March 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEWAN DENNIS, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KELVIN BARNES, DEFENDANT-APPELLANT.
Onappeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-04-0545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-1055-07) and Submitted (A-3147-07) September 28, 2010 -- Decided March 2, 2011
Before Judges Carchman, Messano and Waugh.
Following a jury trial, defendants Kevin Barnes and Dewan Dennis were convicted of conspiracy, N.J.S.A. 2C:5-2; three counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:2-6; five counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and N.J.S.A. 2C:2-6; second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) and N.J.S.A. 2C:2-6; three counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:2-6; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(c) and N.J.S.A. 2C:2-6. Following appropriate mergers, defendants were sentenced to two consecutive life sentences, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Three other co-defendants, Andre Thomas, Kareem Singleton and Tyhir Dennis*fn1 entered guilty pleas prior to trial.
Defendants appeal,*fn2 and we affirm.
These are the facts adduced at trial. Rasheen Glover lived with his wife, Latonya Glover, as well as Latonya's son and her two daughters, Jyasia Watson, age seven, and Janaya Glover, age six, at 22 East Ingham Avenue, Trenton. At approximately 3:00 a.m. on May 5, 2005, Latonya woke up coughing and discovered that her house was on fire. The flames and smoke were so thick that she could not see down the hallway to her children's bedrooms. She broke a window in her bedroom overlooking Ingham Street, rolled off a roof and fell to the ground below. Looking up, she could see Rasheen still on the roof and then saw him run back into house. Her son escaped from the burning house, but Rasheen, Jyasia and Janaya died in the fire.
Richard Farletta, a fire investigator with the State of New Jersey, Division of Fire Safety and an expert in arson investigation, conducted an investigation as to the cause of the fire. After finding that "the lowest[,] most severe damage wasthe living room floor where the holes had burned through and . there was . . . severe damage on the front porch window area[,]" Farletta determined that the fire had two points of origin. He also could not find any "ignition source," such as an "electrical, mechanical, [or] an accidental" source of the fire, and concluded that the fire "was of suspicious nature." Based on his observations and an interview with Latonya, Farletta contacted the Division of Fire Safety to have a K-9 dog explore the house to confirm whether accelerants were introduced to cause the fire. Ultimately, he concluded that the burn evidence - including that the fire had "two points of origin" -was "consistent with the delivery of an ignitable substance into the house by firebombing[.]"
Rodman Meyer, a fire investigator and an expert in the area of K-9 handling and arson investigations inspected the house with his K-9, Taz. Taz "indicated" the presence of ignitable substance on the floor of the burnt-out house. Meyer concluded that "there is the presence of an ignitable liquid." He did not offer an opinion as to the cause of the fire. The Central Regional Laboratory for the State police took seven samples of debris from the burnt-out house, and none of the test results detected a known, ignitable liquid.
An autopsy was performed on the three victims by Mercer County Medical Examiner Raafat Ahmad on May 5, 2005. After examining the three bodies she found that they all demonstrated indicia of extensive burning, excessive soot in various organs, and other indications of death by fire, smoke inhalation or carbon monoxide poisoning.
At the time Dr. Ahmad conducted the autopsies, the investigation as to the cause of the fire "was still going on[,]" and the doctor labeled the death certificates as "under investigation." After speaking with the police, obtaining the results of the toxicology reports and incorporating medical and investigative information, Dr. Ahmad determined that the cause of death for Rasheen, Jyasia and Janaya was homicide and indicated that on the death certificates.
Ultimately, the police investigation turned to Barnes, who was a friend of Glover's cousin. Barnes was a foot soldier in the Bounty Hunter Bloods (BHB) street gang in Trenton. Dewan was the O.G. - "Original Gangster" - or "head person" in the BHB at this time. Another BHB member, Thomas, started at the rank of B.G. - "Baby Gangster - and then achieved the rank of Y.G. -"Young Gangster." Thomas brought Barnes into the BHB. The BHB were "supposed to be militant, no playing around, and . . . [were] supposed to keep the label as the most infamous Blood set."
The investigation revealed that in May 2005, when Barnes was a member of BHB, Barnes told Thomas that Barnes had an altercation with Glover about some money. According to Barnes, Glover "disrespect[ed]" him by "putting his hands in his face." Barnes told Thomas that he planned to shoot Glover. While Barnes was with him, Thomas called Dewan to tell him about the incident, but Dewan had already heard about it. Because Barnes had been disrespected and did not do anything about it, Thomas disciplined Barnes and put him "on violation," meaning that he was restricted from gang privileges.
While on the phone with Dewan, Thomas related Barnes' plan to shoot Glover. Dewan replied that killing Glover would be the "only way" Barnes would get off violation, and that Barnes had to burn down Glover's house. Barnes had been to Glover's house on two occasions, and Thomas told Barnes, while on the phone with Dewan, to use a Molotov cocktail to burn the house. Barnes responded, "all right," and did not question the order. Thomas chose fellow gang member Tyhir to be Barnes' driver, because Tyhir was on "probation" and was "ready for anything[.]"
At approximately 3:00 a.m. on May 5, 2005, Barnes and Tyhir parked near Glover's house, and they each threw a Molotov cocktail through the front window of the house. Later, between three and four that same morning, Barnes telephoned Thomas and stated that "he finished his mission." As a result, Thomas "took [Barnes] off of violation." Dewan appeared "satisfied" when reading in the newspaper that Glover and his two daughters died in the fire.
At trial, Thomas confirmed Barnes' involvement in the triple murder, and Tyhir reiterated a statement he had made to the police admitting his involvement in the triple murder.
