we need not decide in this case whether Petersak rendered an "independent" determination about Strauss's results in his own right, and, if so, whether such an expert opinion offered pursuant to N.J.R.E. 703 nonetheless violated defendant's Sixth Amendment right of confrontation, primarily because it was error for the court to admit Strauss's underlying reports into evidence. Indeed, the State does not posit otherwise. Clearly, Strauss's reports were testimonial statements and the State did not establish that she was unavailable to testify. Therefore, defendant had a right to confront Strauss, and it was error to have admitted them into evidence in her absence.
However, defendant did not object to, and in fact acquiesced in, the admission of Strauss's reports into evidence. Ordinarily, the error, even if harmful, is deemed waived by the defendant's failure to object and therefore is not properly cognizable on appeal. State v. Walkings, 388 N.J. Super. 149, 154 (App. Div. 2006). To be sure, such errors that "'cut mortally into the substantive rights of the defendant'" are subject to plain error review. State v. Shomo, 129 N.J. 248, 260 (1992) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 2:10-2 (2012).
Assuming that the admission of Strauss's DNA analysis, which we have already determined violated defendant's Sixth Amendment right of confrontation, was such an error, we are nevertheless satisfied the error was harmless beyond a reasonable doubt. A violation of defendant's federal constitutional right is reversible error, unless the error "was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); see also State v. W.B., 205 N.J. 588, 614 n.12 (2011); State v. Macon, 57 N.J. 325, 335 (1971). Confrontation Clause errors are subject to the Chapman harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986).
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include theSee also State v. Briggs, 279 N.J. Super. 555, 565-66 (App. Div.), certif. denied, 141 N.J. 99 (1995).
importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
[Id. at 684, 106 S. Ct. at 1438, 87 L. Ed. 2d at 686-87.]
Here, there was strong, compelling scientific evidence showing beyond a reasonable doubt that defendant committed the charged offenses.
As noted, Strauss's DNA analysis demonstrated that other suspects could not have contributed to the DNA found on the bloody T-shirt in the victim's apartment that was apparently used to strangle her. Yet the exclusion of other individuals as possible matches to the DNA recovered at the scene in no way implicated defendant in the homicide. Rather, the critical evidence directly implicating defendant in the victim's murder was testimony from other experts who personally conducted the scientific analysis of defendant's DNA and palm prints and who individually testified at trial. Specifically, forensic scientist Lo-Beer testified in court that defendant could not be eliminated as a contributor to the DNA on the T-shirt, and defendant had the opportunity to fully cross-examine her. Likewise, FBI forensic analyst Wanko testified that, based on her examination, the palm print recovered from the dresser matched the print provided by defendant. The combination of these expert proofs placed defendant in the victim's apartment though he denied ever being there, and placed defendant in possession of one of the murder "weapons" -- the T-shirt. The fact that other people were eliminated as suspects did not serve to implicate defendant. Instead, evidence of his own genetic material and palm print, which were properly admitted, fatally incriminated him. Accordingly, we conclude that the admission of Strauss's DNA analysis was harmless error beyond a reasonable doubt.
B.
Defendant makes an identical argument as to Detective Negron's testimony that after arresting Boston, the police considered Stratton and Caban "persons of interest" in the victim's homicide, but that they were eliminated as suspects after police spoke with other non-testifying witnesses. Specifically, after telling the jury why those persons were suspects, Negron testified that the police eliminated Stratton after speaking with "different individuals" about Stratton's alibi, and eliminated Caban as a suspect "[t]hrough various interviews." Relying primarily on State v. Frisby, 174 N.J. 583 (2002), defendant contends that because these non-testifying witnesses gave the police information that exculpated other suspects, their testimony inculpated him, and thus Negron could not testify to the hearsay statements.
Here again, defendant did not object to the testimony at the time, and therefore, any error in admitting the testimony must be viewed under the plain error standard, that is, "to have been clearly capable of producing an unjust result." R. 2:10-2; Macon, supra, 57 N.J. at 335-37.
In Frisby, supra, the police were investigating the death of an infant. 174 N.J. at 588. Both the defendant mother and the father gave conflicting stories as to who was responsible for caring for the child. Id. at 588-89. The police testimony was that other, non-testifying witnesses "substantiated" the father's version and that the interviews caused them to feel the father was "more credible." Id. at 591-92. On appeal from her child endangerment conviction, the mother challenged the admission of that evidence. Id. at 591.
