On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 3700-12-01.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C. S. Fisher and Yannotti.
Tried to a jury, defendant was convicted of passion/provocation manslaughter, felony murder and other offenses. Defendant appeals his convictions and the sentences imposed. For the reasons that follow, we affirm in part, reverse in part and remand for resentencing on the conviction for passion/provocation manslaughter.
Defendant was charged in a Camden County indictment with the murder of Kollin Pimental (Kollin), N.J.S.A. 2C:11-3a(1) or (2) (count one); the murder of Lisa Pimental (Lisa), N.J.S.A. 2C:11-3a(1) or (2) (count two); felony murder of Kollin, N.J.S.A. 2C:11-3a(3) (count three); felony murder of Lisa, N.J.S.A. 2C:11-3a(3) (count four); aggravated arson, N.J.S.A. 2C:17-1a(1) (count five); hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (count six); and contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9b (count seven).*fn1
We briefly summarize the evidence presented at trial. In the latter part of September 2000, defendant purchased a home in Sicklerville, New Jersey. Defendant moved into the home with Lisa and Kollin, her son by a previous relationship. In mid-October 2000, following a domestic dispute, Lisa obtained a temporary restraining order which barred defendant from the Sicklerville residence. Notwithstanding the terms of the order, defendant was at the house at times during the day and into the evening hours on October 28, 2000.
Sometime after midnight on October 29, 2000, one of defendant's neighbors heard a loud explosion. The neighbor looked out her window and saw flames coming out of the door on the side of defendant's house. The neighbor called 9-1-1, reported the fire, and ran to the house with her husband. The neighbor observed defendant "stumbling along" the driveway, away from the house. Defendant dropped "face-down onto the ground" and said his "wife" and the baby were upstairs in the rear bedroom.
The neighbor's husband attempted to enter the house but was prevented from doing so by the smoke and flames. An officer of the Gloucester Township Police Department (GTPD) arrived and observed defendant on the ground. The officer testified that defendant was "smoldering" and he recognized the smell of burning flesh. The policeman obtained a ladder from a neighbor and attempted to enter the second-floor bedroom but could not do so because of the smoke and heat.
Firefighters and emergency medical personnel arrived. They cut the clothing from defendant to stop the burning of his skin.
Defendant's entire face was blackened and he had burns down to the muscles. Defendant was placed on a stretcher, removed by ambulance, taken to a helicopter and flown to a hospital in Pennsylvania. Later, the fire marshals found the burned bodies of Lisa and Kollin in the kitchen on the first floor of the house. Parts of a broken hammer were found near Lisa's body.
Dr. Robert Segal (Segal), the Camden County Medical Examiner at the time, performed autopsies of the victims. Segal testified that Lisa died, not of asphyxiation due to fire, but rather from a depressed skull fracture that caused bleeding and bruising to the brain. Segal testified that, although Lisa suffered from asthma, there was no evidence that she had an acute asthmatic attack at or about the time of her death. Segal also stated that Kollin died as a result of smoke inhalation and thermal burns, with no other contributing cause.
Dr. John E. Adams (Adams), defendant's expert in forensic pathology, testified that Lisa's skull fracture was not "a typical hammer fracture." Adams said that it was a "linear fracture" rather than a "punched-out" fracture. However, on cross-examination, Adams conceded that the fracture could have been caused by the blow of a hammer.
Adams said that there was an "appearance" of an acute asthmatic attack, based on mucus production found in the glandular lining of Lisa's bronchi. Adams stated that the attack was not due to an allergic reaction but possibly due to an emotional or stressful event. Adams opined that Lisa's death was caused by the head injury and asthma. He further opined that Kollin died from the inhalation of hot gasses and carbon monoxide.
Camden County Deputy Chief Fire Examiner Gene Dannenfelser (Dannenfelser) testified that he and Deputy Fire Marshall John West (West) performed an investigation into the origin and cause of the fire. Dannenfelser and West used a dog trained to detect the presence of accelerants. The dog gave the investigators "positive indications" in the center hallway of the house. Dannenfelser testified that it appeared that the fire began on the first floor and traveled to the second floor. Dannenfelser said that he believed an accelerant had been used, along with an open flame, to ignite the accelerant. Ronald F. Decker (Decker), defendant's expert in fire investigations, agreed with the fire inspectors' determination regarding the origin and progression of the fire. He stated that about a quart of gasoline had been used but the cause of the fire was "undetermined."