The State also proffered another witness, Tremayne Johnson, a "foot soldier" in the BHB. Barnes had approached Johnson and told him that he was on violation because "this guy got in [his] face . . . and [said] he was gonna F. . . [him] up, and [Barnes] just stood there and . . . didn't do anything." Barnes planned "[t]o kill the guy[,]" and asked Johnson to be the driver. Johnson refused, and after the firebombing, Johnson talked with Thomas, who stated that Barnes and Tyhir were responsible for the murders. In August 2005, Johnson was arrested on unrelated gun charges and provided statements to the police about the murders. While incarcerated, Tyhir, who was similarly incarcerated, also told Johnson of his role in the firebombing and stated that he and Barnes "earned our flags," meaning that they killed somebody.
Kareem Singleton, another member of the BHB, met Barnes and Dewan through the gang. According to Singleton, loyalty and trustworthiness were very significant in the gang. To this end, Singleton committed a robbery to impress Dewan and to demonstrate that he was "worthy of being part of the gang[.]"
Singleton corroborated that Dewan learned that Barnes had been disrespected without doing anything about it, and Dewan said that Barnes would be placed on violation. After Thomas placed Barnes on violation, Barnes told Singleton that he wanted to get off violation by killing "the guy." Singleton lent his car to Tyhir so that he could go with Barnes to "[g]o kill the guy[.]" Dewan called a meeting shortly after the murders, when he determined that Barnes "was hot" and had to get out of town.
As previously noted, the jury found both Barnes and Dewan guilty of multiple charges related to the homicides. At defendant's sentencing hearing, the judge determined that the following aggravating factors were present: the risk that defendants will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendants' prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge further determined that Barnes' youth was the only pertinent mitigating factor. N.J.S.A. 2C:44-1(b)(13). As a result, the aggravating factors "clearly and substantially" outweighed the mitigating factors. Both defendants were sentenced to aggregate consecutive life sentences. These appeals followed.
On appeal, Barnes raises the following issues:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE OTHER CRIMES OR BAD ACTS EVIDENCE WERE ADMISSIBLE AGAINST THE DEFENDANT (RAISED IN PART AND NOT RAISED IN PART BELOW)
(A)AS IT PERTAINED TO THE DEFENDANT THE EVIDENCE WAS NOT "ADMISSIBLE AS RELEVANT" OR "CLEAR AND CONVINCING UNDER STATE V. COFIELD CRITERIA.
(B)THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN FINDING THAT THE RISK OF PREJUDICE DID NOT "SUBSTANTIALLY OUTWEIGH" PROBATIVE VALUE
(C)THE TRIAL COURT'S LIMITING INSTRUCTIONS WITH REGARD TO THE DEFENDANT CONCERNING THE ISSUE OF THE DEFENDANT'S MOTIVE WAS NONEXISTENT AND THE LIMITING INSTRUCTIONS GIVEN WITH REGARD TO CO-DEFENDANT DEWAN DENNIS WAS INADEQUATE TO PROTECT THE DEFENDANT FROM A FINDING BY THE JURY THAT HE WAS PREDISPOSED TO COMMIT CRIME (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).
TESTIMONY THAT THE FIRE AT 22 EAST INGHAM AVENUE WAS CAUSED BY AN IGNITABLE LIQUID ACCELERANT WAS INADMISSIBLE AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
DR. AHMAD'S TESTIMONY THAT THE "MANNER OF DEATH WAS HOMICIDE" WAS INADMISSIBLE AS A NET OPINION BECAUSE IT WAS BASED ON THE SPECULATIVE CONCLUSIONS OF THE INVESTIGATING POLICE OFFICERS (NOT RAISED BELOW)
THE AGGREGATE BASE CUSTODIAL TERM OF TWO CONSECUTIVE LIFE SENTENCES WAS MANIFESTLY EXCESSIVE.
(A)THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS TWO, THREE, AND FOUR THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS.
(B) THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNTS TWO, THREE, AND FOUR SHOULD HAVE BEEN MERGED.
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS THREE AND FOUR CONSECUTIVE TO EACH OTHER. POINT VTHE FAMILY COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO WAIVE THE CHARGES TO THE LAW DIVISION BECAUSE IT FAILED TOCONSIDER THE ISSUE OF REHABILITATION (NOT RAISED BELOW).
Defendant Dewan Dennis raises the following issues:
THE STATE HAVING TRIED THIS CASE ON THE THEORY THAT DEFENDANT WAS GUILTY OF MURDER AS A CONSPIRATOR, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ONLY CHARGING THE JURY ON LIABILITY AS A PRINCIPAL OR AN ACCOMPLICE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO ENTER JUDGMENTS OF ACQUITTAL ON THE FELONY MURDER COUNTS BECAUSE ONE CANNOT BE GUILTY OF FELONY MURDER BASED ON THE THEORY THAT HE CONSPIRED TO COMMIT THE UNDERLYING OFFENSE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT N.J.R.E. 404(B) EVIDENCE ABOUT UNRELATED BAD ACTS SUPPOSEDLY ORDERED BY DEFENDANT BECAUSE THE DEFENDANT'S CONTROL OVER THE MEMBERS OF THE BOUNTY HUNTER BLOODS WAS NEVER AN ISSUE IN THE CASE AND BECAUSE "CLEAR AND CONVINCING EVIDENCE" DID NOT EXIST TO SUPPORT THOSE ALLEGATIONS.
A. There were no real issues in the case about the defendant's control over the Bounty Hunter Bloods, or whether the bombing had been ordered by mistake; the issue in the case was whether it was Andre Thomas or defendant who ordered the firebombing.
B. The State failed to establish by clear and convincing evidence that defendant ordered the acts in question.
C. Even assuming that the testimony had some relevance, its probative value was greatly outweighed by its prejudicial effect.
