On certification to the Superior Court, Appellate Division, whose opinion is Reported at 365 N.J. Super. 463 (2004).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue in this appeal is what, if any, predicate crimes must merge with a felony murder conviction for sentencing purposes when more than one predicate crime has been proven.
Anne King owned and lived in a three-story Asbury Park home named "King Manor," formerly used as a rooming house. Seventeen-year-old Damon L. Hill, defendant, as a practical matter, lived with his fourteen-year-old pregnant girlfriend, "Mika" Taylor. The Taylor family lived on the second- and third-floors of the house next door to King Manor. Mika's bedroom was located on the third-floor and her bedroom window was in close proximity to the ledge of a third-floor window to King Manor. Hill burglarized King Manor while the owner was away by climbing onto the ledge from Mika's window. On February 29, 1996, however, Hill broke into King Manor while King was home. Hill met up with King and bludgeoned her to death with a hammer.
Detective Frank Cavalieri of the Major Crimes Unit in the Monmouth County Prosecutor's Office went to the Taylor home to investigate after noting that the only unlocked window at King Manor was on the third-floor and that Mika's bedroom window was in close proximity to the King third-floor window. While at the Taylor home, Detective Cavalieri met with Hill. Hill was subsequently arrested on an unrelated outstanding juvenile warrant. At police headquarters, Hill's mother consented to the questioning of her son and Hill waived his Miranda rights. Hill admitted to being at the Taylor home on the evening of February 29, 1996 and that he had heard King had "bumped her head" and died. When asked if he had entered King Manor, Hill withdrew. Hill was taken to the Youth Detention center, where he confessed to three of his fellow inmates, on three separate occasion, that he had broken into King's home looking for money, had robbed her, and then had killed her with a hammer.
On September 1, 1998, the State moved to try Hill as an adult for the murder of King. That motion was granted on October 8, 1998. In May 2000, Hill was indicted for purposeful or knowing murder, felony murder, aggravated manslaughter, manslaughter, first degree armed robbery, second degree burglary, two counts of third degree burglary, two counts of fourth degree criminal trespass, third degree possession of a weapon for an unlawful purpose, and fourth degree unlawful possession of a weapon. One count of third degree burglary and one count of fourth degree criminal trespass relate to an earlier burglary of King Manor and the balance of the charges relate to the events of February 29, 1996.
Hill's first trial was held in March 2001. The jury acquitted him of the knowing and purposeful murder charge, but was unable to reach a verdict on the remaining charges. In October 2001, Hill was retried. This time the jury convicted Hill of felony murder, armed robbery, second degree burglary, two counts of third degree burglary, two counts of fourth degree criminal trespass, third degree possession of a weapon for an unlawful purpose, and fourth degree unlawful possession of a weapon. At sentencing on January 11, 2002, the sentencing court merged Hill's third degree burglary and fourth degree trespass convictions into his conviction for first degree armed robbery; the fourth degree unlawful possession of a weapon into the conviction for third degree possession of a weapon for an unlawful purpose; and the fourth degree criminal trespass conviction into his conviction for third degree burglary. As a result, for sentencing purposes, Hill was sentenced to thirty years imprisonment with a thirty-year period of parole ineligibility for felony murder, fifteen years imprisonment for first degree armed robbery, seven years imprisonment for third degree possession of a weapon for an unlawful purpose, and four years imprisonment for third degree burglary, all of the sentences to run concurrently.
Hill appealed and the Appellate Division affirmed his felony murder conviction, but vacated his convictions for third- degree possession of a weapon for an unlawful purpose, second-degree burglary, and first-degree robbery and remanded the case for modification of the sentence. State v. Hill, 365 N.J. Super. 463 (App. Div. 2004). The Appellate Division held that, in the absence of a special verdict indicating which predicate offenses the jury found as a condition precedent to a conviction for felony murder, all of the predicate offenses of which Hill was convicted merged into the felony murder conviction.
The Supreme Court granted the State's petition for certification.
HELD: There is a "compelling need for the use of special verdict [ ] [forms]," State v. Diaz, 144 N.J. 628, 644 (1996), under Rule 3:19-1(b) for the jury to designate which felony or felonies constitute the predicate crime for a felony murder conviction. If the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder - the "first-in-time" predicate felony - into the felony murder conviction.
