December 12, 2007; as amended December 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN FLEMING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1790.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Wefing and R. B. Coleman.
Defendant, John Fleming, appeals from his conviction of aggravated manslaughter, as a lesser-included offense of murder, for which he was sentenced to twenty-two years in prison. We affirm.
On December 21, 2003, defendant, who was living in the Newark home of G.J. and her two children, killed G.J. Defendant and G.J. were paramours, and on the morning in question, they became involved in an argument that ended in her death.
One of the children, ten-year-old S.J., was awakened by a loud noise in the kitchen. When S.J. entered the kitchen, he saw defendant on top of his mother, stabbing her repeatedly with a knife. S.J. called 9-1-1 to report what was happening. Later, when interviewed by detectives, S.J. indicated that "Skin," the name by which he knew defendant, had killed his mother. He also identified defendant by pointing to his photograph.
An autopsy revealed that G.J. sustained twenty-five sharp object injuries to her body. Two of the injuries were considered lethal: (1) a wound to the right side of the base of her neck which had cut the carotid artery and jugular vein, and (2) a wound to the left side of her chest which would have caused asphyxiation. Among G.J.'s other wounds were several cuts on her hands which, according to the medical examiner, were consistent with defensive wounds.
Defendant turned himself in to police the following morning. After signing a form waiving his Miranda rights*fn1 , defendant gave the following inculpatory statement to police:
What happened was this thing just got out of hand. I had come home around 3:30 in the morning and laid on the couch after comeing [sic] from the bar. I was sleeping. I heard loud music, woke up, went to the bath room, came back and told [G.J.] why you playing that music so loud? She said it was her house. I got mad and said "I stay here. Where that come from that it's your house?"
We started to argue and then one thing led to another and I picked up the little knife from by the stove. She started yelling and we were tussling and before I knew it we was [sic] on the floor fighting and I stabbed her I am not sure how many times in up by the chest area. I saw the blood. I got up, got my jacket and just left and that's it.
At trial, defendant's testimony regarding the incident was slightly different. He then indicated that he and G.J. argued over the volume of the music, and as he reached to lower the radio volume, G.J. picked up the knife from the countertop. They fought, and he ended up stabbing G.J. After the incident he called his friend, George, and that night, George first drove him to the home of another friend, Regina. Thereafter, they went to a mini-precinct on South Orange Avenue and then to another precinct in the South District. No one at either precinct would take a statement from him because the police had not yet been alerted to an incident and because there were no outstanding warrants for defendant's arrest. The next day, he successfully surrendered himself to police in Newark and gave a statement concerning the incident.
Defendant was charged in Essex County Indictment No. 04-04-01790 with purposeful and knowing murder in violation of N.J.S.A. 2C:11-3a(1), (2) (count one); fourth degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d (count two); and third degree possession of a knife with an unlawful purpose, N.J.S.A. 2C:39-4d (count three). After trial before Judge Joseph C. Cassini and a jury, defendant was acquitted of the second and third counts and of the murder charge contained in the first count. He was, however, found guilty of the lesser-included offense of aggravated manslaughter under the first count. Thereafter, the court imposed a twenty-two year prison sentence with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defense counsel asserts the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENT TAKEN FROM THE DEFENDANT DURING CUSTODIAL INTERROGATION SINCE HE WAS NEVER INFORMED OF THE EXISTENCE OF AN ARREST WARRANT AGAINST HIM.
POINT II: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY REGARDING THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER ARISING OUT OF COUNT I CHARGING PURPOSEFUL/KNOWING MURDER. POINT III: THE TRIAL COURT ERRED IN RULING THAT [S.J.] WAS COMPETENT TO TESTIFY (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ON THE BASIS THAT IT MADE ITS LEGAL DETERMINATION THAT [S.J.] WAS COMPETENT TO TESTIFY IN THE PRESENCE OF THE JURY.
POINT V: THE TRIAL COURT ERRED IN RULING THE DEFENDANT'S PRIOR CONVICTION WAS ADMISSIBILE TO ATTACK CREDIBILITY.
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises these additional points:
POINT I: THE TRIAL COURT GAVE CONFUSING AND MISLEADING JURY INSTRUCTIONS, WHICH IN CONJUNCTION WITH THE VERDICT SHEET, PRECLUDED CONSIDERATION OF PASSION /PROVOCATION MANSLAUGHTER.
POINT II: THE COURT GAVE FLAWED JURY INSTRUCTIONS REGARDING THE LESSER INCLUDED OFFENSES OF AGGRAVATED AND/OR RECKLESS MANSLAUGHTER.
POINT III: DEFENDANT WAS DENIED A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR TOLD THE JURY IN HIS OPENING STATEMENT THE VICTIM HAD DEFENSIVE WOUNDS.
POINT IV: DEFENDANT WAS DENIED DUE PROCESS BY THE JURY'S RETURNING AN INCONSISTENT VERDICT, WHEREFORE THE CONVICTION MUST BE REVERSED.