HAVING DISMISSED THE COUNTS CHARGING DEFENDANT WITH POSSESSION OF THE MOLOTOV COCKTAILS FOR LACK OF EVIDENCE, THE TRIAL COURT ERRED IN CHARGING THE JURY THAT A KILLING DONE WITH A DEADLY WEAPON SUCH AS A MOLOTOV COCKTAIL WOULD ALLOW THEM TO INFER THAT DEFENDANT'S PURPOSE WAS TO TAKE A LIFE OR CAUSE SERIOUS BODILY INJURY RESULTING IN DEATH (NOT RAISED BELOW).
In his pro se supplemental brief, Dewan raises the following issues:
TRIAL COURT'S RULINGS PURSUANT TO R. 404(b), WAS ABUSE OF DISCRETION AND CREATED UNDUE PREJUDICE, DENYING APPELLANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)
TRIAL COURT'S RULING PURSUANT TO R. 803
(b)(5), IS DEFICIENT, VIOLATING A PROCEDURAL DUE PROCESS REQUIREMENT IN LIGHT OF STATE V. PHELPS. (Not Raised Below.)
A. TRIAL COURT FAILED TO INSTRUCT THE JURY AS REQUIRED BY R. 104 (b), DENYING APPELLANT PROCEDURAL DUE PROCESS AND FAIR TRIAL. (Not Raised Below.)
TRIAL COURT ERRONEOUS ALLOWED EXPERT TESTIMONY OF K9 (dog) FINDINGS WITHOUT SCIENTIFIC LABORATORY CONFIRMATION IN LIGHT OF STATE V. SHARP. (Not Raised Below.)
Barnes and Dewan raise a number of common issues. We address those first. We then address the substantive issues raised by each individual defendant and finally Barnes' claims as to improper waiver and sentence.
We first address the alleged Rule 404(b) issue.
Both defendants argue that the judge erred in permitting the State to present N.J.R.E. 404(b) evidence about unrelated bad acts ordered by defendant. They argue that Dewan's control over the BHB was not in issue and that there was no "clear and convincing evidence" to support the allegations. Specifically, Dewan argues that he did not contest that he was a "person in authority" of the BHB, and that Thomas's testimony regarding the N.J.R.E. 404(b) evidence was uncorroborated. In his pro se brief, Dewan further argues that the State's theory in introducing the N.J.R.E. 404(b) evidence was to prove a motive based on "disrespect," but none of the admitted evidence went to that issue.
When reviewing "a trial court's determination on the admissibility of the evidence of other crimes under N.J.R.E. 404(b), we give great deference to the decision of the trial court." State v. Barden, 195 N.J. 375, 390 (2008). We must review the trial judge's evidentiary rulings under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. State v. Kemp, 195 N.J. 136, 149 (2008); Pressler and Veniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2011). Specifically, with regard to the admissibility of other "bad conduct" evidence, the trial judge "is in the best position to engage in the balancing process that is required[.]" Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2010). We must also "defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336 (2010) (alteration in original) (citations omitted).
In considering this issue, some background is appropriate. The judge conducted an N.J.R.E. 404(b) hearing and considered testimony from Thomas, Tyhir and Johnson with respect to four separate incidents of prior bad acts involving defendants, although the majority of the testimony came from Thomas. The testimony revealed that sometime between November and December 2004, Thomas and Singleton, at Dewan's direction, robbed a man in a Trenton bar to demonstrate that Singleton deserved to be a member of BHB and to convey his loyalty to Dewan. Also, on or about April 7, 2005, Andre Torres, accompanied by Johnson and an individual known as Buddha, all members of the BHB, shot at a rival Crips gang member. Dewan ordered the shooting because he believed the Crips member "disrespected" him. On another occasion, Reggie Dawkins, William Lane and Joseph Welch, all members of BHB, were involved in the attempted murder of Isaac Barlow, who was seen as a threat to Dewan because he was attempting to set up a rival set of Bloods. For this reason, Dewan "put out an order" for Barlow to be killed. After the attempted murder of Barlow, Dewan pointed a gun at Dawkins' face for lying about the shooting.
Dewan did not shoot Dawkins, but he placed Dawkins on "permanent violation" because "he was disloyal and made the set look bad[.]" Finally, Dewan made an order to "eat on sight," meaning to shoot, stab or kill members of a rival gang, and this order resulted in the accidental shooting of Ray Hoffa, a member of an entirely different gang.
Following presentation of testimony at the hearing, the judge conducted a Cofield*fn3 analysis to determine the admissibility of this evidence. With regard to the first Cofield prong, that the "evidence of the other crime must be admissible as relevant to a material issue[,]" Cofield, supra, 127 N.J. at 338, the judge determined that "[i]ntroduction of the four bad acts serves to negate any possibility that a jury may believe that Dewan Dennis mistakenly ordered the murder of Rasheen Glover." "[T]he jury may conclude that Dewan Dennis knew exactly what he was doing when he ordered the [BHB] members to commit violent acts."
Regarding the second Cofield prong, that the prior crimes or bad acts "must be similar in kind and reasonably close in time to the offense charged[,]" Cofield, supra, 127 N.J. at 338, the judge noted that "[e]ach act occurred within six months of May 5, 2005, that is, the date of the arson triple homicide.
Each act involved violence that was directed by Dewan Dennis as the leader of the gang and carried out by members of the gang." As such, the judge determined that "the temporal requirement and the closely related requirement of Cofield are satisfied."
Addressing the third Cofield prong, that the "evidence of the other crime must be clear and convincing[,]" Cofield, supra, 127 N.J. at 338, the judge determined that he was "clearly convinced that [Andre Thomas'] testimony was straightforward, that it was honest, and that it was reliable and meets the requirements of Cofield."
