On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-09-0678.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 24, 2010 -- Decided: Before Judges Payne, C.L. Miniman and Waugh.
The opinion of the court was delivered by MINIMAN, J.A.D.
Defendant Gerald C. Daniels appeals from his convictions for first-degree knowing or purposeful murder, contrary to N.J.S.A. 2C:11-3a(1) and 2C:11-3a(2); third-degree aggravated assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. He also appeals the sentence imposed by the judge, who merged the two third-degree convictions into the murder conviction and imposed a sentence of life in prison subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with five years of parole supervision. Thus, his period of parole ineligibility is sixty-three years and nine months. We are satisfied that the judge did not abuse his sentencing discretion and now affirm his convictions and sentence.
The following facts are gleaned from the evidence at trial. At approximately 10:30 a.m. on June 14, 2004, Charles Markham, Jr., discovered the body of eighty-one-year-old Wallace Savitz, the victim of an apparent homicide, lying in the hallway of his sixth-floor apartment in Sandman Towers, a Wildwood residential complex, which houses a mixture of low-income elderly and disabled people. Markham went to check on Savitz because he had not responded to intercom calls to his apartment. Markham did not approach the body.
Markham immediately pulled the emergency cord in the bathroom, which summoned both building management and the police.*fn1 He then left the apartment and waited for the rescue squad. The next to respond to Savitz's apartment were Nicholas Thompson, the assistant director of the Wildwood Housing Authority, and Maria Garcia, the building's social worker. Thereafter, the Wildwood police and the rescue squad arrived.
Wildwood Officer Nieves arrived first. By the time Wildwood Sergeant Richard Adair responded at 10:49 a.m., emergency medical technicians were already there. Nieves advised Adair that the occupant was deceased. Adair observed that Savitz was lying on his back and had sustained a large gaping wound to his neck made by more than one slicing motion. There was a large amount of blood around his body.*fn2 Adair requested that Detective Sergeant Kevin McLaughlin respond to the scene.
Adair and McLaughlin noticed that there was a frying pan on the ground near Savitz's body, which had a bloody fingerprint on it, and blood was spattered on the wall. A mop with a bloody handle to which several hairs were stuck was also lying near Savitz's body. Adair determined that there was no sign of forced entry. Later that day, he found a silver box cutter outside the building below the stacked windows of the first- and second-floor apartments of defendant and Savitz's thirty-seven-year-old stepson, James Reilly, Jr. The security camera last showed the victim entering the building on June 12, 2004, at 5:37 p.m. wearing the clothing found on his body two days later.
When McLaughlin came out of the apartment, Reilly approached him and agreed to go to the police station to be interviewed. Notably, Reilly, who was legally blind and suffered from epilepsy, had owed a small sum of money to Savitz. Hickman and Wildwood Detective Edward Ramsey interviewed Reilly from 3:00 p.m. until 9:00 p.m. Wildwood Detective John Clemens administered a computer voice stress test to Reilly, after which he was released. While Reilly was at the station, Prosecutor's Detective Bill Henfey searched Reilly's apartment. He noticed a stain on the floor, which tested positive for blood, and also seized a sweatshirt with a red stain, a towel, a pair of sweatpants, and several knives.*fn3
The Cape May County Prosecutor's office and the Wildwood police investigated the crime. Prosecutor's Sergeant Michael R. Hickman and Wildwood Detective Shawn Yuhas were assigned to the case. Yuhas interviewed Markham at police headquarters on June 14 in the afternoon. Markham told Yuhas that he was not aware of any complaints by Savitz.
The next morning, the police returned to Sandman Towers to identify potential witnesses. Hickman and Clemens spoke with Garcia, who identified five tenants who might have information about Savitz. Only one of those residents, Larry Meehan, was at home that morning. When interviewed, Meehan mentioned that defendant had been borrowing money or cigarettes from Savitz.
At approximately 1:33 p.m. on June 15, Hickman and Yuhas knocked on defendant's door. When defendant answered the door, the officers advised him that they were investigating Savitz's death; defendant agreed to speak with them and let them in. The officers immediately noticed that the apartment smelled strongly of bleach and the floor was wet. A bucket and mop were on the floor, and one of the apartment walls had been wiped down while another wall and a piece of linen were stained with what appeared to be blood.
The officers conversed with defendant for about three hours, during which time they noticed numerous cuts on his hands. Defendant was cooperative, and for the first thirty minutes he provided biographical information to them. He explained that he was allowed to live at Sandman Towers because he suffered from depression, and he had injured his hands while attempting to earn a few dollars picking up paper down at the boardwalk a few nights earlier.
