March 31, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHERMAN ARTWELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2275.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Waugh and Newman.
Defendant Sherman Artwell appeals from a seven-count conviction stemming from the murder of his girlfriend's paramour and the resulting sentence of life imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive five-year term for hindering apprehension, subject to two-and-one-half years of parole ineligibility. We affirm.
Artwell and co-defendant Zoranda Paulson had one son together and had been romantically involved for more than ten years. Paulson was also romantically involved with the victim, Ronald Jackson. Jackson supported Paulson and her three children, paying for her home and other expenses.
Paulson's cousin, co-defendant Jonathan Martin, testified at Artwell's trial that approximately three weeks before Jackson's murder, the three co-defendants met at Paulson's house. Paulson told the two men that Jackson had raped and beaten her. According to Martin, it was decided that Jackson would be "choked out." Martin testified that Artwell and Paulson wanted him to help them by setting the body on fire. Martin did not initially agree, but later acquiesced because Paulson promised him a place to live if he went along with the plan. Martin testified that he then moved in with Paulson.
According to Martin, on August 11, 2002, he walked down to the first floor of Paulson's house and saw Jackson sitting at the dining room table and Paulson cooking. He asked Paulson if Artwell was in the house and she told him that he was upstairs. Martin then left the house at around noon.
Artwell, who did not testify at trial, told police that he had been on the second floor of Paulson's house when Jackson arrived on August 11, 2002. Also upstairs were two of Paulson's children and a friend of her daughter. Artwell went downstairs and an altercation ensued between himself and Jackson. Paulson testified at trial that after Artwell and Jackson started fighting, she went upstairs.
In Artwell's second statement to the police, he said that he and Jackson were arguing about Paulson and that Jackson was upset that Artwell was at Paulson's house. Artwell stated that as he went to walk past Jackson, Jackson jumped at him from behind and that he swung at Artwell, but Artwell ducked, avoiding the blow. Artwell also stated that Jackson had a pen in his hand and he was not "sure whether he was going to stab [him] with it, but . . . his hands came up and  he was trying to stab [him]." Both of Artwell's taped statements were played for the jury at the trial.
Paulson testified at trial that when she came back downstairs, Artwell had Jackson in a "chokehold." Artwell told police that he held Jackson in the chokehold until he was not moving anymore. According to Artwell, at this point Jackson was "knocked out" and "snoring."
Once Jackson was unconscious, Artwell and Paulson duct taped Jackson's hands behind his back and duct taped his ankles together. They also put duct tape over his mouth and nose. Paulson then got rubbing alcohol. She and Artwell cleaned underneath Jackson's nails because he had scratched Artwell during their altercation and they wanted to remove any evidence linking them to Jackson.
Artwell and Paulson then moved Jackson to the basement of Paulson's house. Paulson testified that it was her intention to keep him in the basement until the next day. She also testified that she knew Jackson was still breathing when they put him in the basement. Similarly, Artwell told the police that Jackson was still breathing after he and Paulson had moved him to the basement.
Paulson drove Artwell home in Jackson's car at approximately six p.m. When Paulson returned home, she brought the three children down from the second floor and ate dinner with them. John Moore, a cousin of Jackson, arrived at Paulson's house and asked if she knew where Jackson was. She told him she did not. She let Moore into the house to page Jackson and he ate dinner with her and the children.
After Moore left and the children had gone to bed, Paulson went to the basement to check on Jackson. She noted that he was still breathing so she retrieved more duct tape and "taped  from his nose to his eyebrows." Paulson testified that she did this because she wanted Jackson dead, but denied that she had planned in advance with Artwell or Martin to kill Jackson.
In his statement to the police, Artwell said that he called Paulson several times on the evening of August 11, 2002. In the first phone call, Paulson told Artwell that Jackson was still breathing. After about a half an hour, Artwell called Paulson again and she checked on Jackson. At this time, Paulson told Artwell that Jackson was not breathing, and Artwell told her she needed to get rid of the body because it was so hot that the body would start to smell. He told her she needed to "burn him." In his statements, Artwell also related that he told Paulson to "put him in the car and burn him."
