On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-11-0727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Graves and Lyons.
Defendant Robert Raymond Carman, Jr., appeals his judgment of conviction for first-degree murder, contrary to N.J.S.A. 2C:11-3. After a careful review of the record and the briefs submitted by counsel, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced by defendant on appeal.
The events leading up to the victim's death began on Saturday afternoon, October 11, 2003. The victim, twenty-three year old J.B., resided with her mother and her two adult sisters in Manville. J.B. first left the house that afternoon with her sister. She was wearing "black stretchy flare pants, a maroon button-down blouse, [and] white sneakers." She also carried a grey hooded sweatshirt from the GAP with her.
J.B.'s sister had to stop at a friend's house and agreed to give J.B. a lift up to that point. Upon arrival at the house, J.B.'s sister went inside and J.B. continued on her way on foot. She did not tell her sister where she was going.
At approximately 2:00 p.m., J.B. entered Pourman's Pub in Manville, where she saw Leonard Fortuna, age forty-three, defendant's half-brother. She and Fortuna ate and drank a few beers together and then went to another bar in Bound Brook with a few of Fortuna's friends. At approximately 4:30 p.m., after drinking and shooting pool in Bound Brook, the group decided to buy a six-pack of beer and go down to the local river so they could go "four wheeling" with their trucks. Fortuna and J.B. first went to his apartment so Fortuna could shower. While there, J.B. asked to borrow twenty dollars and Fortuna gave her the money. J.B. said the money was to pay her phone bill.
When they left the apartment, Fortuna went to his bank to withdraw money and then stopped at a liquor store to get the six-pack of beer. Fortuna testified that J.B. did not accompany him but went off to meet her drug dealer, who lived near the liquor store. The record does not indicate whether J.B. acquired any drugs from this meeting. The two met again after running their errands and Fortuna drove them to the river to join his group of friends. Matthew Covert and Robert Schwoerer, witnesses for the defense, both testified that approximately fifteen people were by the river that evening, "hanging out," "drinking," and "smoking a little weed." They both testified that they saw J.B. and Fortuna there and stated that J.B. was smoking crack. Covert observed that she appeared "shaky" and paranoid.
At around midnight, the group by the river had run low on beer, so J.B. and Fortuna, as well as one of Fortuna's friends, decided to return to Pourman's Pub. J.B.'s sister, J.B.'s childhood friend, Heather Erhard, and defendant, who was "Erhard's ex-boyfriend at the time" were also at the bar together. Defendant is six feet and four inches tall and weighed approximately 190 pounds at the time. J.B. went over to join her sister, Erhard and defendant while Fortuna remained at the front of the bar socializing. While sitting together, defendant grabbed J.B. and her sister's breasts in an apparent joking manner. Both women told him to stop and he complied.
After approximately an hour-and-a-half, Erhard "lost track" of J.B. and could not find her. She asked defendant where J.B. had gone. He responded that he gave J.B. $25 to buy him some crack cocaine and she had gone to see Douglas Stevens, a local drug dealer. Erhard remained at the bar until closing time at approximately 1:30 a.m., then left with J.B.'s sister. Erhard decided to walk to Stevens's house in order to find J.B. and asked Fortuna and defendant to meet her there in Fortuna's truck so they could all ride back to the river together. J.B.'s sister walked with Erhard part of the way but wanted to go home, so she did not follow when Erhard "broke off to the left" to go to Stevens's house.
Erhard walked into Stevens's house and proceeded to the second floor, where she found J.B. sitting in a room with Stevens and a few other people she did not know. She noticed $25, which she presumed was defendant's, laying on Stevens's table. Stevens was "cooking" crack, and Erhard asked if the drugs were "ready." J.B. replied that they were not, so Erhard went outside to wait for Fortuna and defendant to arrive. Upon their arrival moments later, Erhard relayed to defendant that he would have to wait for the drugs and then asked him if he simply wanted to get his $25 back and leave. Defendant told her that he did, so Erhard went back upstairs and took the money off the table and began to exit. Stevens became angry when he learned that the drugs were not for J.B. but for people he did not know, so he refused to give J.B. any drugs.
Erhard left the house and gave defendant his money back.
J.B. followed her outside, moments later. Both J.B. and defendant were upset that the drug deal had fallen through. Erhard stated that she no longer wanted to go down to the river because she had work the next day, and she asked Fortuna to give her a ride home. She got into Fortuna's car, and they drove away, while J.B. and defendant walked away together.
Stevens testified that at some point later that evening, possibly at around 2:00 a.m., J.B. returned to his house alone, hoping to make a drug purchase. He turned her away again, and she left without an incident.
