June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY K. BAYER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, 04-10-0740-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Stern, A. A. Rodríguez and Collester.
Tried to a jury, defendant was convicted on May 27, 2005, of felony murder in violation of N.J.S.A. 2C:11-3(a)(3). He was sentenced by Judge John Tomasello on July 15, 2005, to a thirty- year prison term with a fifteen-year parole bar and given credit for 756 days of time served and 4,755 days of gap time credits. Defendant appeals his conviction and sentence.
Eighty-six-year old Rose Twells lived alone in her home on Delaware Street in Woodbury in late 1979. Five days before Christmas, her nephew, Charles Edgekin, came to her house to take Rose out to dinner. He rang the doorbell and knocked at the front door, but there was no answer. Edgekin then returned to his nearby home and got the key to Rose's front door that she had given to him. Opening the door, he saw Rose's body covered in blood and lying at the foot of a staircase with her legs tied to a banister by a lamp cord.
Police responded to Edgekin's call and found clear signs of a burglary at the house with drawers pulled out and items strewn about the floor in several rooms. There was a large pool of blood by Rose's head and around her upper body. There were also items of broken glass and a small iron pot found nearby. A lamp cord was tied to her feet and a banister at the base of the stairs. The house was an old, three-story wooden structure with many rooms filled with different furniture and bags. Detective Watson, the lead investigator, said that looking through the house was "like stepping back in time." Several rooms were closed off, and the temperature was set at a minimum of forty-two degrees, which was consistent with the various layers of clothing worn by the victim. There were several doors in the home with hooks and eyes for locks, including a back door, that was left unlocked. There was no sign of forced entry and efforts to find usable fingerprints were unavailing. The only identifiable print belonged to Rose. Moreover, it was difficult to determine whether money, jewelry or other property was taken. Rose's sister lived in California, and she listed as Rose's property a diamond pendant of approximately two or three quarter carats of the approximate value of $10,000 and a gold ring with a blue stone worth about $150. Neither the pendant nor the gold ring were found by police in the home.
The medical examiner certified Rose's death as a homicide and the cause of death as massive head wounds to the top of her skull. Because the thermostat was turned down to the minimum, the medical examiner was unable to determine a time of death save for an opinion that Rose was killed some time between December 18 and 20, 1979.
While investigators continued to pursue leads, Rose's murder remained unsolved for almost twenty-five years. However, bits of information were received over time which cast a cloud of suspicion on three men: Mark English, Clifford Jeffrey, and defendant. Finally, on June 20, 2003, the past became present, and the three were arrested and charged with Rose's murder.
Defendant was forty years old when he was arrested, but only sixteen at the time of the crime. Accordingly, a juvenile complaint was signed charging him with burglary and murder along with a petition filed by the prosecutor for waiver of his juvenile status so he could be tried as an adult. Following a hearing pursuant to R. 5:22-2, the Family Court judge waived jurisdiction and referred defendant to the criminal court. Shortly thereafter, on October 6, 2004, defendant, English and Jeffrey, were indicated for knowing and/or purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2) (count one), and felony murder, in violation of N.J.S.A. 2C:11-3(a)(3).
Defendant was tried separately over six days in May 2005. The case against him was based in part on his alleged incriminating admissions. Justine Shenkus, thirteen years old at the time of the crime, testified that defendant was a friend of her brother and stayed at her home in early 1980 after he had been thrown out of his own home by his mother. Shenkus said that defendant told her that he had gone to his "Nana's" house to borrow money, but she refused. He began taking certain items. When she caught him and went to call the police, defendant said he yanked the phone from her hands, pushed her to the floor, tied a cord around her neck and threw it over the banister to strangle her. Shenkus testified that she was afraid of the defendant and did not tell investigators until she was questioned a couple of months after the murder.
Lee Mayhew testified that two or three months after the murder he was smoking pot with defendant in the woods behind Woodbury High School when Rose's murder was discussed, and defendant admitted to murdering her. He bragged he would not be caught because snow covered up his tracks and also because at that time his father was the mayor of Woodbury and would protect him.
