On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-06-1138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Payne, Lyons and Waugh.
Defendant Peter J. O'Brien appeals his conviction after a trial by jury on both counts of an indictment charging him with the purposeful or knowing murder, N.J.S.A. 2C:11-3, of his mother and stepfather. We affirm defendant's convictions, but because we find error in the sentencing judge's application of N.J.S.A. 2C:44-1a(12), we vacate defendant's sentence and remand the matter for resentencing. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On the afternoon of May 7, 2004, defendant picked up his mother, Josephine O'Brien, and stepfather,*fn1 Anthony Napoleon, at Newark airport. Ms. O'Brien and Mr. Napoleon had spent the winter at their Florida residence and were returning to New Jersey for the summer. Defendant had stolen approximately $40,000 from his parents during the months they were out of state.
After picking his parents up at the airport, defendant drove them to their home in Toms River. The trip took approximately an hour, and during that time defendant and his parents engaged in normal, unremarkable conversation. Upon arriving home, defendant backed into the driveway and helped his parents bring their luggage into the house. Unbeknownst to either Ms. O'Brien or Mr. Napoleon, prior to leaving for the airport, defendant had taken a loaded Smith and Wesson .38 caliber pistol out of a filing cabinet in Mr. Napoleon's office and placed it on his bed.
After assisting his parents with their luggage, defendant went into his bedroom, retrieved the gun, as well as a blue and white, lace trimmed, Ralph Lauren pillow, and proceeded into his stepfather's office. Defendant then shot Mr. Napoleon from behind several times at close range. Ms. O'Brien was in the bathroom when she heard the shots. She said "What the hell is wrong?" She then walked out of the bathroom and defendant shot her twice at close range.
After shooting his parents, defendant put the gun and pillow into his black Lincoln Town Car. He went back into the house where he saw Mr. Napoleon on the floor with a cordless telephone in his hand. Defendant took the telephone and placed it back on the receiver. Mr. Napoleon looked at defendant and said "I love you." Defendant responded "I love you too" and then left the house. Mr. Napoleon managed to find another telephone and called 9-1-1, reported the shootings and implicated defendant as the shooter. When police arrived on the scene, Ms. O'Brien was found dead in the house and Mr. Napoleon was found alive, outside of the house, near the curb. Mr. Napoleon was taken to the hospital, where he was pronounced dead.
When defendant left the family home after taking the cordless telephone from Mr. Napoleon, he went to a local Stop n' Shop where he put the gun, pillow, and button down shirt he was wearing into a dumpster. After disposing of the evidence, defendant met friends and went to McDonald's. Defendant was at the McDonald's drive through when initially contacted on his cell phone by police.
After being contacted by police, defendant and a female friend went to the Dover Township Police Headquarters where they were met by Detective John Thievon, a forty-year veteran of the Dover Township police force. Detective Thievon escorted defendant and his friend into an interview room and proceeded to collect basic information, including name, address, and social security number from each of them. Defendant stated that his companion told him that his parents had been shot and asked Detective Thievon about their condition. The detective told him he "had no firsthand information" about defendant's parents.
Detective Thievon left when Detective Bajada of the Dover Township Police Department and Investigator Mitchell of the Ocean County Prosecutor's Office arrived to conduct a formal interview. Defendant was upset when the detective and investigator arrived at the interview room. Defendant had "[h]is hands over his face. His head was down, and he was visibly upset, sweating profusely. His knee was bouncing up and down, and he was basically waving from side to side, and was uttering 'Mom.'" Prior to beginning the interview, defendant was advised of his Miranda*fn2 rights, which he waived. After reading defendant his rights, Investigator Mitchell advised him that the police were in possession of a 9-1-1 tape on which Mr. Napoleon implicated defendant in the homicides. Defendant sat silently for approximately thirty seconds then said "I did it." He later made a full confession.
On June 29, 2004, defendant was indicted by an Ocean County Grand Jury and charged with the following offenses: murder in the first degree, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one); murder in the first degree, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count two); possession of a firearm for an unlawful purpose, a crime in the second degree, contrary to N.J.S.A. 2C:39-4a (count three); possession of a firearm for an unlawful purpose, a crime in the second degree, contrary to N.J.S.A. 2C:39-4a (count four); unlawful possession of a weapon, a crime in the third degree, contrary to N.J.S.A. 2C:39-5b (count five); and theft by unlawful taking, a crime of the third degree, contrary to N.J.S.A. 2C:20-3 (count six).
Defendant moved to sever count six from counts one through five and to suppress his confession. Both motions were denied.
Following trial, a jury found defendant guilty of counts one, two, three, four, and six. Count five had previously been dismissed on the State's motion.