According to Paulson's testimony at trial, however, she did not speak with Artwell after dropping him off at his house. Rather, Martin called her and asked if he could spend the night at her house. She told him yes, but that he would first need to do her a favor and help her get rid of Jackson's body. Martin, in contrast, testified that Paulson called him and told him that everything was done and he should come back to the house and help her destroy the body.
Martin went to Paulson's house and entered the basement. He observed Jackson "propped up against the wall" with his hands duct taped behind his back, his ankles taped together, and duct tape on his face "from his nose to his chin." Martin believed Jackson to be dead because "[h]e wasn't moving." Paulson testified that at this point she also believed Jackson to be dead. Both Paulson and Martin went upstairs, put on dark clothes, and then returned to the basement.
Paulson and Martin wrapped Jackson in a sheet and carried him upstairs. Paulson then returned downstairs to retrieve a gas can. She realized that there was not enough gas in the can, so she and Martin left Jackson by the front door and used Jackson's car to drive to a convenience store. Martin purchased lighter fluid and they returned to Paulson's house.
Paulson and Martin carried Jackson's body out to the car. They wanted to put him in the trunk of his car, but he did not fit so they put him in the backseat. The two then drove the car to an abandoned lot, where Paulson parked it between two abandoned cars. They poured the lighter fluid on the car and set it on fire.
Paulson and Martin then ran several blocks, disposing of some of their clothes on the way. They hailed a cab and returned to Paulson's house.
An autopsy revealed that Jackson was alive when the fire was set. He died from smoke inhalation and thermal burns. Jackson also had a fractured skull from unknown causes.
Artwell, Paulson, and Martin were indicted on June 18, 2003. Artwell was indicted on the following charges: first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2) (count one); first-degree felony murder (based on aggravated arson), N.J.S.A. 2C:11-3(a)(3) (count two); second-degree aggravated arson, N.J.S.A. 2C:17-1(a) (count three); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count four); second-degree conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 (count five); two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts six and eight); and third-degree conspiracy to commit hindering apprehension, N.J.S.A. 2C:5-2 (count seven).
Co-defendants Paulson and Martin were charged in the first seven counts listed above and an additional six counts including hindering apprehension, felony murder (based on carjacking), carjacking, theft of an automobile, and conspiracy. Martin pled guilty to second-degree reckless manslaughter and third-degree hindering apprehension or prosecution. He was sentenced to an aggregate seven-year term subject to NERA. Paulson pled guilty to aggravated manslaughter prior to the start of Artwell's trial.
On September 1, 2004, a Miranda*fn1 hearing was held before Judge Samuel D. Natal. Judge Natal ruled that any statements made by Artwell to the police would be admissible because he had been fully advised of his Miranda rights prior to questioning and had voluntarily and intelligently waived those rights.
The trial began on May 31, 2006, and continued over five days. The jury returned a verdict on June 8, 2006, after twoand-one-half hours of deliberation. The jury found Artwell not guilty of count two, conspiracy to commit murder. Artwell was also acquitted of first-degree murder (count one), but found guilty of the lesser included offense of aggravated manslaughter. N.J.S.A. 2C:11-4(a)(1). He was convicted on all remaining charges.
Artwell was sentenced on August 4, 2006. Judge Natal merged the conspiracy counts into the related substantive counts. He then merged counts three (aggravated arson), six (hindering apprehension by disposing of the body), and one (aggravated manslaughter) into count two (felony murder). The trial court found aggravating factor one and two, N.J.S.A. 2C:44-2(a)(1), (2), but stated that "I'm not going to weigh either of them heavily on a qualitative basis because I do not want to have any question of the Court double counting." He then went on to find aggravating factors three, six, and nine. N.J.S.A. 2C:44-2(a)(3), (6), (9). The only mitigating factor found was six, N.J.S.A. 2C:44-2(b)(6), premised on the $5,000 restitution to the Violent Crimes Compensation Board that the judge ordered defendant to pay.