In agreeing with the defendant, the Supreme Court noted that "there are circumstances in which an officer will be allowed to testify, based generally on hearsay evidence, to explain the course of his or her investigation." Id. at 592. However, "'when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused, the testimony violates the hearsay rule' and implicates defendant's Sixth Amendment confrontation rights." Ibid. (quoting State v. Bankston, 63 N.J. 263, 268 (1973)). The Court held that "[t]o the extent that [the witnesses] stated that the absent witnesses 'substantiated' [the father's] testimony, they simply used a shorthand method of providing the detail interdicted by the hearsay rule and in so doing, 'irresistibly' implicated [the mother]." Id. at 592-93 (quoting State v. Roach, 146 N.J. 208, 225, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). Moreover, the testimony that showed where the father actually was that night shed no light on what the mother alleged he was supposed to be doing, which was watching the baby. Id. at 593. "Yet, the officers broadly concluded that they 'substantiated' [the father's] story and made him 'more credible' than [the mother]." Ibid. For these reasons, the Court found that the admission of the officers' testimony amounted to plain error. Id. at 595.
The instant matter, of course, is distinguishable. There, the police were confronted with two conflicting accounts and by eliminating the father as a suspect after interviewing non-testifying witnesses, by "necessary inference," the mother's guilt was "irrestibly" implicated. Id. at 593-94 (internal quotation marks omitted). Here, in contrast, although the police eliminated Stratton and Caban as suspects based in part on hearsay evidence of non-testifying witnesses, that fact did not implicate defendant. Moreover, the elimination was based not only on the police interviews with non-testifying witnesses, but also based on properly admitted forensic proof that the palm print did not match Caban. Furthermore, unlike the officers in Frisby, Negron did not posit that Stratton and Caban were more credible than defendant. The police determination that Stratton and Caban were not involved did not inculpate defendant through "necessary inference," and therefore, his right to confrontation was not implicated.
But even assuming such testimony should have been excluded, its admission was simply not "capable of producing an unjust result." R. 2:10-2. As we said with respect to Strauss's report and Petersak's related testimony, the legally admitted proof of defendant's guilt was overwhelming. Conversely, Negron's testimony merely explained why the police turned their attention away from Stratton and Caban, and had no bearing on defendant's guilt or innocence. The subsequent forensic testing by Lo-Beer and Walko, on the other hand, led the investigating officers to defendant, as that objective, scientific evidence directly implicated defendant, regardless of how many other individuals were dismissed as suspects.
It bears mentioning that defendant's defense at trial was that he was not at the scene, his palm print and DNA were planted, and the State's witnesses were conspiring against him. He did not attempt to place the blame for the victim's homicide on Stratton, Caban or Beals. Thus any hearsay testimony about their elimination as suspects was harmless beyond a reasonable doubt as not clearly capable of producing an unjust result.
III
Defendant next contends, for the first time on appeal, that the court erred in failing to instruct the jury on accomplice liability. At trial, however, defendant "totally" objected to the proposed accomplice liability charge, and the court ultimately agreed, finding the evidence suggested defendant was a principal:
Throughout these proceedings, it has been the evidence that was presented and I presume that the State's theory essentially is, that in presenting it to the Grand Jury and presenting it to this jury.The judge charged the jury on murder, and its lesser-included offenses of aggravated manslaughter and reckless manslaughter. The judge also charged on conspiracy to commit murder.
That [Nevius] was a princip[al] in the homicide, resulting in the death of Ruth Walker. That he may have done it in the commission of a felony, along with William Boston.
I find that the liability for another's conduct charge as accomplice, over the objection of the Defendant, is not appropriate in this case.
"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). "So paramount is the duty to insure a fair trial that a jury must deliberate in accordance with correct instructions even when such instructions are not requested by counsel." State v. Grunow, 102 N.J. 133, 148 (1986). "Therefore, when a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993); see State v. Savage, 172 N.J. 374, 388 (2002) (approving of Bielkiewicz). An accomplice charge must be given, where supported, even if the defendant presents an "all-or-nothing" defense, that is, he denied participating at all in the crime. State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996). Once a jury rejects a defendant's story as to his non-complicity, it is "required to apply correct legal principles to assess [the defendant's] liability under the State's version of the events." Ibid. However, when, as here, a defendant does not object to the jury charge at trial, the applicable standard of review is that of plain error, R. 1:7-2, which is an error "clearly capable of producing an unjust result." R. 2:10-2.
Under N.J.S.A. 2C:2-6c:
A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it; or
. . . .
"By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129 (1984). "Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). The charge must inform the jury that even if it concluded that the principal committed purposeful or knowing murder, the accomplice could be found guilty of a lesser offense. State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998). Stated another way, a charge must inform the jury that "parties who participate in a criminal act may be guilty of different degrees of offense, depending on their own actions." Ibid. The charge must be given even if the defendant is tried alone. Id. at 279; Cook, supra, 300 N.J. Super. at 488.
In Bielkiewicz, supra, the victim died of one gunshot wound and the prosecution proceeded on the premise that Bielkiewicz's co-defendant was the shooter and Bielkiewicz was his accomplice, although he may not have shared the principal's homicidal state of mind. 267 N.J. Super. at 526-27. We held that the instructions on accomplice liability were inadequate because they did not specifically instruct the jury that even if the principal committed purposeful or knowing murder, the accomplice defendant could be found guilty of a lesser offense if he did not share the principal's intent that the assault cause death or serious bodily injury. Id. at 530-33.
