On appeal from Superior Court, Law Division, Camden County.
Michels, Deighan and Brochin. The opinion of the court was delivered by Deighan, J.A.D.
A Camden County Grand Jury returned a seven-count indictment against defendant charging him with murder, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Count I); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count II); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b (Count III); possession of a prohibited device, namely a hollow-nosed bullet, in violation of N.J.S.A. 2C:39-3f(1) (Count IV); hindering apprehension or prosecution, in violation of N.J.S.A. 2C:29-3b(1) (Count V), and tampering with witnesses and informants, in violation of N.J.S.A. 2C:28-5a(2) (Counts VI and VII).
Prior to the commencement of trial, the judge held an Evid.R. 8 hearing to determine the admissibility of a taped statement by a witness, Bernadette Hohney. He determined that the tape was admissible pursuant to Evid.R. 63(1)(a) and R. 22. The judge denied defendant's request for a Wade*fn1 hearing, but the prosecutor's motion to change the date of the incident in the indictment was granted.
Defendant was convicted of aggravated manslaughter, a lesser-included offense of murder, and one count of tampering
with a witness. He was acquitted on the remaining counts. The trial judge denied defendant's motion for a new trial but granted the State's application to impose a sentence pursuant to the Graves Act, N.J.S.A. 2C:43-6c. Defendant was sentenced to a 20-year term with eight years parole ineligibility on the manslaughter charge and a consecutive term of five years with two years of parole ineligibility on the charge for tampering with witnesses and informants. The judge also imposed a $5,030 fine payable to the Violent Crimes Compensation Board.
The following facts were developed at the Rule 8 Hearing concerning the admission of Hohney's tape recorded statement. From 1976 until 1986, Hohney and Raymond Mullin, the victim, lived together and Mullin fathered two of Hohney's three children. Hohney broke up with Mullin in 1986 and began an affair with defendant. She worked as a waitress at defendant's bar.
The victim was shot shortly before 10:00 p.m. on June 24, 1986 and on the morning of June 25, 1986, Hohney gave her first statement to the Camden police and a second on June 27. In the second statement, Hohney stated that about two weeks before the murder, defendant received a message from the victim that he was going to burn down defendant's bar. When asked by the police to tell them exactly what happened, Hohney stated:
Okay. About two weeks ago, Bob Mancini [ sic ] got a message from Raymond [victim] that he was going to burn his bar up. Bobby Mancini [ sic ] said, that he didn't have to take that /--, that he would get it him [ sic ] taken care of. He said he was going to make a 'phone call, he said he had got a kid that he was going to get to do it. But he got him through another guy, and the guy had told him, that sometime the kid don't do what he's supposed to do. He always goes a little bit further and he kills the victim. A couple of days after that, a couple of guys came in the bar. I couldn't see their faces because they were in the back room with [defendant]. When I went through with the ice bucket to go get ice, they turned their backs to me. Okay, [defendant] was back there talking with them and when I came back through to go back into the bar they turned their backs again. I never got a chance to look at their face. But he did say, on the way to the Motel, he saw a ambulance he says [victim] just got shot. I didn't pay it any attention because I wasn't thinking about anything like that. When we got to the Motel he called to the bar, Junior had
told him that [victim] was shot asked him if he had anything to do with it, he says maybe the kid did it. Okay, he didn't directly say that he done it himself, he said the kid did it. Okay, he says that Raymond was dying and I said, what and I sat on the side of the bed and I started to cry, got up and he says we got to go to the Police Station but when we get there, I want you to tell them that you don't know anything. Anything at all, and I said well I don't really know anything. Everything that you've ever heard don't speak on it. Okay, so then when we got back to when we got to the Police Station, when I left the next morning, he says I'm counting on you. You're the only person that I have. Don't say anything, anything that you know. I said, well I don't know too much, he says, well what you do know he says about the kid and about me making a 'phone call don't tell nobody.
