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State v. Severs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM C. SEVERS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0181.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2009

Before Judges Wefing, Parker and Yannotti.

Following a trial before a jury, defendant William C. Severs was found guilty of first-degree murder, N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. The trial court imposed an aggregate sentence of sixty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on October 20, 2005, and challenges his conviction and sentences.

For the reasons that follow, we affirm defendant's conviction and the sentences imposed by the trial court, with the exception of the sentence imposed for possession of a weapon for an unlawful purpose. We remand the matter to the trial court for entry of a corrected judgment of conviction merging defendant's conviction for possession of a weapon for an unlawful purpose with his conviction for murder.

I.

We begin our consideration of this appeal with a brief summary of some of the key evidence presented at defendant's trial. Tina Labriola (Labriola) had been married to Joseph Labriola and they separated in 1999. Sometime thereafter, Labriola entered into a relationship with defendant. Labriola's relationship with defendant was stormy and marked by violence. Defendant often expressed anger and jealousy regarding Labriola's relationships with others. Defendant and Labriola argued. At times, defendant physically abused her. He threatened to kill her. By November 2000, Labriola and defendant had separated, although they continued to see each other.

During the holiday season of 2001, Labriola and Ralph Kearney (Kearney) were engaged to be married. In late December 2001, defendant was with Edward Hackett (Hackett) at a tavern. Hackett said that defendant was belligerent and threatened to kill Labriola. Hackett said that he did not take the threat seriously.

Theresa Northam (Northam) also was in the tavern that evening. Defendant approached her and said that he told Hackett that he intended to kill Labriola. Northam testified that, on another occasion, defendant threatened to put Labriola in a wheelchair.

Melinda Harris (Harris) was Labriola's best friend. She resided on West Park Drive in Vineland. Harris' father, Newton Turner (Turner) was residing with his daughter in early January 2002. He testified that on two days, he observed a red van drive into Landis Park, which was located across from Harris' home. Turner observed an individual get out of the van, sit on a bench, and stare at Harris' house.

On two subsequent days, Turner saw a red car pull into the park directly across from the Harris home. On both days, a male exited the car, sat on a bench, and looked towards the home from 6:30 a.m. to 9:00 a.m. Once, Turner drove his truck towards the other car and he observed the man sitting on the bench. He said that the man was wearing a baseball cap and his hair curled up around the bottom of the cap.

Wilbert Creamer (Creamer), one of defendant's friends, testified that, on the morning of January 10, 2002, defendant appeared at his residence. Defendant was driving his mother's red Baretta. Defendant had long, shoulder length brown hair. According to Creamer, defendant was upset, apparently because Labriola planned to marry Kearney.

That evening, at about 6:40 p.m., Labriola and Kearney went to visit Harris at her home. Labriola and Kearney entered the house. Harris was not able to come out immediately so Labriola and Kearney went outside to his car to wait. Kearney decided to add some oil to his car's engine. Kearney got out of the car and retrieved the oil from the back seat.

Labriola exited the car to assist him. While Labriola and Kearney were standing next to each other behind the car, Kearney heard a bang that seemed to emanate from the park. Labriola fell to the ground. Harris said that she heard the bang from inside of the house. She ran outside and discovered that Labriola had been shot. Labriola died while being transported to the hospital by emergency personnel.

The police responded to the crime scene. They found a bullet in the driveway where Labriola had been shot. The police conducted a search of Landis Park. They found a rifle and a guitar case with shells approximately two-hundred-and-twenty yards from the crime scene. Creamer later identified the rifle as a rifle that he sold to defendant in 2000.

The police also discovered a circle of disturbed ground next to a tree, about two-and-one-half-feet wide, with two impressions that appeared to come from shoes or boots. The officer who found the disturbed ground testified that it appeared that someone had been sitting in front of and leaning back on the tree with his or her legs crossed. The disturbed area was sixty-one yards from the spot where Labriola's body was found after the shooting. The police found no other similarly disturbed areas in the park.

Randolph Toth (Toth), an investigator with the New Jersey State Police, was qualified as an expert in ballistics and firearms. Toth testified that the scope on the rifle found in the park allowed for a good sight of a target from sixty-one yards, even in poor light. He said that the effective "killing range" of the rifle was about three hundred yards. Toth testified that a rifle shot from a distance of sixty-one yards was "a close-range shot."

