On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Havey, Stern and Brochin. The opinion of the court was delivered by Stern, J.A.D.
[267 NJSuper Page 279] Tried to a jury at the guilt phase of a capital prosecution, defendant was found guilty of capital murder, N.J.S.A. 2C:11-3a(1), (2) (count one), felony murder, N.J.S.A. 2C:11-3a(3) (count two), second and third degree aggravated assault, N.J.S.A. 2C:12-1b(1)
and (2) (counts three and four), kidnapping, N.J.S.A. 2C:13-1b (count five), criminal restraint, N.J.S.A. 2C:13-2a (count six), aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6) (counts seven and eight), burglary, N.J.S.A. 2C:18-2 (count nine), hindering apprehension, N.J.S.A. 2C:29-3b(1) (count ten), and possession of a hammer for unlawful purposes, N.J.S.A. 2C:39-4d (count eleven). At the penalty phase, the jury could not "unanimously agree on punishment," and the defendant was subsequently sentenced to life imprisonment with thirty years before parole eligibility for the murder embodied in count one, to a consecutive twenty years in the custody of the Commissioner of Corrections with ten years to be served before parole eligibility for the aggravated sexual assault embodied in count eight and, after merger of some counts, to concurrent sentences on the remaining convictions. Among the concurrent sentences was a twenty-five year commitment for the kidnapping embodied in count five into which the conviction on count six for criminal restraint was merged. The aggregate sentence imposed was life plus twenty years with forty years before parole eligibility.
On this appeal defendant argues:
POINT I THE JUDGE ERRED IN PRECLUDING THE JURY FROM CONSIDERING A MANSLAUGHTER VERDICT BY INSTRUCTING THEM THAT THEY COULD CONSIDER SUCH A VERDICT ONLY IF THEY ACQUITTED THE DEFENDANT OF MURDER.
POINT II THE TRIAL JUDGE ERRED IN FAILING TO DEFINE CAUSATION TO THE JURY IN HIS CHARGE ON FELONY MURDER. (Not Raised Below).
POINT III THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE DEFENSE OF INTOXICATION. (Not Raised Below).
POINT IV THE TRIAL JUDGE ERRED IN HOLDING THAT THE DEFENDANT WOULD WAIVE HIS FIFTH AMENDMENT RIGHT TO SILENCE IF HE TOOK THE STAND IN HIS MIRANDA HEARING.
POINT V THE ORAL AND WRITTEN CONFESSIONS OF JOHN REESE WERE OBTAINED AFTER HIS INVOCATION OF HIS RIGHT TO COUNSEL AND SHOULD, THEREFORE, BE SUPPRESSED.
POINT VI THE TRIAL JUDGE'S ERRONEOUS REFUSAL TO EXCUSE VENIREPERSONS FOR CAUSE DEPRIVED DEFENDANT OF HIS RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS.
POINT VII THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO VOIR DIRE THE JURY JUDGES AFTER SEVERAL EMOTIONAL OUTBURSTS FROM JURORS.
POINT VIII THE TRIAL JUDGE ERRED IN ADMITTING TESTIMONY OF THE DEFENDANT'S PRIOR SEXUAL CONDUCT AS WELL AS HIS VIEWING OF MUSIC VIDEOS, IN VIOLATION OF N.J.EVID.R. 1 AND EVID.R. 4.
POINT IX THE COURT ABUSED ITS DISCRETION AND DEPRIVED DEFENDANT OF DUE PROCESS OF LAW BY ADMITTING EXPERT TESTIMONY BASED ON PROCEDURE OF UNPROVED RELIABILITY AND SPECULATION.
POINT X THE TRIAL JUDGE'S REFUSAL TO ALLOW DEFENDANT TO PRESENT EXCULPATORY EVIDENCE VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY.
POINT XI THE TRIAL JUDGE ERRED IN FAILING TO DISMISS THE KIDNAPPING CHARGE AT THE END OF THE STATE'S CASE.
POINT XII THE DEFENDANT'S SENTENCE IS EXCESSIVE.
[At the request of the Appellate Division, the facts of the case are omitted from publication. The proofs at trial revealed that defendant entered the victim's apartment, and committed various crimes including aggravated sexual assault. Defendant then killed the victim. Defendant claimed the victim became violent and threatened him when he discontinued consensual sex with her].
Defendant contends that the trial Judge's charge to the jury on purposeful or knowing murder and passion/provocation manslaughter were contradictory and confusing. He maintains that the effect of the charge as a whole, in conjunction with the verdict sheet, precluded the jury from considering a passion/provocation manslaughter verdict unless it first acquitted defendant of purposeful or knowing murder.
The verdict sheet stated in ...