On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-0799-05) December 2, 2008
Submitted (A-2318-05) December 2, 2008
Remanded by Supreme Court June 9, 2011.
Resubmitted (A-0799-05 and (A-2318-05) December 21, 2011
Before Judges Fuentes, Graves, and Harris.
Defendants Dwayne Gillispie and Gregory Buttler were indicted for two capital murders, along with several other crimes.*fn1 Their cases were severed and tried separately, which resulted in convictions on all charges, except for capital murder. In our prior decision, we reversed those convictions, addressing only the dispositive issue of the trial judge's*fn2 errors in allowing the two juries to consider the unvarnished (and unsanitized) details of defendants' involvement in "an extremely violent robbery" that occurred at a Bronx County, New York barbershop three weeks prior to the homicides identified in the indictment. The New Jersey Supreme Court reversed our determination, reinstated the convictions, and "remanded for disposition of the issues not decided by [us]." State v. Gillispie, 208 N.J. 59, 94 (2011). After analyzing the myriad of remaining issues, we affirm as to Buttler on all issues. As to Gillispie, we affirm his convictions, vacate his sentence, and remand the matter for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).
Except to the extent necessary to illustrate the issues on remand, we will not repeat the factual background in detail that was set forth in our initial and Supreme Court opinions. Familiarity with those opinions is assumed. The contested issues all stem from events related to a double homicide -- both victims were shot in the back of the head and one had her throat slashed -- that occurred in Barnegat on the evening of November 28, 2000.
Following trial, Gillispie was sentenced, after merger, to two consecutive terms of life imprisonment without parole for the murders, a term of five years imprisonment for third-degree unlawful possession of a weapon, and a term of ten years imprisonment, with 85% to be served before parole eligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., on the two second-degree burglary counts. The sentences on the weapons offense and the burglaries were made to run concurrently to each other, but consecutively to the second life sentence. Gillispie, supra, 208 N.J. at 78.
Buttler was similarly (but not identically) sentenced to two consecutive terms of life imprisonment with thirty years of parole ineligibility on each of the two counts of murder. The Law Division also imposed a five-year term for unlawful possession of a weapon, and a ten-year NERA term of imprisonment on each count of burglary. These sentences were to run concurrently to each other, but consecutively to the second life sentence.
Our task on remand is to dispose of the issues not decided when we initially reversed Gillispie's and Buttler's convictions. We do so with the recognition that the Supreme Court agreed with the State that "despite the panel's finding of errors, Gillispie and Buttler both received fair trials, and any alleged errors were harmless." Id. at 93. Additionally, as noted by the Court, "[i]t is undeniable that there was overwhelming proof submitted by the State throughout each trial of defendants' guilt." Ibid. It is through that double-faceted lens that we approach the issues on remand.
Gillespie raises the following points on appeal*fn3
POINT II: THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO A TRIAL BY AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A READBACK OF DEFENSE COUNSEL'S OPENING STATEMENT AND SUMMATION.
POINT III: THE DEFENDANT'S ORAL STATEMENTS, "PROBABLY THE SAME GUN WAS USED," AND "TELL JERSEY THE GUY YOU LOCKED UP IS THE GUY WHO DID THE SHOOTING IN JERSEY," MADE TO NEW YORK CITY POLICE DETECTIVE MOJICA SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE ENGAGED IN "UNFAIR MEANS" AND BECAUSE THE DEFENDANT WAS NOT READVISED OF HIS MIRANDA RIGHTS WHEN THE TOPIC OF THE "INCIDENT" IN NEW JERSEY WAS BROUGHT UP (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT'S CONGRATULATORY COMMENTS MADE TO SERGEANT DUFFY IN THE PRESENCE OF THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE OFFICER'S CREDIBILITY (NOT RAISED BELOW).
POINT V: THE TRIAL COURT COMMITTED PLAIN ERROR IN [ITS] JURY CHARGE (NOT RAISED BELOW).
A. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT IN ASSESSING THE CREDIBILITY OF KEITH MERCER IT MUST TAKE INTO ACCOUNT THE PLEA AGREEMENT THAT HE ENTERED INTO WITH THE PROSECUTOR'S OFFICE (NOT RAISED BELOW).
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT KEITH MERCER'S GUILTY PLEA CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
C. THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY TO CONSIDER THE "INNOCENCE OR GUILT" OF THE DEFENDANT (NOT RAISED BELOW).
D. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY TO CONSIDER A CAPITAL OFFENSE AGGRAVATING FACTOR IN ITS CHARGE ON NON-CAPITAL MURDER.
E. THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL COURT'S JURY INSTRUCTIONS WARRANT REVERSAL OF THE DEFENDANT'S CONVICTIONS (NOT RAISED BELOW).
POINT VI: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S KNOWING VIOLATION OF DISCOVERY.
POINT VII: THE AGGREGATE CUSTODIAL SENTENCE OF TWO LIFE SENTENCES WITHOUT PAROLE PLUS TEN YEARS SUBJECT TO THE NERA PERIOD OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
A. IMPOSITION OF BASE SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT FOURTEEN AND FOR BURGLARY ON COUNTS FIFTEEN AND SIXTEEN THAT EXCEEDED THE STATUTORILY AUTHORIZED TERMS FOR CRIMES OF THE SECOND AND THIRD DEGREE WERE MANIFESTLY EXCESSIVE.
B. THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS ON COUNTS FOURTEEN, FIFTEEN, AND SIXTEEN VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.
C. THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS FIVE, SIX, FOURTEEN, FIFTEEN, AND SIXTEEN CONSECUTIVELY.
Buttler raises the following points on appeal*fn4
POINT III: THE ACCOMPLICE LIABILITY CHARGE WAS INSUFFICIENT BECAUSE IT FAILED TO TELL THE JURY HOW THE CONCEPT RELATED TO THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER (PLAIN ERROR).
POINT IV: THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONFRONTATION RIGHTS IN FORECLOSING DEFENSE COUNSEL FROM IMPEACHING KEITH MERCER, THE ALLEGED ACCOMPLICE AND PRIMARY STATE WITNESS, ABOUT HIS INVOLVEMENT WITH DRUGS AT THE TIME FO THE BARNEGAT SHOOTINGS.
POINT V: DEFENDANT'S SENTENCE IS EXCESSIVE. Based upon these
contentions, our review of the entire record convinces us that there
is no basis to reverse the convictions. However, because Gillispie's
sentence was not informed by the ...