Finally, as to the fourth Cofield prong, that the "probative value of the evidence must not be outweighed by its apparent prejudice[,]" Cofield, supra, 127 N.J. at 338, the judge stated:
Here the Court has already stated that it believes that the other crimes evidence explains the motives of foot soldiers or gang members to carry out the orders of Dewan Dennis. The Court has concluded that the other crimes evidence explains in measure the motives of Dewan Dennis to maintain control of the [BHB].
The prejudicial nature of each of the four specified acts does not, in the opinion of this Court, outweigh the probative value. The arson triple murder . . . was [ordered] by [defendant], and carried out by the [BHB] because he was their leader, and his orders were to be followed. And because he could not permit a gang member or the gang itself to be disrespected if his orders were not followed, or his leadership was called into question, he disciplined members for their disloyalty as evidenced by what he did with Reggie Dawkins for lying about his attempt to carry out an order to murder Isaac Barlow.
The Walnut Avenue shooting and the attempted murder of Isaac Barlow and the shooting of Rayshawn Bethea establish and demonstrate that [defendant] and the [BHB] dealt with their enemies harshly and violently.
Admission of these incidents is highly probative of the motive for the murder of Rasheen Glover and the occupants of his house. Glover was an enemy of the [BHB]. It is probative value in terms of conspiracy charges as well as the arson and murder charges and greatly outweighs any prejudice to the defendants.
Further, each act, including the robbery at Dee Dee's bar demonstrates the knowledge that [defendant] had, that his power and loyalty that he demanded from gang members would be observed. It shows that [defendant] was in charge of the [BHB] and knowingly ordered without mistake, violent crimes.
Additionally, none of the four bad acts alleged involved murder. The jury in this matter will hear testimony concerning the death of Rasheen Glover and members of his household.
In comparison, the four specific acts will not be so prejudicial as to outweigh the probative value. The Court believes that the history of the [BHB] as outlined in the four acts which the state seeks to admit under Evidence Rule 404 (b) provide[s] information, disclose[s] motivation, and explain[s] the operation of the gang that such evidence will enable the state to negate any argument that a mistake or misunderstanding occurred in this matter, and therefore, the Court concludes that the four acts specified will be admitted into evidence.
The judge also granted defendant's request for a limiting instruction.
Prior to introducing this evidence at trial, the judge instructed the jury:
In this case the state intends to introduce evidence that the defendant, Mr. Dennis, somehow participated in the shooting of Ray Hoffa. The state contends that the evidence is that the defendant, Dewan Dennis, was a person in authority with the [BHB]. That such authority was exercised by him. And that he was in a position to reprimand or punish others who did not carry out his orders.
The state further contends that the evidence it will present demonstrates Mr. Dennis's motivation to give orders and to enforce them, and it demonstrates his knowledge that his orders would be carried out.
The state further contends that the evidence will negate the possibility that Mr. Dennis acted mistakenly.
Whether this evidence in fact demonstrates the defendant's participation in the [BHB] or his authority with the [BHB] or his participation in the crimes charged is for you to decide. You may decide that the evidence does not demonstrate his participation in the [BHB] or his participation in the crimes charged, 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 the purposes for which it is offered. You may not use the evidence to decide that the defendant has a tendency to commit crimes and, therefore, that he is a bad person and, therefore, must be guilty of the crimes charged. The court has admitted this evidence only to help you decide the specific questions of the defendant, Dewan Dennis's participation in the [BHB] and his participation in the crimes charged.
The judge then added language critical to Barnes. The judge said: "This evidence is admitted as to the defendant, Dewan Dennis, only, and may not be used as proof with respect to the defendant, Kelvin Barnes." After this instruction, the jury heard a recorded conversation regarding the shooting of Ray Hoffa.
Additional instructions were provided to the jury later in the trial when additional N.J.R.E. 404(b) evidence was presented. At that time, the judge stated:
All right. Ladies and gentlemen, yesterday the Court informed you that the state would introduce certain evidence of other wrong or acts alleged against Mr. Dennis. Again, the state is introducing such evidence. . . .
The Court reminds you . . . the fact that somebody, even if you accept the testimony that Mr. Dennis participated in a wrongful act or a criminal act at another time, that does not make him guilty of this charge. However, you may consider it together with all of the other evidence in determining whether in fact he held authority in the [BHB] and had knowledge that his orders would be carried out, and that he acted without mistake.
After this instruction, the jury heard testimony from Thomas regarding the robbery at the bar in Trenton on Dewan's order; the shooting of the Crip gang member on Dewan's order; and the events leading up to the shooting of Ray Hoffa.
At yet another point in the trial, prior to the introduction of other prior bad acts evidence, the judge instructed the jury that the evidence was admitted only for the purposes delineated by N.J.R.E. 404(b). After this instruction, Singleton testified to the robbery he committed, on Dewan's order, at a bar in Trenton.
And again, during the jury charge, the judge instructed the jury:
Normally, such evidence is not permitted. Our rules specifically exclude evidence that a defendant has committed other crimes or wrong or acts when it is offered to show that he has a disposition or a tendency to do wrong, and therefore, must be guilty of the crime charged.
In this case, the state has introduced evidence of Dewan Dennis's prior participation in a robbery, and the ordering of a shooting on Walnut Avenue and the eaton-sight order which allegedly resulted in Ray Hoffa's shooting.
The Court has admitted this evidence only to help you decide the specific questions of the defendant, Dewan Dennis's participation in the [BHB] and his participation in the crimes charged.
You may not consider it for any other purpose, and you may not find the defendant, Mr. Dennis guilty simply because the state offered evidence that he committed other crimes, wrongs or acts.
N.J.R.E. 404(b) provides:
Except as otherwise provided by Rule 608(b), 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. Such evidence may be admitted 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.
In other words, "'the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.'" State v. Weeks, 107 N.J. 396, 406 (1987) (quoting McCormick, Evidence § 190, at 557-58 (E. Cleary 3d ed. 1984)).
