Submitted November 17, 1997
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Havey, Newman and Collester.
The opinion of the court was delivered by: Collester, J.s.c. (temporarily assigned)
Defendant was convicted following a jury trial of murdering and sexually assaulting Gail Shollar as well as kidnapping her and her three-year-old daughter, A.S., in their vehicle from a supermarket parking lot on November 3, 1992. He received a sentence of life imprisonment with thirty years of parole ineligibility for murder and a consecutive term of 100 years with fifty years of parole ineligibility for the other crimes. He appeals both his conviction and sentence. We affirm.
Defendant makes the following legal arguments on appeal:
POINT I THE TRIAL COURT ERRED WHEN IT REFUSED TO SUPPRESS INCULPATORY STATEMENTS MADE BY THE DEFENDANT.
A. THE INVESTIGATIVE DETENTION ORDER WAS A SHAM AND CREATED A COERCIVE ENVIRONMENT THEREBY REQUIRING SUBSEQUENT INCULPATORY STATEMENTS MADE BY THE DEFENDANT WHILE IN CUSTODY TO BE SUPPRESSED.
B. DEFENDANT'S STATEMENTS TO JO ANN KEITH IN WHICH HE CONFESSED TO STABBING GAIL SHOLLAR SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL JUDGE BECAUSE SUCH STATEMENTS WERE MADE IN VIOLATION OF DEFENDANT'S MIRANDA RIGHTS.
C. STATEMENTS MADE BY THE DEFENDANT TO SERGEANT PAUL OST AND TO OFFICER QUIGLEY SHOULD HAVE BEEN SUPPRESSED.
PREJUDICIAL ERROR WAS COMMITTED BY THE TRIAL JUDGE WHEN HE PERMITTED MARK JANSEN TO TESTIFY AS TO THE MEANING OF THE TERM "GET PAID" WHICH WAS SAID TO JANSEN BY THE DEFENDANT IN A CONVERSATION.
THE TRIAL JUDGE ERRONEOUSLY CHARGED THE JURY WITH RESPECT TO FIRST AND SECOND DEGREE KIDNAPPING AS TO COUNT EIGHT. THE TRIAL JUDGE'S CHARGE WITH RESPECT TO THE MEANING OF "UNHARMED AND IN A SAFE PLACE" WAS ERRONEOUS.
PLAIN AND PREJUDICIAL ERROR WAS COMMITTED BY THE TRIAL JUDGE WHEN HE DID NOT GIVE A JURY INSTRUCTION ON INTOXICATION.
THE TRIAL COURT'S CHARGE WITH RESPECT TO THE DEFENSE OF DIMINISHED CAPACITY WAS ERRONEOUS BECAUSE IT FAILED TO STATE THAT THE DEFENDANT COULD BE ACQUITTED IF THE JURY FOUND THAT THIS DEFENSE WAS PRESENT.
THE DEFENDANT'S OVERALL SENTENCE SHOULD BE VACATED BECAUSE IT VIOLATES THE SENTENCING GUIDELINES SET FORTH IN State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986).
The State presented the following facts. On Tuesday evening, November 3, 1992, the Shollar family, husband Robert, wife Gail, and three children had dinner together at their Piscataway home. At 7:30 p.m. Gail along with her three-year-old daughter, A.S., left in the family's 1992 Plymouth Voyager minivan to return a videotape of "Beauty and the Beast" to a local video store and do some grocery shopping at the Pathmark Supermarket in the Middlesex County Mall. She never returned to her home again. Computer records show that she rented another video, "All Dogs Go To Heaven," at Quick Video at 7:54 p.m. and completed her shopping at Pathmark at 9:06 p.m.
At about 5:00 p.m. that afternoon, defendant's former girlfriend, Jo Ann Keith, met him in Plainfield and drove him back to her home at 6 Halley Court in Piscataway. At 6:30 p.m. defendant knocked on the door at 17 Water Street, the nearby residence of Mark Jansen and his mother, Barbara. Mark did not personally know defendant although he was familiar with him since he had stolen cars with defendant's brother. Defendant was dressed in dark clothing and appeared to Jansen to be high, wide-eyed and jittery. He asked Jansen if he wanted to steal a car to get money for drugs. Jansen refused, claiming a headache, and defendant told him, "ou motherfuckers think I'm playing. I'm going to get paid." Jansen construed the remark to mean that defendant was going to get either money or sex. At the end of the five-minute conversation, defendant mumbled something about a mall and walked down Jansen's driveway toward the Middlesex County Mall.
Later that night between 10:00 and 10:10 p.m. Barbara Jansen, Mark's mother, answered a knock on her door. A black man with a goatee and dark clothing whom she did not know was standing under her porch light and asked if her son was home. When she said no, the man left.
Robert Shollar had worked the late shift the night before and fell asleep at about 10:00 p.m. When he awoke at about 2:30 a.m. and found that Gail and A.S. were not home, he called the Piscataway Police Department.
At 6:20 a.m. on Wednesday, November 4, the Piscataway police received a call from Michelle Carnavale, a teacher's assistant at the First Class Day Care Center, saying that a cold and wet little girl had been found on the grounds and that she was crying and would not answer any questions. After the police called Robert Shollar and told him that they had found a little girl matching A.S.'s description, he went to the day are center and identified A.S., who was scared and crying.
On the way to the Piscataway Police Department, A.S. told her father that "a bad man got mommy." She described the man as a black man, wearing black pants and a black shirt with an "X" on it. She then said that the man had a knife and mommy was crying. At the police station A.S. told Ellen Marie Price, a sergeant in the Middlesex County Prosecutor's Office, that outside the supermarket, a black man with a knife had grabbed her mother by the shirt and got into the van. She said that her mother was crying and seemed scared. Her mother drove with the black man who was still there when she was let out of the van.