Defendant's palm print was found on the rifle's scope. The projectile found at the crime scene was the same caliber as that of the rifle found in the park. The guitar case was tested. The parties stipulated that the DNA found on a guitar strap in the case and the hair found in the case was not defendant's DNA. In a search of a trailer where defendant stored his belongings, the police found several guitars. The only guitar without a case was a bass guitar. The guitar case found in the park was from a bass guitar.

David Wardell (Wardell), taught defendant to play the guitar. Wardell testified that, when he helped defendant move, he had seen a guitar case. Wardell said that the guitar case he had observed was the same case found in Landis Park following the shooting.

Julian Gonzalez (Gonzalez) lived near Harris' home. Gonzalez testified that, at approximately 7:00 p.m. on January 10, 2002, he was watching television when he heard a gunshot. He saw several police cars and an ambulance drive by. Gonzalez got into his car and drove in the direction that the police cars and ambulance had traveled. At the intersection of Cambridge Avenue and Park Drive, near the crime scene, Gonzalez observed a man coming out of Landis Park.

According to Gonzalez, the man had dirty blond hair that curled up around his shoulders. The man weighed approximately two hundred pounds. Gonzalez testified that he believed that the man "was trying to . . . run away from something." Gonzalez said that the man was running in the opposite direction of the emergency vehicles.

Gonzalez could not identify defendant from a photographic array because the photo only provided frontal views. He had seen the man from the side. Later, Gonzalez saw a photograph of defendant in a local newspaper. The photo showed a side view. Gonzalez testified that he "definitely knew" that the man in the photo was the same individual he had seen on the evening of January 10, 2002. Gonzalez testified that defendant was the man he saw exiting Landis Park.

A week after the shooting, defendant went to see Northam. He told her that he needed help in leaving New Jersey. Northam drove defendant to her niece's home in Virginia. On the way, defendant crouched down in the back seat. He told Northam that Creamer had given him a gun. He said that he would not "go down" alone.

Defendant was arrested in Ocean City, Maryland. He identified himself as Edward Northam. When defendant was told that he would be placed in the county jail, he said that he looked forward to spending the rest of his life in jail. While being returned to New Jersey, defendant told one of the police officers transporting him that he wanted to kill himself, he looked forward to spending the rest of his life in jail, and he would die in jail.

II.

On appeal, defendant raises the following issues for our consideration:

POINT I.

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HE WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).

(A) THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY DEPRIVING THE DEFENDANT OF HIS RIGHT TO PEREMPTORY CHALLENGE.

(1) JUROR NO. 5.

(2) JUROR NO. 11.

(B) THE TRIAL COURT IMPROPERLY REPRESENTED TO JUROR NO. 5 AND JUROR NO. 12 THAT THEY WERE TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).

POINT II.

ADMISSION OF THE "OTHER BAD ACTS" EVIDENCE CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE FOURTH PRONG OF THE STATE v. COFIELD TEST WAS NOT SATISFIED AND THE TRIAL COURT COMMITTED PLAIN ERROR [IN] ITS LIMITING CHARGE BY FAILING TO INSTRUCT THE JURY THAT THE DEFENDANT'S GUILT ON THE CRIMES CHARGED IN THE INDICTMENT MUST BE BASED ON EVIDENCE INDEPENDENT OF THE OTHER BAD ACTS TESTIMONY OF THE WITNESSES (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).

(A) THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN FINDING THAT "THE DEFENSE HAS NOT MADE THE VERY STRONG SHOWING OF PREJUDICE TO JUSTIFY EXCLUSION".

(B) THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT'S GUILT MUST BE BASED ON EVIDENCE INDEPENDENT OF THE OTHER BAD ACTS TESTIMONY OF THE WITNESSES CONSTITUTES PLAIN ERROR (NOT RAISED BELOW). POINT III THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY FAILING TO RECOGNIZE THE PREJUDICIAL IMPACT THAT THE IN-COURT CONDUCT BY THE VICTIM'S FAMILY HAD ON THE JURY.

POINT IV.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION [TO] EXCLUDE THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF MS. D'IPPOLITO.

POINT V.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS POST-MIRANDA ORAL STATEMENTS MADE TO DETECTIVE COLLINS AND TO DETECTIVE CASE.

POINT VI.

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).

(A) THE PROSECUTOR IMPROPERLY COMMENTED ON THE DEFENDANT'S SILENCE AND FAILURE TO OFFER EXCULPATORY EVIDENCE (NOT RAISED BELOW).