In State v. Rue, 296 N.J. Super. 108 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997), on the other hand, we found that such a charge was not warranted on the facts of that case:
The difference between this case and Bielkiewicz is that the evidence in that case could have supported a finding that defendant Bielkiewicz did not share Pitts' homicidal state of mind. . . . That is not the case here. The parties presented the jury with two scenarios. The first was the state's version that defendant himself participated in the vicious beating of the victim which caused the death. The second was that defendant had remained in the car and did not participate at all in the crime. Neither of those versions warranted a Bielkiewicz charge, the former because defendant's culpability was as a principal; the latter because defendant was not guilty of a crime at all.
[Id. at 115.]
We noted further that after identifying the defendant as a participant in the beating death of the victim, there was no evidence from which a jury could differentiate between his culpability and that of the other perpetrators. Id. at 115-16. "For example, defendant was not hitting the victim with his fists[,] while the others were using steel weapons, nor was he hanging back while the others were enthusiastically striking the victim with their guns. He did what they did." Id. at 116.
Similarly, in State v. Oliver, 316 N.J. Super. 592, 596-97 (App. Div. 1998), aff'd, 162 N.J. 580 (2000), the judge charged accomplice liability but on appeal, the defendant claimed the charge was inadequate because it did not instruct the jury that it could find the accomplice guilty of a lesser offense than the principal. The court noted
it is questionable whether an accomplice liability charge should have been given at all in this case because neither the State nor defendant presented that scenario. The State contended that defendant was the principal actor, while defendant maintained that he was not even present in the room where the [crime] occurred.
[Id. at 597 (citations omitted).]
So here too. The State's theory and evidence was that defendant and Boston simultaneously caused the victim's death, one by strangulation and the other by stabbing. Defendant, on the other hand, claimed that he was not present at all. Therefore, as in Rue and Oliver, defendant was either a principal or simply not involved. There was no evidence to differentiate the acts of the principals--Boston and defendant--as each committed acts that were sufficient in and of themselves to cause the victim's death. And there was nothing to suggest that defendant may have acted with a different purpose in breaking the victim's neck than Boston in stabbing her. Accordingly, an accomplice liability charge was not supported by the record, much less was "clearly indicate[d]." State v. Jenkins, 178 N.J. 347, 361 (2004).
Defendant nevertheless argues that "there were reasonable interpretations of the facts that would have allowed the jury to convict defendant of a lesser-included offense such as aggravated manslaughter." For instance, "[t]he jury could have found that defendant choked the victim in order to restrain her, . . . and not to inflict serious bodily injury," "but that he consciously disregard[ed] the substantial and unjustifiable risk that Boston might start stabbing the victim[,]" thus leading to her death. Defendant fails to acknowledge, however, that the trial court properly instructed the jury with respect to the lesser-included offenses. Therefore, "the evil that Bielkiewicz seeks to guard against -- that is, that the jury could have found that one or more of the defendants were guilty of [the offense] while also finding that one or more were guilty only of the lesser-included offense . . . does not pose the same risk." State v. Ingram, 196 N.J. 23, 40 (2008). In other words, even though the judge did not charge accomplice liability, the options provided allowed the jury to find defendant guilty of a lesser-included offense.
For all these reasons, then, the failure to charge accomplice liability was not error, much less plain error.
IV
Defendant next argues that his sixty-five-year sentence is unfairly disproportionate to the fifty-five-year sentence imposed on co-defendant Boston and therefore should be reduced. We disagree.
The Court "has consistently stressed uniformity as one of the major sentencing goals in the administration of criminal justice." Roach, supra, 146 N.J. at 231. "[A]lthough the sentence imposed on defendant falls within the statutory limits mandated for the offense, 'there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators.'" Id. at 232 (quoting State v. Hubbard, 176 N.J. Super. 174, 177 (Resentencing Panel 1980)). However, "'a sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'" Roach, supra, 146 N.J. at 237 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)).
To guard against disparate sentences for co-defendants, a "trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Roach, supra, 146 N.J. at 233. "The court should then inquire into the basis of the sentence imposed on the other defendant." Ibid. "It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant." Ibid. "If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity." Ibid.
Here, in sentencing defendant, the judge placed "substantial" weight on aggravating factor three, the risk that defendant will commit another offense (N.J.S.A. 2C:44-1a(3)), because of defendant's "extensive juvenile record and the nature of the offenses of which he was adjudicated delinquent." The judge stated:
[H]e had eight arrests as a juvenile. He had a diversion. He had six adjudications including two for assaultive behavior and one for robbery. He had state level confinement which is rare and is, I think, reserved for those that are dangerous, those that need substantial efforts toward rehabilitation. He had a violation of probation. . . . [I]t's a horrible and horrendous juvenile record replete with violence and theft-related type offenses similar to those of which he is now convicted as an adult.
