March 12, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL TUCKER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-02-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2005
Decided December 29, 2005
Remanded by Supreme Court April 17, 2007
Resubmitted October 20, 2008
Before Judges Sapp-Peterson and Alvarez.
On April 17, 2007, the Supreme Court remanded for our consideration an unresolved issue remaining in defendant Michael Tucker's direct appeal.*fn1 Defendant had been found guilty by jury of felony murder, N.J.S.A. 2C:11-3(a)(3), armed robbery, N.J.S.A. 2C:15-1, and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(c). After merger of the armed robbery and weapon possession into the felony murder, defendant was sentenced to life imprisonment with thirty years of parole ineligibility. The Court affirmed the convictions, but directed a remand on whether the admission of testimony that defendant was minimally employed, and was being dunned for an unpaid hospital bill, was error that standing alone, warranted a new trial.
In this opinion, we also address additional issues not reached in our earlier decision,*fn2 namely, allegations of juror misconduct and defendant's challenge to his sentence. We therefore reconsider testimony relating to defendant's financial circumstances, determine whether the alleged juror misconduct constitutes reversible error, and assess the lawfulness of defendant's sentence. We affirm as to all of these points.
We need not recount the factual scenario that led to defendant's conviction on July 29, 2003, at great length.
Suffice it to say that defendant stabbed his sixty-eight-year-old mother to death while she was seated in a chair. The State's proofs included, among other things, a series of incomplete or contradictory statements defendant made post-Miranda,*fn3 and DNA evidence establishing the presence of his mother's blood on shorts he wore two days before the date he claimed he discovered her body.
When the murder occurred, defendant was unemployed. During his first interview with police, he did not mention taking his mother to a bank on the morning of her murder, or that she then withdrew $3000 in $100 bills. Bank surveillance tapes later obtained by police depict the victim arriving at approximately 9:25 a.m. on June 9, 2000. Defendant is visible behind his mother while dressed in denim shorts. DNA analysis determined that the shorts were stained with traces of his mother's blood. Police found the victim's purse in a bedroom closet in the home she shared with defendant. It contained $747 in cash together with a checkbook and the checkbook register. The final register entry was for a check in the amount of $3000 made out to cash.
The victim's body was not discovered until June 11, 2000, when defendant called 911 and reported that he had just found his mother's bloody corpse. There were no signs of a struggle or forced entry.
Defendant initially claimed that he last saw his mother alive two days earlier, on Friday, June 9, when he drove her home from the grocery store after which he left to spend the weekend with his girlfriend, Tracy Stepney. After police drove defendant to headquarters, they administered Miranda warnings. While there, defendant was arrested on unrelated outstanding warrants.
When defendant was re-interviewed post-Miranda, he acknowledged taking his mother to the bank, but claimed that he had waited for her in her car. He explained to police that the $520 in his pocket when he was processed on the warrants, in denominations of five one-hundred dollar bills and one twenty-dollar bill, was money he had earned repairing cars. The final message on the victim's telephone was from a debt collector about a $1594 hospital bill owed by defendant.
During trial, defendant's sister testified that he was minimally employed. She said that he occasionally worked on cars in her mother's driveway, and that if he earned anything from it, "he didn't make very much."
In our prior opinion, we discussed the State's proof as to defendant's lack of consistent employment in the context of his possession of $520. The evidence, we said: was relevant because it tended to prove that defendant did not normally possess the amount of money he had, especially in the form it was in, and that he had knowledge that the victim had a large amount of cash in bills of that exact denomination. By itself, that evidence was admissible and did not violate the Mathis/Terrell strictures.
The problem arises when such evidence is viewed in conjunction with the fact that defendant was substantially in debt to [a hospital]. [State v. Tucker, No. A-4772-03 (App. Div. December 29, 2005) (slip op. at 14-15).]
State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003), makes introduction of a defendant's impoverished status inadmissible as a general proposition. Because lack of money may be "logically connected with a crime involving financial gain," there is the troubling possibility that it "prove[s] too much against too many." State v. Mathis, 47 N.J. 455, 471 (1966). Accordingly, as per Mathis and Terrell, evidence as to impecuniosity is generally inadmissible because a jury may inappropriately infer that a defendant's poverty makes it more likely than not that he would commit a crime from which he stands to economically benefit.
This type of generality is obviously not proof beyond a reasonable doubt.
In this case, the State, in both opening and summation, contended that defendant's motive for the murder might have been payment of his hospital bill. Due to the unemployment testimony, the jury could have improperly assumed that defendant's impoverished state would make it more likely than not that he committed the crime.