(B) THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF A STATE'S WITNESS (NOT RAISED BELOW).

(C) THE PROSECUTOR IMPROPERLY INTRODUCED THE CONCEPT OF DEFENDANT'S INNOCENCE IN HIS SUMM[A]TION (NOT RAISED BELOW).

POINT VII.

THE AGGREGATE [SIXTY] YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT THREE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF [THIRTY] YEARS.

(B) THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT FOUR SHOULD HAVE BEEN MERGED.

Defendant also has filed a pro se supplemental brief in which he raises the following arguments:

POINT I.

THE OUT-OF-COURT PHOTOGRAPHIC IDENTIFICATION AND IN-COURT IDENTIFICATION OF JOAN D'IPPOLITO (ESPECIALLY WHEN MADE WHEN DEFENDANT WAS DRESSED IN PRISON GARB), SHOULD HAVE BEEN EXCLUDED, VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS AND THE FEDERAL AND STATE EXCLUSIONARY PRECEDENTS.

A. Introduction.

B. The "Totality of the Circumstances" Test.

C. The Wade Hearing.

D. Other Unexplained Discrepancies.

E. The Suggestive Circumstances That Preceded the Wade Hearing.

POINT II.

THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL WHEN A KEY WITNESS FOR THE STATE INADVERTENTLY REVEALED THAT A RESTRAINING ORDER HAD EXISTED BETWEEN THE DECEASED AND DEFENDANT; IN LIEU OF THE COURT PREVIOUSLY ORDERING THE CHARGE OF CRIMINAL CONTEMPT BE SEQUENTIALLY TRIED; VIOLATING DEFENDANT'S RIGHTS TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT III.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO PRECLUDE OTHERWISE RELEVANT EVIDENCE CONSIDERING ITS HIGHLY INFLAMMATORY NATURE; VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT IV.

THE PROSECUTOR'S COMMENTS IN SUMMATION ABOUT DEFENDANT'S FAILURE TO PRESENT EVIDENCE VIOLATED DEFENDANT'S FIFTH AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS TO REMAIN SILENT AND DUE PROCESS, UNDER THE UNITED STATES CONSTITUTION AND ITS FEDERAL AND STATE PRECEDENTS.

POINT V.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED: (1) TO PRECLUDE EVIDENCE OF "OTHER CRIMES" AND "CIVIL WRONGS" ALLEGEDLY COMMITTED BY DEFENDANT; AND, (2) TO SANITIZE THE EXTRANEOUS INFLAMMATORY DETAILS OF SUCH EVIDENCE; DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. Introduction.

B. General Principles: 404(b) is a "Rule of Exclusion" Subject to Narrowly Defined Exceptions.

POINT VI.

THE EXCESSIVE USE OF IRRELEVANT SEARCH WARRANT EVIDENCE COMBINED WITH NUMEROUS REFERENCES TO THE PHRASE "SEARCH WARRANT" WAS ALLOWED TO BE PARADED BEFORE THE JURY IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT VII.

THE TRIAL COURT'S CHARGE TO THE JURY AT THE CLOSE OF THE CASE, BOTH IN WHAT IT INCLUDED AND IN WHAT IT OMITTED, WAS CLEARLY ERRONEOUS AND CONSTITUTED PLAIN ERROR; AS WELL AS FAILING TO DECLARE A MISTRIAL UPON A HUNG JURY, DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION AND ITS FEDERAL AND STATE PRECEDENTS.

A. Introduction.

B. The Failure To Adequately Instruct On The Use Of Other Crimes And Bad Acts Evidence.

C. The Failure To Adequately Instruct On The Knowing And Purposeful Murder Charge And In Combination With The Verdict Sheets, Both Erroneously Adding In Essence An Additional Element For Jury Consideration, The Trial Court Also Failed To Sua Sponte Declare A Mistrial When The Jury Informed The Court That It Was Hung On the Murder Count.

POINT VIII.

THE CUMULATIVE ERRORS IN THIS CASE DEPRIVED DEFENDANT OF A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

III.

We first consider defendant's argument that the trial court erred by admitting evidence that defendant had committed certain "bad acts."

N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule provides, however, that evidence of "other crimes, wrongs, or acts" is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court established a four-part test for determining whether to admit evidence of "other crimes, wrongs, or acts" under N.J.R.E. 404(b):

(1) The evidence of the other crime must be admissible as relevant to a material issue;

(2) It must be similar in kind and reasonably close in time to the offense charged;

(3) The evidence of the other crime must be clear and convincing; and

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J., 135, 160 (1989)).]

