On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1857.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Carchman, Graves and Waugh.
In October 2005, a Bergen County grand jury charged defendant Mark Aquilina, his mother, Debra Aquilina, and James Gerritsen with the murder of Ralph Ludwig, Jr., N.J.S.A. 2C:11-3 (count one); first-degree conspiracy to murder Ludwig, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (counts two, three, and four); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1) (count six); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count seven). Defendant was tried separately, and counts three and four of the indictment, which charged Debra Aquilina*fn1 and Gerritsen with conspiring with defendant to murder Ludwig, were not submitted to the jury. On September 26, 2007, the jury found defendant guilty on the five remaining counts.
At sentencing on November 16, 2007, the trial judge noted that defendant "was an active participant in the murder of his stepfather" and that the murder was committed in a "cold and calculated fashion":
I find that Mr. Aquilina awaited a signal from one or both of his co-defendants before then providing the hot loaded syringe to Mr. Ludwig. He then watched his stepfather as he clenched up and began to die. Neither he nor the others sought aid for the victim, but rather they proceeded to take money from his pockets to buy more drugs and continue to party.
The court merged the convictions for conspiracy to commit murder and murder and sentenced defendant to a forty-year prison term with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Concurrent four-year terms were imposed on counts five and six for the possession of cocaine and heroin convictions, and defendant was sentenced to a consecutive four-year term for the hindering apprehension conviction. All sentences were consecutive to the sentence defendant was then serving for an unrelated offense.
On appeal, defendant presents the following arguments:
THE COURT ERRED IN ADMITTING THE DEFENDANT'S CUSTODIAL STATEMENTS BECAUSE THE MIRANDA WARNINGS WERE NOT VOLUNTARILY AND INTELLIGENTLY WAIVED SINCE THE DEFENDANT WAS NOT CLEARLY TOLD HE COULD TERMINATE THE INTERROGATION AND RETURN TO THE COUNTY JAIL.
THE ACCOMPLICE-LIABILITY CHARGE WAS FATALLY DEFECTIVE BECAUSE IT ELIMINATED CRUCIAL WORDING THAT EXPLAINED HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSES. (Not Raised Below)
IT WAS IMPROPER TO GIVE THE JURY EXTRA SETS OF THE WRITTEN INSTRUCTIONS BECAUSE THE CASE INVOLVED COMPLEX LEGAL CONCEPTS THAT REQUIRED PLAIN LANGUAGE EXPLANATIONS. (Not Raised Below)
BECAUSE THE STATE FAILED TO PRODUCE INDEPENDENT CORROBORATION OF THE DEFENDANT'S CONFESSION, THE COURT, SUA SPONTE, SHOULD HAVE DISMISSED ALL THE CHARGES AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE JURY SHOULD HAVE BEEN GIVEN A CORROBORATION CHARGE. (Not Raised Below)
A. THE COURT SHOULD HAVE ENTERED JUDGMENT OF ACQUITTAL AS TO THE CHARGES BECAUSE THE DEFENDANT'S CONFESSION LACKED CORROBORATION.
B. IN THE ALTERNATIVE, THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE NEED FOR CORROBORATION OF THE DEFENDANT'S CONFESSION.
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 40 YEARS WITH A 85% PAROLE BAR UNDER NERA, AND A FOUR YEAR CONSECUTIVE SENTENCE FOR HINDERING. THE SENTENCE MUST BE VACATED.
A. THE COUNTS CHARGING POSSESSION OF COCAINE AND HEROIN MUST BE MERGED FOR THE PURPOSES OF SENTENCING.
B. THE QUANTUM OF SENTENCE IS EXCESSIVE.
For the reasons that follow, we affirm defendant's convictions but remand for the entry of a corrected judgment of conviction that will merge counts five and six.
At approximately 5:53 a.m. on February 15, 2003, Officer John Demko of the Garfield Police Department was dispatched to the victim's residence on Palisade Avenue based on a report that an individual was not breathing. As Demko arrived on the scene, he saw defendant standing outside the residence. Defendant directed Demko to the second floor of the house where he spoke with Debra and Gerritsen. Debra told Demko that Ludwig, her husband, had fallen asleep in their bedroom and was no longer breathing. Demko entered the bedroom and observed Ludwig "laying on his back next to a bed." According to Demko, there were signs of rigor mortis and he believed that Ludwig may have been "deceased for some time."
Detective Michael Latona arrived at approximately 6:30 a.m., and Debra told him that Ludwig "had overdosed and there was contraband, as well as paraphernalia, in the bedroom in his dresser." Debra showed him the dresser, and Latona recovered "empty bags of a yellowish-brown substance" that he believed to be heroin from the top of the dresser and "additional paraphernalia" including "syringes," "plastic tubes," and "a tourniquet" in a dresser drawer. However, nothing of "evidentiary value" was found near Ludwig's body.
Latona then interviewed Debra. She told him that she had said good night to Ludwig when she went to bed, and she woke up at 4:30 a.m. to go to a CVS Pharmacy in Fair Lawn. When she returned home, she found that Ludwig was not breathing and she immediately called 9-1-1. According to Latona, Debra "believed it was a drug overdose" because he "was using. There was less money in his paycheck every week and his temper seemed to be getting more agitated." In addition, Gerritsen confirmed that Debra woke him up at approximately 5:30 a.m. and told him that Ludwig was not breathing. Gerritsen also said that he was a friend of both Debra and Ludwig and that he "had been staying there for about a month."
Dr. Sunandan Singh, M.D., performed an autopsy on February 16, 2003. Singh could not locate any injection marks in Ludwig's arms because they were "heavily tattooed in multi colors." Singh initially stated the cause of death was "[p]ending toxicology." However, after he received the toxicology report dated April 10, 2003, he amended his report to indicate that Ludwig had died from a "cocaine and morphine overdose, manner accident." Based on Singh's findings, the police concluded that Ludwig's death was an accidental drug overdose and the investigation "was closed."
Subsequent to Ludwig's death, defendant was sentenced to a six-year prison term for armed robbery of a taxi driver. In May 2004, while he was housed at the Bergen County Jail, defendant played cards with Frank Baez (Baez) and two other inmates.
According to Baez's trial testimony, during one of the card games, defendant spoke about how he had committed "the perfect murder:"
[PROSECUTOR]: What were those details that he shared with you during the card game?
[BAEZ]: He mentioned that his mother and himself planned on killing this guy because he had a house, he had a little bit of money. . . .
. . . Mr. Aquilina was saying [that] when [Ludwig] got high, he couldn't load the syringe . . . . [so] Mr. Aquilina . . . being more experience[d,] would set the syringe for him . . . .
. . . Normally, Mr. Aquilina said [his] stepfather would take two bags -- two bags of heroin, and that was -- you know, that's all he can handle, I guess . . . [Mr. Aquilina] and his mother had it worked out to put four bags and kill him. . . .
. . . [H]e told me [his] mother nod[ded] . . . like gave [him] the signal . . . [and defendant] put four bags instead of two bags in his normal, you know, shot . . . .
. . . He says, "You should have seen it, [Ludwig's] eyes just like rolled back, [he] grabbed his chest, he froze and he looked right at us, and he just fell head first right on the bed with his ...