September 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY N. TATE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-08-01894.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Simonelli and Espinosa.
Following a jury trial, defendant Troy Tate was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree aggravated assault, N.J.S.A. 2C:12- 1b(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four). The trial judge sentenced defendant on count one to a discretionary extended term of sixty years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a concurrent ten years subject to NERA on count two, and a concurrent five years on counts three and four, respectively. The judge also imposed the appropriate assessments, fees and penalties.
We derive the following facts from the trial record. Defendant, Sheri Farren, Frank Mulholland, and Kevin Green were homeless acquaintances who, together, would often drink alcohol and panhandle for money on the boardwalk in Atlantic City. Mulholland had been drinking heavily all day on March 24, 2007. That evening, he, defendant, Green, Farren and Paul Freas, Farren's boyfriend, went to a small room underneath Boardwalk Hall, where they drank beer and vodka "[v]ery heavily." Mulholland and Green eventually fell asleep, and Freas eventually left.
Mulholland testified that he could not "truly recall exactly what happened" that night because he "was in an alcohol haze more or less . . . ." and was "very fuzzy." However, he recalled awakening in the early morning of March 25, 2007, when he heard defendant yelling "very loudly," and saw defendant "standing over . . . Farren and yelling at her." Defendant was swinging a two-foot long instrument at Farren's head. During the attack, Farren "was yelling a little bit, but not screaming; yelling, kind of more like a whimpering." Mulholland was concerned for his own safety.
After the attack, defendant left the building. Farren lay awake and conscious and said something to Mulholland about playing cards being torn.*fn1 Farren "looked fine all [except] a little bit of blood on her lip" but appeared to be in some pain. Mulholland thought Farren "was more drunk than injured." She said she was fine and asked Mulholland to find Freas. She did not ask him to call for an ambulance or the police. Mulholland left the room at approximately 3:00 a.m. to find Freas and never returned. He later learned that Farren had died. He gave the police a taped statement and identified defendant from a photograph as the person he saw hitting Farren.
Green testified that when he awoke he heard defendant yelling about a torn playing card. He saw defendant swinging a caulking gun with his two hands and striking Farren five to ten times "in the back, the head and the legs, and just about anywhere that was . . . accessible to him." Farren was crying during the attack.
Green left the room to purchase cigarettes. When he returned approximately ten minutes later, defendant was still screaming about the playing card and hit Farren with the caulking gun five more times. Afterwards, Farren was talking incoherently but did not ask Green to call for an ambulance or the police.
Green then went back to sleep. When he awoke at between 8:00 a.m. and 8:30 a.m., he asked Farren "if she was all right," but she did not respond. Green then left the room. He later gave the police a statement and identified defendant from a photograph as the person he saw hitting Farren with the caulking gun.
The Atlantic County medical examiner, Dr. Hydow Park, testified that Farren died between 3:30 a.m. and 9:00 a.m. on March 25, 2007. Dr. Park examined Farren externally and saw that the hood of her jacket was partially soaked with blood. He determined that Farren suffered two lacerations in the mid-forehead between the eyes, one small laceration at the breach of the nose on its right side, a small laceration on her face, abrasions and superficial cuts on the left side of the chin, and small hemorrhages in the neck area. These injuries showed "some sign of struggle." Farren also suffered a "big laceration in the back of the head," which involved the full thickness of the skin, and bruises at the left lower back of the torso in the flank area, both of which were consistent with blunt force trauma.
Dr. Park's internal examination revealed that Farren suffered two slightly displaced left rib fractures, a ruptured spleen, and a small left lower lung lobe laceration and bruises, all of which were consistent with blunt force trauma. Dr. Park concluded that Farren died from "massive bleeding into the abdominal cavity due to blunt force injury of left side of torso with lacerations of spleen." In short, Farren was alive for a period of time after the attack and slowly bled to death. (Ibid.)