While A.S. and her father were at police headquarters, Piscataway police responded to a call concerning a suspicious van on Poplar Road at the corner of Water Street near Halley Court. The driver's side window was partially open, and the keys were in the ignition. Lying on the floor was Gail Shollar's driver's license. Bloodstains were observed on the driver's door as well as on the inside carpet and on a plastic bag and a roll of paper towels. Groceries from Pathmark Supermarket were in the cargo area.
John Haley of the Middlesex County Prosecutor's Office Identification Bureau found a latent print on the sliding door of the passenger side of the van as well as a print on a paper towel wrapper in the back of the van. He also retrieved a sanitary napkin, clothes of Gail and A.S. and a Sports Park coin on the floor near Gail's purse.
Members of the Piscataway Police Department and the Middlesex County Sheriff's Department immediately commenced a search for Gail Shollar in the vicinity of the recovered van and canvassed the surrounding neighborhoods for possible witnesses. That morning the police knocked on Barbara Jansen's door and asked her whether she had observed anything the night before. She described the previous night's visitor and told police of finding blood drippings on a leaf and her outside steps earlier that morning when letting her pets outside. The officer summoned a sketch artist from the sheriff's department and prepared a composite sketch with Barbara Jansen of the person she saw the previous night.
Police also spoke with Mark Jansen who said that he was uncertain of the identify of the person who had come to his house the prior night but that he would try to find out. In the course of other interviews it was determined that defendant had previously lived at 6 Halley Court with Jo Ann Keith but had moved to Plainfield.
Also on November 4, Jo Ann Keith spoke with defendant and told him that there were police in the area of her home because a stolen van had been found. He replied, "It's probably more than that." Keith saw a cut on defendant's right index finger and later went with him to two stores for bandaids and first aid cream.
While trying to locate defendant, the police spoke with Kazim Kirkland, the live-in boyfriend of defendant's sister, Tamika, who lived with defendant at 1315 Astor Place in Plainfield. In a statement he later recanted on cross-examination, Kirkland said he woke up at 5:30 on November 4, to find defendant cleaning a large cut on the index finger of his right hand. Kirkland told police that defendant confided that he had killed a woman he intended to rob after dropping her child off a few blocks from where the killing took place. He also said that defendant told him he wiped down the van and complained that the woman only had a $1.90. He also gave Kirkland a Sports Park token in some change for a coin washer/dryer.
Tamika Johnson overheard defendant talking to Kirkland on November 4, and Kirkland saying, "For real, you did?" She said that after the conversation, Kirkland told her that defendant told him that he had killed the woman. She also said that defendant later told her that "the lady was found in a ditch" and if the police asked about his cut finger, she should tell them that he cut it washing dishes.
On Friday, November 6, defendant told Jo Ann Keith that he was going to Pennsylvania with a friend. She saw a newspaper sketch of the suspected kidnapper and accused defendant of being responsible. He denied it and told her that he cut his finger in the woods behind a friend's house. Later he told her that Mark Jansen committed the crime.
Piscataway Detective Michael Blair and Detective Charles Clark from the Middlesex County Prosecutor's Office questioned defendant on Friday, November 6 on the street outside of his Plainfield residence. Detective Blair called him by name. When defendant walked to the detectives, Clark extended his right hand to shake hands. Defendant put out his left hand, keeping his right under his jacket pocket. In response to the detective's questions, defendant maintained that he had not visited Piscataway recently because of a problem he had with his girlfriend's daughter. During the conversation, he took his right hand out of his pocket, and both detectives saw a large bandage on his index finger. When Detective Clark asked about it, Johnson said he had cut it while washing dishes several days earlier. The detectives left after defendant declined to accompany them to police headquarters.
The following morning, November 7, 1992, a rescue squad member found the nude body of Gail Shollar partially submerged in several inches of water in a drainage ditch located behind a lumber yard near Jo Ann Keith's house on Halley Court. Numerous wounds were observed on her chest, forearm, neck and face. She was pronounced dead at 11:27 a.m.
The autopsy revealed that Gail Shollar had been stabbed over forty times including a slash wound on her throat with an inch and a half gape down to her spinal cord. The Middlesex County Medical Examiner concluded that the cause of death was hemorrhagic shock and severe trauma to the vital organs caused by multiple and massive stab wounds with an estimated time of death of approximately 10:00 p.m. on November 3, 1992. Further examination by a vaginal smear revealed the presence of intact spermatozoa. *fn1
Early that Saturday afternoon Detectives Blair and Clark interviewed Mark Jansen about his visitor on the night of November 3. At this time Jansen said that it was defendant and told of Johnson's comment about "getting paid." The detectives also learned that Barbara Jansen picked out a photograph of defendant as the man she saw standing on her porch the night of the murder.
Armed with this information, Detectives Clark and Blair along with Assistant Prosecutor Thomas Kapsak on the evening of November 7 sought and obtained an order from Superior Court Judge Robert P. Figarotta for investigative detention of defendant to permit full nude body photographs as well as samples of blood, nail scrapings, nail clippings and fingerprints. On their return to Piscataway Police Department at about 8:15 p.m., they were told that a positive match had been made between a set of defendant's inked palm prints on file and the prints found on the victim's van. They then went searching for defendant and eventually found him at Jo Ann Keith's residence at 6 Halley Court in Piscataway.
Johnson was taken without resistance to the police station at about 9:30 p.m. The order for investigative detention was explained to him, including the fact that the order permitted his detainment for a period not to exceed six ...