January 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL LASANE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-00365-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Stern, Sabatino, and J. N. Harris.
The background account of this ineffably tragic case is found in State v. Lasane, 371 N.J. Super. 151 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). This present appeal stems from the aftermath of that previous appeal, the subsequent remand, the ensuing trial, defendant's conviction, and--finally- -his sentencing.
Although we remain mindful of the fact that defendant was just seventeen years old at the time he committed the vicious crimes, we are brutally aware of the horrific circumstances that he inflicted upon his victim, taking her to a frightful, avoidable, and untimely death. Finding no merit in any of defendant's arguments, except for one relating to the sentence imposed, we affirm.
On February 17, 2006, defendant withdrew his former guilty plea,*fn1 paving the way for the re-initiation of all charges against him. On February 28, 2006, an Ocean County Grand Jury returned a five-count indictment that charged defendant with first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1(a) and (b); and first-degree carjacking, N.J.S.A. 2C:15-2(a). Defendant entered a plea of not guilty and, after a seven-day trial, the jury found defendant guilty of all charges.
Defendant was sentenced on March 23, 2007, to an aggregate custodial term of life imprisonment plus sixty years, with sixty years of parole ineligibility. The murder conviction resulted in a term of life, with thirty years of parole ineligibility. The felony murder conviction was merged with the murder conviction. A consecutive term of thirty years with fifteen years of parole ineligibility was imposed on defendant for the kidnapping conviction. Another consecutive term of thirty years with fifteen years of parole ineligibility was imposed on defendant's conviction for carjacking. The robbery conviction was merged with the carjacking conviction. Various fees and penalties were also imposed. This appeal followed.
On appeal, defendant raises five points of error with several subparts, outlined as follows:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE OF THIRD PARTY GUILT.
THE PROSECUTOR MISREPRESENTED THAT THE DEFENDANT'S BROTHER'S FINGERPRINTS WERE COMPARED WITH THE FINGERPRINTS RECOVERED BY THE POLICE (NOT RAISED BELOW).
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR'S CONDUCT DURING THE TRIAL DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (RAISED IN PART AND NOT RAISED IN PART BELOW).
THE DEFENDANT'S RIGHT TO FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR SUGGESTED THAT THE DEFENDANT WAS INCARCERATED FOR 10 YEARS ON THE CRIMES CHARGED AGAINST HIM.
THE PROSECUTOR INTENTIONALLY ELICITED IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONY THAT THE DEFENDANT WAS ARGUMENTATIVE AND PROFANE (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
THE DEFENDANT'S TAPE RECORDED STATEMENT MADE AT THE BERKELEY TOWNSHIP POLICE STATION SHOULD HAVE BEEN SUPPRESSED UNDER THE "TOTALITY OF THE CIRCUMSTANCES" TEST.
THE AGGREGATE CUSTODIAL SENTENCE OF LIFE PLUS 60 YEARS WITH 60 YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERMS.
THE DEFENDANT'S CONVICTIONS FOR KIDNAPPING AND CARJACKING ON COUNTS THREE AND FIVE SHOULD HAVE BEEN MERGED.
THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES CONSECUTIVE TO EACH OTHER.
In his pro se supplemental brief, defendant makes the following additional two points:
THE TRIAL COURT ABUSED ITS DISCRETION AND OVERSTEPPED ITS AUTHORITY IN DENYING THE DEFENDANT'S PRE-TR[IA]L MOTION TO DISMISS COUNTS 3, 4 AND 5 OF THE INDICTMENT AS OUTSIDE OF THE STATUTE OF LIMITATIONS, BY EXPANDING, N.J.S. 2C:-6 AND 2C:1-8.
THE STATE'S IMPOSITION OF A KIDNAPPING CHARGE, WHICH WAS NOT DISCLOSED PRIOR TO THE DEFENDANT ELECTING TO WAIVE JUVENILE JURISDICTION RENDERED THE WAIVER UNKNOWING AND INVOLUNTARY.
Only Point V(B) of defendant's numerous arguments warrants discussion in a written opinion. See R. 2:11-3(e)(2). We are thoroughly convinced that defendant's rights were protected adequately and conscientiously throughout the pretrial and trial phases of the proceedings; he received all the process to which he was due. The evidentiary and other rulings of the trial court challenged by defendant were sound and do not warrant relief. The sentence was justified, not excessive, and except with respect to the merger issue, unremarkable given the crimes.
Defendant argues that his convictions for kidnapping and carjacking require merger. The State relies upon our opinion in State v. Matarama, 306 N.J. Super. 6, 13-15 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998) (kidnapping and carjacking under the facts of the case require proof of additional facts that the other does not have, and merger was not necessary) for the argument that merger is not required.
Notwithstanding its generalized holding that carjacking and kidnapping do not merge due to unique elements attributable to each, Matarama recognized that there are factual scenarios where kidnapping and carjacking would merge, citing to the elements of carjacking. N.J.S.A. 2C:15-2(a)(4). We find that this appeal involves one of those scenarios.
It is accepted that criminal offenses do not merge if each offense requires proof of an additional fact not required by the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); State v. Dillihay, 127 N.J. 42, 48 (1992); State v. Truglia, 97 N.J. 513, 520 (1984). However, merger may occur if applying the flexible approach and fact-sensitive analysis our Supreme Court required in State v. Davis, 68 N.J. 69, 81 (1975), principles of fundamental fairness and due process would be offended by multiple prosecutions. State v. Eckert, ___ N.J. Super. ___ (App. Div. 2009) (convictions pursuant to the DWI and refusal statutes do not merge, and the imposition of separate punishments for each would not violate guarantees of due process and fundamental fairness or the prohibition against double jeopardy).
We are well aware of the underlying facts that were presented to the jury, the theories of culpability advocated by the State and rebutted by defendant, as well as the jury instructions that charged the jury to consider, as an alternate element of carjacking, whether defendant "knowingly operated or caused the vehicle to be operated with the person who was in possession or control of the motor vehicle remaining in the vehicle at the time of the taking." In order to avoid double punishment for the single offense that was presented by this scenario, the carjacking conviction must merge with the kidnapping conviction in the interests of justice.
Accordingly, we affirm the convictions and remand for the entry of an amended judgment of conviction that shall reflect an aggregate sentence of life imprisonment plus thirty years, with forty-five years to be served before parole eligibility.*fn2