Eric Hallenbake, a bartender at Pourman's Pub, testified that he closed the bar on the evening of October 12, 2003, and as he was driving home with a co-worker, he saw J.B. and defendant together on the street near a pay phone. It was approximately 2:45 a.m.
J.B.'s sister testified that she knew J.B. returned home at approximately 3:30 a.m. that night because she saw J.B.'s bedroom light was on and heard her in there. J.B. apparently stopped home to change because the maroon blouse and black pants she had worn earlier that day were in the room, but her favorite bright pink pants and the GAP sweatshirt were missing.
Surveillance recordings from a Dunkin' Donuts located on Main Street in Manville from the night of October 12 show J.B. and a man believed to be defendant in the parking lot from 4:11 a.m. to 4:14 a.m. J.B. was wearing the GAP sweatshirt and her pink pants.
Russell Hash, a night manager at the Quick Chek on Main Street in Manville testified that J.B. and a male companion he did not know came to the store at around 3:30 a.m. He stated that he knew J.B. from school and spoke to her outside of the store while the man went inside. J.B. and the unknown individual left together, but Hash testified that J.B. returned by herself at approximately 4:30 a.m. to make a phone call. Paul Huscha, who was also working at the Quick Chek that night, testified that J.B. came into the store at approximately 4:30 a.m. and asked him for change so she could make a phone call. He testified that she was alone.
At around that same time, between 4:00 a.m. and 5:00 a.m., Humberto Grisales, a newspaper deliveryman who knew J.B., saw her at the phone booth. Grisales testified that he had a brief conversation with J.B. and noticed that she was accompanied by a man he had seen before but did not personally know. He stated that this individual was approximately five feet and five inches tall, but he admitted that it was difficult to tell because the man was sitting down at the time. Grisales further stated that he was "not very good" at identifying and remembering people.
Ar-Rasheed Brisko, a drug dealer residing in Plainfield, knew J.B. through Douglas Stevens. He testified that J.B. had called him numerous times that day in an attempt to purchase cocaine. Brisko said that he received his last phone call from J.B. at approximately 4:30 a.m., when he emphatically refused to sell her drugs because he did not want to risk being arrested while he transported cocaine from Plainfield to Manville.
Richard Presser, a resident of Manville, who lived near the river along the train tracks, also testified for the defense. He stated that he could often hear people congregating near the river in the woods to drink alcohol and in the early morning of October 12, 2003, he heard "three sets of voices [arguing] . . . . Two seemed to be female, one was a male." Presser distinctly heard a female voice say "You can't do that." The argument lasted between five and ten minutes. Presser eventually got up to investigate but he did not see anyone when he went down to the railroad tracks.
Just before daybreak on the morning of October 12, 2003, the engineer of a freight train traveling through Manville noticed what he thought was a body on tracks. He applied the full service brakes, but, nonetheless, the train struck the individual who was later identified as J.B. At approximately 6:30 a.m., the Manville Police Department received a call from the railroad's dispatch reporting that a pedestrian had been struck by a train.
Upon investigation, the police found J.B.'s lower torso, which had been severed at the waist. The lower portion of the body was nude except for a blue sock on the right foot. The matching sock was found fifteen to twenty feet away. The police found J.B.'s pink pants, turned inside out, about five feet away from the lower portion of the body. The upper portion of J.B.'s torso was underneath the train. The torso was missing its right forearm, which the police found a few feet away. The middle finger of the right hand was missing.
The police also found a cell phone, which they later identified as J.B.'s, on the ground near the tracks. There was a trail of blood from the cell phone's location to J.B.'s body under the train. The police also found a beam of wood, approximately the size of a four-by-four, near the tracks. It was stained with blood. Subsequent analysis revealed that the blood was J.B.'s.
Between 6:00 a.m. and 8:00 a.m., Patrick Williams, a resident of Manville and an acquaintance of defendant, was driving through town when he saw a water main break on a road near the location of J.B.'s body on the railroad tracks. Williams observed that there were several police vehicles parked outside a recreation building down the road. The police had assembled there to investigate J.B.'s death. Williams drove in that direction in order to inform the officers about the water main break. As he approached, one of the officers asked him to stay clear of the area because a body had been found by the railroad tracks. Williams told the officer about the water main break and drove away.