The trial judge found four aggravating factors (risk of recidivism, N.J.S.A. 2C:44-1a(3), need to deter, N.J.S.A. 2C:44-1a(9), the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1), and victims were sixty years of age or older or disabled, N.J.S.A. 2C:44-1a(12)) and no mitigating factors. See N.J.S.A. 2C:44-1(a)-(b). He imposed two consecutive life sentences, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA),*fn3 N.J.S.A. 2C:43-7.2, on counts one and two. Defendant was sentenced to five years' imprisonment with a two and one-half year period of parole ineligibility on count six, to run consecutively to his sentences on counts one and two. Appropriate fines were also imposed. Finally, counts three and four were merged into counts one and two. Defendant's aggregate minimum sentence is 130 years' imprisonment.
Defendant appeals his conviction and sentence and presents the following arguments for our consideration:
THE TRIAL COURT'S EXTENSIVE AND FACIALLY PARTISAN QUESTIONING OF WITNESSES WAS EXCESSIVE AND PREJUDICIAL, NECESSITATING REVERSAL.
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING THE JURY'S REQUEST FOR THE JURY CHARGE IN WRITING.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
B. THE QUANTUM OF THE SENTENCE IS EXCESSIVE.
The first issue considered is whether the trial judge's intervention in the proceedings was improper and resulted in depriving defendant of a fair trial. Defendant's trial counsel did not raise any objection to the trial judge posing questions to prosecution or defense witnesses. Therefore, we may reverse defendant's conviction only if we find that the trial judge's behavior constitutes plain error. R. 2:10-2. In determining whether an alleged error is plain error, courts must determine if the nature of the error is "clearly capable of producing an unjust result." Ibid. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Our Supreme Court has held that trial judges possess "broad discretion" as to when and how to participate in a given criminal case, however, the Court has cautioned that a judge must maintain an impartial atmosphere and avoid the appearance of supporting either the defense or the prosecution. State v. Ray, 43 N.J. 19, 25 (1964) (quoting State v. Guido, 40 N.J. 191, 207 (1963)). The Court warns [The trial judge] should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. [Ibid. (quoting Guido, supra, 40 N.J. at 207).]
When intervening to question witnesses, the trial judge should lead jurors to understand that the purpose of the intervention is to aid their understanding, not to advance the case of one side or the other. Ibid. See also State v. Taffaro, 195 N.J. 442, 451 (2008) (holding that the trial court's extensive questioning of a witness, while facially neutral, could possibly have signaled disbelief to the jury).
One of the recognized purposes of judicial intervention in the questioning of witnesses is to clarify testimony for the jury. Ibid. For example, in a murder case, the Supreme Court held that the trial judge properly interceded and questioned a sixteen-year old witness whose testimony was ambiguous. State v. Cohen, 211 N.J. Super. 544 (App. Div. 1986), certif. denied, 107 N.J. 115 (1987). We have also determined that it is not an abuse of discretion to question a witness, even when those questions would have been better left to the prosecutor, so long as those questions are relevant and are not "beyond justification as attempts by the court to clarify the issues." State v. Kelly, 118 N.J. Super. 38, 51-54 (App. Div.), certif. denied, 60 N.J. 350 (1972). Thus, so long as a trial judge maintains an impartial atmosphere, and makes clear to the jury that credibility determinations are solely a jury function, the judge has not committed reversible error. See State v. Ross, 162 N.J. Super. 47, 52 (App. Div. 1978), aff'd in part, rev'd in part, 80 N.J. 239 (1979).
In this case, the trial judge questioned both prosecution and defense witnesses when he perceived an ambiguity in the witness' testimony. The judge also made a point of reminding the jury members that they were not to give any additional weight to the questions he asked and that they remained the sole finders of fact in the case. The trial judge intervened a total of four times during defendant's six-day trial.
The first intervention occurred after the defense finished its cross-examination of Detective Thievon, the detective who met defendant and his female companion at the Dover Township police station. The trial judge's questions to Detective Thievon were brief and dealt entirely with whether defendant and his friend were ever left alone together in the interview room where they were held. After questioning Detective Thievon, the judge immediately instructed the jury concerning the reason for his questions. The judge stated:
Ladies and gentlemen, every once and a while, I ask some questions. You can't put any more importance into the questions that I ask than questions asked by counsel. When I ask questions, you're not to think that it's indicative of any opinion by the Court as to how the case should be decided or as to the merits of the testimony or the credibility of the testimony.
I want you to understand that I ask questions for your benefit. Hopefully, my questions maybe are beneficial in eliciting information that's helpful to you. If it's not helpful, and you say, Well, that's a stupid question the ...