On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by
Defendant was indicted for terroristic threats, N.J.S.A. 2C:12-3 (counts one and nine); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts two and four); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); third degree endangering the welfare of children, N.J.S.A. 2C:24-4 (count five); purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (count six); possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count seven); possession of a firearm for the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4a (count eight), and witness tampering, N.J.S.A. 2C:28-5 (count ten). The first three counts involved acts against defendant's wife, Elizabeth Lado, between January 1 and March 15, 1989. The fourth and fifth counts related to other criminal acts during the same period. Counts six, seven and eight involved the murder and possession of a firearm on March 15, 1989. Counts nine and ten involved events involving defendant's wife between March 15, 1989 and June 1, 1989.*fn1
Defendant made several pretrial motions, including one to sever the counts not related to the March 15, 1989 events from the remaining counts of the indictment. The motion was granted only in part, and counts four and five were severed for purposes of trial.
Defendant was found not guilty of count three, but guilty of the remaining charges on which he was tried.*fn2 On the murder conviction, defendant was sentenced to life imprisonment, with thirty years to be served before parole eligibility. Concurrent sentences were imposed on the other counts. An aggregate of $180 in V.C.C.B. penalties was also imposed.
Defendant appeals and argues:
POINT I THE INDICTMENT IMPROPERLY JOINED COUNTS ONE THROUGH THREE TO COUNT SIX (THE MURDER COUNT)
A. The counts were improperly joined because they were not connected or part of a common scheme or plan.
B. The Judge's instructions were inadequate because they did not caution the jury to deliberate separately on each of the counts. (Not Raised Below).
C. Prosecutor's comment in summation (Not Raised Below).
D. The joinder of counts was prejudicial.
POINT II THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE CONFIDENTIAL COMMUNICATIONS BETWEEN DEFENDANT AND HIS FORMER WIFE.
POINT III THE TRIAL JUDGE ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR REFERRED IN HIS OPENING TO EVIDENCE THE JUDGE HAD PREVIOUSLY RULED WAS UNDULY PREJUDICIAL.
POINT IV THE PROSECUTOR'S FAILURE TO DISCLOSE PRIOR TO TRIAL DEFENDANT'S ALLEGED INCULPATORY STATEMENTS DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONVICTION SHOULD HAVE BEEN MERGED WITH THE MURDER CONVICTION BECAUSE THERE IS NO EVIDENCE THAT DEFENDANT HAD A BROADER UNLAWFUL PURPOSE THAN THE MURDER. .
POINT VI DEFENDANT'S SENTENCE WAS EXCESSIVE BECAUSE THE TRIAL JUDGE MISTAKENLY CONCLUDED THAT DEFENDANT'S RECORD SHOWED A HISTORY OF AGGRESSIVE BEHAVIOR WHEREAS DEFENDANT HAD NEVER BEEN CONVICTED OF A VIOLENT CRIME. .
We reject defendant's arguments addressed to his conviction and the aggregate sentence. We conclude, however, that the conviction for possession of a firearm for an unlawful purpose (count eight) must merge into the murder conviction. In reaching our Disposition, we develop only the issues and related facts which warrant extended Discussion. R. 2:11-3(e)(2).
Defendant was employed by Delta Plastics Co. in Newark as a senior maintenance mechanic. The homicide victim, Galo Herrera, was a night shift supervisor and brother of Delta's day shift production manager. Defendant had a poor relationship with the Herrera brothers. Defendant also had problems with his marriage. The evidence revealed that defendant had threatened his wife on numerous occasions in the months before the shooting of Herrera. Defendant was apparently motivated, in part, by a belief that his wife was having an affair with Ed Smith, Delta's plant manager and defendant's supervisor.
Before Herrera was shot, defendant threatened to kill his wife, Smith, and the victim's brother who had a close working relation with Smith. Approximately one week before the homicide, defendant told his daughter that he wanted to kill Galo Herrera. Defendant also told his wife that he was going to kill someone at work.
Defendant had a history of mental illness. He apparently believed that co-workers were entering his home at night, with his wife's assistance, shooting him with needles, molesting his daughter and forcing him to engage in oral sex. Defendant also believed his co-workers were putting things into his food at work, drugging his coffee and listening in on his telephone calls.
About a month before Herrera's death defendant attempted to shoot his wife. On that occasion (which is the subject of count three), defendant took his wife from the house where his children were watching and dragged her into the garage. When his wife denied cheating on him, defendant called her "a liar" and shot twice in her direction. He subsequently explained that the shots ...