Hickman and Yuhas asked defendant about Reilly and then asked if he knew the victim. Defendant denied that he knew Savitz, that he had ever attempted to borrow money or cigarettes from him, and that he had ever gone to his apartment. Although the officers showed defendant two photos of Savitz, defendant insisted that they had never met, although he may have seen him around the apartment complex. The officers then asked defendant if he would provide a DNA sample, and he agreed. The officers also questioned defendant about his activities on June 12, 13, and 14, 2004.
Around 3:30 p.m., the officers obtained a buccal swab kit and took a
DNA sample from defendant. Shortly after 4:00 p.m., McLaughlin
procured a search warrant for defendant's apartment, and he directed
Hickman and Yuhas to bring defendant to the police station. Defendant
eventually agreed to go, and he was given his Miranda*fn4
rights. While there, the police reviewed the information
defendant had provided and seized his clothes.
During the search of defendant's apartment, the police seized a blue shirt with blood stains on the front and a pair of sneakers with blood on them. Building video surveillance tapes subsequently revealed that defendant was wearing that shirt on June 12, 2004.
Defendant was allowed to go home later that evening after the search of his apartment was completed. Although the police interviewed at least four other people on June 15 and 16, 2004, none of their apartments was searched.
At some point over this two-day period, some police officers discovered a trail of bloody footprints in the stairwell leading from the sixth floor down at least as far as the second floor, where the trail began to fade. Blood was also found on the door handle to the second floor and on a second-floor wall between the stairwell and defendant's apartment.
At 7:15 p.m. on June 16, Prosecutor's Sergeant William Kirkbride learned that the fingerprint on the frying pan had been identified as defendant's. He was arrested at 10:00 p.m. that night for Savitz's murder. Later, police learned that both defendant's blood and Savitz's blood had been found on the frying pan and on defendant's blue shirt. Detective Sergeant Jeffrey Scozzafava of the New Jersey State Police determined that the shirt stain was the result of airborne blood spatter while Savitz was still alive. Savitz's blood was also found on one of defendant's shoes and in the stairwell.
At trial, various residents and guests of Sandman Towers and the two management representatives testified regarding their dealings with defendant. Resident Lorraine Fucini testified that she had loaned defendant both money and cigarettes and that Savitz had warned her not to give defendant any more money because "he'll take you for all you have." She told defendant not to bother Savitz, but three weeks before Savitz's murder, she saw the men arguing and heard Savitz call defendant a "dirty nigger" and yell at him for asking for money, to which defendant responded by calling Savitz an "old man."
Residents Migdalia Reyes, Barbara Ball, and Thomas Daly testified that defendant often knocked on their doors asking for cigarettes and money. Reyes spoke to defendant's mother, Mamie Reed, about this; about three weeks before the murder, Reed told her that Savitz had been complaining to other residents that defendant was knocking on his door at 1:00 a.m. looking for cigarettes. On June 12, 2004, defendant entered Ball's apartment without knocking; Ball later filed a complaint with building security. Daly also complained to Thompson about defendant shortly before Savitz's murder.
Guest Karl Waterman related that, also on June 12, 2004, he was spending the night at Sandman Towers in the apartment of his girlfriend, Susan Smith. He had showered while Smith was out and, upon emerging, discovered defendant standing in the apartment asking for cigarettes. Waterman later filed a complaint with building security.
While volunteering as a security officer at Sandman Towers, Meehan received many complaints regarding defendant's panhandling. He prepared incident reports documenting the Smith and Ball incidents. On the back of one of the reports he listed eleven other residents who had complained of defendant, including Savitz. He turned these reports over to Garcia, who oversaw the security program at Sandman Towers.
Savitz had asked Meehan to keep defendant away from him because he kept asking for money and cigarettes. Meehan spoke to defendant, who agreed to stay away from Savitz. However, Savitz approached Meehan again "close by" the date he was murdered, again complaining of defendant. Although Meehan told Savitz to speak directly with Garcia, Savitz later told him that he decided instead to speak to Reed, who apologized for defendant's behavior. In general, Meehan believed that "[i]t was evident" that Savitz and defendant were not getting along in June 2004 and that "they both hated each other."
Garcia and Thompson testified that each was aware of the many complaints about defendant and that they spoke to defendant about them. Thompson warned defendant that, if he did not stop panhandling, Thompson would prepare a formal notice to cease, the first step in having defendant evicted from his apartment. When the complaints against defendant spiked again the week before Savitz's murder, Thompson finally prepared this notice. He recalled that he attempted to serve this notice on defendant on Friday, June 11, 2004, but was unable to locate him.
Barbara Shuman testified that she had known Savitz from the local VFW to which they had both belonged. She confirmed from sign-in sheets that Savitz had visited the VFW on June 12, 2004. Sometime earlier that June, Savitz had confided in her that he was tired of being hassled for cigarettes and money at Sandman Towers. He told her that he had fallen asleep one night without locking his door and had been awoken by a "nasty . . . nigger" who had entered his apartment and was standing over his bed looking for cigarettes and money.