The clothes removed from defendant when he received emergency assistance were tested by forensic scientists at the State Police laboratory. The tests revealed a residue of gasoline on defendant's socks, jeans, and sneakers. The tests also revealed that Kollin's blood was on defendant's sock and pants, and Lisa's blood was on defendant's pants and left sneaker.
Defendant testified on his own behalf. He stated that he began dating Lisa in May 2000 and in the period from May to July 2000, he would stay with Lisa at her house one night each weekend. In the summer of 2000, defendant and Lisa fought and broke off their relationship. However, they resumed dating in July 2000. They talked about moving in together and getting married. In late August 2000, defendant agreed to purchase the house in Sicklerville.
The closing took place on September 29, 2000, and defendant moved in that day. Lisa and Kollin moved in the following day. Defendant said that he and Lisa lived together without any problems until October 11, 2000, when they had a dispute because Lisa had not washed his clothes. Defendant took his clothes to his father's house to wash them there. He returned after 11:00 p.m. and told Lisa that he thought they should put off the wedding. According to defendant, Lisa gave him the "cold shoulder" and left the room.
Defendant went upstairs and began his usual exercise routine. Defendant said that he was laying on the floor, doing sit-ups and push-ups. Defendant recounted that when he pushed up, he lifted the mattress, and Lisa fell to the floor. Lisa got up and "slugged" him in the face with a closed fist. Some time later, Lisa told defendant that she was going to pack some things and leave.
In the morning, defendant went to the local police to inform them "about what [had] happened" with Lisa. Defendant was told that Lisa had obtained a domestic violence restraining order and that he could not have any contact with her. Defendant was escorted to his home by two uniformed officers so that he could gather his clothing and some of his personal belongings. Afterwards, defendant returned to the police station and filed a complaint against Lisa for striking him in the face with her fist.
Defendant testified that he had no contact with Lisa until she called him on October 19th. They met at a diner and talked about working out their problems. According to defendant, Lisa was glad to see him. However, they did not discuss his moving back into the house in Sicklerville. Lisa called the next day because she wanted to "work things out." On October 21, 2000, Lisa called again and said that she wanted to go shopping for a clothes washing machine and dryer. Defendant accompanied her to the store, purchased the washer and dryer, loaded the machines on a truck, and drove home. Defendant installed the machines in the house. Defendant did not stay the night.
Defendant also said that in the week before the fire, he performed work around the house, including cutting the grass and making sure that "everything looked clean and nice and neat." Defendant and Lisa returned to court on October 24th. The restraining order was extended to November 27, 2000, and defendant agreed to take anger management counseling.
On the morning of October 28, 2000, defendant provided funds to Lisa for her car payment. He also purchased new tires for Lisa's car and helped Lisa and Kollin decorate the house for Halloween. Later, the couple ordered Chinese food and they watched television. After Kollin fell asleep, Lisa brought him upstairs to his bed. She returned, wearing only a T-shirt. Defendant and Lisa were "almost" intimate but defendant said that he was tired and "couldn't do it." Lisa gave defendant the "cold shoulder" and stopped speaking to him.
Sometime after midnight, defendant decided to leave. Defendant went to the shed in the rear of the house to collect some tools so that he could make certain repairs at his father's house. Defendant was in the shed about fifteen minutes and then went to his vehicle. Defendant said that he was returning to the shed when he saw the fire. Defendant denied that he did anything to hurt Lisa or Kollin. He said that he did not kill Lisa or Kollin.
The jury found defendant not guilty of murder on count one, but guilty of the lesser-included offense of the aggravated manslaughter of Kollin; not guilty of murder on count two, but guilty of the passion/provocation manslaughter of Lisa; guilty of the felony murder of Kollin as charged in count three; not guilty of the felony murder of Lisa as charged in count four; not guilty of first-degree arson as charged in count five, but guilty of the lesser-included offense of third-degree arson; ...