Trial courts have broad discretion in applying this test. State v. DiFrisco, 137 N.J. 434, 496 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). A trial court's exercise of its discretion will not be reversed on appeal unless its decision amounts to "a clear error of judgment." Ibid.

We are satisfied that the trial court did not abuse its discretion by admitting this evidence. The trial court conducted pretrial hearings before allowing the witnesses to testify as to defendant's "bad acts." The court analyzed the evidence of each of the witnesses under the Cofield test and determined that the evidence was admissible.

The court found that the testimony was relevant to a material issue, specifically defendant's motive in shooting Labriola. The court determined that the evidence pertained to actions that had occurred reasonably close in time to the offenses for which defendant was being tried. The court found that the witnesses were credible and, on that basis, determined that the evidence of defendant's "bad acts" was clear and convincing. The court further found that the probative value of the evidence outweighed any prejudice and the State did not have less prejudicial evidence to establish defendant's motive. In our judgment, the record fully supports the trial court's findings.

Defendant argues, however, that the amount of the testimony created an inflammatory, prejudicial effect, while not enhancing its probative value. We disagree. The evidence was intended to create a full picture of defendant's relationship with Labriola. The many instances of defendant's jealousy, anger and threats enhanced the probative value of this evidence.

Defendant also argues that the trial court's instructions to the jury regarding this evidence was insufficient. When evidence of a defendant's other crimes, wrongs or bad acts is admitted, the trial court must instruct the jury on the limited use that the jury may make of such evidence. State v. G.V., 162 N.J. 252, 258 (2000) (quoting Cofield, supra, 127 N.J. at 340-41).

The court's instruction must be formulated carefully to explain precisely the permitted and prohibited uses of the evidence with reference to the actual context of the case. Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).

Joseph Labriola was the first witness to testify concerning defendant's "bad acts." After Joseph testified, the trial court instructed the jury as follows:

[n]ormally testimony such as that which [Joseph] just gave you would not be permitted to be admitted into court under our court rules of evidence.

Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts, when it is offered only to show that he has a disposition or a tendency to do wrong and, therefore, must be guilty of [the] offenses charged here.

Before you can give any weight to this evidence, that is [Joseph's] evidence, you must be satisfied that the defendant committed the crime, wrong, or act. If you are not so satisfied, you may not consider it for any purpose.

However, our rules do permit evidence of other crimes, wrongs, or acts when the evidence is used for certain specific narrow purposes. In this case the State is offering this evidence for the limited purpose of showing [defendant's] motive and intent; that is, the State alleges that [defendant] was jealous over Tina Labriola and intended to harm or kill her.

Whether this evidence does, in fact, show intent and/or motive is for you to decide. You may decide if the evidence does not demonstrate intent and/or motive and is not helpful to you at all. In that case you must disregard the evidence.

On the other hand you may decide that the evidence does demonstrate intent and/or motive and use it for that specific purpose. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person.

That is, you may not decide that just because a defendant has committed other crimes, wrongs, or acts he must be guilty of the present crimes. . . .

The evidence has been admitted only to help you decide the specific question of [defendant's] possible motive and/or intent. You may not consider it for any other purpose and you may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs, or acts.

You may be presented with other evidence of this nature and it is subject to the same limiting instructions that I've just given to you.

The court provided substantially similar instructions to the jury after other witnesses offered testimony of defendant's wrongful acts. In its final charge, the court again provided the jury with instructions regarding the use of the evidence.

Defendant's attorney did not object to the instructions. Nevertheless, on appeal, defendant argues that the court erred by failing to inform the jury that the jury could not find defendant guilty based solely upon the evidence of defendant's other wrongful or bad acts. We disagree.

The court's instructions were entirely consistent with the Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2007). Moreover, the instructions clearly conveyed to the jury that it could only use the "bad acts" evidence on the issue of motive or intent. Consequently, the instructions informed the jury that the State had to present other evidence to establish that defendant had committed the charged offenses beyond a reasonable doubt.

IV.

We turn to defendant's contention that the trial court erred by failing to exclude in-court and out-of-court identifications of defendant by Joan D'Ippolito (D'Ippolito).