Keith Rosenthal testified that he met defendant in 1987. During a conversation in his apartment, defendant asked him, "Did you ever hear about the old lady around the corner that was killed?" When Rosenthal said he had not heard about it, the defendant said, "That was me." Rosenthal said that he went to the police station the following day and reported the defendant's statement to a patrolman.
Testifying that she was defendant's girlfriend from 1979 to 1980 or 1981, Denise Peterson recalled that defendant told her that along with others he had tied up an old woman, strangled her, and robbed her of her jewelry to buy drugs. Investigators had previously interviewed Paterson in late 1980, but she did not tell them about defendant's statements because she was afraid of defendant. She related that it was only when police came back to see her in 2005 that she told them the truth.
Other witnesses testified that defendant, English and Jeffrey committed the crime. Shirley Logan said she dated Jeffrey in high school in 1979 and that she heard Jeffrey discuss with the defendant plans to commit a burglary at Rose Twells' house to steal her expensive jewelry. Logan said she heard defendant say that his father was a friend of Rose and had the key to her home. Logan further testified that she met Jeffrey on the night of the murder and saw that his shirt was bloody. Jeffrey told her that things had "gone bad," and admitted that the victim had been beaten until it was believed she was dead. Logan also said that in a later conversation with defendant, he admitted to killing Rose. She added that the following day she received a phone call from an unidentified person threatening her that she would be killed if she told police what she knew about the murder. When she was first questioned by investigators about the crime some months later, Logan told them that she heard that three black men committed the crime. She gave the names of three men, but the investigators discounted her statement when they discovered that two of the men were white.
Jack Abel told the jury that he was twenty-six-years old in 1979, and was a neighbor of eighteen-year-old Clifford Jeffrey. He said that on the night of the murder Jeffrey called him to pick him up on Delaware Street. When he got there, Abel said that Jeffrey and a female got into his car. Abel noticed blood on Jeffrey's shirt, and Jeffrey said he had been in a fight. Abel took Jeffrey to change his shirt, and they left to go to Thorofare or Camden to buy drugs.
Particularly damaging to defendant was the testimony of Luann Vennell-Waller, who claimed to be defendant's girlfriend at the time of the murder. Testifying under a grant of immunity, Vennell-Waller said that one night she was present in the woods opposite Rose Twells' home when defendant and two of his friends talked about burglarizing the home because Rose was rumored to have money and expensive jewelry in the house. Defendant told the others that he had access to a key to the house. Vennell-Waller agreed to serve as look-out for the burglary, and on the night of the crime, she met defendant and the two others in front of Rose's house and waited outside while defendant and the others entered the house. When one of the others came running out of the house looking scared, Vennell-Waller ran away from the scene. She said that later that night defendant called her and told her that Rose recognized him, and they argued over money. He said he grabbed her, and she fell down the stairs. He admitted to hitting her on the head after she was tied to the banister. Vennell-Waller recalled meeting defendant later that night, and he showed her some jewelry that he had taken from the house. He threatened her that if she mentioned anything about the crime or what she had seen, he would kill her parents. She said she made an anonymous call to the police about a week later to tell them that it was defendant who killed the old woman in her home. Years later in 1992 or 1993, Vennell-Waller was questioned by investigators. After telling them what she saw and heard, she obtained a lawyer who arranged for her immunity from prosecution for her participation in the crime in exchange for her trial testimony.
Steve Forbes said he was thirty-two years old at the time of the crime. He recalled receiving a phone call from English on the night of the murder and agreed to pick him up along with the defendant on Delaware Street near the victim's home. When he arrived, he saw blood on their clothes. He said defendant told him that things had gotten "out of hand," and "the old lady had to get hit" when she moved toward the phone to call police. Forbes said that defendant and English threw their clothes in a nearby dumpster after he had given them other clothes to wear. He added that the following day he went with defendant and English to Philadelphia to pawn the stolen jewelry and buy cocaine and heroin from the cash stolen from Rose's house. Forbes further testified that in 1992, he told police about the involvement of English and Jeffrey in the crime because he had been arrested for burglaries and arson and wanted to "work out a deal." He did not mention defendant at that time, explaining that he was afraid of him.
