On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 04-03-0255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
A jury found defendant guilty of three counts of terroristic threats, a crime of the third degree, N.J.S.A. 2C:12-3; two counts of false imprisonment, a disorderly persons offense, N.J.S.A. 2C:13-3, as a lesser-included offense of kidnapping; two counts of stalking, a crime of the fourth degree, N.J.S.A. 2C:12-10; one count of possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4(a); three counts of criminal mischief, a crime of the third degree, N.J.S.A. 2C:17-3(a)(1); one count of burglary, a crime of the third degree, N.J.S.A. 2C:18-2; one count of theft, a crime of the third degree, N.J.S.A. 2C:20-3; and two counts of murder, N.J.S.A. 2C:11-3(a)(1), (2). The trial court sentenced defendant to an aggregate term of 168 years in prison. The sentence included two consecutive life terms for the murder convictions, each subject to the eighty-five percent parole disqualifier of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand for entry of a corrected judgment of conviction.
The murder victims were Shani Jones Baraka, sister of defendant's estranged wife, Wanda Wilson, and Rayshon Holmes, a friend of Baraka's. Wilson was the victim of the great bulk of the remaining counts.
Defendant argued he would be unfairly prejudiced if all the counts were tried together. To avoid the possibility of such undue prejudice, the trial court granted his motion to sever the counts relating to the homicides, which included charges of burglary and theft at the time of the killings. It directed that the remaining counts, which dealt primarily with the increasingly acrimonious relationship between defendant and Wilson, be tried first. This first jury found defendant guilty of terroristic threats, false imprisonment, and stalking. It found defendant not guilty of three counts of kidnapping and two counts of aggravated sexual assault. It was unable to reach a verdict on three counts of criminal mischief, one count of terroristic threats, aggravated assault, and possession of a weapon for an unlawful purpose. Those counts were then tried with the four counts that had initially been severed. The count of aggravated assault was dismissed, and the original charge of robbery was amended to burglary while armed. The second jury found defendant guilty.
Wilson met defendant through mutual friends. At the time, she held a position as an executive administrator at a bank in New York City. She earned a comfortable salary and owned a home in Piscataway that she shared with her half-sister, Shani Jones Baraka. Defendant was unemployed and without a permanent residence. Wilson was nonetheless attracted to him. The two began to date, and she lent him funds to start a business. He moved into her home, and they were married in February 2000.
Trouble developed in the marriage, however, due to defendant's habit of pursuing other women. By February 2003, the two were separated. Wilson, however, continued to provide money to defendant even in the face of several incidents in which defendant showed up at Wilson's home and attacked and threatened her. We do not consider it necessary to set forth all the incidents to which Wilson testified, nor the particular details. A summary will suffice for purposes of this opinion.
On April 27, 2003, defendant came to Wilson's home, demanding to be admitted. She would not let him in and eventually summoned the police. Defendant was no longer there by the time the police arrived. One of the officers who responded advised Wilson that she should obtain a restraining order against defendant. Although Wilson did obtain such an order, it was never served upon him.
In June 2003 Wilson met James Hill, Jr., and formed a relationship with him. Defendant came to the house and threatened Wilson, holding a gun to her head. The following day, Wilson left her house and went to stay with Hill. She returned to the house on June 17, 2003, with a cousin and a friend and instructed the friend how to care for the pool that was on the property. She gave him keys to her car so that he could use it to get back and forth from his apartment in Newark to the home in Piscataway. She then returned to Hill's home.
The following day, Wilson's friend called her to tell her that Wilson's car had been set afire. In addition, the car's windows had been broken and its tires slashed. Defendant called Wilson the day after, asking if she was upset about her car. He said he had destroyed the car because he had overheard her giving her friend instructions on caring for the pool and wanted to deprive him of a way of getting back and forth.
Later in the month, she returned to the house and found that someone had entered, triggering the security alarm. Pictures of Wilson and Hill were missing. In early July, her pool was vandalized on several occasions and the water contaminated with motor oil.
In addition, defendant continued to contact Wilson on her cell phone and at work, at times calling up to twenty times a day. She arranged to have a security escort at work, while entering and leaving the building.
On August 8, 2003, Wilson and Hill went to Las Vegas. The night before their departure, Wilson gave Hill's seventeen-year-old son a key to the house and asked him to watch over the dog while they were gone.*fn1 While Wilson was showing the house to the boy, he saw two leather motorcycle jackets in a closet. Wilson did not like her jacket and the boy asked if he could have it; she said he could wear it when the cold weather came.