Ultimately, Artwell was sentenced to life imprisonment, subject to NERA, and, upon being paroled, to a five-year-period of supervision for count two. He received an additional five-year consecutive term for count eight, subject to two-and-one-half years of parole ineligibility.
Defendant raises the following points on appeal:
POINT I. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER WAS REVERSIBLE ERROR. (NOT RAISED BELOW).
POINT II. THE TRIAL JUDGE'S TRUNCATED CHARGE WAS INCOMPLETE AND MISLEADING, RESULTING IN THE DENIAL OF A FAIR TRIAL AND DUE PROCESS. (NOT RAISED BELOW).
POINT III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Artwell argues in Point I that the trial judge erred in failing to charge passion/provocation manslaughter, despite the fact that his trial counsel agreed with the trial judge that it was not warranted. He contends that the jury, although it rejected the defense of self-defense, could have concluded that Jackson's attack on him was sufficient provocation to warrant a finding of passion/provocation manslaughter. We disagree.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). See also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").
In State v. Choice, 98 N.J. 295, 298 (1985) (footnote omitted), the Supreme Court described a trial court's duty with respect to charging a lesser-included offense that has not been requested as follows:
We held [in State v. Powell, 84 N.J. 305 (1980),] that the fact that defendant's position at trial was totally inconsistent with a manslaughter verdict did not deprive him of the right to have that lesser offense submitted to the jury, and that it was reversible error on the part of the trial court upon request, to refuse to charge such lesser offense. In dictum we noted that "where the facts clearly indicate the possibility that the crime was manslaughter based upon either provocation/passion or imperfect self-defense, we see no reason why the trial judge should not also be obliged, even without any request being made, so to charge." [Id.] at 318 (emphasis supplied).
See also State v. Denofa, 187 N.J. 24, 42 (2006) ("[C]courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted.").
During a review of the substantive charges to be given to the jury, the following exchange took place between the trial judge and counsel:
The Court: [T]he first charge I would give them would be murder, aggravated reckless manslaughter.
Counsel, I see no basis for any passion provocation charge.
[Defense Counsel]: No.
The Court: Are we in agreement there?
[Defense Counsel]: I agree.
The Court: There has been nothing presented -- anything passion provocation [sic].
[The State]: I agree.
Artwell argues that the trial judge erred by not charging the jury with passion/provocation, second-degree manslaughter, N.J.S.A. 2C:11-4(b)(2), in addition to first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2), first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1).
Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated. [State v. Mauricio, 117 N.J. 402, 411 (1990) (citation omitted).]
In deciding whether the provocation was adequate, "[t]he question . . . essentially amounts to whether loss of self-control is a reasonable reaction." Id. at 412. Artwell argues that Jackson's attempt to attack him from behind and stab him with a pen constituted adequate provocation. We recognize that mutual combat may constitute adequate provocation. State v. Cristanos, 102 N.J. 265, 274 (1986).
However, we need not decide, "view[ing] the situation in the light most favorable to the defendant," Mauricio, supra, 117 N.J. at 412, whether Artwell's immediate actions in response to Jackson's alleged conduct were reasonable because we believe that he cannot satisfy the second element of passion/provocation manslaughter.
The second element asks whether the perpetrator had reasonable time to cool off before killing the victim. Even if reasonable provocation impassioned the perpetrator, a charge of passion/provocation manslaughter is not available if one should have cooled off before the killing. As with the first element, the appraisal must be made on an objective basis. Although a trial court may withhold instructions if there was undeniably a reasonable cooling-off period, it is well-nigh impossible to set specific guidelines in temporal terms.
Trial courts are therefore remitted to the sense of the situation as disclosed by the facts.
[Id. at 412-13.]
In his statement to the police, Artwell admitted that he knew Jackson was still alive when he and Paulson duct taped his hands, ankles, and mouth, and placed him in the basement. Artwell also admitted that after Paulson drove him home, he called her house at least twice to talk to the children making sure they were okay. By the time of the second phone call, Paulson had returned home and, after checking on Jackson, told Artwell that Jackson was still breathing. Artwell told Paulson at this point "you guys get him out of here." Artwell then called Paulson's house a third time and at this point, Paulson informed Artwell that she did not think Jackson was breathing.