Later, in the statement, Hohney indicated that defendant told her "the kid" was supposed to walk up to the victim and cut him in the chest or shoot him in the leg. She recounted that defendant stated that he did not want the victim killed; but if it happened there was nothing that defendant could do about it.
Hohney testified at the hearing that the statement was given under coercive circumstances because on June 27, 1986, a Division of Youth and Family Service (DYFS) representative came to her home and told her that she was under investigation. That day she got a call from Detective Alesandrini telling her to come down to the station and to bring her children. When Hohney got to the station on the 27th, the police told her what to say and she repeated it back to them. When she had the story straight, she repeated it and they turned on the recorder and taped the statement. The police threatened her that if she did not give them the statement they wanted, they would take her children away and put her in jail. She never signed or read a transcript of this statement, did not see it printed and did not listen to the tape. Hohney maintained that everything in the statement from June 27 was a lie.
At the hearing, Detective Alesandrini admitted that he called Hohney on the 27th and told her that he wanted to talk with her and the children. He asked that the children accompany her because he wanted to find out if they had heard any conversations between defendant and their mother. At that time, the children were 7, 5 and 3 years old.
There was an interview before the tape but Alesandrini denied that the police told Hohney what to say. No threats were made against her and the tone of the conversation was not hostile. Hohney had given the police permission to talk with the children, and they confirmed that defendant was at the house on the 24th.
On June 13, 1988, Alesandrini served Hohney with a subpoena to appear at trial. At that time, he asked her if she had any new information and said she should contact them if she remembered anything. He also asked her if she felt that they had treated her fairly at the interview on June 27, 1986. When questioned as to why he felt compelled to ask her that question, Alesandrini responded that he meant to calm her and wanted more information from her.
In his decision, Judge Steinberg considered Hohney's relationship with defendant and her interest, bias, or prejudice in favor of him. After listening to the tape, he noted that it flowed and did not sound as if it was from one who was coerced or in distress. Instead, he found that Hohney probably thought that she would be in trouble since she knew of the murder, so she went to the police. He concluded that the statement was made under circumstances establishing its reliability and held it would be admissible at trial.
At trial, Theresa Lopez, the victim's sister, claimed that she witnessed defendant approach and shoot her brother. On the night of the shooting, Lopez was walking her dog in the area of Second and Larch Streets in Camden. She saw her brother walking ahead of her and as she watched, she saw a man "trot" up behind him and place a hand on his shoulder. She heard gunfire and saw her brother stumble after which the man turned and ran.
Another witness, Ronni Simmons, stated that as he was walking down the street, he saw two men. The second man ran up behind the first, grabbed him and shot him. Although the lighting was not good, Simmons described the gunman as
having a lot of hair and being somewhat chubby. He was a little taller than the victim and looked either Spanish or white. Simmons did not identify him in a photographic array.
Frederick Mullin, the victim's brother, testified that approximately a month before the victim was killed, defendant told him that "if anything happened to him or his liquor store, he'd pay up to $10,000 to have my brother killed." Mullin and Mancine knew each other from the neighborhood and Mullin had done electrical work for defendant in the past. The victim had been upset because defendant was going out with his former girlfriend.
Francis Marino, a friend of the victim, testified that when he was at defendant's liquor store defendant stated that he would be willing to do anything to get the victim out of the way. About a month and a half before the murder, Marino was told by defendant that "when you fly with the crows, you got shot down yourself." On another occasion approximately a month before the murder, defendant told Marino with regard to the victim that "he wanted to --- him up the ass." According to Marino, the victim never said anything by way of threat to Mancine although Mancine stated that he would be willing to spend his last penny to get rid of the victim. In a statement given by Marino to police, Marino represented that the victim was "haunted by jealousy" because Mancine was dating his former girlfriend.