Hill's son came to the house on August 12, together with his girlfriend and nine-year-old cousin. All of the lights on the second floor of the house were on. The older boy and his girlfriend went to check upstairs, and the young cousin went to check on the dog in the basement. He came upstairs screaming that were bodies down there. His older cousin called his father in Las Vegas, and Wilson called the police. They responded to the house and found the bodies of Baraka and Holmes, both of whom had been shot to death.
The police sought to question defendant but were unable to locate him at first. Defendant was staying with a friend in North Carolina. On learning that the police were looking for him, he asked his friend to drive him to New Jersey so that he could turn himself in. His friend told police that defendant had been with him the entire weekend of the murders. Subsequent investigation, however, produced several witnesses who could place defendant in the area at the time of the murders.
Holmes had owned a Toyota Land Cruiser, but the vehicle was missing at her death. The vehicle was equipped with an EZ-Pass transponder which tracked the vehicle through New Jersey down to the Fort McHenry Tunnel in Maryland. It was eventually discovered about four months later in Virginia, at a spot very close to a Greyhound Bus Terminal. The bus company records showed that a one-way ticket to Winston-Salem had been purchased by "Rob Carpenter" on August 12, 2003. The friend with whom defendant had been staying in North Carolina and who drove him back to New Jersey was Robert Carpenter.
Based upon that information, the police interviewed Carpenter again, and he eventually admitted that he had spent that weekend with his girlfriend and not defendant. The police asked if defendant had left anything behind in Carpenter's home. Carpenter showed them two motorcycle jackets. Wilson identified them as the jackets which had been in her closet which Hill's son had asked about.
Carpenter also said defendant had given him several pieces of jewelry to pawn. The police recovered the items, and Wilson identified them as belonging to her sister and to herself.
Defendant raises the following issues on appeal:
THE DEFENDANT'S CONVICTIONS FOR TERRORISTIC THREAT[S] ON COUNTS ONE AND FOUR, FOR FALSE IMPRISONMENT ON COUNTS TWO AND TEN, AND FOR STALKING ON COUNTS THREE AND SIX SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS (NOT RAISED BELOW)
(A) THE TRIAL COURT FAILED TO PROVIDE ADEQUATE GUIDANCE TO THE JURY ON HOW TO ASSESS THE ISSUANCE OF A TEMPORARY DOMESTIC RESTRAINING ORDER AGAINST THE DEFENDANT TO THE FACTS OF THE CRIMINAL CASE (NOT RAISED BELOW)
(B) THE DEFENDANT'S CONVICTIONS FOR STALKING ON COUNTS THREE AND SIX SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO SPECIFICALLY INSTRUCT THE JURY THAT IT COULD NOT CONSIDER THE DEFENDANT'S CONDUCT IN NEW YORK IN ASSESSING HIS GUILT (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW)
(A) THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENDANT AND SUGGESTED THAT THE JURY HAD A SOCIETAL DUTY TO CONVICT
(B) THE PROSECUTOR IMPROPERLY INJECTED THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" IN HIS SUMMATION (NOT RAISED BELOW)
(C) THE PROSECUTOR'S ASSERTION THAT WANDA WILSON WAS A "BATTERED WOMAN" WAS IMPROPER BECAUSE IT REQUIRED SUPPORTING EXPERT TESTIMONY (NOT RAISED BELOW)
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE WANDA WILSON'S TESTIMONY, PREVIOUSLY RULED INADMISSIBLE, PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL, AND THE PROSECUTOR'S INABILITY TO CONTROL MS. WILSON AND THE TRIAL COURT'S INADEQUATE RESPONSES FAILED TO CURE THE PREJUDICE
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE WANDA WILSON'S TESTIMONY THAT THE DEFENDANT ADMITTED COMMITTING THE MURDERS VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO DISCOVERY AND RENDERED THE TRIAL FUNDAMENTALLY UNFAIR
THE DEFENDANT'S DUE PROCESS RIGHT TO A RELIABLE IDENTIFICATION WAS VIOLATED BY THE CONDUCT OF DETECTIVE MANCO, AND THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT OR IN THE ALTERNATIVE TO EXCLUDE THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS BY SCOTT SACHS
THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO ADMIT AS A PRIOR INCONSISTENT STATEMENT THE GRAND JURY TESTIMONY OF ROBERT CARPENTER BECAUSE THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE GRAND JURY TESTIMONY WAS "RELIABLE" OR THAT THE PROSECUTOR WAS SURPRISED BY MR. CARPENTER'S TRIAL TESTIMONY
THE AGGREGATE 168 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF DISCRETION, AND VIOLATED STATE V. NATALE
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS NINETEEN AND TWENTY THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS
(B) THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS NINETEEN AND TWENTY SHOULD HAVE BEEN MERGED
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE DEFENDANT'S CONVICTIONS CONSECUTIVE TO EACH OTHER.