Even accepting Artwell's argument that there was adequate provocation, based upon the facts as Artwell related them, there was a reasonable time to "cool off" between the struggle with Jackson and the time that Artwell believed Jackson to have died. This period provided Artwell with sufficient opportunity to desist from the conduct that resulted in Jackson's death and therefore precludes a finding of passion/provocation manslaughter.
Consequently, we are satisfied that the trial judge correctly concluded that a passion/provocation charge was unwarranted.
We next address Artwell's argument raised in Point II. Although the plain error standard of Rule 2:10-2 applies to our review, we must assure ourselves that any defects in the charge were not consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
Artwell concedes that "[t]aken separately, the various charges on aggravated arson and accomplice liability are individually correct." Artwell argues that the mistake in the jury charge occurred when the trial judge failed to instruct the jury that "if the defendant only intended to burn the [dead] body of  Jackson, but not the car, he would be guilty of hindering apprehension, but not arson, and therefore, not felony murder."
With respect to aggravated arson, the trial judge introduced the charge to the jury as follows:
The third count in the indictment charges the defendant with the crime of aggravated arson in violation of part of our statute that reads as follows:
A person is guilty of an aggravated arson if he starts a fire or causes an explosion, whether on his property and/or on the property of another; and, one, thereby purposely and knowingly places another person in danger of death or bodily injury; or he does that with the purpose of destroying the building or structure of another.
In order for you find the defendant guilty of aggravated arson, the State must prove the following elements to you beyond a reasonable doubt:
One, the defendant purposely started a fire on his own property or the property of another.
Again members of the jury, the accomplice liability applies here. This charge is being given to you as if the defendant is the actor. He could be found guilty if you find accomplice liability applies or vicarious liability as a co-conspirator.
The second element is that the act of starting the fire either purposely or knowingly placed another in danger of death or bodily injury, or it was done with the purpose of destroying a building or structure of another.
The first element that the State must prove to you beyond a reasonable doubt is that the defendant purposely started a fire at Ronald Jackson's car. [(Emphasis added).]
Despite Artwell's statements to the effect that he told Paulson to burn the body in the car, the defense's argument at trial rested on the assertion that Artwell only wanted to burn what he believed to be the dead body of Jackson, not that he wanted to burn the car as well. During her summation, defense counsel stated:
Even if you find Sherman Artwell said, I said burn his body, I thought he was dead, I thought the body was going to smell, I wanted them to get the body out of the house, burning the body and burning the body in the car is different.
If you just burn a body -- and the judge is going to, again, instruct you on the law and if I say anything that differs than what the judge say[s], I urge you to follow the judge, but if you just burn a man, that's not arson. That's aggravated assault and he's not charged with that.
The jury returned a guilty verdict on charges of aggravated arson, felony murder, and also conspiracy to commit aggravated arson. It is clear from the verdict sheet that the jury did not believe the defense's argument, but rather believed that Artwell had conspired with Paulson and/or Martin to commit aggravated arson by burning not only Jackson's body, but also the car. Such a finding is fully supported by the record, given Artwell's admission that he told Paulson to burn the body in the car.
We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). In so doing, we find nothing "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid. The judge largely instructed the jury according to the Model Jury Charges and he did so without objection after reviewing the proposed charges with counsel during a charge conference. See also ibid. At the close of the charge, defense counsel did object to the way the arson charge was worded on the jury sheet, wanting to ensure that jury understood arson to be a property crime. The trial judge responded that the charge was clear, and we agree. The trial judge made clear that aggravated arson was a crime against the property and could not be based solely on the finding that Artwell wanted Jackson's dead body burned.
"In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). In his statement to the police, Artwell admitted that he had told Paulson to burn the body in the car.