D'Ippolito testified at a pre-trial hearing that, on the evening Labriola was shot, she was in the emergency room of Newcomb Memorial Hospital to be treated for an injury to her finger. D'Ippolito said that she saw a man enter the emergency room. He had dark, greasy hair.

D'Ippolito stated that she observed the man's facial features. Later, when she was signing the discharge papers, she noticed the man standing two-to-three feet away from her. She faced him directly. She testified that the area of the room where she made her observations was well-lit.

Several days later, D'Ippolito saw a man slowly drive by her trailer. She approached him and asked if he needed help. The man showed her a poster with a man's photograph on it. D'Ippolito immediately recognized the man in the photo as the man she had seen in the hospital emergency room the evening Labriola was shot.

D'Ippolito testified that she focused on the photograph, not the words beneath the picture, which stated, "wanted for murder." She told the driver that she recognized the man. The driver said that the man in the photo killed his sister-in-law.

At the hearing, D'Ippolito identified defendant as the individual she had seen in the emergency room and the person whose photo was shown to her several days later. D'Ippolito said that defendant looked thinner and had less hair than he did in 2002. The court ruled that D'Ippolito could testify at trial as to her in-court and out-of-court identifications. Defendant argues that the court erred in doing so.

In deciding whether to admit identification testimony, the court must determine "'whether the identification procedure was impermissibly suggestive.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 503 (2006)). An out-of-court identification should be excluded as impermissibly suggestive if the totality of the circumstances surrounding the identification "lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him [or her] so that a substantial likelihood of irreparable misidentification can be said to exist." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973).

If the procedure employed in the identification was impermissibly suggestive, the court must determine whether the identification was "'nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" Romero, supra, 191 N.J. at 76 (quoting Herrera, supra, 187 N.J. at 503-04). "'Reliability is the linchpin in determining the admissibility of identification testimony.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).

The factors the court must consider when determining whether an out-of-court identification is reliable include: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154.]

Here, the trial court found that the poster shown to D'Ippolito had "some element of suggestiveness," because the poster included defendant's name, other personal information about him, and stated "wanted for murder." Even so, the court found that D'Ippolito's identification was reliable.

The court observed that D'Ippolito had a good opportunity to see defendant at the hospital and she said that she immediately recognized the person pictured on the poster as the man she saw at the hospital several days before. The court additionally noted that D'Ippolito had not given a prior description of defendant.

The court further noted that D'Ippolito said that she was certain of her identification. The court added that less than a week had passed between D'Ippolito's encounter with defendant at the hospital and her identification of defendant as the person whose picture appeared on the poster.

The court additionally pointed out that D'Ippolito testified that she did not read the words under defendant's photograph until after she recognized him. Although the person who showed D'Ippolito the poster stated that the individual shown in the picture had killed his sister-in-law, he only made that statement after D'Ippolito had already recognized defendant. The court found that D'Ippolito was a credible witness.

In our judgment, the record fully supports the court's findings and its decision to admit D'Ippolito's in-court and out-of-court identifications. As noted, the trial court's findings are based in substantial part on its view that D'Ippolito was a credible witness. The trial court's findings are entitled to "'very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting Farrow, supra, 61 N.J. at 451). We therefore conclude that the trial court did not err by admitting D'Ippolito's identification testimony.

V.

Defendant next argues that the trial court erred by admitting certain statements he made to law enforcement officers after he was arrested in Ocean City, Maryland.

The admissibility of a statement obtained after a suspect is in custody and has asserted a right to remain silent depends upon whether the defendant's rights were scrupulously honored. State v. Fuller, 118 N.J. 75, 79-80 (1990). Once a suspect invokes his right to an attorney, the investigation must stop and the suspect must again be advised of his rights unless the suspect initiates further discussion with the police. State v. Adams, 127 N.J. 438, 445 (1992); State v. Rhodes, 329 N.J. Super. 536, 540-41 (App. Div.), certif. denied, 165 N.J. 487 (2000).

The assertion of the right to counsel does not, however, preclude a defendant from voluntarily choosing to give a statement in the absence of counsel. State v. Perez, 334 N.J. Super. 296, 304-05 (App. Div. 2000), (citing Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 1181, 108 L.Ed. 2d 293, 301 (1990)), certif. denied, 167 N.J. 629 (2001). Thus, if an accused initiates a conversation after he has invoked his rights, the accused's statements "may be admissible if the initiation constitutes a knowing, intelligent, and voluntary waiver of the accused's rights." State v. Chew, 150 N.J. 30, 61 (1997) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966)).

