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State v. Setzer

Decided: December 6, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY SETZER, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Pressler, Dreier and Kleiner. The opinion of the Court was delivered by Kleiner, J.s.c. (temporarily assigned).

Kleiner

Defendant Jeffrey Setzer appeals his conviction after a jury trial of aggravated arson contrary to N.J.S.A. 2C:17-1a(1). He was sentenced to a ten year term of imprisonment and was ordered to pay $30 to the Violent Crimes Compensation Board.*fn1

Setzer was originally indicted, together with Traci Ann Horn, with aggravated arson, N.J.S.A. 2C:17-1a(1) (count one); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-2 (count two); and conspiracy to commit aggravated arson and attempted murder, N.J.S.A. 2C:5-2 (count three). Count three was dismissed during the trial and defendant was acquitted by the jury verdict on count two.

On appeal, defendant raises the following issues:

POINT I BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT ADEQUATELY RECEIVED HIS MIRANDA RIGHTS AND WAIVED THEM, IN COMPLIANCE WITH THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT SUPPRESSING DEFENDANT'S ALLEGED CONFESSION.

POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY WERE TO DECIDE WHETHER DEFENDANT'S CONFESSION WAS CREDIBLE AND TO DISREGARD IT IF THEY FOUND IT NOT TO BE CREDIBLE CONSTITUTES REVERSIBLE ERROR.

POINT III THE PROSECUTOR'S IMPROPER AND PREJUDICIAL COMMENTS DURING SUMMATION DENIED DEFENDANT A FAIR TRIAL AND THEREFORE CONSTITUTE REVERSIBLE ERROR.

POINT IV THE SENTENCING COURT ERRED IN NOT RECOGNIZING DEFENDANT'S INTOXICATION AS A MITIGATING FACTOR; THEREFORE, DEFENDANT'S 10-YEAR TERM OF IMPRISONMENT MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING.

Prior to May 1, 1990, Setzer commenced a relationship with Traci Ann Horn. Horn had custody of a child, Melissa, born during Horn's marriage to David Stewart. On April 9, 1990, Stewart was awarded temporary custody of Melissa due to his allegations that Horn was an unfit parent. Because Stewart feared that Horn might retaliate and possibly abduct Melissa, he permitted Melissa to reside at the home of his sister.

On the afternoon of May 1, 1990, Setzer and Horn attended a birthday party and commenced drinking alcoholic beverages at the party and thereafter, at Horn's residence. Witnesses observed Setzer consume six cans of beer at the party and Horn later admitted that she and Setzer consumed fourteen cans of beer at her residence. Horn expressed a desire to prevent her former husband from obtaining permanent custody at the custody trial scheduled for May 4, 1990. Defendant initially suggested tampering with the brakes and putting sugar in the gas tank of Stewart's automobile in an effort to scare Stewart. Defendant then decided to set the front door of Stewart's apartment on fire. Horn, aware that her daughter Melissa was not at Stewart's apartment, agreed.

Defendant and Horn drove to a gas station, purchased gasoline in a container and drove to Stewart's apartment. Defendant poured the gasoline in the apartment mail slot and ignited it. The apartment was occupied that night by Stewart, his current wife and their daughter, and by Stewart's mother and father-in-law. The fire erupted at approximately 11:00 p.m., when everyone except Stewart's mother-in-law, Josephine Silver, was asleep. Silver was able to arouse the other occupants, the police and fire department were summoned, and the fire was extinguished.

Sergeant Gary DeFoe of the Randolph Township Police Department questioned Silver and Stewart. Silver indicated that immediately before the fire she heard a "large car" with a "loud muffler" approach the apartment complex. Stewart indicated that Horn drove a blue Dodge. DeFoe proceeded with another police officer to Horn's apartment.

When DeFoe arrived at Horn's residence, there was a blue Dodge parked in the driveway. DeFoe felt the hood of the car and determined that the metal above the radiator was warmer to the touch than the surrounding metal on the car and concluded that the car had been driven recently. DeFoe also looked in a garbage can that was placed out by the road ready for garbage pick-up and found a rag that had a strong smell of gasoline on it.*fn2

DeFoe and the other officer knocked at Horn's door and proceeded to question Horn and defendant separately. Both Horn and defendant were still dressed in daytime clothes, and both stated that no one had driven the vehicle past 7:00 p.m. that evening. Although DeFoe detected an odor of alcohol coming from defendant's breath, DeFoe maintained that he did not appear to be drunk. DeFoe then left after explaining to Horn and defendant that the detective bureau may have to question them again at a later time.

The following day, George Wendt, an investigator employed by the Morris County Prosecutor's Office assigned to the arson unit of the white collar crime squad and an expert in the area of arson, arrived with Detective Wertman of the Randolph Township Police Department at the fire scene to investigate. Upon interviewing the victims of the fire and conducting a scene analysis, Wendt and Wertman obtained warrants to search Horn's apartment and vehicle. Through the use of a police dog trained in the detection of accelerants such as gasoline, the search resulted in the seizure of the rubber floor mat from Horn's car as well as shoes and a pair of bluejeans which belonged to Horn. Additionally, upon starting Horn's car, the police found that the engine sounded very loud and needed a new exhaust system. Wendt and Wertman then asked Horn to accompany them back to the Randolph Township Police Headquarters for questioning. At Horn's request, defendant accompanied them to the police department.

During Horn's interrogation, she admitted her involvement in setting the fire and implicated the defendant. Based on that information, defendant was advised orally of his Miranda rights,*fn3 signed a Miranda form and was questioned by Wendt and Wertman. Defendant's statement was neither taped nor written.

Before trial, defendant moved to suppress his oral statement. Both Wendt and Wertman testified at the Miranda hearing. Evid.R. 8(3) [now N.J.R.E. 104(c)]. Although the Miranda card bearing the defendant's signature was marked for identification, it was not offered into evidence. Wendt testified that initially defendant indicated that he and Horn never left Horn's apartment after 7:00 p.m., however, when confronted with Horn's admissions, defendant admitted his involvement in setting the fire.

At trial, defendant, testifying on his own behalf, maintained that he was an alcoholic and suffered from alcoholic blackouts where he would have memory losses after drinking, usually after consuming about four six-packs of beer. After defendant recounted an

extensive history of alcohol abuse, defendant testified that he remembered drinking with Horn at her apartment, but did not remember setting Stewart's door on fire or confessing to the police. The defense offered witnesses familiar with defendant's drinking habits who testified that his drinking had recently become excessive. Horn ...


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