March 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TOMANGO SIMMS AKA TOMANGO SIMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2008
Before Judges Skillman, Graves and Grall.
In a five-count indictment, defendant Tomango Sims was charged with felony murder, in violation of N.J.S.A. 2C:11- 3(a)(3) (count one); aggravated manslaughter, in violation of N.J.S.A. 2C:11-4 (count two); aggravated arson, in violation of N.J.S.A. 2C:17-1(a) (count three); arson, in violation of N.J.S.A. 2C:17-1(b) (count four); and aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(8) (count five). Following a jury trial, Sims was acquitted of aggravated manslaughter and aggravated arson, but he was found guilty of the lesser-included offenses of reckless manslaughter and arson. The jury also found defendant guilty of the remaining charges, including felony murder for causing the death of Elijah Jenkins, Jr., who was in the building that defendant set on fire. After appropriate mergers, the trial court sentenced defendant to a thirty-year prison term for felony murder with a thirty-year period of parole ineligibility under N.J.S.A. 2C:11-3(b)(1). Defendant received a concurrent five-year term on count five for knowingly or purposely starting a fire which resulted in bodily injury to a fireman.
On appeal, defendant presents the following arguments in a brief filed by counsel:
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE'S ERRONEOUS JURY INSTRUCTIONS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART I, PARS. 1, 9, 10. (Not Raised Below).
THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE TRIAL JUDGE'S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART I, PARS 1, 9, 10.
THE TRIAL JUDGE'S FAILURE TO PROVIDE A PROPER CORROBORATION CHARGE VIOLATED THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Not Raised Below).
In addition, defendant presents the following arguments in a pro se supplemental brief:
THE PETITIONER-APPELLANT SIMS SUBMIT AS A SUPPLEMENTAL THAT THE TRIAL COURT COMMITTED PLAIN ERROR IN THE JURY CHARGE INSTRUCTIONS ON THE UNDERLYING FELONY OF ARSON CONSTITUTING A REVERSAL OF THE FELONY MURDER CONVICTION.
APPELLANT SUBMIT THAT THOUGH UNREQUESTED THE FAILURE OF THE TRIAL COURT TO GIVE A CHARGE ON CAUSATION CONSTITUTES REVERSIBLE ERROR. POINT III
THE APPELLANT'S CONVICTION FOR BOTH FELONY MURDER AND RECKLESS MANSLAUGHTER IS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE WHERE TWO SEPARATE AND DISTINCT CONVICTIONS FOR ONE PERSON CAN NOT STAND AND BASED ON THE ERRONEOUS INSTRUCTION RAISED IN POINT I AND II IN PETITIONER'S PRO SE SUPPLEMENTAL BRIEF THE FELONY MURDER CONVICTION SHOULD BE VACATED AND THE LESSER OFFENSE OF RECKLESS MANSLAUGHTER SHOULD STAND.
After reviewing these contentions in light of the record and the applicable law, we are satisfied that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
At approximately 5:23 a.m. on Sunday, July 20, 2003, a taxi cab driver reported that the Walter J. Conley Elks Lodge on Throckmorton Street in Freehold Borough was on fire. The Elks Lodge was a three-story, wood-framed building that contained a banquet hall and bar on the first floor, a meeting room, kitchen and bedrooms on the second floor, and bedrooms on the third floor. When the police arrived at the scene, they were told that there could be three people who might be in the burning building. Four firemen, including Christopher Barkalow, proceeded into the building in an attempt to perform a search and rescue. While Barkalow was inside the building, he cut his leg on a piece of broken glass, and he received four stitches and a tetanus shot at a local hospital.
The fire was not brought under control until approximately 8:00 a.m., and the fire was not out until later in the afternoon. By that time, two of the potential victims had been accounted for, but Elijah Jenkins, Jr., who served as the lodge's caretaker, was still missing. It was determined that the building was unsafe and needed to be demolished. A demolition company began to slowly dismantle the building, and Mr. Jenkin's body was found in the kitchen area on the second floor of the building. Mr. Jenkins was sixty-eight years old when he died. An autopsy revealed that Mr. Jenkins died as a result of smoke inhalation and thermal injuries.
On the following day, July 21, 2003, Patrolman Otlowski was contacted by an individual who claimed to have knowledge regarding the Elks Lodge fire. The person, who wished to remain anonymous, stated that Tomango Sims had started the fire and that the fire was started on purpose. When the police spoke with Sims, he waived his Miranda*fn1 rights, and he admitted to setting the fire. He said he was sorry and that he did not know anyone was in the building. Sims told the police he just wanted to set a small fire because he "had some issues with the Elks Lodge."
In a written statement to the police, Sims provided the following information:
QUESTION: Why did you start the fire at the Elks?
ANSWER: First incident, my mom was a member of the Elks. She was trying to get back in as a member and they refused her. Second incident, my sister and her husband had paid them some money to rent the hall out. The last I heard was that they were trying to get their money back because they found out that they had scheduled another party on the date as my sister's party, which they had paid for.
QUESTION: So what was your intention for setting the fire?
