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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...