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State of New Jersey v. John W. Creamer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN W. CREAMER, III, A/K/A JOHN CRAMER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No 06-10-3592.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 20, 2012

Before Judges Messano, Yannotti and Guadagno.

Defendant was tried before a jury, and found guilty of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a), and two counts of hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(b)(1) and (a)(3). Defendant appeals from his convictions and the sentences imposed. We affirm.

I.

Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-2; three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); three counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; and four counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a)(3) and N.J.S.A. 2C:29-3(b)(1). Prior to trial, the State dismissed one count of hindering his own apprehension and one count of hindering the prosecution of another person.

At the trial, the State presented evidence which established that on March 20, 2006, defendant walked into Oaklyn police headquarters and claimed he suspected there was a dead body in his apartment in Gloucester City. Defendant consented to a search of his apartment and his garbage. Officers from the Gloucester City Police Department entered defendant's apartment and found the dead body of Lisa Hoopes (Hoopes) lying on the couch, covered with a blanket, with duct tape around her neck. Hoopes and the couch were covered in blood, and there was a considerable amount of blood in the apartment.

The police found a bloody pair of scissors, a trash bag full of clothes in the oven, and a bloody hammer inside the microwave. Around ten o'clock that morning, defendant was taken to the offices of the Camden County Prosecutor, where he was questioned by Investigators John Greer and James Bruno, and Detective Mark Ridge. Defendant was informed of his Miranda rights.*fn1 He signed a written waiver of those rights.

Defendant told the investigators that, on the previous Friday, March 17, 2006, he ingested cocaine in his apartment with Karen Ann Sluzalis (Sluzalis) and Brian Springer (Springer). At some point, Mark Berky (Berky), a person defendant knew from the neighborhood, arrived and Springer left. Later that night, defendant and Berky left the apartment to purchase liquor, leaving Sluzalis alone. While defendant and Berky were out, they met Hoopes, who returned to the apartment with them. Hoopes, Berky and Sluzalis later left.

Very early on Saturday, March 18, 2006, Berky returned to defendant's apartment and asked defendant to bring Sluzalis's car to her with "two bags of dope and $20.00[.]" When defendant arrived at Sluzalis's apartment, she was upset. She said that Berky and Hoopes had "played" him. Defendant and Sluzalis then "started shootin' some coke[.]"

At some point, Sluzalis called Hoopes and arranged to meet her at defendant's apartment. Sluzalis went to meet Hoopes later Saturday morning. When she returned, she had blood on her hands and appeared disheveled. Defendant asked what happened but did not press her. He remained at Sluzalis's apartment until she kicked him out early Monday morning, at which point, he went to the police, as he said, "to cover [his] ass[.]"

Defendant told the investigators that Sluzalis had "some type of" altercation with Hoopes in his apartment on Friday night, and he was concerned that if he went home, he would be "walking into . . . somethin[g]" that he was not "aware of" and which he wanted "no part of." After about an hour, defendant invoked his right to counsel and his right to remain silent. The interview ended. Defendant was placed under arrest. He was required to remove his boots before being placed in a holding cell. After observing bloodstains on defendant's boots, the investigators obtained a warrant to seize defendant's boots and clothing. On March 20, 2006, the investigators obtained DNA samples from defendant and Sluzalis.

Later that day, defendant told the investigators he wanted to provide them with more information, but said that he did not want to speak with Greer, Bruno or Ridge. Around 5:30 p.m., Investigators Eric Wren and Diane Wilson interviewed defendant. Before that interview, defendant was again informed of his Miranda rights, and he again signed a waiver of those rights.

In his second interview, defendant said that on March 18, 2006, he was in his apartment with Springer and Sluzalis, when Sluzalis invited Hoopes to the apartment. Hoopes arrived and, at some point thereafter, defendant was with Springer in the kitchen when they heard a commotion in the living room. They found Sluzalis and Hoopes engaged in a physical altercation.

Defendant stated that "somebody had a knife[.]" It was a four-inch, camouflage, switchblade that Sluzalis always carried. He said that he initially thought Springer was trying to pull the two women apart, but then he realized that Springer was also hitting Hoopes. According to defendant, Sluzalis pulled a hammer from his tool box and struck Hoopes with it. Springer then did the same.

Defendant claimed that he did not participate in the attack but saw that Hoopes was suffering and attempted to "put her out of her misery" by "stomp[ing] her one time[,]" like he had once done with an injured baby bird. Defendant stated that, despite the injuries, Hoopes managed to pull herself onto the couch.

