On appeal from the Superior court, Law Division, Monmouth County.
Furman, Dreier and Stern. The opinion of the court was delivered by Stern, J.A.D.
Tried by a jury, defendant was convicted of purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); aggravated arson, contrary to N.J.S.A. 2C:17-1a (count three); and arson, contrary to N.J.S.A. 2C:17-1b (count four). As the alleged murder occurred on June 29, 1983, the trial proceeded as a capital case. See N.J.S.A. 2C:11-3b, -3c. The jury concluded that the death penalty was not warranted, and defendant was sentenced on the purposeful or knowing murder conviction to life imprisonment with a mandatory 30 years of parole ineligibility. Defendant was also sentenced to a concurrent ten year custodial term, with five years of parole ineligibility, on the aggravated arson conviction. The felony murder conviction was merged into the purposeful or knowing murder, and the arson conviction was merged into the aggravated arson. Defendant appeals and argues:
POINT I THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS COUNT I OF THE INDICTMENT CHARGING THE DEFENDANT WITH KNOWING AND PURPOSELY COMMITTED MURDER IN VIOLATION OF 2C:11-3.
POINT II PREJUDICIAL ERROR WAS CREATED IN THE COURT'S CHARGE TO THE JURY REQUIRING THEM TO FIND SEVERE INTOXICATION BEFORE INTOXICATION DEFENSE COULD BE FOUND, AND IN THE ALTERNATIVE, THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III DEFENDANT'S SENTENCE TO A MINIMUM TERM OF 30 YEARS AS 'REQUIRED' BY N.J.S.A. 2C:11-3(b) WAS AN ABUSE OF DISCRETION BY THE TRIAL JUDGE, AND IN THE ALTERNATIVE AN UNCONSTITUTIONAL DEPRIVATION OF HIS RIGHTS CONTRARY TO THE NEW JERSEY CONSTITUTION, ARTICLE 1, PARAGRAPH 12.
POINT IV THE STATE FAILED TO MEET ITS HEAVY BURDEN WITH RESPECT TO DEFENDANT MARTIN'S INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS.
POINT V COURT'S REMOVAL OF JUROR FOR CAUSE WHO EXPRESSED GOOD FAITH EMOTIONAL CONCERNS AS TO IMPOSITION OF DEATH PENALTY VIOLATED DEFENDANT'S 6th AND 14th AMENDMENT RIGHTS.
A recital of the facts is required in order to understand the first contention.
Shortly before midnight on June 29, 1983, defendant Daniel Louis Martin started a fire at an apartment located at 69 Church Street in Keansburg. The fire was commenced after defendant and some friends were asked to leave a party being given at the apartment by the hostess Lois Baker. The fire quickly consumed the building and caused the death of Barbara Quartz.
Defendant went to the party with five others from Keyport including Paul Wade and "a girl named Tracy," a juvenile 13 or 14 years of age. According to one attendee, "[W]hen everybody walked in I was a little shocked to see Danny there because him and Lois didn't get along from the beginning."
The group arrived at the party between 8:30 and 10:00 p.m. Subsequently, an argument broke out between Wade and one of the other guests, Mike Fitzpatrick. The argument concerned some comments or actions Wade directed towards Fitzpatrick's girlfriend, Barbara Quartz. The argument between the two broke into a wrestling match which was broken up by the other guests. Ms. Baker then asked Fitzpatrick to leave, which he did, and the party continued. Shortly thereafter, an argument erupted between Baker and Wade. According to Baker, "I was arguing with Paul Wade because he brought a 13-year old girl up to my house and I don't want drinking in my house and I asked him to either tell her to stop drinking or leave." Baker continued, "Well, he didn't do it, so I decided to tell them all to leave." Thus, "[e]verybody who came in the car from Keyport" was asked to leave.
It was agreed to by all the witnesses, including Ms. Baker, that defendant was not himself involved in any arguments with
anyone either during the party or after the group was asked to leave. Defendant left the apartment with Wade.
According to defendant, as he and Wade left the apartment, they vandalized what they thought was Fitzpatrick's motorcycle which was parked outside. They flattened the tires, slashed the seat and removed the mirrors. Defendant then took the mirrors and carried them back up the stairs to the Baker apartment and placed them outside the front door, apparently for Ms. Baker to find.
When I was walking down the steps, before I walked down the steps I got outside. Everybody was left except me and Paul Wade left and walked down the steps, and it was a paper bag by the -- in the hallway, somewhere in the hallway, I think by Lois Baker's door. I picked up the bag and I walked down the steps with it. I was just, you know, throwing it around making a mess, you know, and I set it down and I lit up a cigarette. And the match -- I lit the paper bag on fire, you know, 'cause I thought maybe it would burn up the garbage, you know, not to spread or anything, just make, like make a mess of the bottom of the landing. And then, then I left.
Defendant subsequently admitted that he didn't endeavor to put the fire out because "I thought it would go out. It was only the paper bag."
Defendant then left the scene. As he entered a waiting car, he told his friends that he "lit a fire." Defendant made a similar admission during the police investigation.
The fire started by defendant burned with intensity. There was no contest at trial that Barbara Quartz, who had been drinking prior to falling asleep on the living room floor of the Baker apartment, was unable to escape the blaze and died in the fire.
Investigator Frederick Dispensiere of the Monmouth County Prosecutor's Office conducted an investigation of the fire and concluded that it was deliberately set at some point between the ground floor and second floor. He also suspected that an accelerant had been used and sent wood samples from the fire site to the State Police laboratory to test for the presence of
volatiles. Gas chromotography tests performed on these wood samples revealed the presence of kerosene.
The investigator also testified that he had found what he believed were "pour patterns," which indicated the use of an accelerant, on the stairway between the first and second levels of the building which had "masonry construction" on the first floor and "wood-framed construction" on the upper levels. Thus, the investigator concluded that the fire was set "[i]n the stairwell between the ground floor and Level Two" and that it "was deliberately set." According to the investigator:
I formed that opinion on again examination of the scene in detail, interviews of the responding fire fighters, police officers and witnesses, occupants and also through the systematic elimination of everything in the building which could have accidentally or naturally caused the fire.
He also concluded that an accelerant was used
"Pour patterns" were also found by Daniel Slowick, an expert hired by the building owner's insurance carrier, who testified for the State. According to Slowick, "it was a deliberately set fire" with its origin "in the stairwell" at a point which could not be precisely determined. He concluded that "it was apparent that there had been an accelerated fire in the building" and that a "flammable or combustible liquid" had been used to accelerate the fire. Another expert for the State, Stephen Andrews of the New Jersey State Police laboratory concluded, based on evaluation of damaged items from the fire, that "the volutiles [sic] were characteristic of petroleum distillates, in this case similar to kerosene." Moreover, an analysis by Jimmy Pau, a chemist with the Mercury Research Laboratory, similarly revealed that kerosene had been used in the fire.
Ms. Baker testified that prior to the fire, a friend had purchased a half gallon of kerosene for her, which she used to treat her children's lice problem. She stored what remained of
the kerosene in a plastic milk container which she hid from her children in a corner of the hallway outside her apartment.
On July 6, 1983 Investigator Dispensiere returned to the apartment building and discovered a melted, plastic container, believed to be a Clorox bottle on the third floor stairwell landing of the building. This container the odor of a flammable liquid. Dispensiere stated that this container was not found either by himself or by the six or eight others who conducted the initial investigation. Dispensiere ...