Williams passed defendant, who was walking down the street, and defendant flagged him down. Williams observed that defendant was wearing "jeans and a dark shirt, and . . . some type of work boot." He did not observe any blood on defendant's clothing. Defendant asked Williams what was "going on down on the railroad tracks" and Williams responded that he did not know. Williams thought defendant's inquiry was very "odd" because "there is no way you can see what's going on on the railroad tracks" from where defendant was standing. Williams explained that there were "two blocks, houses, tons of vegetations on both sides of the bridge, and then maybe a thirty-foot incline down to the railroad tracks themselves" from defendant's vantage point. Williams then drove back to the recreation center and told the police what defendant had just asked him.
Later that day, at approximately 8:05 p.m., the police sought a search warrant for defendant's home and person from Judge Rosemarie R. Williams. In the warrant application, the police stated that J.B. was last seen with defendant and also noted that defendant had "pestered" J.B. and her sister at Pourman's Pub by "rubbing their breasts . . . repeatedly notwithstanding their protests." The warrant application stated that defendant was a registered sex offender in Bridgewater Township and had been found guilty of aggravated assault and criminal sexual contact. Judge Williams granted the search warrant and allowed the police to search defendant's person and property for "any visibly bloody clothing . . . as well as any towels or rags upon which blood may be detected." The warrant also allowed the police to photograph defendant for any signs of "recent/fresh injure[ies]" and to take fingernail scrapings.
The police executed the warrant at approximately 9:30 p.m. Police examined and photographed defendant's body and observed that his skin was a bright pink and that he had recent abrasions on his upper back, chest, and stomach. The police also confiscated defendant's work boots, which had blood on the soles. Subsequent testing revealed that the blood was J.B.'s.
An autopsy performed on J.B.'s body on October 13, 2003, revealed that the manner of death was homicide and that the cause of death was multiple blunt traumatic injuries, dismemberment and traumatic amputation. J.B.'s lower jaw was fractured, and there were tears inside her lip and mouth. Her nose and left cheekbone were also broken. There were abrasions, scrapes and lacerations on her face.
The injuries to J.B.'s face and neck were inflicted pre-mortem, while the victim was still alive, and were consistent with being struck and beaten with a wooden board. Some of the injuries, such as a large skull fracture, may have been caused by being struck by the train. There were abrasions and bruising on J.B.'s arms and knuckles, consistent with defensive wounds.
There were no definite post-mortem injuries. Toxicology testing revealed cocaine in J.B.'s system.
On October 21, 2003, the police sought and were granted another search warrant "for the premises and person" of the defendant from Judge Edward M. Coleman. This warrant allowed the police to search defendant's home for clothing that defendant and J.B. wore the night of her death. Judge Coleman also executed an arrest warrant for defendant for J.B.'s murder. Defendant was arrested later that day.
On November 19, 2003, a Somerset County Grand Jury returned Indictment No. 03-11-00727-I, charging defendant with murder, contrary to N.J.S.A. 2C:11-3 (count one).
On September 22, 2004, defendant filed a motion seeking the suppression of evidence obtained as a result of two searches conducted on October 12 and 21, 2003, pursuant to search warrants. Defendant argued that the October 12, 2003, warrant was not supported by probable cause and, without the evidence illegally obtained pursuant to that warrant, there was no basis for issuing the October 21, 2003, warrant. Specifically, defendant argued that the police mischaracterized his "groping" of J.B. and her sister at Pourman's Pub. He contended that he was innocently teasing them and that he immediately stopped when asked, whereas the police made it appear that he was harassing the women. Defendant also argued that the warrant was issued based on the fact that he was the last person seen with J.B. before her death, when in fact the defense's witnesses, Hash and Grisales, saw J.B. with a man that did not fit defendant's description between 4:00 a.m. and 5:00 a.m.
Judge Paul W. Armstrong heard and denied defendant's motion on May 5, 2005. He found: that the affidavit [supporting the application for the warrant] contained information sufficient to indicate that the defendant was in fact implicated in the death of the victim in this case. The affidavit contained information indicating that hours before the victim's death the defendant had groped the victim despite her assertion to stop.
The affidavit contained information that the defendant has a history of sexual assault against women.
The affidavit also contained information that the defendant was seen walking in the direction of the railroad tracks with the victim, and that the defendant was the last person known to be seen with the victim before her death.
There was also information that the victim was assaulted prior to her death, and therefore it was not a suicide.
Defendant was tried by jury over the course of nine days before Judge Robert B. Reed, beginning on June 11, 2007.
