On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-12-1432.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Parrillo and Skillman.
Defendant Robert Livingston appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
A jury convicted defendant of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), as a lesser included offense of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2) (count I); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count II); first-degree robbery, N.J.S.A. 2C:15-1 (counts III and IV); third-degree possession of a weapon, a baseball bat, with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4d (count V); and fourth-degree unlawful possession of a weapon, a baseball bat, under circumstances not manifestly appropriate for its lawful uses, N.J.S.A. 2C:39-5d (count VI). The trial judge then merged counts V and VI into count II, and sentenced defendant on count II, felony murder, to life imprisonment, thirty years to be served without parole. He imposed concurrent sentences on the remaining counts.
The underlying criminal episode occurred around 3:30 a.m. on January 12, 1995, when Morris Lewis, A/K/A "Snoop," was beaten to death by defendant in the home where defendant was residing. Defendant struck Snoop, who was unarmed, numerous times in the head with a baseball bat, causing his death. Blood splatter analysis indicated the victim had been prostrate on the floor during the attack. The State's proofs indicated that defendant was familiar with Snoop, allowed him to spend the night at his residence where an argument and ultimately a violent confrontation ensued during which defendant robbed Snoop of money and eventually killed him.
At trial, defendant admitted killing the victim by repeatedly striking him on the head with a baseball bat, but attempted to justify the homicide as an act of self-defense. Although he admitted taking the victim's money, he claimed that he did so only as an afterthought. Although some elements of his account changed from his initial statements to the police, defendant testified basically that he allowed Snoop to stay at his residence the night before, but an argument ensued the next morning concerning what time Snoop was to leave the house, and defendant therefore refused Snoop's request to stay there another night.
Although they were seen together on the street later that night, at approximately 12:45 a.m., less than three hours before the fatal attack, defendant claimed the victim appeared at his door sometime later requesting to stay there and when denied, he made threats against defendant's property, prompting defendant to call 911. Defendant abandoned his attempt to call the police, however, and told the operator he had dialed mistakenly. Defendant claimed Snoop then left his residence and did not return until 3:30 a.m., when defendant was awakened by what he believed at first to be a burglar, jumped from where he was sleeping on the couch, and hit the individual with a bat. Defendant turned on the light and recognized the individual as Snoop, who then began fighting with defendant. Defendant claimed he hit Snoop until he fell onto the floor and then removed his clothes to see if he had any money, feeling that since Snoop came to rob him, it was fair for him to take money from Snoop. Defendant further claimed that after he took money from Snoop's underpants, he called 911 and dressed the victim before the police arrived.
On his direct appeal, defendant argued, among other things:
III. THE DEFENDANT'S FELONY MURDER CONVICTION MUST BE OVERTURNED BECAUSE THE COURT FAILED TO CHARGE THE JURY PROPERLY ON THE CAUSATION ELEMENT OF FELONY MURDER.
A. The Jury Charge Was Not Accurate.
B. The Jury Charge Was Confusing.
IV. THE DEFENDANT'S FELONY MURDER CONVICTION MUST BE OVERTURNED BECAUSE THE STATE FAILED TO PROVE THAT THE DEATH ...