Because N.J.R.E. 404(b) is "a rule of exclusion rather than a rule of inclusion[,]" State v. Darby, 174 N.J. 509, 520 (2002) (citations omitted), our Supreme Court has established a four-part test that other-crimes evidence must meet in order to be admitted into evidence.
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.]
With regard to the first Cofield prong, "any other-crimes evidence proffered to show motive, opportunity, plan, identity, preparation, intent, or absence of mistake must be 'relevant to a material issue in dispute.'" Biunno, supra, comment 8(a) on N.J.R.E. 404. Relevant evidence is defined as any evidence that has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)).
Evidence offered to negate a defense of "mistake and accident" is often synonymous with evidence of "intent of the defendant[.]" Biunno, supra, comment 11 on N.J.R.E. 404. Other-crimes evidence offered to establish that defendant's actions "w[ere] not inadvertent, accidental, unintentional, or without guilty knowledge, . . . is almost universally admitted." State v. M.L., 253 N.J. Super. 13, 22 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). See, e.g., State v. Compton, 304 N.J. Super. 477, 482 (App. Div. 1997) (affirming the admission of evidence of prior similar acts of child abuse to rebut defendant's claim that child's death was accidental), certif. denied, 153 N.J. 51 (1998); State v. Cusick, 219 N.J. Super. 452, 464-65 (App. Div.) (affirming the admission of the prior sexual assaults to prove defendant's intent to commit molestation and rebut a potential defense of mistake, where the jury might have found that the defendant unintentionally touched the victim's breasts or vagina when the defendant was swinging or cradling the child), certif. denied, 109 N.J. 54 (1987).
Here, the N.J.R.E. 404(b) evidence was relevant for a number of reasons. First, it demonstrated Dewan had the intent to act as a conspirator or accomplice in the firebombing and murders, knowing that his orders would be carried out. The evidence also demonstrated the extent to which Dewan valued loyalty and preservation of the BHB image, as well as the importance of gang hierarchy. The instance in which Dewan threatened Reggie Dawkins, a fellow gang member, for lying about the shooting of Isaac Barlow, is especially probative of Dewan's efforts to be the leader of an "infamous" gang. If the jury determined that defendant's statement was an order, that defendant intended for Barnes to kill Glover by burning down his home, then a jury could find him guilty as an accomplice of Barnes. The evidence also is probative of Dewan's motives for ordering the killing, and that when Barnes was placed on "violation," it would be necessary for him to regain Dewan's trust. This is especially relevant given that one of Dewan's primary defenses was that Barnes was planning to commit the murders, regardless of Dewan's orders.
The judge's conclusion, that this evidence demonstrates that Dewan's words "were specifically calculated to bring about the demise of Rasheen Glover and anyone else in his way[,]" was not an abuse of discretion.
The second Cofield test is limited to Cofield-type situations and "need not receive universal application." State v. Williams, 190 N.J. 114, 131 (2007). Here, the trial judge found that "[e]ach act occurred within six months of May 5, 2005, that is, the date of the arson triple homicide. Each act involved violence that was directed by Dewan Dennis as the leader of the gang and carried out by members of the gang."
As these findings are supported by the record, the judge's determination, that "the temporal requirement and the closely related requirement of Cofield are satisfied[,]" was not an abuse of discretion.
Under the third Cofield prong, "there must be some showing that the person against whom the evidence is being used actually committed the other crime or wrong." Biunno, supra, comment 8(c) on N.J.R.E. 404. This showing must be made by clear and convincing evidence. State v. Hernandez, 170 N.J. 106, 126 (2001) (holding that uncorroborated testimony by an accomplice could satisfy the "clear and convincing" requirement). Here, Thomas's uncorroborated testimony largely established the evidence of defendant's prior bad acts. The judge determined that Thomas's testimony "was straightforward, that it was honest, and that it was reliable . . . ." As noted, this court must defer to the trial court's credibility determinations, N.J. Div. of Youth and Family Servs. v. M.C., 201 N.J. 328, 342-43 (2010), and the judge's findings that Thomas's testimony established defendant's prior bad acts was not an abuse of discretion.
Finally, under the fourth prong, "the court faces an especially delicate task in balancing [the evidence of other crimes] probative value against the potential for prejudice and confusion, so as to guarantee the party affected by the evidence a fair and impartial trial." Biunno, supra, comment 8(d) on N.J.R.E. 404. This strikes a balance between the "overarching concern about predisposition evidence" and "the common-law evidentiary principle that permits use of other-crimes evidence for certain proofs." Williams, supra, 190 N.J. at 132. N.J.R.E. 404(b) therefore "incorporates the traditional balancing test of [N.J.R.E.] 403." Hernandez, supra, 170 N.J. at 127. In reviewing this final prong, this court may also consider the court's limiting instruction. See State v. Lykes, 192 N.J. 519, 537 (2007).
New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material. That includes evidentiary circumstances that "tend to shed light" on a defendant's motive and intent or which "tend to fairly explain [a defendant's] actions," even though they may have occurred before the commission of the offense [for which the defendant is on trial]. [State v. Long, 173 N.J. 138, 162 (2002) (alteration in original) (quoting State v. Covell, 157 N.J. 554, 565 (1999)).]
The judge determined that the "probative value[,] in terms of the conspiracy charge as well as the arson and murder charges[,] . . . greatly outweighs any prejudice to the defendants." Specifically, "each act . . . demonstrates the knowledge that Dewan Dennis had, that his power and loyalty that he demanded from gang members would be observed." N.J.R.E. 404(b) evidence also established defendant's motive for ordering the murder of Rasheen Glover - to preserve the gang's "label as the most infamous Blood set[,]" and also demonstrated the importance of gang hierarchy as well as the seriousness of co-defendant being placed on "violation."