Testifying on his own behalf, defendant denied any involvement with the burglary and the murder. He denied ever knowing Rose Twells and said her name was never mentioned at his house. He said he did not know if his father had a key to the residence, but he denied ever taking a key. He also denied knowing English, Jeffrey, Logan, Abel or Forbes. He admitted he was dating Paterson in 1979, but he denied ever telling her that he murdered the victim. He also denied confessing to Mayhew or making any admission to Rosenthal. He said he did not meet Vennell-Waller until three years after the crime. He denied she was his girlfriend and said their relationship was only sexual. He denied ever telling her he committed the murder.
Defendant's mother also testified on his behalf. She said she never knew Rose Twells but that Rose was a good friend of her late husband's mother. While she believed that her husband kept in contact with Rose over the years, she was sure he did not have a key to her house. She admitted that she told defendant to leave her home when he was sixteen or seventeen after she discovered one Easter Sunday that he had stolen some of the family silverware. A week later she let him return when he claimed that he was a born-again Christian. Ms. Bayer also said that defendant had taken other items from her home and that she once found jewelry under the defendant's bed that had been stolen from her next door neighbor. Finally, she added that she did not know English, Jeffrey, Forbes or Logan.
On May 27, 2005, the jury returned its verdict, finding defendant not guilty of knowing/purposeful murder but guilty of felony murder.
On appeal defendant makes the following arguments:
POINT I -- THE TRIAL JUDGE ERRED IN PERMITTING THE JURY TO HEAR DAMAGING AND PREJUDICIAL INFORMATION ABOUT THE DEFENDANT, RESULTING IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)
POINT II -- THE TRIAL JUDGE ERRED IN ALLOWING THE JURY TO HEAR TESTIMONY THAT THE DEFENDANT HAD VIOLATED PROBATION IN THE PAST. (Not Raised Below.)
POINT III -- THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL AFTER THE PROSECUTOR, IN HIS SUMMATION, APPEALED TO THE JURY'S PATRIOTISM AND INJECTED HIS OWN PERSONAL INTEGRITY INTO THE DECISIONMAKING PROCESS.
POINT IV -- A SENTENCING REMAND ON THE TERM IMPOSED FOR ATTEMPTED MURDER IS MANDATED AS THE MAXIMUM TERM GIVEN VIOLATES THE HOLDING IN STATE V. NATALE. (Not Raised Below.)
POINT V -- THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant first claims that he was denied a fair trial because of evidence "introduced by the prosecution (and occasionally by the defense) result[ed] in a skewed portrait of the defendant, one involving criminal behavior and violence which had nothing to do with the case at bar." He argues that the trial judge erred in not intervening to "filter out" evidence as to his prior drug use, convictions, or instances of stealing.
We note initially that no objection was taken to any such testimony so that our scope of review is that of plain error under which we must determine whether the comments were such as to deny defendant a fair trial. Notably, it was during direct examination of his mother and his own direct testimony that the information was disclosed that his mother told him to leave the home because he had stolen silverware to sell for drugs. It was also during defendant's direct examination that he admitted in 1979, he "smoked pot . . . smoked speed, methamphetamine," and alcohol was his drug of choice. The prosecutor asked further questions on cross-examination about defendant's drug use, claiming it was for purposes of establishing a motive for defendant to commit the burglary. Other testimony that defendant argues denied him a fair trial was a comment by Vennell-Waller elicited on cross-examination by defendant's own attorney that defendant beat her. No application was made to strike the testimony, and defendant's counsel probed deeper into the incident in an attempt to impeach Vennell-Waller's testimony.