The proofs against defendant, independent of the impecuniosity evidence, however, are overwhelming in light of the Court's determination that defendant's initial statements to police were admissible. The proofs now include: his failure to mention the bank visit when first interviewed, a film of him standing behind his mother while she withdrew $3000 in $100 bills, her bloodstains on the shorts he is wearing on the surveillance tape despite his assertions that he did not discover her corpse until two days later while wearing different clothing, and his possession of five $100 bills.
Thus, there is far more than impecuniosity that ties defendant to the crime. See Mathis, supra, 47 N.J. at 471-72. It is unlikely that when the record is considered as a whole, the unemployment and debt evidence played anything but a minimal role, if any, in the jury's determination of guilt. If the admission of the evidence was error, it was harmless and not clearly capable of producing an unjust result. R. 2:10-2.
After submission of the case to the jury, the court recharged on a portion of the instructions. The jury then left the courtroom, and the trial judge reported to counsel that a sheriff's officer observed a juror possibly taking notes. The judge said that he did not personally make the observation, but was merely repeating a statement made to him. Defense counsel responded that he had seen the same juror bending over, possibly taking notes, but had not directly seen note-taking or seen if the juror was in possession of pen or paper. The prosecutor said that no jurors had actually been observed with pen or paper and decried the allegation as "unfounded." The court noted that although it felt duty-bound to report the comment, the alleged misconduct related solely to one juror, and only during a recharge. The juror was not questioned, nor was remedial action requested or taken.
The decision to permit jurors to take notes rests in the sound discretion of the trial court. State v. Jumpp, 261 N.J. Super. 514, 526-27 (App. Div.), certif. denied, 134 N.J. 474 (1993). It is a decision made only after counsel is consulted and afforded an opportunity to state their views. Additionally, a court that permits jurors to take notes is expected to justify its decision on the record. Id. at 527. This is necessary because note-taking has the potential to distract a jury from the evidence, confuse some jurors, or cause them to overemphasize evidence contained in their notes. Id. at 525. In this case, the judge had advised the jury that note-taking would not be permitted and read the standard model jury charge to that effect.*fn4
Defendant now asserts that because the single juror potentially violated an explicit instruction, investigation should have been conducted and the juror questioned. He further contends that if notes were taken, they should have been impounded and a determination made as to whether the information was shared with other jurors. In the alternative, the court should have instructed the jury that the notes were not evidence, and that their combined recollection took precedence over any written notes pursuant to the dictates of Jumpp. See id. at 527.
As the State correctly responds, even if the allegation was true, no prejudice has been alleged that warrants disturbing the jury's verdict. The note-taking did not occur during the trial when evidence was being presented or during the initial charge to the jury. Absent a claim of prejudice, the argument is without merit. Plain error is one that can lead to an unjust result. State v. Jordan, 147 N.J. 409, 422 (1997). In this case, we have no basis to conclude that the mere act of note-taking during the recharge, assuming it occurred, led to an unjust result. Accordingly, it does not warrant reversal.
Lastly, defendant asserts that the sentence imposed by the trial court is illegal because it exceeds the presumptive term for murder and was otherwise excessive. At sentencing, the court found several aggravating factors: the nature and circumstances of the offense, including that it was committed in a heinous and cruel manner, N.J.S.A. 2C:44-1(a)(1); the gravity and seriousness of the harm inflicted on the victim, including that the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, N.J.S.A. 2C:44-1(a)(2); the risk of re-offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); the need for deterrence, N.J.S.A. 2C:44-1(a)(9); and that the offense was committed against a person defendant knew or should have known was sixty years of age or older, N.J.S.A. 2C:44-1(a)(12).
First, murder has no presumptive term, and, therefore, the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005), are simply inapplicable. Defendant's criminal history commenced in 1972, when he was a minor, and included not only an extensive juvenile history with two terms of commitment, but an additional ten indictable convictions as an adult. The court had ample facts to find aggravating factors and the absence of mitigating factors. The court adequately stated the reasons for the sentence, drawn from clear and convincing evidence: the number of stab wounds, the victim's physical condition, the relationship between victim and defendant, her age, his stated lack of remorse, and his prior criminal history. The sentencing judge applied correct legal principles in exercising his discretion. No clear error of judgment such as would shock our judicial conscience occurred here. State v. Roth, 95 N.J. 334, 363-64 (1984). Accordingly, we are convinced that there is no basis for disturbing the sentence.