Defendant did not attempt to help Hoopes because he "felt a little bit threatened[,]" by Sluzalis and Springer. After the attack, defendant, Sluzalis and Springer put the hammer in the microwave and poured bleach on the knife before throwing it into the trash dumpster. After the second interview, defendant was transported to a hospital because of complications from diabetes.

Sara Wadsworth (Wadsworth), defendant's downstairs neighbor, testified that defendant called her from the hospital and told her he had been in his apartment with several other persons. He said that, when he went into another room, the two women argued and, and when he returned, he saw Sluzalis "slicing the woman's throat" and the other guy "beating her in the head with a hammer." Defendant told Wadsworth that the injured woman was lying on the floor, and she "looked like a little baby bird that had to be put out of her misery." Defendant said that he kicked the woman in the head to put her out of her misery.

John Sorranto (Sorranto), Wadsworth's live-in boyfriend, testified that he also spoke with defendant when he called from the hospital. Defendant admitted that he "stomped" on the woman's head. According to Sorranto, defendant said that either Springer or Sluzalis hit her with a blunt object, and the other one cut her with either . . . a bottle or something to that effect, and after that time he didn't know if she was already dead or not. He was afraid - he was feeling as though if he didn't get involved himself he might have been the next one on the list. He didn't know. And he [saw] she was like mortally wounded and he said that he tried to put her out of her misery.

The State established that the clothes found in the oven contained defendant's and Springer's DNA. Hoopes's blood was on the scissors and defendant's boots, but the forensic lab was unable to generate a DNA profile for the blood found on the hammer, possibly because it had been heated in the microwave. An empty wine bottle found in the apartment was covered with blood. The fingerprints on the bottle could not be identified.

The Camden County Medical Examiner, Gerald Feigin, M.D. (Dr. Feigin), testified that an autopsy was performed on Hoopes's body. Dr. Feigin stated that Hoopes had multiple wounds to the head caused by blunt trauma, the largest of which was four-and-one-half inches. There was a two-and-one-half inch laceration on Hoopes's head, and a number of "cutting wounds" on her hands and arms, indicating that she tried to defend herself. In addition, Hoopes's right forearm was broken in multiple places. Dr. Feigin opined that Hoopes died of trauma and not from any pre-existing or co-morbid condition.

Christopher Hoskins (Hoskins) lived across the hall from defendant. He testified that he saw a black man and a white woman waiting for defendant in front of his apartment on the evening of Friday, March 17, 2006. They entered the apartment with defendant, after he arrived. Around midnight, Hoskins heard banging noises coming from defendant's apartment. He described the noises as stomping and banging sounds, but thought they sounded like someone was moving furniture.

The jury found defendant not guilty of first-degree murder, but guilty of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a), and two counts of hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(a)(3) and N.J.S.A. 2C:39-3(b)(1). The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a).

The court sentenced defendant to forty years of incarceration for the aggravated manslaughter conviction, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The court additionally sentenced defendant to concurrent, five-year terms of incarceration, each with two-and-one-half years of parole ineligibility for the hindering apprehension and prosecution convictions. Appropriate fines and penalties also were imposed. The court entered a judgment of conviction dated June 5, 2009.

On appeal, defendant raises the following arguments for our consideration:

POINT I

DEFENDANT'S STATEMENTS IN HIS SECOND INTERROGATION SESSION AT THE PROSECUTOR'S OFFICE WERE ADMITTED IN VIOLATION OF HIS FEDERAL AND STATE RIGHTS AGAINST SELF-INCRIMINATION AND TO COUNSEL.

POINT II THE COURT ERRONEOUSLY PERMITTED THE JURY TO RETURN A GUILTY VERDICT OF AGGRAVATED MANSLAUGHTER ON THE EVIDENCE PRESENTED, WHICH PROVIDED NO BASIS FOR A DETERMINATION THAT DEFENDANT COMMITTED AGGRAVATED AS OPPOSED TO ORDINARY MANSLAUGHTER, AND IMPROPERLY PRECLUDED THE JURY FROM DELIBERATING ON WHETHER DEFENDANT WAS ACTUALLY CULPABLE OF ORDINARY MANSLAUGHTER; DEFENDANT THUS WAS DEPRIVED OF HIS DUE PROCESS RIGHTS TO REQUIRE THE STATE TO PROVE EACH ELEMENT OF THE AGGRAVATED MANSLAUGHTER OFFENSE BEYOND A REASONABLE DOUBT AND TO HAVE THE JURY CONSIDER A VIABLE LESSER-INCLUDED HOMICIDE OFFENSE.

POINT III CRITICAL ERRORS IN THE JURY INSTRUCTIONS AMOUNT TO PLAIN ERROR.