Presumably based on defendant's "horrible and horrendous juvenile record," the judge placed "substantial" weight on aggravating factor nine, the need to deter this defendant and others from violating the law (N.J.S.A. 2C:44-1a(9)). The judge found no mitigating factors. In fact, the court found that defendant has failed to display any remorse for the heinous crime he was convicted of.
Prior to imposing the sentence on defendant, the judge specifically considered the sentence imposed on co-defendant Boston and expressly addressed their dissimilarity in circumstances. Thus, in comparison, Boston's juvenile record was far less extensive and serious than defendant's. As a juvenile, Boston had only "four contacts that resulted in two diversion opportunities, which were apparently successful." As an adult, Boston had one prior conviction for theft. In mitigation of sentence, the court also considered factor four, N.J.S.A. 2C:44-1b(4), finding that Boston's learning disability qualified as substantial grounds tending to excuse or justify Boston's conduct though failing to establish a defense.
Accordingly, in explaining the sentence disparity, the judge reasoned:
I think the factors in this case justify a disparate sentence. I find that the juvenile record, the violence of the offenses of which he was . . . adjudicated as a juvenile, his failure to address those issues of violence, the horrible nature of this offense and its effect upon the family, and the . . . need to deter others strongly militate in favor of a sentence disparate than that provided to Mr. Boston. . . .
We agree. The sentence imposed on defendant is neither excessive nor unjustifiably disparate compared to that of Boston. Their circumstances are substantially dissimilar and defendant's extensive and violent juvenile record, failure to successfully navigate probation and parole, and complete absence of mitigating factors as well as remorse, all differentiate him from his co-defendant and more than amply support the aggravating factors upon which his sentence is grounded.
V
Defendant pro se argues that the remand judge erred in refusing to grant his post-judgment motion for new DNA testing. We disagree.
We had granted a limited remand to allow defendant to file a motion for DNA testing. At the motion hearing, defendant represented that a new DNA amplification method called "touch DNA" would be able to amplify the DNA samples on the shirt, which would potentially allow analysts to obtain more DNA material than they originally extracted. Defendant argued that the touch DNA test could determine whether there were two contributors to the T-shirt, as the State's expert contended, or three contributors, which might call into question the State's results.
The judge, however, noting that defendant's DNA was found on the shirt, was not convinced that if a third person's DNA was found on the shirt that that finding would "result in a skewed sample or render the State's expert's report invalid or cause the State to question what its expert had concluded[.]" The judge noted it was defendant's obligation to "provide a[n expert] report," because there was "a lot of speculation." He also found there was no evidence that the touch DNA test was "generally accepted within the relevant scientific community." He therefore denied defendant's motion without prejudice, saying that defendant could "re-file the application" after he obtained an expert report, but as it stood before the court at that time, it was "incomplete."
Defendant moved for reconsideration, citing a New York Supreme Court decision that found that the touch DNA test was generally accepted in the scientific community; however, the judge denied relief because the case was not binding on a New Jersey court and the case "did not address the many concerns" the court expressed on the original motion.
Because the motion was denied without prejudice, it is not considered a final judgment from which an appeal may be taken as a matter of right. CPC Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999); R. 2:2-3(a)(1). But even if considered "final," we find no error in the denial of relief.
In order to grant a motion for post-conviction DNA testing, all of the following criteria must be met:
(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;
(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;
(3) the identity of the defendant was a significant issue in the case;
(4) the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;
(5) the requested DNA testing would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;
(6) the evidence sought to be tested meets either of the following conditions:
(a) it was not tested previously;
(b) it was tested previously, but the requested DNA test would provide results that are reasonably more
discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;(7) the testing requested employs a method generally accepted within the relevant scientific community; and
(8) the motion is not made solely for the purpose of delay.
[N.J.S.A. 2A:84A-32a(d).]
The motion judge's concerns were valid. There was no evidence that the testing method was generally accepted in the relevant scientific community, and thus factor (7) was not fulfilled. There was also no evidence to explain whether, if the touch DNA test determined that there was a third person's DNA on the shirt, that result would have called into question the finding already made that defendant's DNA was on the shirt. In other words, under factor (6)(b), defendant did not establish that the test would have a "reasonable probability of contradicting prior test results." Given the facts of record, defendant did not meet his burden, as his proffer was simply not sufficient to warrant the relief of post-conviction DNA testing. Of course, the Law Division's denial of defendant's motion was "without prejudice" to its renewal based on a more sufficient and satisfactory evidentiary foundation.
Defendant's remaining contentions are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION