Before Judges Muir, Jr., Cuff and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 1999
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Angela DeRoxtro was tried under an Ocean County indictment charging her with the murder of Michael Brandt. A jury found her guilty of the lesser offense of aggravated assault under N.J.S.A. 2C:12-1b(1), and she was sentenced to ten years in prison. *fn1
On her appeal from that conviction and sentence, defendant makes the following arguments:
POINT I. THE TRIAL COURT'S DENIAL OF ANGELA DEROXTRO'S MOTION FOR SEPARATE TRIAL WAS REVERSIBLE ERROR ENTITLING HER TO A NEW TRIAL.
POINT II. THE TRIAL COURT'S FAILURE TO ADMIT THE HEARSAY STATEMENTS OF NEIL LABRANCHE WAS AN ABUSE OF DISCRETION.
POINT III. THE TRIAL COURT'S DENIAL OF ANGELA DEROXTRO'S MOTION FOR JNOV WAS IN ERROR.
POINT IV. THE SENTENCE TO ANGELA DEROXTRO WAS EXCESSIVE.
We are satisfied that the court did not abuse its discretion in denying defendant's requested severance; that the court's rejection of the hearsay statement of Neil LaBranche was not error; that there was no basis to set aside the jury's verdict; and there is no reason to conclude that the sentence was excessive. Accordingly, we affirm.
In April 1995, Michael Brandt, Angela DeRoxtro, Neil LaBranche, and Julie Hurt, lived together in an apartment in Seaside Heights. *fn2 According to Hurt, a principal witness at trial, the relationship between Brandt and defendant was "stormy," with frequent bickering and arguing. Hurt also said that defendant drank a lot, and Hurt blamed most of the couple's quarreling on defendant.
On the morning of April 17, 1995, Brandt and defendant began quarreling about responsibility for cleaning the apartment. The quarreling continued on and off during the day and into the evening. In addition to the cleaning issue, defendant said she wanted Brandt out of the apartment. He refused to leave, adding that he would not do so unless and until he received repayment of the rent he had already paid.
The quarreling culminated in a drinking game orchestrated by defendant at around 9:00 or 9:30 p.m. The game involved a deck of cards, with the participants instructing one another to drink if he or she incorrectly guessed the identification of a particular card. Hurt testified that defendant spoke privately to her and LaBranche and arranged to have the three of them cooperate against Brandt. Defendant said Brandt never drank and she wanted to see how he would act if he consumed a large quantity of alcohol. As the game proceeded, with Brandt being called upon to drink more than the others, Brandt became angry, complained that he had an ulcer and should not drink, and said he would not participate. He spoke loudly and angrily, and, according to Hurt, both she and defendant warned him against waking Hurt's baby.
Hurt also said that on prior occasions, defendant had asked LaBranche to take Brandt away from the apartment and beat him up. On April 17, she repeated that request, more than once.
During the evening, as the drinking game was in progress, LaBranche approached Brandt from the rear and struck him on the head with a set of "nunchakus" which had been left in the apartment some time ago and had been kept in defendant's dresser drawer. *fn3 Kelly Lewis said LaBranche hit Brandt five times with the nunchakus and then kicked and punched him. Hurt's testimony was consistent with that recitation, although she did not specify the number of blows. She did say there was more than one blow and that LaBranche had also punched Brandt "in the side of his face . . . [and] kicked him in the ribs."
Defendant then left the apartment and called the police, with Julie Hurt and Kelly joining her. When the police arrived, Brandt was sitting in the bathroom with blood on his face. He was taken to the hospital, but he died the next day.
At trial, Hurt and Kelly testified essentially as summarized above. In addition, however, Hurt said that defendant had asked her to lie to the police and say that Brandt had instigated the fight with LaBranche, and that LaBranche had struck Brandt only once. Initially she did as defendant asked, but she subsequently told the truth, notwithstanding a later request from defendant again asking her to lie.
The State's theory that defendant was guilty of murder was based on its claim that she had instigated the murder committed by LaBranche and she had provided him with the murder weapon. As noted, however, the jury did not find defendant guilty of ...