POINT IV THE COURT ERRED BY NOT CHARGING SECOND AND THIRD DEGREE AGGRAVATED ASSAULT AS LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER.

POINT V DEFNDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

II.

Defendant first argues that the court erred by admitting the statements that he made at his second interview at the prosecutor's office. We do not agree.

"The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state's common law, now embodied in statute, N.J.S.A. 2A:84-19, and evidence rule, N.J.R.E. 503." State v. Nyhammer, 197 N.J. 383, 399, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Safeguards have been established to ensure that individuals will have a meaningful opportunity to exercise the right against self-incrimination. Id. at 400 (citing Miranda v. Arizona, 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966)).

Thus, a person who is in police custody must be told that he has the right to remain silent; anything said can be used against him in a court of law; he has a right to the presence of an attorney; and an attorney will be provided to him prior to questioning, if he cannot afford one. Ibid. (citing Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726).

A suspect may, however, waive his Miranda rights and subject himself to police interrogation provided he does so knowingly, voluntarily and intelligently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461-62 (2005). If a suspect waives his Miranda rights and proceeds with questioning, he is free to revoke that waiver and prevent any further questioning. State v. Burno-Taylor, 400 N.J. Super. 581, 587 (App. Div. 2008).

Once a defendant has invoked his rights, he "cannot be interrogated by the authorities until counsel has been afforded him unless the accused himself initiates further conversations with the police." State v. Hartley, 103 N.J. 252, 273-74 (1986); State v. McCloskey, 90 N.J. 18, 25 (1982) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386, reh'g denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981)). Furthermore, any resumption of questioning requires that, at a minimum, "a previously-warned suspect [receive] . . . fresh Miranda warnings." Hartley, supra, 103 N.J. at 267.

In determining whether a defendant's confession was voluntary, the court looks to the totality of the circumstances. Nyhammer, supra, 197 N.J. at 402. In doing so, the court considers, among other factors, the defendant's age, his education and intelligence, whether he was informed of his constitutional rights, whether the questioning was repeated and prolonged in nature, whether defendant was mentally exhausted, and whether the questioning involved physical punishment. Ibid. (citing State v. Presha, 163 N.J. 304, 313 (2000)).

Here, the record indicates that defendant voluntarily appeared at the Oaklyn police station and reported that there may be a dead body in his apartment. The police went to the apartment and found Hoopes's body. It appeared that she had been murdered. The police transferred defendant to the prosecutor's office. He was left alone in an interview room for approximately two hours and provided with food before being interviewed. The interview continued for about one hour, until sometime around 1:30 or 1:45 p.m., when defendant invoked his right to counsel.

The questioning stopped. The investigators asked defendant whether he wanted something to eat or drink, and defendant asked for "a little lunch[.]" Defendant is diabetic. The investigators also asked him if he needed a dose of insulin. Thereafter, defendant was left alone for approximately four hours and no one spoke with him about the case.

Defendant was provided with access to a restroom during that period. Around 5:15 p.m., Investigator Wren checked on defendant before leaving the office for the evening. Defendant asked for a cup of coffee and a cigarette, which were provided to him. He was allowed to use the restroom. As defendant was returning to the holding cell from the restroom, he told Wren that he "ha[d] some details I want to fill you in on."

Wren offered to get the investigators who previously interviewed defendant but defendant expressed a preference to speak to Wren claiming that "I didn't like the other two investigators. They kept asking me the same questions over and over again and they made me feel like I was a liar . . . ."

Defendant was again advised of his Miranda rights. He interrupted the recitation of rights, seeking assurances that he could stop the interview if he pleased "like I did the other time." Defendant agreed to waive his rights and the second interview followed.

Defendant argues that the offers to provide food or drink, and the inquiries concerning his medical needs, were an attempt by the investigators to pressure him to revoke his assertion of his right to counsel and to "break down his will[.]" The trial court found, however, that defendant's statement "was completely voluntary with full understanding of his rights without any coercion."

The court noted that, in his answers to the investigator's questions, defendant indicated that he fully understood his rights, including his right to counsel. The court also noted that the investigators scrupulously honored defendant's assertion of his right to counsel and ceased questioning him but later defendant voluntarily initiated further discussion.

The court pointed out that the investigators again informed defendant of his Miranda rights and found that defendant knowingly, voluntarily and intelligently waived those rights before making the second statement. The court's findings are entitled to our deference because they are supported by sufficient, credible evidence and they have been substantially influenced by the court's opportunity to see and hear the witnesses. State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).