At trial, the testimony of Eric Swofford was that in 2006, while defendant was being held in State Prison on unrelated charges, he befriended Swofford, a fellow inmate. Swofford testified that defendant told him he had murdered J.B. by beating her to death with a two-by-four. According to Swofford, defendant felt "his life was going downhill" because he had broken up with his girlfriend and "he snapped and went off on [J.B.]." Swofford stated that defendant "giggled" when he told him that J.B. had begged for her life and called out for her mother. After he had beaten her, defendant dragged her body onto the train tracks and "watched" as the train hit her. Defendant told Swofford he then "got rid of" his clothes but forgot to dispose of his boots. According to Swofford, defendant also confided in him that he had often thought that if he ever killed anyone, he would lay the body on train tracks to make it appear to be a suicide.
Swofford also testified that defendant had attempted to delay his trial by faking a back injury so that witnesses would be unable to remember the events leading up to J.B.'s death. Defendant attempted to rebut this testimony by presenting the testimony of Dr. Anthony Chiuco, who performed a "lumbar laminectomy" on defendant in February 2007 in order to treat defendant's chronic back pain.
On the second day of the trial, during the direct examination of a detective who was at the scene of J.B.'s murder, the prosecutor sought to admit five photographs the detective had taken at the crime scene. These photographs depicted J.B.'s severed body on the railroad tracks and were identified as S-7, S-8, S-9, S-10, and S-11. None of the photographs showed "the open body and all the internal organs."
Defense counsel consented to four of the photographs being admitted, stating "I understand the probative value." However, defense counsel objected to photograph S-11, which appeared to show "hair and massive human body." The court overruled that objection, finding that the photo "assist[ed] in explaining and expanding upon the witness's testimony." The prosecutor then resumed questioning the detective, having him describe what the photographs displayed while they were projected on a video screen.
On June 19, 2007, during the direct examination of the medical examiner, the prosecutor again sought to admit five photographs, this time of the autopsy. These photographs, labeled as S-61, S-62, S-63, S-64 and S-65,*fn1 depicted J.B.'s head and neck and demonstrated that her injuries were inflicted prior to her death. Defense counsel objected to the admission of the photographs into evidence. He argued that the pictures were "gruesome" and not probative because whether J.B. died before being hit by the train or after was not relevant to the case.
The trial judge questioned the medical examiner during a N.J.R.E. 104 hearing to determine the relevance of the photographs. The medical examiner testified that the injuries indicated J.B. was injured while still alive and further indicated that she had been beaten with an "irregular edged blunt object" such as a board.
Judge Reed determined that the photographs were relevant because they had a "tendency to prove or disprove any fact of consequence to the determination of the action." In other words, the photographs were probative "as to the issue of whether the defendant caused her death or caused serious bodily injury and that bodily injury consequently resulted in a death." With regard to the prejudicial impact the photographs would have on defendant, the judge acknowledged that the pictures were "gruesome." However, the probative value was not outweighed by the prejudice considering the jury's need to determine if defendant meant to kill J.B. The judge, therefore, admitted the photographs with a cautionary instruction to the jury, explaining that the fact J.B. "died in a horrific and gruesome manner does not mean that she did so at the hands of Mr. Carman."
On June 20, 2007, Juror Number 6 informed the court that Juror Number 13 was keeping a scrapbook of the newspaper clippings about the case and had discussed that scrapbook with the other jurors. Juror Number 6 stated that Juror Number 13 "always talked about the case," even when others tried to change the subject. Specifically, she informed the court that the previous day, when a group of jurors were talking together, Juror Number 13 divulged information she had learned about the case and that, when questioned, Juror Number 13 admitted that she read the newspapers. According to Juror Number 6, Juror Number 13 then stated that she knew someone on the jury was a lawyer because she learned about it from a newspaper article. Juror Number 6 told the court that she excused herself from the conversation with Juror Number 13 immediately, informing her that she couldn't "listen to anymore of this." Juror Number 6 also informed the court that she had discussed the matter with Juror Number 3 before coming to the judge with this information.
Judge Reed then interviewed the jurors individually, beginning with Juror Number 13. The judge asked Juror Number 13 if she read recent newspaper articles about the trial and if she kept a scrapbook. The juror stated that she had made a joke about keeping a scrapbook because this was her first time on a jury, but she indicated that she only read New York-based papers. She did, however, admit to reading one article about the trial in the Courier News, where she learned that one of the other jurors was a patent attorney. Juror Number 13 further admitted to discussing this article with other jury members. She also informed the judge that everyone on the jury had discussed "little things" about the case, such as the fact that photographs of J.B.'s body were introduced into evidence.
The court examined Juror Number 14 next. Juror Number 14 admitted that she had heard Juror Number 13 comment that there was a brief delay in the trial testimony the previous day because Swofford had to be brought from jail. Juror Number 13 also seemed to know in advance who the prosecution was going to call as a witness, though Juror Number 14 testified that Juror Number 13 had never expressed an opinion as to ...