The State must prove beyond a reasonable doubt that the accused knowingly, intelligently and voluntarily initiated the conversation. Id. at 65. The determination of whether an accused made a valid waiver of his rights must be based on the facts and circumstances of each case. Ibid. (citing Adams, supra, 127 N.J. at 448).

At the pre-trial hearing on defendant's motion to suppress his statements, Detective Scott Collins (Collins) of the Vineland police department testified that, before he was arrested in Ocean City on November 4, 2002, defendant shot himself with a flare gun. After his arrest, but before he was informed of his Miranda rights, defendant was in an ambulance receiving medical treatment.

Collins asked defendant why he shot himself, and defendant responded that he wanted to kill himself. Defendant then asked for an attorney and the questioning stopped. At the hospital, defendant told Collins that he was not involved in Labriola's murder. When Collins asked defendant whether he had any other information that might further the investigation, defendant again asked for an attorney.

Later in the day, when defendant was in the Ocean City police station, he spoke with Detective Brett Case (Case) of the Ocean City police department. Case observed defendant's injuries. Without any questioning by the officer, defendant asked Case how far the county jail was from the police station. Case answered him. Defendant began speaking about "making things right" with his mother, and said that he was looking forward to spending the rest of his life in jail. Case told defendant that he should resolve the situation with his mother. Defendant was again informed of his Miranda rights.

On November 7, 2002, Collins and other officers transported defendant to New Jersey in an automobile. Collins did not again inform defendant of his Miranda rights. While in the car, Collins did not question defendant; however, defendant asked Collins what was going to happen to him. Collins told defendant that he could obtain an attorney and the matter would then proceed through the grand jury and trial process.

Defendant continued to speak with Collins during the ride to New Jersey. He asked Collins whether New Jersey had the death penalty. When Collins replied in the affirmative, defendant said that "he could die in prison." Defendant asked what prison he would be sent to and Collins said that the Department of Corrections would make that determination. Defendant also referred to a television show that had featured a story on Labriola's murder, and defendant said that the show was full of lies.

Collins testified that, during the ride from Maryland to New Jersey, he never questioned defendant regarding the offenses or any related matters. Collins also said that, during the trip, they stopped for a break so that defendant could get something to drink and use the restroom. Collins noted that defendant had prior involvement with the criminal justice system. He had been arrested in 1984, 1987, 1989, 1996 and 2000.

The trial court suppressed the statements defendant made before he was informed of his Miranda rights but admitted defendant's other statements. The court noted that defendant was an individual in his forties and had prior involvement with law enforcement officers. Defendant had been informed of his Miranda rights and twice asserted his right to an attorney. The court determined that defendant was clearly aware of his rights.

The court found that the State had proven beyond a reasonable doubt that defendant knowingly, intelligently and voluntarily waived his right to remain silent. The court noted that, during the ride from Maryland to New Jersey, the officers did not initiate any interrogation of defendant.

The court additionally noted that, while defendant had been injured when he shot himself, the injury did not cloud his judgment when he made the statements. The court observed that, during the drive, the officers stopped so that defendant could get a drink and use the restroom. The court also noted that Collins and defendant did not engage in an ongoing discussion during the entire trip; rather, there had been a series of shorter conversations that defendant had initiated.

Defendant argues that the court erred by refusing to suppress all of his statements to the police. He contends that there was a "significant" time interval between the time when he was informed of his Miranda rights and the inculpatory statements. He asserts that the statements were made under "psychologically coercive circumstances." He further maintains that the conversations with Collins and Case were conducted on a "personal basis" and resulted in "an inherently compelling pressure" that undermined his will and deprived him of an ability to voluntarily waive his right to remain silent.

We disagree. The trial court's findings are entitled to our deference particularly when, as in this matter, those findings are "substantially influenced" by the court's "'opportunity to hear and see the witnesses and to have the "feel" of the case[.]'" State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We are satisfied that the record fully supports the court's determination that the State had proven beyond a reasonable doubt that defendant knowingly, intelligently and voluntarily waived his right to remain silent. We therefore reject defendant's contentions that the court erred by admitting the aforementioned statements to the police.

VI.

We turn to defendant's contention that the trial court erred by denying his motion to declare a mistrial after one of the State's witnesses inadvertently revealed that Labriola had obtained a domestic violence restraining order against defendant.