Defendant additionally argues that his waiver was not knowing and voluntary because the investigators refused to inform him of the nature of the charges against him. In support of this argument, defendant relies upon State v. A.G.D., 178 N.J. 56, 68 (2003). In that case, the defendant was charged with sexually abusing a young child in his care. Id. at 60-61. The police went to the defendant's home to interview him and they told him that he was not under arrest. Id. at 59-60. However, at the time the police made that representation, a warrant had already been issued for the defendant's arrest. Ibid.

The Court held that because the defendant was unaware of the arrest warrant, the waiver of his Miranda rights was invalid. Id. at 68-69. The Court stated that the officers had deprived the defendant of "information indispensable to a knowing and intelligent waiver of rights." Id. at 68. The Court observed that, "a criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability." Ibid. The Court concluded that the police officers were required to advise "the suspect of his true status." Ibid.

Defendant's reliance upon A.G.D. is misplaced. Defendant was not deprived of information essential to a knowing and intelligent waiver of his right to remain silent. Defendant was arrested after he reported to the Oaklyn police that there may be a dead body in his apartment, and after he gave his first statement to the investigators at the prosecutor's office. When he gave his second statement to the investigators, defendant was clearly aware that he was a suspect in a murder investigation.

III.

Next, defendant argues that the jury's verdict finding him guilty of aggravated manslaughter was against the weight of the evidence. He contends that there was insufficient evidence to support a finding that he acted with "extreme indifference to human life." We do not agree.

We note that defendant did not make a motion in the trial court for a new trial. Rule 2:10-1 provides that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."

We nevertheless have chosen to consider defendant's argument in the interest of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled on other grounds by State v. Dalziel, 182 N.J. 494 (2005); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). We conclude that it is without merit.

"[T]he difference between aggravated manslaughter and reckless manslaughter is the difference in the degree of the risk that death will result from defendant's conduct." State v. Curtis, 195 N.J. Super. 354, 364 (App. Div. 1984). "[T]he Legislature intended that the degree of risk in reckless manslaughter be a mere possibility of death. In aggravated manslaughter, however, the additional element that death be caused 'under circumstances manifesting extreme indifference to human life' elevates the risk level from a mere possibility to a probability." Ibid.

More succinctly, "[i]t is the first degree crime of aggravated manslaughter if the risk [of death] is a probability as opposed to a possibility; otherwise, it is a second degree crime." State v. Breakiron, 108 N.J. 591, 605 (1987). In evaluating the possibility versus the probability of death, the surrounding circumstances must be considered. Curtis, supra, 195 N.J. Super. at 364-65. "The relevant 'circumstances' are objective and do not depend on defendant's state of mind." Id. at 364.

We are satisfied that the State presented sufficient evidence upon which a jury could find beyond a reasonable doubt that defendant acted with extreme indifference to human life when he stomped on Hoopes's face and kicked her in the head. Defendant says that he when he struck Hoopes, he merely caused her to sustain a minor injury.

However, defendant ignores the evidence that Hoopes had already been seriously injured by the time he struck her and any further injury to her head could be fatal. Moreover, defendant stated that he stomped on Hoopes to put her "out of her misery." He told Wadsworth he kicked Hoopes in the head. In our view, the evidence allowed a jury to conclude that when defendant struck Hoopes, he did so with extreme indifference to whether she lived or died. The evidence showed that when defendant struck Hoopes, the risk of death was a probability, not a possibility.

IV.

Defendant argues that the trial court erred in its instructions to the jury. We note that defendant did not object to the instructions at trial. Therefore, his arguments are considered under the plain error standard in Rule 2:10-2. We must consider whether the instructions were erroneous and, if so, whether the error was "clearly capable of producing an unjust result[.]" Ibid.

Clear and correct jury instructions are essential to ensure a just outcome in a jury trial. State v. Martini, 187 N.J. 469, 477 (2006) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "'[T]he jury charge 'is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.'" Ibid. (quoting State v. Koskovich, 168 N.J. 448, 507-08 (2001)). Thus, it is necessary to "give a clear explanation of the applicable law to provide . . . an adequate understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66, 85 (2001) (citing State v. Burgess, 154 N.J. 181 (1998)); State v. Martin, 119 N.J. 2, 15-17 (1990).

On appeal, "portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)). The mere possibility that erroneous jury instructions brought about an unjust result is insufficient to reverse a conviction. State v. Macon, 57 N.J. 325, 336, 339 (1971). There must be more than a possibility that the erroneous instructions caused an unjust result. See id. at 336. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.

A. Instructions on Recklessness.

Defendant argues that the trial court usurped the jury's role as fact-finder by instructing the jury that it "could find" he acted recklessly. We disagree.