Reed testified that defendant had been diagnosed as mildly mentally retarded and was permitted to live at Sandman Towers because of this disability. She confirmed that defendant begged from other residents "all the time," many of these residents complained to her about defendant's behavior, and she spoke to him and tried to get him to stop. Two to three weeks before Savitz's murder, he informed her that defendant was knocking on his door late at night asking for cigarettes. She apologized to Savitz and said she would speak to defendant, which she did.
Before defendant testified, the judge conducted a Sands*fn5 hearing regarding the admissibility of defendant's 1991 conviction for theft. Defense counsel argued that this conviction should be excluded due to its remoteness since it actually arose out of conduct occurring in 1988, sixteen years before the instant homicide. The prosecutor, however, noted that defendant had not led a law-abiding life since that time, pointing out that he had been arrested and convicted of at least five disorderly persons offenses between 1994 and 1996 for which he was sentenced to two terms of imprisonment in the county jail. As such, and because defendant's theft conviction involved a "bad check type swindle" or fraud deserving of greater weight under Sands, the prosecutor urged the judge to permit him to impeach defendant with the 1991 conviction.
After the parties' arguments, the judge ruled that the prosecutor would be permitted to admit evidence of defendant's 1991 conviction. The judge observed that the conviction involved fraudulent conduct, which made it eligible for admission under Sands. The judge noted, though, that it would not likely have allowed its introduction but for defendant's "intervening record." The judge recognized that this record consisted of convictions for disorderly persons offenses which were not, themselves, admissible, but emphasized that it nonetheless "constitute[d] a timeline of continuing involvement by this defendant with law enforcement on a regular basis," which enhanced the relevance of the 1991 conviction.
At trial, defendant testified that he suffered from diabetes and "a few" mental health problems and that he moved into Sandman Towers in 1998, where his mother was already a resident. He admitted that, when he was eighteen, he had been arrested for stealing a $1000 check and that he was sentenced to probation.
Defendant admitted that he was smoking two packs of cigarettes per day in 2004. His mother, who controlled his disability check, was trying to get him to quit smoking so he borrowed cigarettes and money from various residents in Sandman Towers. He picked up this practice from other residents who used to ask him for money and cigarettes. He acknowledged that Garcia and Thompson asked him to stop bothering other residents. While he might have asked Savitz for a cigarette, he did not really know the man and had never been to his apartment and never entered Savitz's apartment without permission. He denied having an argument with Savitz, as Fucini had claimed.
Defendant walked to the sixth floor at 5:30 p.m. on June 12, 2004, to ask Geraldine Horner for a cigarette. When she did not answer the door, he decided to take the elevator back down because he was tired. While he was waiting for the elevator, he saw Reilly come out of Savitz's apartment. He asked Reilly what he was doing, but Reilly turned around and went back inside the apartment without responding.
Thereafter, just as defendant was about to get into the elevator, he heard someone say "[s]top, leave me alone" from inside Savitz's apartment. Defendant approached the partially open apartment door to see what the problem was. After knocking and receiving no answer, defendant entered the room and spotted a man lying on the floor. He saw Reilly, who was wearing latex gloves and standing by the window, and asked what had happened. Reilly, however, walked into the kitchen rather than answering.
Defendant leaned down to see whether the prone man, whom he eventually learned was Savitz, had a pulse, and performed the Heimlich maneuver on Savitz, getting blood on his arms in the process. Suddenly, Reilly approached him with a frying pan and tried to hit him. Defendant managed to grab the pan from Reilly and strike him on the head. Reilly then pushed defendant onto Savitz's body, causing him to get blood on his shirt and shoes. After defendant got up, Reilly hit him again and said, "if [you] tell, [I'm] going to kill [your] mom and sister." Reilly then left, followed by defendant, who took the stairs back down to his apartment to shower and change his clothes.
Defendant insisted that he did not murder Savitz. He denied throwing a box cutter out his apartment window and claimed that he mopped his floor on June 15 in order to prepare for an inspection, not to get rid of blood. He admitted that he failed to tell the police his version of what happened to Savitz when they were in his apartment for three hours on June 15. He explained that he lied to police to protect his mother.
At the conclusion of the trial, the jury convicted defendant on all charges. At defendant's sentencing hearing, his presentence report reflected ten prior arrests, six of which involved alleged acts of violence, and six convictions. Defendant had been sentenced to both probation and jail time. The prosecutor further advised the judge that defendant's history reflected that: (1) in 1995 or 1996, he had been brought to Beth Israel Hospital by family members after they discovered that he was stalking local women; (2) in 1996, he had threatened to strangle his mother; and (3) in 1998, he had threatened to put a "hit" on someone after that person complained of defendant's panhandling.