Prior to the trial, the court severed count two, in which defendant was charged with violating the restraining order, from the remaining charges. The court further ruled that no mention could be made of the restraining order during the trial on the other charges. The court's ruling was consistent with State v. Chenique-Puey, 145 N.J. 334 (1996).

Nevertheless, Marguerita Carter (Carter) testified that, during the summer of 2001, she met defendant in a bar. She said that defendant had complained to her about "the restraining order and stuff." Defendant moved for a mistrial. The following day, the State moved to strike all of Carter's testimony and asked the court to give the jury a curative instruction.

The court denied defendant's motion for a mistrial, noting that it had taken steps to ensure that the restraining order would not be mentioned during the trial. The court found that Carter's statement was accidental and unintentional. The court therefore determined that Carter's remark did not deny defendant of his right to a fair trial.

The court struck all of Carter's testimony, as well as the related testimony of Shirley Bates, and then provided the jury with the following instruction:

[l]adies and gentlemen, the State has requested or has withdrawn Marguerita Carter as a witness. Because of that, I am instructing you that you should disregard all of her testimony from this morning. You should not consider anything that Ms. Carter said to you this morning in any way during your deliberations or at any time. It must be completely disregarded.

Relating to that, we also yesterday heard the testimony of Shirley Bates, and the testimony of Shirley Bates related to the testimony of Ms. Carter. And since Ms.

Carter's testimony is being stricken, Shirley Bates' testimony must also be stricken and should not be considered by you in any way or for any purpose.

We are convinced that the court did not err by denying defendant's motion for a mistrial. We are also satisfied that the curative instruction was sufficient to address the potential for prejudice arising from Carter's accidental and inadvertent reference to the restraining order. We note that the court did not simply strike Carter's remark. It struck all of her testimony, as well as Bates' related testimony. Moreover, the court clearly instructed the jury to disregard the stricken testimony and not to consider it during deliberations.

Our conclusion that the measures taken by the trial court were sufficient is consistent with the Supreme Court's recent decision in State v. Vallejo, 198 N.J. 122 (2009). In that case, the defendant was convicted of first-degree kidnapping, second-degree robbery, third-degree terroristic threats, and the disorderly persons offense of simple assault. Id. at 129. The convictions arose out of an incident in which the defendant struck a woman with whom he was having a romantic relationship and locked her in a bedroom. Id. at 125.

According to the victim, the defendant said that he did not want her to leave and he would harm her if she left. Id. at 126. Prior to the trial, the court precluded the State from introducing evidence of a prior incident of domestic violence. Id. at 127. Despite that ruling, several witnesses testified about that incident and others. Id. at 127-29.

The defendant's attorney did not object to the testimony and the trial court did not provide the jury with any "immediate curative instructions." Id. at 128. During the charge conference, however, the court recognized that a curative instruction was required. Id. at 129. The court instructed the jury that, during the trial certain "'things were blurted out that have nothing to do with this case. You can't use any of that blurted out information because that's not part of this case.'" Ibid. The court added:

"Do you understand what I am saying? It's what you heard from the witness stand. Both parties have a right for you to consider only that which was dealt with in this courtroom relating to an incident that happened on May 21st, 2005[,] in North Brunswick. Nothing before this, nothing after this. We are on the same page." [Ibid.]

The Supreme Court noted that the final restraining order referred to in the testimony had been issued as a result of the same actions that gave rise to the criminal charges upon which the defendant was being tried. Id. at 134. The Court stated, "[t]ogether with the serial references to defendant's prior bad acts, that evidence had a real potential to prejudice defendant." Ibid.

The Court held that the curative instruction provided by the trial court was insufficient. Id. at 136-37. The Court noted that it had in other cases "consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial." Id. at 135. The Court further noted that "a single curative instruction may not be sufficient to cure the prejudice resulting from cumulative errors at trial." Id. at 136.

The Court stated that the statements regarding the incidents of domestic violence "reinforced each other and the poisonous notion that [the] defendant was predisposed to the acts with which he was charged and, in fact, that a judge who had reviewed the case issued a restraining order against defendant." Ibid. The Court added that the instruction was flawed because

[i]t did not identify what was "blurted out" or what information was "not part of this case." Indeed, it suggested that what the jurors "heard from the witness stand" could be considered and that anything that was "dealt with in this courtroom" relating to the May 21, 2005, incident was fair game. The jurors could well have thought that because the prior incident involved the same parties, or because the domestic violence order arose out of this case, they related to the trial. Although in the last sentence of the instruction the judge was surely trying to eliminate consideration of the prior bad acts and the subsequent domestic violence order, the language was simply not clear enough or sharp enough to achieve its goal.

