On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0181.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
On appeal, defendant raises the following issues for our consideration:
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.
(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).
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.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION [TO] EXCLUDE THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF MS. D'IPPOLITO.
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.
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).
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 ...