After considering these arguments in light of the relevant facts and applicable law, we affirm.
The trial court rightfully denied defendant's motion to suppress his statement to police. Defendant asserted there and on this appeal that his confession is inadmissible because the officers did not inform him of a warrant for his arrest. In advancing that argument, defendant relies, without justification, on the following excerpt from the Court's opinion in State v. A.G.D.:
[A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission. [178 N.J. 56, 68 (2003) at 68 (emphasis added).]
"As a general rule, '[i]n determining whether a suspect's confession is a product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation[.]'" Id. at 67 (quoting State v. Presha, 163 N.J. 304, 313 (2000)).
Here, defendant was aware of his status as a suspect. He knew that he was the target of the police investigation. He had read about the crime in the newspapers, and he voluntarily surrendered himself to the police. He had tried to do so twice on the night of the murder. When he presented himself to the police and confessed the following morning, he was well aware of his suspect status. As defendant recounted the circumstances of his surrender:
Regina brought me down here to turn myself in because I read the paper, you were looking for me, I just did not feel like running, I turned myself in.
Question: Mr. Fleming I have one more question to ask you if it's okay with you. Answer: Yes, it's all right. You can ask me, that's why I am here. I want to turn myself in for what I did.
Question: Prior to providing the statement to myself and Investigator Monachio, were you advised that we had a warrant for your arrest?
Answer: Yes, the other detective, Palermo, he's the one gave me my rights. I did the form with him when I came in said who I was, I was turning myself in. He told me that he had a warrant for my arrest for killing Gladys. Do you want to ask me anything, you can. I will tell you.
Thus, although defendant denied at trial that he had been told there was a warrant for his arrest, he was not under any misconception about his status as a suspect when he gave his statement.
Defendant does not allege that his statement was coerced in any way. A.G.D. supra, prohibits conduct by the police that might mislead a suspect as to his status and his heightened risk of criminal liability. 178 N.J. at 68. Considering the totality of the circumstances, defendant's own conduct demonstrates his awareness that a veil of suspicion was or soon would be upon him. The safeguard formulated by A.G.D. simply does not apply in this case, where defendant's decision to give the statement was, by all appearances, voluntary and knowing. The statement was properly admitted.
At trial, the court instructed the jury on the elements of aggravated manslaughter and reckless manslaughter as lesser-included offenses of purposeful and knowing murder. Defendant now argues that the court abused its discretion by giving such an instruction. We disagree.
Pursuant to N.J.S.A. 2C:1-8(e), a "court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." In addition, there must also be a rational basis for a jury to acquit the defendant of the originally charged offense before the court can instruct the jury on the lesser offense. State v. Brent, 137 N.J. 107, 113-14 (1994).
Murder requires proof of a different state of mind than manslaughter. We have summarized that difference as follows:
To be guilty of murder, defendant must have knowingly or purposefully inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was highly probable that death would result. To convict on a charge of aggravated manslaughter, defendant must have caused death with an awareness and conscious disregard of the probability of death. [State v. Messino, 378 N.J. Super. 559, 581-82 (App. Div. 2005) (citations omitted); see N.J.S.A. 2C:11-3a(1); see N.J.S.A. 2C:11-4a.]
"A defendant's state of mind, i.e., the question of his or her awareness of a probability or practical certainty is one for the jury." State v. Gaines, 377 N.J. Super. 612, 623 (App. Div. 2005).
The proofs at trial clearly established that a rational basis existed for the judge to charge the lesser-included offense of manslaughter. For example, the defendant admitted he had been drinking at a bar before coming back home. G.J. and defendant were paramours who allegedly became involved in a heated argument over what appeared to be a minor matter. Defendant inflicted numerous stab wounds upon G.J., and defendant testified he did not realize what he had done until it was over. He made no attempt to conceal the evidence of the crime, and he promptly confessed to the crime's details and surrounding circumstances. On such facts, the evidence could rationally support an acquittal on the charge of murder and a conviction on the charge of aggravated manslaughter. Defendant's state of mind was an issue properly left to the jury to decide.
Defendant next contends that S.J., because of his young age, was not competent to testify at trial. This objection was not raised below, and thus must be evaluated by a plain error standard. See R. 2:10-2. We do not find error, much less plain error.
Competency to testify is controlled by N.J.R.E. 601, which provides that:
[e]very person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.
The competency assessment lies within the discretion of the court. State v. G.C., 188 N.J. 118, 132 (2006). This does not change if the witness in question happens to be a child. State v. Krivacska, 341 N.J. Super. 1, 33 (App. Div. 2001). A presumption of competence exists for every witness, and "disqualification is warranted only if the trial judge finds that the proposed witness is incapable of expressing himself or herself in the matter so as to be understood by the judge and jury or the proposed witness is incapable of understanding the duty of a witness to tell the truth." [G.C., supra, 188 N.J. at 132 (quoting State v. R.W., 104 N.J. 14, 20 (1986)).]