1. In this State, the statutorily defined term "[c]riminal homicide" is defined as the purposeful, knowing or reckless murder, manslaughter or death by auto of another human being. N.J.S.A. 2C: 11-2. Felony murder is codified at N.J.S.A. 2C: 11-3(a)(3), the primary purpose of which is to ensure that "one who commits a felony should be liable for a resulting, albeit unintended, death..." State v. Martin, 119 N.J. 2, 20 (1990). By definition, a conviction for felony murder must have as its predicate the commission or attempted commission of either "robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism..." N.J.S.A. 2C: 11-3(a)(3). Inasmuch as the crime of felony murder requires a predicate crime, when more than one predicate felony is found by the jury the question becomes whether, and to what extent, one or more of such predicate crimes merges into the felony murder conviction for sentencing purposes. (Pp. 8-10)
2. Generally, State v. Brown sets forth this Court's "approach" to merger issues: "Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge." 138 N.J. 481, 561 (1994). In following this approach, we look to N.J.S.A. 2C 1-8a, "as it establishes the legislative parameters for merger of offenses," the purpose being to "avoid double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). The standard set forth in N.J.S.A. 2C 1-8a has been characterized as "mechanical" and a more "flexible" approach was pronounced in the pre-code case of State v. Davis, 68 N.J. 69 (1975). Indeed, merger analyses directly impact sentencing determinations and, therefore, we also must be mindful of the overarching consideration that "there can be no free crimes in a system for which the punishment shall fit the crime..." State v. Yarbough, 100 N.J. 627, 643 (1985). The quandary of which predicate crimes merge into a conviction for felony murder has led to two lines of analysis. The first, to which a number of states adhere, simply holds that an underlying predicate felony constitutes a separate offense and, hence, never merges into the felony murder conviction. The second requires that the prosecution charge each predicate offense as a separate charge of felony murder; if multiple convictions for the same death are returned by the jury, the court vacates any duplicative ones. A comparison of case law from other states yields two separate views: the "single predicate felony merger" view (only one predicate crime merges into the felony murder conviction) v. the "multiple predicate felony merger" view (all potential predicate offenses merge into the felony conviction). (Pp. 10-16)
3. Our own Appellate Division jurisprudence exemplifies the random confusion produced by these competing analyses and highlights the unevenness of our application of the merger doctrine. Our review of this jurisprudence leads us to conclude that, in the context of felony murder considerations, the best course is to simplify the merger determination. We therefore hold that there is a "compelling need for the use of special verdict [ ] [forms]," State v. Diaz, 144 N.J. 628, 644 (1996), under Rule 3:19-1(b) for the jury to designate which felony or felonies constitute the predicate crime for a felony murder conviction. If the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder - the "first-in-time" predicate felony - into the felony murder conviction. (Pp. 16-20)
4. The guiding principle here as applied to a merger analysis is clearly outlined in Rule 3:19-1(b): special interrogatories or special verdicts may be allowed when a written verdict sheet will "simplify the determination of a verdict when multiple charges are submitted to the jury." In the narrow circumstances presented here, we can simplify matters and provide the trial bench with a manageable procedure to follow. An unembellished special verdict form that asks the jury to identify the predicate felony on which the jury bases its felony murder conviction is a more reasonable approach to the merger question. (Pp. 20-22)
5. In this case, there was no request for a special verdict form and the jury found Hill guilty of, among other charged offenses, felony murder and, separately, the predicate robbery and burglary felonies. Because we hold that, in a felony murder prosecution, the predicate felony that was "first-in-time" - here, Hill's conviction for third-degree burglary under count five of the indictment - must merge into the felony murder conviction, we must remand for correction and re-sentencing. (Pp. 22-24)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO's opinion.
The opinion of the court was delivered by: Justice Rivera-soto
This appeal requires that we address a conflict in decisions from the Appellate Division and presents a discrete yet repeatedly vexing question: what, if any, predicate crimes must merge with a felony murder conviction for sentencing purposes when more than one predicate crime has been proven.
We hold that there is a "compelling need for the use of special verdict [forms]," State v. Diaz, 144 N.J. 628, 644 (1996), under Rule 3:19-1(b) for the jury to designate which felony or felonies constitute the predicate crime for a felony murder conviction. If the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder - - the "first-in-time" predicate felony - - into the felony murder conviction.
Although the factual background of this case does not greatly inform the outcome, it does provide some necessary context.
Until the mid-1980's, when she was in her mid-seventies, Anne King operated her three-story Asbury Park home as a rooming house named "King Manor." Acknowledging the decline in her neighborhood, King stopped renting rooms and engaged in a series of efforts to enhance the safety of her home: she had extra locks installed on her front door, she had her windows and back door nailed shut, she kept the rooms in her home padlocked, and she had her fire escape greased. Believing herself protected and inaccessible, King left the outside window and the interior door to one third-floor bedroom open and unlocked. The ledge of the unlocked window was approximately two feet from the window on the third-floor of the house next door.
In February 1996, the Taylor family lived on the second- and third-floors of the house next door. Their fourteen-year-old daughter, Mika, occupied the bedroom directly across from King's unlocked window. Mika's boyfriend and the father of her unborn child was defendant Damon L. Hill, who was then seventeen-years old. As a practical matter, defendant lived with Mika in her bedroom, from which all others were excluded as Mika and defendant purchased a separate lock for that bedroom, defendant had installed it, only Mika and defendant had keys to that lock, and Mika kept the bedroom door locked whenever she was not occupying the room.
Defendant soon discovered that King was a creature of habit. Among other things, she would leave King Manor every Wednesday to play bingo with her friends. Coupling this knowledge with his observation that the window to King's third-floor bedroom was only two feet away from his own bedroom window, defendant found a ready source of income by burglarizing King Manor during King's absences.
On Wednesday, February 28, 1996, King, by now 84-years-old, was picked up by her friend Diana Costanzo for an afternoon and evening of shopping, dinner and bingo. Costanzo returned King home at approximately 10:45 p.m. It was the last time Costanzo would see her friend alive.
The next day, Thursday, February 29, 1996, defendant broke into King Manor yet again, only this time King was home. She met up with defendant as she was returning to the living room from the kitchen with a light snack. King tried to return to the kitchen, but defendant struck her on the head with a hammer, sending the food tray she was holding careening down the hallway. King tried to protect herself; however, defendant continued to strike her repeatedly with the hammer, causing severe and multiple injuries leading to King's death from these blows.
Defendant dragged King's body down the hallway to the front of the house, a passage marked by a bloody trail on the carpet. Defendant left, returning to Mika's bedroom through the third floor window.
On returning to Mika's bedroom, defendant spoke with Mika's brother, Nicholas Taylor. According to Nicholas, defendant was standing in front of the open window, still holding the hammer he had used to brutally murder King, when he said: "I killed her. It just happened." Nicholas did not believe defendant and claimed he wanted to see for himself. At defendant's direction, Nicholas retraced defendant's entry into King Manor, went downstairs, saw King's body and returned the way he entered. By the time he ...