It is against this evidence that defendant raises the following contentions:
POINT I: THE PROSECUTOR'S SUMMATION EX- CEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
POINT II: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED MANSLAUGHTER ARISING OUT OF COUNT I WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III: THE TRIAL COURT ERRED BY FAILING TO EFFECTUATE VARIOUS MERGERS INVOLVING COUNT II (SECOND DEGREE AGGRAVATED ASSAULT), COUNT III (THIRD DEGREE AGGRAVATED ASSAULT) AND COUNT IV (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) INTO COUNT I CHARGING AGGRAVATED MANSLAUGHTER. (NOT RAISED BELOW)
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant argues for the first time on appeal in Point I that the prosecutor's following summation comments lacked support in the record:
Counsel would like to you believe that because these two men are alcoholics and they're drunks that means they're liars. It is not that simple. Drunk does not equal liar. In fact, you have to again account for their subculture, their mentality and their physical state of being. For them, for these men intoxication is their normal. They have different standards for drinking and intoxication than an average person would. And you have to judge them by their standards, not by your own. They can drink a lot more than most people can. And when they drink, they have built up a tolerance for that alcohol.
So for them -- if an average Joe goes out and gets drunk one night, yeah, he [m]ight not remember anything because he is not use to drinking, but for someone who drinks every day of their lives for years and years and years, they have a certain tolerance level and it is almost to a point that alcohol becomes necessary for them to even function. So they are functioning.
They are normal, that was their state of normal.
Defendant also argues for the first time on appeal that the prosecutor's following summation comments improperly vouched for Mulholland's and Green's credibility:
What possible reason could they have to come into court here and make this all up?. . . .
Again, they live in a different world. They live in a world where someone testifying for the prosecution in a homicide trial isn't really smiled upon when you go back to the streets of Atlantic City. They're not going to get congratulated for this when they go back to the streets.
When a defendant raises prosecutorial misconduct for the first time on appeal, we need only be concerned with "whether the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his or her] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960) [Johnson I]. Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
"Prosecutors are afforded considerable leeway in their closing arguments . . . ." State v. Frost, 158 N.J. 76, 82 (1999). However, there remain limitations on what a prosecutor may say during summation. A prosecutor must confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence. . . . [I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal. [State v. Smith, 167 N.J. 158, 178 (2001) (quoting Johnson I, supra, 31 N.J. at 510) (internal citations omitted).]
Prosecutors may not vouch for the credibility of a witness. State v. Johnson, 287 N.J. Super. 247, 267 (App. Div.), certif. denied, 144 N.J. 587 (1996). However, prosecutors are permitted to respond to an issue or argument raised by defense counsel so long as it does not go outside the evidence adduced at trial. Id. at 266.
In this case, it was undisputed that Mulholland and Green chronically abused alcohol and were intoxicated on the night of the incident. Throughout the trial and during summation, defense counsel used this evidence to discredit their testimony. The prosecutor properly responded to defense counsel's credibility attack when she mentioned Mulholland's and Greens's greater alcohol tolerance and ability to function normally when intoxicated. Also, the record supports the prosecutor's comments. Dr. Park testified as follows on this issue:
[PROSECUTOR]: When someone has evidence that that they're an alcoholic, you just mentioned Cirrhosis of the liver, do they experience a higher tolerance level for alcohol?
[DR. PARK]: Higher tolerance? You mean, a chronic alcoholism?
[PROSECUTOR]: Um-hum. (Indicating in the affirmative).
[DR. PARK]: Yes, they drink all the time so they have tolerance. They can function very well with a high level of alcohol, yeah.
Further, the prosecutor did not personally vouch for Mulholland's and Green's credibility when she commented about their motivation to lie. She was merely arguing that they had no reason or motive to lie. See State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004) (holding that a "prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness"). Accordingly, defendant's contention that the prosecutor's summation was improper and prejudicial fails.
Defendant contends in Point II that the trial judge improperly denied his motion for a new trial on the first-degree aggravated manslaughter charge. We disagree.
Prior to sentencing, defendant moved for a new trial. He argued, as he does here, that the evidence failed to establish beyond a reasonable doubt that he recklessly caused Farren's death under circumstances manifesting extreme indifference to human life. He claims there was no reason for him to believe his conduct would probably result in Farren's death because she had no noticeable life-threatening injuries; rather, she had non-visible internal injuries, which caused her death. The trial judge denied the motion, finding there was "compelling" and "substantial" evidence supporting the jury's verdict.
"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Moreover, the governing standard as set forth in Rule 3:20-1, states, in pertinent part,
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Aggravated manslaughter requires proof that a defendant "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). A person is guilty of aggravated manslaughter if he or she "caused death with an 'awareness and conscious disregard of the probability of death.' If, instead, the defendant disregarded only a 'possibility' of death, the result is reckless manslaughter." State v. Jenkins, 178 N.J. 347, 363 (2004) (quoting State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999)). In determining whether the defendant manifested extreme indifference to human life, the focus is on the circumstances under which the defendant acted and not the defendant's state of mind. State v. Wilder, 193 N.J. 398, 409 (2008).