In G.C., supra, the Supreme Court determined that a five-year old witness was competent to testify. Id. at 133. If the trial court questions a child witness as to his or her ability to understand a duty to tell the truth, and the questioning established that the child does, then the witness may be deemed competent. Ibid. The duty to tell the truth, "necessarily implicates the consequences arising as a result of a failure to comply with the duty." Ibid.
The court conducted a more-than-adequate inquiry into S.J.'s appreciation of the duty to tell the truth, and determined that the ten-year old witness demonstrated he had an understanding of his duty to tell the truth. The court acted well within its discretion to admit S.J.'s testimony.
Defendant also objects, however, that the inquiry into the child's competence to testify took place in front of the jury and that the judge decided in the jury's presence that S.J. was competent to testify. Defense counsel argues that by doing so, the court essentially vouched for the child's testimony. Defendant, therefore, asserts the colloquy between the court and S.J. warranted a mistrial. Again, we disagree.
A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. The power is to be exercised with the greatest caution, in the furtherance of justice between the accused and the state.  Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right. [State v. Winter, 96 N.J. 640, 647 (1984) (quoting State v. Witte, 13 N.J. 598, 611 (1953)).]
Here, the court merely indicated that it was "satisfied the witness understands the importance of the oath and what it means to tell the truth and what it means to tell a lie." In light of defendant's objection that the court's ruling might have the effect of bolstering the child's credibility, the judge gave a curative instruction at the close of S.J.'s testimony. In that instruction, the judge stated that when he acknowledged the witness understood right from wrong, he was not in any way vouching for his testimony. He continued, reminding the jurors of their obligation to evaluate S.J.'s testimony as they would evaluate the testimony of any other witness.
You are the judges of the facts, you are the judges of the credibility of the witness.
You are to judge his credibility as you would any other witness that testifies in this case. By me merely saying that he understood his oath, it was really just my acknowledgment that given his young age he had understood what he was doing when he was swearing and affirming. But again, every witness is sworn under oath and it is up to you to evaluate his testimony as you would any other witness and not from anything that I said as to vouching for his testimony or giving you my opinion of it any way or as to my acceptance of his testimony. You're to evaluate his testimony as you would any other witness that takes the stand.
Even if a juror had misconstrued the judge's initial statement regarding S.J.'s competency, we are satisfied the curative instruction should have dispelled any such misconception.
Defendant now argues that the court erred in its Sands ruling*fn2 that evidence of defendant's prior conviction for possession with intent to distribute a controlled dangerous substance would be allowed to impeach defendant's credibility if he elected to waive his right to remain silent and to testify at trial. Notably, defendant did not testify at trial. Consequently, no evidence of his prior conviction was presented at any time during the trial. Without either side's mention of this conviction at trial, this court fails to see any prejudice suffered by defendant as a result of the court's ruling in Sands.
Lastly, defendant contends that his sentence of twenty-two years imprisonment, with a mandatory eighty-five percent parole disqualification for first degree aggravated manslaughter, was manifestly excessive. The court allegedly failed in its assessment of the applicable aggravating and mitigating factors and abused its sentencing discretion.
The appellate review of a criminal sentence must follow a three-step process. The court must: review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984) (emphasis omitted)).]
In other words, the appellate court must deem the trial court's sentence excessive if the trial court clearly abused its discretion. State v. Gardner, 113 N.J. 510, 516 (1989); State v. Velasquez, 54 N.J. 493, 495 (1969). The record does not reveal any abuse of discretion by the sentencing judge.
The sentencing judge found four aggravating factors pursuant to N.J.S.A. 2C:44-1a: the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); the risk that defendant would reoffend, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors. The judge's application of aggravating factor (1) was appropriate because defendant had repeatedly stabbed his victim, a woman, with a knife, causing at least two mortal wounds. There was a great deal of credible evidence to support the finding of other aggravating factors. Defendant had a prior criminal record. He had violated probation and was sentenced to prison for a prior drug conviction. Defendant had been arrested ten other times as an adult, resulting in four disorderly persons convictions for drug-related offenses and a domestic violence arrest for aggravated assault upon G.J.
Defendant's twenty-two year sentence was within the applicable statutory range for the offense in question. Pursuant to N.J.S.A. 2C:11-4(2)(c), for a conviction of aggravated manslaughter, a defendant may "be sentenced to an ordinary term of imprisonment between 10 and 30 years." There was no presumptive term, and we are satisfied that the trial court did not abuse its discretion in sentencing defendant.
The contentions raised in defendant's pro se supplemental brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only make two additional observations. First, where an appellant failed to object to the jury charge, R. 2:10-2, specifically states that "any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result," or the court "in the interest of justice" notices plain error not brought to the attention of the trial court, and we discern no such error or omission. Second, to the extent the jury's decision to acquit on the weapon charges may be viewed as inconsistent with the guilty verdict on the aggravated manslaughter charge, such inconsistency is permitted so long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, as is true in this case. State v. Grey, 147 N.J. 4, 10 (1996).
We, therefore, affirm.