The judge also determined that because none of the prior bad acts involved murder, "the four specific acts will not be so prejudicial as to outweigh the probative value" of the evidence presented at trial regarding the deaths of Glover and his daughters. The judge also provided comprehensive jury instructions prior to the introduction of each piece of N.J.R.E. 404(b) evidence as well as in the general jury instruction.
As a general rule, "a court must consider the availability of other evidence that can be used to prove the same point." Covell, supra, 157 N.J. at 569. Consequently, "[p]robative value is enhanced by the absence of such other evidence[,]" and "relevant evidence loses some of its probative value if there is other less inflammatory evidence available to prove that point." Long, supra, 173 N.J. at 164. While the evidence presented at trial was certainly prejudicial, its prejudicial value was not outweighed by its probative value. Furthermore, Dewan has offered no other proofs which would have had the same probative value as the evidence offered at trial.
Ultimately, Dewan was the leader of a violent street gang, and any proof offered by the State to demonstrate his control over the gang, such that his orders would be necessarily followed, will likely be of unlawful activity. Moreover, evidence of Dewan's efforts to preserve the BHB image as violent and infamous will likely involve unlawful, violent activity. It is also noteworthy that none of the admitted N.J.R.E. 404(b) evidence involved an actual murder, although all involved gang-related violence.*fn4
Because the probative value of this evidence was so great, the judge's ruling was not an abuse of discretion, and the likelihood of presented similar evidence that does not involve unlawful activity would be slim. The N.J.R.E. 404(b) evidence was properly admitted as to Dewan.
Finally, as to Barnes, we have noted that the judge specifically instructed the jury that the evidence could not be considered as to Barnes. In sum, we conclude that the judge properly admitted the evidence as to Dewan and properly informed the jury as to Barnes. The judge carefully analyzed the evidence, and we find no abuse of his discretion.
Defendants assert that fire investigators Meyer and Farletta rendered inadmissible expert opinions that, based on the reaction of the specially trained canine, the cause of the fire was an ignitable liquid accelerant. Both defendants rely on State v. Sharp, 395 N.J. Super. 175, 189 (Law Div. 2006), and argue that the opinions "were inadmissible because absent laboratory confirmation, an opinion that an accelerant was used to start a fire that is based on a canine alert is unreliable and barred under N.J.R.E. 403 . . . ."*fn5
In Sharp, supra, while investigating a possible arson, the Deputy Fire Marshall's accelerant-detection canine, Blondie, "alerted," indicating the presence of flammable liquids. 395 N.J. Super. at 180. In the witnesses' expert opinion, Blondie's reaction indicated, to a reasonable degree of scientific certainty, that an accelerant was used to start the fire. However, lab reports of samples taken from the area where Blondie alerted came back negative for an accelerant. The Law Division judge determined, based on these facts, that "an uncorroborated alert by an accelerant-detection canine cannot form the basis of an opinion on fire causation," and the deputy's entire testimony was excluded. Id. at 187.
Also in Sharp, another State expert opined that the fire "possibly" was aided by an accelerant. However, this expert did not present any methodology or scientific process by which he reached this opinion and based his opinion solely on the fact that Blondie "alerted" on scene. Id. at 187-88. The Law Division concluded that the expert's "opinion that an accelerant 'possibly' was used to start the fire is an inadmissible net opinion because he fails to commit to this conclusion and rests his opinion on no scientific foundation." Id. at 189.
Here, the experts testified as to the presence of an ignitable accelerant, without laboratory confirmation, and actually, the laboratory tests came back testing negative for the presence of accelerants.
Notwithstanding Sharp, we deem any alleged error to be harmless. The fire here was identified as suspicious, and four fellow gang members testified as to Barnes' involvement in the firebombing of the Glover residence, establishing accomplice liability for Dewan's actions. Again, the investigators determined that the fire was suspicious and had two points of origin. Farletta, for example, testified that "the lowest[,] most severe damage was the living room floor where the holes had burned through and . . . there was . . . severe damage on the front porch window area[,]" and established that the fire had two points of origin. He could also not find any "ignition source," such as an "electrical, mechanical, [or] an accidental" source of the fire, and therefore determined that the fire "was of suspicious nature." He also conducted an interview with Latonya Glover.
The evidence presented in this case was far different than that presented in Sharp. Here, Investigator Meyer testified that his K-9, Taz, indicated the presence of ignitable substance of the floor of the Ingram Street residence. He did not testify, in contrast to Sharp, that the accelerant was used to start the fire. Even when asked on cross-examination if it was his opinion that "this was arson[,]" Meyer stated, "My opinion is that there is the presence of an ignitable liquid." He did not offer an opinion that the accelerant was used to start the fire.
Furthermore, Farletta's opinion was based on his observations of the Glover's burnt-out house, which had two points of origin and no ignition source, as well as his conversations with Latonya and Taz's indication of the presence of an accelerant. Altogether, Farletta opined that "this type of burn and the determination that the fire had two points of origin" was "consistent with the delivery of an ignitable substance into the house by firebombing[.]"
This evidence established Barnes' culpability, and even if the testimony regarding Taz's indications was a net opinion, its inclusion did not cause the jury to reach a result it would not have otherwise reached. Furthermore, defendants' silence and failure to make any contemporaneous objection creates a fair inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quotations and citations omitted).
Barnes next asserts that Dr. Ahmad's testimony that the manner of deaths was "homicide," was an inadmissible net opinion. Furthermore, he claims that her testimony "constitute[d] plain error because her opinion amounted to a direct conclusion that the defendant was guilty.
Defendant Ahmad announced h[er] own verdict, whether or not [s]he used the word guilty."