A third friend of the victim, Dennis Dozier, initially testified that defendant told the victim that if he did not stay away from him, he would "kick his ass, blow him away, --- him up, that kind of thing." On another occasion, defendant said the same type of thing and said if the victim stayed away from him there wouldn't be any trouble. On cross-examination, the defense brought out that defendant had signed a criminal complaint against the victim and that the victim had been indicted for stabbing defendant. On cross-examination, Dozier admitted
that he did not hear defendant say that he would blow the victim away.
Another friend of the victim, Patrick Kelly, testified that on five or six occasions defendant and the victim exchanged remarks. Evidently, defendant taunted the victim that he "had his old lady." On one occasion, Kelly overheard defendant say that "if anything happens to his bar or him, he said he would pay somebody some money to take care of Raymond." According to Kelly, the victim never threatened Mancine as far as he knew.
Bernadette Hohney testified that at one point defendant and the victim had an altercation because of her. At that time she was still living with the victim but they had had a fight. She went to defendant's bar to work as a waitress and while in the backroom changing, the victim entered the bar carrying a knife and tried to stab her. From that point on, the two men "never patched things up."
Early in the morning of June 25, 1986, after the shooting, Hohney and defendant went to the police station. Hohney stated that the statement that she gave to police on the morning of the 25th was true and accurate. She testified that about eight or nine months prior to the victim's death, "some guy" came in the liquor store and told her that someone had been talking about shooting the victim. She asked defendant if he knew anything about it, but he said "no". However, when confronted with the content of her statement of June 25, 1986, Hohney did not remember being asked certain questions including one to which she responded that a few days prior to the shooting defendant told her that he heard that Mullin would be shot. Hohney stated that it was at least a month before the shooting and not a couple of days as reflected in the statement. Hohney later testified that on the morning of June 25, 1986, the officers were using a harsh tone with her.
As to the June 27 statement, Hohney testified that she did not answer honestly the questions asked of her. She said the
things that she said only because of the threats that had been made against her, i.e., that she would lose her children. The statement of June 27 was played to the jury. The transcript of the tape was also given to the jury as a listening aid. On cross-examination, Hohney testified that she and defendant were at a motel together on the night of the shooting.
Defendant testified on his own behalf. Initially, he stated that he and Hohney were together at the Bo-Bet Motel on the night of the murder. He then recounted the story that at one point the victim followed Hohney into the bar and tried to stab her. At that point, defendant fought with the victim. As a result, the victim cut defendant's arm. Based on that incident, defendant filed charges against the victim. Defendant admitted he had stated that if the victim burned down the bar or hurt him in any way, he would spend every dime to get him. However, he explained that he did not mean to have him killed, only to catch him and make him pay. Defendant denied that he ever threatened to kill or have someone "take care of" the victim. Approximately a week or two before the shooting, defendant heard someone in the bar say that he was going to shoot the victim. According to defendant, the victim had "ripped" someone off in a drug deal.
On this appeal, defendant raises the following issues:
I It was improper to admit as substantive evidence under R. 63(1)(a)(i) the June 27, 1986 statement of Bernadette Hohney.
II It was reversible error for the defendant to be convicted of tampering with the witnesses and informants when the sole evidence to support this conviction was the recanted prior inconsistent statement of Bernadette Hohney.
III It was reversible error for the trial court to instruct the jury on aggravated manslaughter based upon a factual theory not contained in the indictment or presented to the Grand Jury.
IV It was reversible error for the trial court to charge the jury on aggravated manslaughter as a lesser included offense of murder.
V The court below committed error by admitting into evidence Raymond Mullin's blood stained clothing and photographs of Raymond Mullin at the morgue where their probative value was substantially outweighed by undue prejudice to the defendant.
VI The legal errors in this trial in their aggregate prejudiced the defendant's rights to such an extent as to require a reversal.
VII The sentencing of the defendant was illegal in that the court erroneously applied the Graves Act and improperly balanced the aggravating factors so as to sentence the defendant to ...