Here, the record reveals that defendant recklessly caused Farren's death under circumstances manifesting extreme indifference to human life. Defendant repeatedly struck Farren with a caulking gun with such great force that he fractured two of her ribs and ruptured her spleen. A jury could reasonably find from this evidence that defendant was aware and consciously disregarded the probability that his actions would cause Farren's death. Accordingly, the trial judge properly denied defendant's motion for a new trial on the first-degree aggravated manslaughter charge.
Defendant contends in Point III that the judge erred in failing to merge his convictions on count two (second-degree aggravated assault), count three (third-degree aggravated assault), and count four (third-degree possession of a weapon for an unlawful purpose) with his conviction on count one (first-degree aggravated manslaughter). Defendant is wrong.
Possession of a weapon for an unlawful purpose requires proof that defendant possessed "any weapon, except a firearm, with purpose to use it unlawfully against the person or property of another . . . ." N.J.S.A. 2C:39-4d. Aggravated manslaughter requires proof that defendant "recklessly cause[d] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a. Merger is not required for a conviction for possession of a weapon for an unlawful purpose and aggravated manslaughter because each offense requires proof of a fact not required by the other. State v. Bownes, 108 N.J. 622, 639 (1987); see also State v. Jones, 213 N.J. Super. 562, 567 (App. Div. 1986). Thus, defendant's conviction on count four does not merge with count one.
We reach a different conclusion as to the merger of defendant's convictions on counts two and three with count one. A person is guilty of second-degree aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1b(1). A person is guilty of third-degree aggravated assault if he "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1b(2). A person is guilty of aggravated manslaughter if he "recklessly cause[d] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a. Although the elements of these offenses are technically different, merger is appropriate when "'the evidence submitted as to one count of an indictment is necessary and/or sufficient to sustain a conviction under another count . . . .'" Bowen, supra, 108 N.J. at 638 (quoting State v. Best, 70 N.J. 56, 63 (1976)). Here, the State relied on the same evidence to establish the assaults and manslaughter. Accordingly, the judge should have merged defendant's convictions on counts two and three with count one.
Defendant challenges his sentence in Point IV. Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
Defendant concedes that he was eligible for an extended sentence as a persistent offender. See N.J.S.A. 2C:44-3a. He does not argue the record lacks credible evidence for the judge's findings of aggravating factors three ("[t]he risk that the defendant will commit another offense"), N.J.S.A. 2C:44-1a(3), six ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), N.J.S.A. 2C:44-1a(6), and nine ("[t]he need for deterring the defendant and others from violating the law"), N.J.S.A. 2C:44-1a(9). He merely argues that the judge double-counted aggravating factors three and six and that aggravating factor nine was not unique to this case.
Defendant has an extensive criminal history. The judge relied on a portion of his prior convictions in finding him eligible for an extended-term sentence. Thus, the judge did not double-count aggravating factors three and six. The judge also properly found and applied aggravating factor nine. Defendant's long history of committing crimes indicates he is likely to commit another offense. General deterrence is always appropriate and, here, the less common need for specific deterrence is especially strong given the violent nature of defendant's crime.
Defendant also argues that the judge abused his discretion in not finding mitigating factors four ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"), N.J.S.A. 2C:44-1b(4), based on his alleged mental health issues, and seven ("[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"), N.J.S.A. 2C:44-1b(7), because his last indictable conviction occurred in 1999 for drug- and property-related offenses.
The record does not support a finding of these mitigating factors. See State v. Dalziel, 182 N.J. 494, 505 (2005). There is no evidence that defendant suffered from a mental illness when he killed Farren. Defendant's criminal history dates back to 1980, and includes fourteen arrests and seven convictions. He clearly has not led a law-abiding life.
We discern no abuse of discretion in defendant's sentence. The sentencing range for an extended term for a first-degree crime is between thirty years and life imprisonment. N.J.S.A. 2C:43-7a(1). The judge sentenced defendant within the sentencing range; the record amply supports the judge's findings of aggravating and mitigating factors; and the sentence is not clearly unreasonable so as to "'shock the judicial conscience.'" Dalziel, supra, 182 N.J. at 501 (quoting Roth, supra, 95 N.J. 334 at 364-65).
Affirmed in part, reversed in part, and remanded for re-sentencing in accordance with this opinion.