"The net-opinion rule forbids the admission into evidence of an expert witness's conclusion that is unsupported by factual evidence." State v. Papasavvas, 163 N.J. 565, 607 (2000) (citation omitted). In Papasavvas, the Court determined that an expert's testimony concerning the cause of death was not a net opinion, when the expert described at length his crime-scene observations and an autopsy, upon which he based his cause-of-death opinion. Ibid. The Court also determined that a medical examiner's testimony that the "assault" caused the victim's death was not an impermissible expert opinion, as the expert's testimony "was not tantamount to an expert opinion that defendant purposefully or knowingly murdered [the victim] or a mischaracterization of the events." Id. at 609.
Here, Dr. Ahmad's opinion was well-supported by her autopsies of the three victims, toxicological reports and police investigation of the crime scene. Only after Dr. Ahmad obtained this information did she conclude that the cause of death was homicide. This is a sufficient basis to support her expert conclusion as to the cause of death, such that her conclusions were not net opinions. Furthermore, although an expert witness may not express an opinion that a defendant is guilty of the crime charged, see State v. Frisby, 174 N.J. 583, 594 (2002), Dr. Ahmad's opinion that the cause of death for the three victims was "homicide" falls well short of that threshold. Plainly, Dr. Ahmad did not offer an opinion as to defendant's guilt. Barnes' claims in this regard are without merit.
Dewan asserts that the judge committed reversible error in charging the jury regarding his liability as a principal or an accomplice because the State tried this case on the basis of conspirator liability. He claims that the State "sought to prove only a conspiratorial agreement -- that Dewan had agreed with Andre Thomas that Barnes should 'burn the house down.'"
In a related point, he argues that because "the guilty verdicts were based on evidence that defendant had conspired with Thomas and Barnes to burn the house down[,]" he could only have been convicted of felony murder on the theory that he conspired to commit an arson. Accordingly, he claims that the judge should have entered a judgment of acquittal on the felony murder charges.*fn6
Pursuant to N.J.S.A. 2C:2-6(a), "[a] person is guilty of an offense if it is committed . . . by the conduct of another person for which he is legally accountable . . . ." A person is legally accountable for the conduct of another when "[h]e is an accomplice of such other person in the commission of an offense[,]" N.J.S.A. 2C:2-6(b)(3), and a person acts as an accomplice of another when, "[w]ith the purpose of promoting or facilitating the commission of the offense; he . . . [a]ids or agrees or attempts to aid such other person in planning or committing it[.]" N.J.S.A. 2C:2-6(c)(1)(b); accord State v. Whitaker, 200 N.J. 444, 449 (2009). In other words, "he or she must (a) possess the culpability required for the substantive crime, and (b) actually foresee and intend the result of his or her act." State v. Torres, 183 N.J. 554, 566 (2005) (citation omitted).
An accomplice, in addition to sharing the same intent as the principal who commits the crime, must also "at least indirectly participate in the commission of the criminal act." Whitaker, supra, 200 N.J. at 459 (alteration in original) (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App.Div. 1993)). This indirect participation may amount to simply "'[a]id[ing] or agree[ing] or attempt[ing] to aid [the principal] in planning or committing' the offense." Ibid. (quoting N.J.S.A. 2C:2-6(c)(1)(b)).
Here, in instructing the jury as to accomplice liability, the judge's charge comported with the Model Jury charge regarding accomplice liability. The judge stated:
A person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable or both. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of an offense. Thus, a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense,*fn7 he aids, or agrees or attempts to aid such other person in planning or committing it.
Therefore, not only is the person who actually commits the criminal act responsible for it, that is, the principal, but so too, is the one who acts as an accomplice also responsible just as if he had committed the crime himself.
The word aid means to assist, support or supplement the efforts of another. Agrees to aid means to encourage by promise or assistance of support.
The inquiry for the jury was three-fold; defendant must have had the "purpose . . . of promoting or facilitating the commission of the [murders][;]" defendant must have "aid[ed] or agree[d] or attempt[ed] to aid [co-defendant] in planning or committing [them;]" and defendant must have "possessed the criminal state of mind that is required to be proved against [co-defendant]." Model Jury Charge (Criminal), Liability for Another's Conduct: Accomplice Liability (Rev. May 22, 1995). Accord Whitaker, supra, 200 N.J. at 459 (quoting N.J.S.A. 2C:2-6(c)(1)(b)).
There was sufficient evidence for the jury to conclude that Dewan, acting with the requisite culpability, aided Barnes in the planning of the murders and with the purpose to commit them. Thomas, Tyhir, Johnson and Singleton identified Dewan as the O.G. of theBHB in Trenton. As the O.G., Dewan was responsible for issuing orders and assigning rank. Thomas related that before he gave out any order, everything was always discussed with Dewan.
The BHB members also related specific instances where Dewan gave orders, which were dutifully followed. Thomas, upon defendant's order, robbed an individual outside of a bar in Trenton. On another occasion, Thomas shot at a rival Crip gang member on Dewan's order. Dewan also gave the order to "set trip" and "eat on sight" members of another gang, Tree Top Piru, and this order led to the shooting of an individual, Ray Hoffa, who was actually a member of a different gang. As a result of this shooting, Dewan ordered his gang to "fall back" until he gave further instructions. These instances established to the jury Dewan's control over the BHB and an expectation that his orders would be followed.
In this instance, Barnes was placed on violation for not responding when Glover "disrespected" him. As a result, Barnes received the order from Dewan that the only way he would get off of violation would be to kill Glover. Although Barnes had expressed an earlier intent to shoot Glover, Dewan ordered Barnes to burn down the Glovers' house.
Considering Dewan's status and power within the BHB, the jury could conclude that Dewan acted with the purpose to commit murder and shared Barnes' intent to kill. He also undoubtedly aided Barnes in planning the murders by ordering that the house be burned down, knowing that his order would be followed. There was sufficient evidence in the record for the jury to determine that Dewan was an accomplice in the three murders.