[Id. at 136-37.]

We are convinced that the curative instruction provided to the jury in this case does not suffer from the same flaws as the instruction provided in Vallejo. As we have pointed out, the trial court promptly addressed the matter when it struck Carter's and Bates' testimony and instructed the jury that it must disregard that evidence. The instruction did not specifically identify the improper remarks, but such specificity was not required because all of Carter's and Bates' testimony had been stricken. There could be no confusion as to the evidence that the jury could not consider.

Defendant argues, however, that certain statements made by juror Debra Rollins (Rollins) after the trial indicate that the court's curative instruction was not effective.*fn1 After the trial, interviews with Rollins appeared in local newspapers. In one article, Rollins commented that she sympathized with Labriola since they had both "taken out" restraining orders. Rollins also said that the State "had a good case" and, if that was not so, defendant would not have been found guilty. Rollins additionally stated that the restraining order "had nothing to do with [the verdict]. The palm print [on the rifle] did. The restraining order didn't really -- in a way it did -- but it really wasn't the only thing."

In another article, Rollins noted that the existence of the restraining order helped the prosecutor's case "maybe a little, because (it showed) he was abusive from the past[.]" Rollins said that the restraining order "played a little on [her decision]." Rollins stated, however, that she did not believe that any other jurors had relied upon the restraining order because the matter did not come up during the jury's deliberations. Rollins pointed out that the State's strongest evidence was the palm print on the rifle.

We are convinced that Rollins' post-trial statements to the local newspapers do not warrant a conclusion that the jury failed to abide by the court's instruction to disregard Carter's and Bates' testimony. Assuming Rollins' statements were accurately reported, those statements are ambiguous and inconsistent. Rollins suggested that evidence regarding the restraining order may have affected her decision, but she also stated that the restraining order had nothing to do with the verdict. Rollins emphasized that the State had presented a strong case, specifically noting the evidence of defendant's print on the gun. Significantly, Rollins stated that there was no mention of the restraining order during the jury's deliberations.

In our judgment, the statements attributed to Rollins in the newspapers do not establish that the jury failed to adhere to the court's direction that it not consider Carter's and Bates' stricken testimony in making its decision in this case.

We therefore conclude that the court did not err by denying defendant's motion for a mistrial.

VII.

We turn to defendant's contention that his sentence constitutes an abuse of discretion. The trial court found aggravating factors under N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offenses); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law).

The court also found that "some weight" should be given to the mitigating factor under N.J.S.A. 2C:44-1b(4) (defendant's abuse of alcohol tended to excuse his conduct). On this point, the court made the following observations:

Let me be clear here [that] these are terms of art. There is nothing that could justify [defendant] killing Ms. Labriola. But it's also clear that alcohol and alcohol abuse [played] a very large role in [defendant's] relationship with Ms. Labriola, how he treated her throughout the entire relationship and the thoughts and the thought process and the acts that led up to the murder of Ms. Labriola by [defendant].

That alcohol is a mitigating factor, the alcohol abuse. I don't find that it should be given great weight but it should be given some weight.

The court found that the aggravating factors substantially outweighed the one mitigating factor. For the murder conviction, the court sentenced defendant to a sixty-year term of incarceration, with a period of parole ineligibility as prescribed by NERA. The trial court additionally sentenced defendant to a concurrent eight-year term for possession of a weapon for an unlawful purpose; a concurrent four-and-one-half year term for unlawful possession of a weapon; and a concurrent twelve-month term for obstruction of justice.

Defendant argues that the imposition of a term beyond thirty years is an abuse of discretion. Again, we disagree. We are convinced that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant also argues that the court erred by failing to merge his conviction for possession of a weapon for an unlawful purpose with his murder conviction. The State concedes that the convictions should have been merged for sentencing purposes. We agree. We therefore vacate the sentence imposed for possession of a weapon for an unlawful purpose and remand the matter to the trial court for entry of a corrected judgment of conviction, merging that conviction with defendant's murder conviction.

We have considered all of the other arguments raised by defendant in his initial brief and in his supplemental pro se brief. We find those arguments to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part, and remanded to the trial court for entry of a corrected judgment of conviction in conformance with this opinion.


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