Defendant argues that all this information put before the jury should have been excluded by the trial judge pursuant to N.J.R.E. 404(b), which states:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
To assist trial judges in considering the issue of admission or exclusion of Rule 404(b) evidence, our Supreme Court developed and promulgated the following four-pronged test for admissibility in State v. Cofield, 127 N.J. 328, 338 (1992):
(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
Most of the evidence which defendant alleges was erroneously admitted under Rule 404(b) was introduced through questioning by defense counsel, and no objection was taken to follow-up questions by the prosecution. Furthermore, the trial judge charged the jury as to the appropriate use of such evidence in accordance with the Model Jury Charge. The court stated:
Testimony has been heard that the defendant has been involved in crimes and bad acts other than those alleged in this case. Evidence of such other crimes, wrongs or acts is not to be considered to prove a disposition of the defendant. Put another way, his testimony may not be considered to show that the defendant is generally disposed to criminal behavior or to any specific conduct and therefore guilty of committing the crime which is the subject of this action. Such evidence may be considered for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity o[r] absence of mistake or accident would so rend [sic] matters irrelevant to a material issue in dispute.
You have heard testimony that Jeffrey Bayer has been previously convicted of crimes. This evidence may only be used in determining the credibility or believability of the defendant's testimony. You may not conclude that the defendant committed the crime charged in this case or is more likely to have committed the crime charged simply because he committed a crime on another occasion.
The judge also told the jury that the testimony of witnesses "should be given careful scrutiny" to determine whether untruthfulness was present, and that:
The jury has a right to consider whether a person who has previously failed to comply with society's rules as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of any crime.
You may consider in determining this issue the nature and degree of the prior convictions and when they occurred. Our law permits a conviction to be received in evidence only for the purpose of effecting the credibility of the defendant and not for any other purpose. You are not however obligated to change your opinion as to the credibility of a defendant simply because of prior convictions.
While defendant argues that the charge was inadequate as "generic," we find to the contrary that the jury instruction was both clear and comprehensive. Furthermore, in the absence of an objection to the admission of evidence or to an instruction to the jury, our scope of review under the plain error standard is to determine whether the alleged error was "clearly capable of producing an unjust result." R. 2:10-2. We find no error much less plain error.
Defendant next argues that the trial judge erred in failing to intervene to prevent the jury from hearing testimony that he had previously violated a probationary sentence. Once again the evidence alleged to be improper and prejudicial was elicited by the defense. During the course of defendant's direct examination, the following questions and answers were given:
Q: And in -- under Indictment 678-81, were you sentenced, initially, on December 9, 1982, on a -- two third degree offenses, in which you were given a sentence of three years probation with restitution?
A: Yes, I remember.
Q: And do you recall violating your probation, and on September 19, 1983, receiving county jail sentence with a condition that you complete a Maryville outpatient program.
Q: Do you know what Maryville was?
A: Yea, it was a program that I went to get counseling.
Q: For what?
A: For alcohol abuse.
Defendant now argues that the trial judge erred "in allowing the jury to hear testimony that the defendant had violated probation in the past." However, we underscore that it was the defense that brought forth the testimony that defendant received a probationary sentence and violated the conditions of probation. Defendant amplifies his argument by claiming his testimony as to the probation violation "was probably brought out by defense counsel who knew, based on the judge's ruling, that the information was going to be brought out in any event." The argument is misleading. While the judge properly considered and deemed admissible prior convictions of the defendant pursuant to State v. Sands, 76 N.J. 127 (1978), and sanitized the convictions pursuant to State v. Brunson, 132 N.J. 377, 394 (1993), the judge never addressed and was not called to rule upon the admissibility of defendant's violation of probation.
Moreover, defendant's reliance upon State v. Jenkins, 299 N.J. Super. 61 (App. Div. 1997), is misplaced. In that case, we reversed a defendant's conviction based upon improper comments by the prosecutor injecting her personal opinion about defendant's credibility. During the trial the judge ruled that the defendant's probation violation was admissible to impeach defendant's credibility. We cautioned the judge that on re-trial the defendant's prior probation violation was not admissible for that purpose. Id. at 71. We stated that while a defendant's criminal conviction may be admitted for impeachment purposes, a probation violation does not constitute a criminal conviction. Id. at 73. State v. Reyes, 207 N.J. Super. 126, 134-37 (App. Div.), certif. denied, 103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992). We concluded as follows:
Since a probation violation is not a criminal conviction, it cannot be used for impeachment purposes under N.J.R.E. 609.