Because the judge did not err in instructing the jury as to Dewan's liability as an accomplice, Dewan's related argument, that the judge should have entered a judgment of acquittal on the felony murder charges, is without merit. A defendant is guilty of felony murder if "the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, [or] arson . . . ."N.J.S.A. 2C:11-3(a)(3). It is true, as Dewan argues, that "the substantive crime of conspiracy is not a predicate offense for felony murder." State v. Grey, 147 N.J. 4, 15 (1996). However, for the reasons already noted, the evidence at trial supports the jury's conclusion that Dewan was an accomplice to the three murders, not merely a conspirator. A judgment of acquittal is only warranted when, "viewing the State's evidence in its entirety, . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Samuels, 189 N.J. 236, 244 (2007) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)). Dewan was not entitled to a judgment of acquittal for the charges of felony murder.
Finally, we reject without further comment, Dewan's argument that the judge erred by charging the jury that a killing committed with a deadly weapon, such as a Molotov cocktail, would allow the jury to infer that Dewan's purpose was to take a life or cause serious bodily injury resulting in death, as well as his argument that the judge erred by allowing co-conspirator hearsay evidence.
Since the charge against Dewan of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(c) and N.J.S.A. 2C:2-6, was dismissed prior to trial, the judge informed the jury that only Barnes was charged with that offense. However, the jury could infer Dewan's intent as to the murder charge when he participated in the phone conversation with Thomas and Barnes regarding the use of Molotov cocktails. We find no error here and certainly not plain error as there was no objection at trial.
As to the hearsay evidence, there was substantial evidence of various conversations involving both Dewan and Barnes and their involvement and preparation for the crime, including searching for bottles to make the Molotov cocktails. There was more than sufficient "evidence independent of the hearsay" to establish the conspiracy and Dewan's relationship to it. See State v. Phelps, 96 N.J. 500, 509-10 (1984).
Finally, we address Barnes' claim that the two consecutive life sentences were manifestly excessive.*fn8
Every sentencing judge must "state on the record" how he or she arrived at a particular sentence. N.J.S.A. 2C:43-2(e); see also R. 3:21-4(g) ("[T]he judge shall state reasons for imposing [a] sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence."). Where a trial court "properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the sentence is subject to "limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). We will not "second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. See also State v. Bieniek, 200 N.J. 601, 608 (2010) (citation omitted). The exception to this general rule is where the sentence "shocks the judicial conscience." Ibid.
"In the end, '[t]he touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court.'" Cassady, supra, 198 N.J. at 180 (citing State v. Natale, 184 N.J. 458, 488 (2005)). Where the sentence is reasonable, an appellate court "is bound to affirm a sentence, even if it would have arrived at a different result[.]" Ibid. (quoting O'Donnell, supra, 117 N.J. at 215). It is not the function of this court to "substitute its judgment for that of the trial court." Ibid. (quoting State v. Evers, 175 N.J. 355, 386 (2003)).
As noted, the judge determined that the following aggravating factors were present: the risk that Barnes will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge further determined that Barnes' youth was the only pertinent mitigating factor. N.J.S.A. 2C:44-1(b)(13). As a result, the aggravating factors "clearly and substantially" outweighed the mitigating factors.
Barnes' presentence report indicates that he has five juvenile petitions which resulted in two convictions and two dismissals. The defendant was convicted on two counts of Simple Assault, and one count each of Receiving Stolen Property and Possession of a Controlled Dangerous Substance. He was placed on one juvenile probation term and one formal continuance for a period of 12 months.
He has no dependents, no military experience and prior to incarceration, was not involved in any community service activities. The presentence report also indicates that defendant shows no remorse for his crimes.
Given the extent of Barnes' criminal history and the fact that, despite his contacts with the criminal justice system, he continues to recidivate, the judge's finding that the aggravating factors outweigh the mitigating factors is well supported by the record.
N.J.S.A. 2C:11-3(b) provides that a person guilty of first-degree murder shall be sentenced to a prison term between thirty years and life imprisonment. In Natale, supra, 184 N.J. at 488, the Court noted that "many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence." While this approach was not "compelled," it was considered "reasonable." Ibid. "Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." Ibid. For this reason, the imposition of the maximum term for his three murder convictions is supported by the record and does not shock the judicial conscience.
Regarding whether Barnes' sentences should run concurrently or consecutively, the judge stated:
The prosecutor has argued for consecutive sentences with respect to these convictions. That argument has not hit the deaf ears of this judge. The Court finds it hard to excuse injury to any person. It has been argued that this was a single event and indeed it was, but to each of the victims it was a separate crime. Our Supreme Court has acknowledged that there should be no free crimes.
The judge's reasoning, that there are multiple victims of a single, heinous act, is set forth in the sentencing transcript and supported by the record. This comports with the analysis required by State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). See also State v. Hannigan, 408 N.J. Super. 388, 393 (App. Div. 2009).
With regard to Barnes' claim that his murder convictions should have been merged, defendant fails to identify any support for this position.
We follow a "flexible approach" in merger issues that "requires us to focus on the 'elements of the crimes and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" The overall principle guiding merger analysis is that a defendant who has committed one offense "'cannot be punished as if for two.'" Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge. [State v. Hill, 182 N.J. 532, 542 (2005) (emphasis added) (quoting State v. Brown, 138 N.J. 481, 561 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997) (citations omitted)).]
Barnes was convicted of three separate murders, none of which were an alternate basis for punishing the same criminal conduct. Merger was not appropriate for his three murder convictions. Barnes' felony murder convictions and convictions for possession of a destructive device for an unlawful purpose were merged into his convictions for purposeful or knowing murder.
As to both defendants, we conclude that there was no reversible error, and the convictions and sentence imposed were appropriate and warranted.