On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-01492.
Before Judges Havey, Braithwaite and Weissbard.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 02/07/02
Submitted October 15, 2001
The central issue in this appeal is whether defendant's murder conviction should be reversed because of the judge's charge to the jury that the act of homicide permits the jury to draw an inference that defendant's "purpose was to take life or cause serious bodily injury resulting in death." We conclude that the instruction was erroneous and had the clear capacity to produce an unjust result. See R. 2:10-2. We therefore reverse defendant's murder conviction and remand for a new trial on that offense. Because defendant will have to be retried on the murder charge, we address the admissibility of certain portions of decedent's diary and a certain letter written by decedent, that were admitted into evidence by the State. We also address certain sentencing issues that the State concedes are errors and the applicability of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, to a murder conviction in the event defendant is convicted of that offense following a retrial.
Following a jury trial, defendant was convicted of murder, N.J.S.A. 2C:11-3a(1) and (2); hindering apprehension, N.J.S.A. 2C:29-3; fourth degree theft of a credit card, N.J.S.A. 2C:21-6c; and four counts of third degree unlawful use of a credit card, N.J.S.A. 2C:21-6d. The victim of the murder and the credit card offenses was defendant's girlfriend, Lora M. Freyer. At sentencing, the judge determined that NERA applied to defendant's murder conviction and imposed a life term with a sixty-three and three-quarter year period of parole ineligibility. A consecutive five-year term with a two-year parole bar was imposed on the hindering apprehension conviction. A consecutive eighteen-month term with a nine-month period of parole ineligibility was imposed on the theft of the credit card conviction. Fifteen-month terms with six months of parole ineligibility were imposed on each of the unlawful use of a credit card convictions, to be served concurrently with each other but consecutively to the other sentence. Defendant's aggregate sentence was life imprisonment plus seven years and nine months, with a sixty-seven-year parole bar.
On appeal defendant raises the following contentions:
THE JUDGE'S CHARGE IMPROPERLY REDUCED THE STATE'S BURDEN OF PROOF TO A STANDARD LOWER THAN BEYOND A REASONABLE DOUBT AND THEREBY VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below)
THE ADMISSION OF HIGHLY PREJUDICIAL AND IRRELEVANT EVIDENCE OF OTHER BAD ACTS, ALLEGEDLY COMMITTED BY DEFENDANT, DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).
A. The Other Bad-acts Evidence.
B. The Court's Limiting Instruction.
THE FAILURE TO REQUIRE THAT THE JURY MAKE A SPECIFIC FINDING ON COUNT TWO, HINDERING APPREHENSION, AS TO DEFENDANT'S CONDUCT CAUSED THE POTENTIAL OF A NON-UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1). (Not Raised Below)
THAT PORTION OF DEFENDANT'S SENTENCE UNDER NERA WHICH REQUIRES HIM TO SERVE A [SIXTY- THREE AND THREE-QUARTER-]YEAR PERIOD OF PAROLE INELIGIBILITY AND AN ADDITIONAL [FIVE] YEARS OF PAROLE, MUST BE VACATED AS IT IS ILLEGAL.
DEFENDANT'S AGGREGATE CONSECUTIVE SENTENCE OF LIFE IMPRISONMENT PLUS SEVEN YEARS, NINE MONTHS WITH AN AGGREGATE [SIXTY-SEVEN-]YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We reverse and remand in part and affirm in part.
The evidence was clear that defendant killed Freyer on August 23, 1998, in Sayreville. They had lived together since March 1996, and became engaged in 1997. In April 1998, they moved together to an apartment in Sayreville.
Defendant and Freyer were having difficulties with their relationship preceding Freyer's death. Their troubles centered around defendant's loss of employment, his drug use and his taking money from Freyer to support his drug use. Freyer was pregnant at the time of her death. Freyer's pregnancy also added a further strain to their relationship.
Two days after Freyer's death, defendant notified her mother that Freyer was pregnant and missing from their apartment. Freyer's mother advised defendant to notify the police, which he did.
Freyer's body was discovered on August 25, 1998, by an individual who was walking in the woods at Bailey Park in Sayreville. The police were notified and subsequently interviewed defendant. At police headquarters, defendant voluntarily provided a tape recorded statement about having reported Freyer missing and said that he had last seen Freyer at 7:00 p.m. on August 24, 1998. Subsequently, the police interviewed defendant's cousin, George Carty. Carty told police he and defendant smoked cocaine everyday from mid to late August 1998. Carty explained that he had moved into defendant's and Freyer's apartment and that on August 23, 1998, at approximately 10:00 p.m., defendant and Freyer had left the apartment. When they left, they were arguing. Carty told police that defendant returned to the apartment at 11:30 p.m. and said that Freyer was at her father's home. Carty never saw Freyer again. Further, Carty told police that when defendant returned to the apartment, he had no bruises or scratches and his clothes were not disheveled.
The police officers who interviewed Carty and defendant compared their statements and noticed a discrepancy with respect to the last time defendant saw Freyer. Defendant was then interviewed again. He was given his Miranda*fn1 warnings and voluntarily waived his rights and gave an oral statement to the police.
In his statement, defendant admitted that he had lied about when he had last seen Freyer. He acknowledged that he and Freyer argued over his drug use and the fact that he had lost his job because of his drug use.
He told police that he and Freyer drove to Bailey Park to talk. He acknowledged that they continued to argue and then Fryer "smacked him with an open hand." He said he "grabbed [Freyer] by the neck" with his open right hand and "threw her backwards, causing her to fall down an embankment."
Defendant further told the police that:
He went down to check on her, and he found she was not breathing. He believed that she was dead at that point. He then indicated that he dragged the body by the arms down the hill further to a wooded area, and he covered her up with a cardboard box that was in the area.
He then indicated that he panicked during the situation. He did not know what else to do with her. He also indicated that Carty was not present during this incident.
He further indicated that at no time did he seek medical aid for Lora Freyer, and that he did believe that she was dead at that point. He also indicated that he never returned back to the scene.
Defendant admitted to using Freyer's credit cards after her death. After defendant's oral statement, he agreed to provide a tape- recorded statement. He was, again, given his Miranda warnings. In the taped statements, although defendant admitted that he killed Freyer, he said he pushed her by the neck to get her "to stop smacking [him]." He claimed the contact with Freyer's neck was only a couple of seconds, just "to hold her off [him]." He was unable to say whether he grabbed her neck tightly or loosely, but admitted that his hand went around her neck.
Following defendant's arrest, the police confirmed that defendant had used Freyer's credit card four times after her death, withdrawing $760 from her bank account on August 24, and 25, 1998. All of the withdrawals occurred at the same bank.
On August 26, 1998, the police received Freyer's diary from her mother. The diary detailed Freyer's conflicts with defendant over drugs, money, his lack of employment, his absences from the apartment, and his theft of her credit card to withdraw money from her account. On August 19, 1998, Freyer wrote in the diary that because of defendant's actions, she was going to leave him. A letter that Freyer wrote to defendant, but never mailed, was also found in the diary. In the letter she spoke about their problems and her pregnancy and defendant's "need to get a job to help [her]." Certain portions of the diary and the entire letter were admitted into evidence.
The State produced an expert, Jack Titus, M.D., a forensic pathologist, on the cause of Freyer's death. He testified that Freyer died because of "asphyxiation due ...