However, the ultimate sentence that a defendant may have received for a prior conviction as a result of a subsequent probation violation may be used to impeach the defendant under the Rule. [Jenkins, supra, 299 N.J. Super. at 75.]
Jenkins is clearly distinguishable, for it dealt with the admissibility of evidence to impeach. In this case, the State did not introduce the probation violation, and in fact, the trial prosecutor did not ask a single question as to defendant's prior convictions or his probation violation. Once again we fail to see any error on the part of the trial judge, and certainly no plain error.
The defendant next argues that Judge Tomasello erred in denying the defense's motion for a mistrial following the prosecutor's summation. During the course of summing up to the jury, the prosecutor made the following comments:
The process is we bring evidence before you. We bring witnesses before you. You watch them. You listen. You evaluate. You digest, swish it around in your mouth a little bit maybe and see if it tastes sour or see if it tastes about the way it should and you give it some value in your mind or no value. Have you done that? When you sit with each other in the back room and share your ideas and after doing that if you're satisfied that what these people told you under oath in this courtroom satisfies you that Jeffrey Bayer was the person who murdered Rose Twells, then you find him guilty. If it does not satisfy you, then set him free. God bless America. We didn't get fifteen judges. We didn't get fifteen lawyers. We didn't get fifteen cops. We didn't get fifteen prosecutors, just fifteen people. . . . (emphasis supplied).
Defense counsel made no objection to the prosecutor's summation until the following day when he moved for a mistrial based on an article in a local newspaper misquoting the prosecutor. Defense counsel argued:
Its in the Times today. He said, "If you need scientific evidence, I can tell you absolutely that Jeffrey Bayer was inside Rose Twells' house and find him not guilty. If it doesn't satisfy you, then set him free. God bless America."
Defense counsel requested a mistrial or curative instruction, claiming the trial prosecutor's remark was sarcastic about the criminal justice system. The trial judge denied the defendant's requests, holding that the comment was neither sarcastic nor prejudicial.
Defense counsel also objected that the prosecutor interjected himself into the decision-making process by commenting that if the defense was correct in its theory, the jury must conclude that "there's an evil conspiracy going on here," one beginning with the prosecutor himself. The prosecutor told the jury that "[w]hile running a conspiracy, folks, I submit to you I did a real lousy job going to the actor's guild to [get] people to put on a performance for you here." The trial judge again refused to declare a mistrial or give a curative instruction on grounds that the comment was fair argument and in rebuttal to the defense summation in which counsel argued that the State's witnesses were lying.
On appeal defendant maintains that the "God bless America" statement was a veiled suggestion to the jury that a conviction in this case was a patriotic duty and therefore should have been cleansed from the record. Similarly, defendant asserts that the prosecutor's arguments as to a conspiracy were improper because they injected the prosecutor into the decision-making process.
However, when read in the entire context of the prosecutor's summation, the prosecutor's remarks did not exceed fair comment. A prosecutor is afforded considerable leeway if the comments are reasonably related to the scope of the evidence before the jury. State v. Harris, 141 N.J. 525, 559 (1995). See also State v. Hill, 47 N.J. 490, 499 (1966). On its face, the "God bless America" comment made no appeal to the jury to convict, and certainly the trial judge was in the best position to determine whether the remarks were sarcastic or a simple salutation to the jury system. Likewise, contrary to the claim of the defendant, the prosecutor's summation comment regarding a claim of "conspiracy" by the defense did not serve to insert the prosecutor into the case, but rather was fair comment on the defense summation attacking the credibility of the State witnesses. Neither comment was so egregious as to deny this defendant a fair trial.
Defendant's arguments for re-sentencing are also without merit. The crime took place in 1979, before the 1982 amendment to N.J.S.A. 2C:11-3. An authorized sentence for murder was then thirty years incarceration with a fifteen year period of parole ineligibility. There is no issue under State v. Natale, 184 N.J. 458 (2005) or Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536, 159 L.Ed. 2d 403, 412 (2004). The sentence was proper.
We remand only to correct the judgment of conviction which omits the parole ineligibility term. The judgment is to be amended to reflect the sentence imposed of thirty years with fifteen years to be served before parole eligibility.
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