The sentencing judge found the following four aggravating factors: (1)
the risk that defendant will commit another offense,*fn6
(2) the extent of defendant's prior record and the
seriousness of the offenses of which he had been convicted,*fn7
(3) the need for deterrence,*fn8 and (4)
defendant's awareness of the advanced age of the victim.*fn9
In doing so, the sentencing judge found that defendant had an
extensive "history of continuing violations of the law and prior acts
of violence," and was likely to commit another offense. The judge gave
substantial weight to aggravating factor six because of the extremely
serious and brutal offenses of which defendant was convicted. The
judge gave substantial weight to aggravating factors nine and twelve
because there was a specific need to deter defendant from his violent
behavior, which had culminated in this horrific attack, and because
there could be no doubt that defendant was aware of his victim's
The judge found a single mitigating factor--that there were
substantial grounds tending to excuse defendant's conduct*fn11
given his mental disability and illness.*fn12
The judge determined that defendant's extensive criminal history
precluded any finding of mitigating factor seven--that defendant had
no history of prior criminal activity or had led a law-abiding life
for a substantial period of time.*fn13 The judge
concluded that the aggravating factors substantially outweighed the
single mitigating factor.
The judge merged the convictions for aggravated assault and possession of a weapon for an unlawful purpose into the murder conviction for sentencing purposes. He sentenced defendant to life in prison, subject to NERA. Thus, defendant would not be eligible for parole for sixty-three years, nine months.
After the denial of his motion for a new trial and sentencing, defendant filed this appeal. He raises the following issues for our consideration:
POINT I - THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY AS WELL AS TO COMMENT UPON THE DEFENDANT'S PRE-ARREST SILENCE.
POINT II - THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULINGS PERMITTING THE STATE TO ELICIT INADMISSIBLE HEARSAY FROM VARIOUS WITNESSES ATTRIBUTING STATEMENTS ALLEGEDLY MADE BY THE VICTIM AS CONSTITUTING RES GESTAE EVIDENCE OR AS BEING ADMISSIBLE PURSUANT TO N.J.R.E. 404(b), N.J.R.E. 803(c)(2) OR N.J.R.E. 803(c)(3).
B. SINCE THE VICTIM'S STATE OF MIND WAS NOT A RELEVANT CONSIDERATION IN THE PRESENT CASE, THE TRIAL COURT ERRED IN DEEMING THE VARIOUS STATEMENTS AND CONDUCT ATTRIBUTED TO THE VICTIM TO BE ADMISSIBLE PURSUANT TO N.J.R.E. 803(c)(3).
C. THE RES GESTAE DOCTRINE WAS INAPPLICABLE TO JUSTIFY THE ADMISSION OF THE PROFERRED TESTIMONY.
D. THE TRIAL COURT ERRED IN RELYING UPON N.J.R.E. 404(b) TO JUSTIFY ITS ADMISSION OF THE PROFERRED TESTIMONY.
E. THE EXCITED UTTERANCE DOCTRINE EMBODIED IN N.J.R.E. 803(c)(2) DID NOT PROVIDE AN ALTERNATIVE JUSTIFICATION FOR THE TRIAL COURT'S RULING.
F. THE JURY HEARD INADMISSIBLE AND HIGHLY PREJUDICIAL OPINION TESTIMONY WITHOUT ANY FACTUAL FOUNDATION TO JUSTIFY ITS ADMISSION.
POINT III - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.
POINT IV - THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S ONLY PRIOR CONVICTION OCCURRING OVER 16 YEARS EARLIER WAS ADMISSIBLE TO ATTACK CREDIBLITY.
POINT V - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The scope of our review of the first and second points on appeal is de novo as they involve purely questions of law and the application of law to the facts of the case. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." (citations omitted)).
The scope of our review of the third and fourth points on appeal is limited to an abuse-of-discretion standard. The decision to grant or deny a motion for a mistrial is committed to the sound discretion of the trial judge, and that decision will be reversed on appeal only for a mistaken exercise of discretion. State v. Winter, 96 N.J. 640, 647 (1984). Similarly, admission of a prior conviction rests within the sound discretion of the trial judge. State v. Hamilton, 193 N.J. 255, 256-57 (2008); Sands, supra, 76 N.J. at 144.
With respect to the fifth point, in determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, assign weight to them, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. See State v. Kruse, 105 N.J. 354, 358-60 (1987). An appellate court may review these aggravating and mitigating factors to see if they are supported by sufficient credible evidence in the record and may review the sentence to ...