ANSWER: To cause them money, since they did not give my sister's money back, I wasn't trying to cause anybody any physical harm.
QUESTION: When you went to the Elks, how did you enter the building?
ANSWER: I didn't go into the building. I started the fire on the outside of the white front door.
QUESTION: How did you start the fire?
ANSWER: I placed the paper towel on top of the rug at the front door and poured some flammable liquid and I lit it with a match. Immediately I walked away.
QUESTION: How quickly did the fire light?
ANSWER: Almost immediately.
QUESTION: How big did the fire get? ANSWER: At one point when I was walking away, I looked out the corner of my eye when a cab drove by and it looked like the fire was out.
QUESTION: Was anyone else with you, when you lit the fire?
ANSWER: No, I was by myself.
QUESTION: Where did you obtain the flammable liquid from?
ANSWER: 94 Center Street, in the garage, in the back.
QUESTION: What is the liquid kept in at 94 Center Street?
ANSWER: A red plastic container. QUESTION: Is there anything else you want to add to this statement?
ANSWER: I didn't mean to hurt anybody.
I didn't know that there was anyone in the building and I'm sorry.
Sims was also videotaped reviewing his statement and demonstrating how he started the fire. Sims elected to testify at his trial. When Sims was asked about his demonstration on the video he stated:
So we go over to the door and he asked me to identify the door and how far it goes in, how many steps is there and what I did.
I told him that I put a paper towel down, poured the gas on the door at the lower half of the door and threw a match on it. He asks me how fast did it light or something and I said almost immediately.
In an effort to corroborate defendant's confession, the police obtained a warrant to search 94 Center Street. While executing the warrant, the police seized a red plastic gas can and various items of clothing, which defendant claimed to have worn when he started the fire. In addition, the police confirmed there was an outstanding application by defendant's mother to reinstate her membership in the Elks Lodge, and defendant's sister's boyfriend had deposited $100 to rent the Elks Lodge banquet hall, but the hall had not been used and the deposit had not been returned.
On appeal, defendant contends, as he did before the trial court, that his statements to the police should be suppressed. Following a Miranda hearing, which took place on January 27, 2005, the trial court explained its reasons for denying defendant's suppression motion in a comprehensive twenty-two-page oral decision. The trial court determined that defendant's custodial statements were admissible because the State proved beyond a reasonable doubt that defendant had voluntarily, knowingly, and intelligently waived his constitutional right to remain silent. Because the court's findings and conclusions are fully supported by the record and the court correctly applied well-settled legal principles, we affirm the order denying defendant's motion to suppress his statements substantially for the reasons stated by Judge Kreizman in his oral decision on January 27, 2007.
Defendant also argues that his convictions should be reversed because of erroneous jury instructions. Although defendant concedes the trial court "gave the model jury charge for felony murder which included the causation elements," he contends the court erred by failing to tailor the charge to the facts of the case, and by failing to give the causation charge for aggravated manslaughter, and reckless manslaughter. Because defendant did not object to any portion of the charge at trial, we must determine whether there was plain error requiring reversal. R. 2:10-2.
Defendant argues that the trial court in the present matter "committed the exact same error" as the trial court in State v. Martin, 119 N.J. 2 (1990). However, in Martin, unlike in this case, the trial court did not charge the jury on the issue of causation. Id. at 33-34. Moreover, in Martin, the jury was required to consider contrasting theories of causation, and the Court determined that the jury was not properly instructed on the felony murder charge "[b]ecause N.J.S.A. 2C:2-3e requires that an actual result must be the probable consequence of the defendant's conduct." Id. at 33. The Court explained:
A correct charge would have instructed the jury that it must find not only that defendant committed the crime of arson and that the death of the victim occurred in the course of that crime, but also that her death would not have occurred but for the fire set by defendant and that her death was not too remote or accidental in its occurrence. [State v. Martin, supra, 119 N.J. at 34.]
The charge in this case was a "correct charge" under Martin.
Similarly, defendant's argument that the trial court failed to include a causation charge for aggravated manslaughter and reckless manslaughter is without merit. When the trial court charged the jury on aggravated and reckless manslaughter, it instructed the jury that causation was an element and referred the jury back to the definition of causation that it had previously given. In both instances, the court explained the jury was required to find that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that death would result from his conduct. When read as a whole, the jury instructions directed the jury to consider everything essential to establish causation for reckless homicide. N.J.S.A. 2C:2-3(c). Under these circumstances, we conclude the jury was correctly charged.
Defendant also contends the trial court committed plain error by not giving the jury a corroboration instruction. We cannot agree. When defendant testified, he verified most of the information in his pretrial custodial statements. Moreover, the police located the red gasoline container and other items from the locations specified by defendant; the police confirmed defendant's statements regarding his reasons for starting the fire; and the State's expert witnesses confirmed that the fire originated in the front door area of the Elks Lodge and that an accelerant was used to start the fire. Because there was substantial corroborative evidence, which was not disputed by defendant when he testified, the absence of a specific instruction on corroboration does not amount to plain error under Rule 2:10-2.