On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 98-9-2212-I.
Before Judges Kestin, Steinberg, and Alley.
The opinion of the court was delivered by: Steinberg, J.A.D.
REVISED OPINION FROM MAY 30, 2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 15, 2002
An Atlantic County grand jury returned Indictment No. 98-9- 2212 charging defendant Peter Vandeweaghe with one count of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) (2). A jury found defendant guilty of murder. Pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the trial judge sentenced defendant to a life term, with eighty-five percent of that term, or sixty-two years, six months, and nineteen days, to be served without parole. In addition, the judge imposed a period of five years of parole supervision upon defendant's release from prison. The appropriate mandatory monetary penalties, fees, and assessments were also imposed. Defendant appeals. We reverse.
According to the State's proofs, on July 24, 1998, at approximately 10:30 p.m., Gerome Neal, a bell captain at the Howard Johnson Hotel (Howard Johnson) on Chelsea Avenue in Atlantic City, said that a young male came into the hotel and asked him to call the police because"someone was getting beat up across the street." Neal looked out the window and observed a woman on the ground and a man kicking her. He went to the front desk and asked Melinda Bowman, the front desk manager, to call the police. Neal said another young male came into the hotel and asked that the police be called because someone was"being beat up across the street." In addition, an elderly couple came in and asked that the police be called. After the police arrived, Neal went outside and saw the police place the man he had seen kicking the victim in handcuffs. He also observed the police place the victim on a stretcher and into an ambulance. At trial, Neal identified defendant as the person he saw kicking the victim.
Earlier in the evening, at approximately 9:53 p.m., Atlantic City Police Officer Dennis McGee had been dispatched to the Flamingo Hotel (Flamingo) on Chelsea Avenue to investigate a report of a male beating a female. The Flamingo is diagonally across the street from the Howard Johnson. He observed the victim sitting at the top of the stairs, with defendant standing about ten feet away from her. He did not observe any fresh injuries on the victim, but asked if she wanted to sign a complaint or go to the hospital. According to McGee, the victim answered no to both inquiries. The Flamingo also declined to file a complaint. Consequently, McGee advised defendant and the victim to leave the area.
At 10:23 p.m. that evening, McGee was dispatched to the Howard Johnson. Upon his arrival, he observed defendant standing over the victim kicking her in the head. McGee got out of the car and approached defendant. He saw that defendant had the victim"by the arm and he was pulling her and telling her to get up." He recognized defendant as the person he had seen earlier at the Flamingo. However, the victim looked different. He said,"Her face was all puffed up, her eyes were closed. She looked pretty beat up."
McGee placed defendant under arrest and gave him his Miranda*fn1 warnings. According to McGee, defendant said,"I love her. I wouldn't hit her." On the way to the Public Safety Building, defendant said,"We don't have to do this, this isn't necessary." McGee said defendant had no problem communicating with him and was able to give McGee his pedigree information. Defendant's"speech was intelligible," and he was not"slurring." Defendant had no difficulty in walking, and he appeared"to understand everything that was going on." However, McGee detected an odor of alcohol emanating from defendant.
Atlantic City Police Officer Michael Ruzzo also testified on behalf of the State. He arrived at the Flamingo shortly after McGee, and he also responded to the dispatch to the Howard Johnson. Ruzzo observed the victim laying on the ground and defendant"standing over top of her." He said the victim looked different than she had earlier. She had some facial injuries, and was"somewhat out of it. She didn't respond. She was laying on the ground. She was like semi-unconscious." He said defendant appeared to have been drinking,"but he seemed to be functioning fine" and understood what was going on. Ruzzo informed the jury about two of his previous encounters with defendant, as well as conversations he had engaged in with defendant about drinking alcohol. Defendant told him"he could drink like six or seven quarts of beer, he'd have maybe one or two bottles of wine, and some vodka [daily]." Defendant also told Ruzzo he had been drinking that way for a long time. According to Ruzzo, on the night of the incident, defendant had no difficulty walking or talking.
Joshua May, a guest at the Howard Johnson, testified that he was outside the hotel when he observed a male standing and a female sitting on a ledge directly across from the hotel. The man was walking back and forth. He saw the man attempt to force the woman to stand, to no avail. She sat down on the sidewalk. According to May, the man slapped her, was"swearing at her and telling her to get the fuck up." He said the man then pulled"her like a person carries a person off a football field, they straddle the person's arm over them and carry them off." May also heard defendant accuse the victim of stealing"five beers from [him]." He then observed defendant kick the victim in the head"[a]t least five times." May described the kicks as"full extended kick[s]." May yelled at the man to stop, and was told,"[T]hat's my wife, she stole five beers from me." According to May, the couple appeared to be drunk.
Derwin Lewis, who was fourteen years old at the time of the incident, was also a guest at the hotel. He observed defendant and the victim arguing across the street from the hotel. He said defendant was"cussing at her" and then pushed her. The victim fell to the ground and defendant continued"cussing at her." Defendant accused the victim of taking his beer. Lewis stated that the victim was attempting to get up, but defendant held her down. He observed defendant kick the victim in the head anywhere between ten and twenty times. He went inside the hotel and asked Neal to call the police because a man was outside kicking his wife. Lewis described the kicks as"like direct blows."
On the way to Atlantic City Medical Center (ACMC), the victim became unresponsive and began to vomit. Dr. James Lowe, a neurosurgeon and a member of the staff of ACMC, received a telephone call during the early morning hours of July 25, 1998, asking him to report to ACMC. Upon his arrival, Dr. Lowe viewed a CAT scan performed shortly after the victim's arrival, showing a subdural hematoma so large it was compressing her brain and had shifted it from left to right. According to Dr. Lowe, the prognosis was"extremely dismal" with emergency surgery being the victim's only chance of survival. The surgery was performed. However, there was no neurological change and, a short time later, the victim was pronounced brain-dead. He said"the findings on the CAT scan were undeniably... that of an acute traumatic event, meaning minutes to hours prior to the time which the CAT scan was performed." He opined that the injury was consistent with a patient who had been kicked several times in the head area. After the family made its decision regarding organ donation and the cessation of life support, the victim died later that day.
Cape May County Medical Examiner Elliot Gross performed an autopsy on the victim. He concluded that the cause of death was cerebral compressing or pressure on the brain, as a result of acute, meaning very recent, subdural hemorrhage due to blunt force trauma caused by multiple blows to the head.
Defendant testified at trial. He stated that he was born in Paterson and had basically lived in Atlantic City since he was eight years old. Although he traveled, he always came back to Atlantic City and had lived there continuously for approximately six years prior to the incident. He said he returned to Atlantic City"trying to find [out] if [his] parents were still alive." He related that he was homeless and did what he"usually [did] when trouble [was] happening, [he] started drinking." He said the only time he abstained from drinking was when he was in jail after being arrested for"having open containers in public or panhandling."
According to defendant, homeless people gathered under the boardwalk and would drink there. That is how he met the victim. From the time they met, defendant and the victim were constant companions. They would"be together practically day and night all the time." According to defendant, he and the victim were such severe alcoholics that they would wake up shaking because they needed a drink. Before he went to sleep, he made sure he had a bottle of wine for himself and a bottle of vodka for the victim,"and some forty ounces of beer that [they] would hide so when [they] woke up early before the liquor ...