We can find no plain error in the trial judge's jury charge warranting reversal. The trial judge was careful in the charge he delivered to the jury. He provided the jury not only with the charges contained in the indictment, but also with the lesser included offense. See State v. Vujosevic, 198 N.J. Super. 435, 445 (App. Div.), certif. denied, 101 N.J. 247 (1985), noting:
As the Supreme Court of the United States has indicated, when the defendant is clearly guilty of some offense and the evidence warrants a conviction for a lesser offense than the offense charged, . . . there is a substantial risk that in practice a jury when charged only on the greater offense may return a guilty verdict even though in doubt as to the proof of some of the elements of the greater offense, rather than allow the defendant to go free. Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 2388, 65 L.Ed. 2d 392, 401 (1980).
Additionally, there was ample evidence on the record to support the findings of the jury, both in defendant's own statements and the testimony given at trial, particularly Martin's testimony.
We now address defendant's argument in Point III, that the sentence imposed was excessive.
Our role in reviewing a sentence is limited.
"[W]e will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. We anticipate that we will not be required to invoke this judicial power frequently." [State v.] Roth, 95 N.J. [334,] 364 [(1984)] (citation omitted). The test, then, is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review. Id. at 365.
[State v. Ghertler, 114 N.J. 383, 388 (1989).]
N.J.S.A. 2C:11-3(b)(1) requires, with some exceptions inapplicable to the present facts, that a person convicted of murder be sentenced "by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole."
In considering the aggravating and mitigating factors, the trial judge stated:
In this matter, the Prosecutor wishes the Court to find aggravating factor one. In this matter the Court  acknowledges that the fact that the victim died is an element of the offense and therefore it [will] not double count. However, what they're talking about here is the circumstances of that death.
In this case the defendant's personal actions were to strangle the victim until he was unconscious, immediately duct tape him, have him carried down to the basement where he remained while the defendant left to go home and  gave instructions to the co-defendants to dispose of the body.
The ultimate cause of death was the burning of the car with the victim in it. However the Court does find this defendant's conduct of strangling the defendant, while -- until he was unconscious, duct taping him, having him transported, is cruel and heinous conduct, over and above that necessary for the cause of death.
The Court also notes under [factor] two that at the time of the death the victim was vulnerable. Incapable of resistance as he was duct taped and could not move. So, while I find basically both of these aggravating factors I'm not going [to] weigh either of them heavily on a qualitative basis because I do not want to have any question of the Court double counting.
The trial judge then went on to find aggravating factors three, six, and nine, and then denied the State's request to find aggravating factor thirteen. N.J.S.A. 2C:44-1(a).
In considering the mitigating factors the trial judge stated:
The defense in this matter also asks the Court to find mitigating factors three -- the defendant acted on the strong provocation -- and five the victim's conduct induced or facilitated the commission of the crime. I can not do so. In this matter it is clear from the testimony that the defendant was not provoked. The issue of self-defense was submitted to the jury and the jury did not find self-defense.
The defendant laid in wait, upstairs in the bedroom until he had the opportunity to come down and attack the victim. Clearly he did not act under the strong provocation; he acted under jealousy. The victim in this matter was caring for the co-defendant and the defendant felt that she was his woman.
And he -- that was the cause of this -- to get him out of the house. So I cannot find mitigating factors three and five.
The trial judge also declined to find mitigating factor two, seven, eleven. He did find mitigating factor six.
N.J.S.A. 2C:44-1(b). In balancing the aggravating and mitigating factors, the trial judge was "clearly convinced that the aggravat[ing] factors substantial[ly] outweigh the mitigating factors."
The sentence imposed, though at the high-end, was within the statutorily allowed term. "[T]he application of the facts to the law" does not represent "such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). The trial judge adequately explained on the record his reasoning for finding aggravating and mitigating factors, taking great care to emphasize that he was not double counting any factor. See State v. Jarbath, 114 N.J. 394, 404 (1989) (holding that it is "unfair and not permitted" to use facts to both "determin[e] the degree of culpability of a crime and  as an aggravating factor").
Finally, we do not read defendant's appeal to be challenging the imposition of a consecutive as opposed to a concurrent term for count eight. However, we note that the trial judge adequately discussed the Yarborough*fn2 factors when imposing the consecutive sentence.