Here, the trial court instructed the jury on aggravated manslaughter and reckless manslaughter, as lesser-included offenses of murder. In instructing the jury on aggravated manslaughter, the court told the jury that the State had to prove beyond a reasonable doubt that: (1) defendant caused Hoopes's death; (2) he did so recklessly; and (3) he did so "under circumstances manifesting extreme indifference to human life." The court further explained:

A person who causes another's death does so recklessly when he's aware of, and consciously disregards, a substantial and unjustifiable risk that death will result from his conduct. The risk must be of such a nature and degree that considering the nature and purpose of his conduct, and the circumstances known to the [d]efendant, his disregard of that risk [i]s a gross deviation from the standard of conduct that a reasonable person would follow in his situation.

In other words, you must find the

[d]efendant was aware of and consciously disregarded the risk of causing death. If you find the [d]efendant was aware of, and disregarded the risk of causing death, you must determine whether the risk he disregarded was substantial and unjustifiable. In doing so, you must consider the nature and purpose of his conduct, and the circumstances known to the

[d]efendant, and you must consider whether in light of these facts the [d]efendant's disregard of that risk was a gross deviation of the conduct a reasonable person would have observed in his situation.

Members of the jury, you could find the

[d]efendant acted . . . recklessly in stomping on the victim's face with his boot and in doing so he intended to put her out of her misery, and he did not care if she lived or died. The [d]efendant denies he caused her death by his actions.

The court then went on to instruct the jury on reckless manslaughter. The court stated that "[i]f, however, after consideration of all the evidence, you're not convinced beyond a reasonable doubt that the [d]efendant acted recklessly" in bringing about Hoopes's death "under circumstances manifesting extreme indifference to human life," the jury "must find the [d]efendant not guilty of aggravated manslaughter[.]"

In its instructions, the court additionally stated:

Members of the jury, you may find from the evidence that the [d]efendant acted recklessly in stomping on the victim's face with his boot. The [d]efendant denies his actions caused her death. Members of the jury, if after consideration of all the evidence, you are convinced beyond a reasonable doubt that the [d]efendant recklessly caused [] Hoopes' death, then your verdict must be guilty of reckless manslaughter. If, on the other hand, after consideration of all the evidence, you're not convinced beyond a reasonable doubt that the [d]efendant recklessly caused [] Hoopes' death, you must find the [d]efendant not guilty of reckless manslaughter.

We are satisfied that, reading the instructions in their entirety, the trial court's statement that the jury "could find" that defendant acted recklessly was not erroneous, let alone an error "clearly capable of producing an unjust result[.]" R. 2:10-2. The court never told that jury that it had to find that defendant acted recklessly. The court merely indicated that the jury "could" make that finding. The court also stated that defendant denied he acted recklessly, and indicated that the jury had the authority to decide that factual question.

B. Instructions to Deliberate Sequentially.

Defendant additionally argues that his right to due process was violated because the jury was not permitted to consider reckless manslaughter unless the jury first acquitted defendant of aggravated manslaughter. He contends that the jury was effectively precluded from considering reckless manslaughter as an alternative for which there was a rational basis. Again, we disagree.

"Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense." State v. Cooper, 151 N.J. 326, 366 (1997) (citing State v. Harris, 141 N.J. 525, 552-53 (1995) and State v. Coyle, 119 N.J. 194, 223 (1990)). Presenting jury charges sequentially serves to "'provide a framework for orderly deliberations.'" State v. Feaster, 156 N.J. 1, 35 (1998) (quoting Cooper, supra, 151 N.J. at 369). When issuing sequential charges, the court should take care "'to avoid the stratification of thought that would deter a jury from returning the proper available verdict.'" Harris, supra, 141 N.J. at 553 (quoting State v. Zola, 112 N.J. 384, 406 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989)).

The instructions employed here were not erroneous and were not framed in a manner that would deter the jury from returning a proper verdict. Although the court instructed the jury to consider aggravated manslaughter before considering reckless manslaughter, the jury was not precluded from finding defendant not guilty of the former offense and guilty of the latter offense. In our view, the instructions provided the jury with a proper framework for orderly deliberations.

C. Failure to Charge Additional Lesser-Included Offenses. Defendant also contends that the trial court erred by failing to charge second- and third-degree assault, as lesser included offenses. We do not agree.

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:12-1(b) and

(b)(1). Furthermore, a person is guilty of third-degree aggravated assault if he "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes significant bodily injury." N.J.S.A. 2C:12-1(b) and (b)(7).

When a defendant requests a charge on an included offense, the charge should be given if there is a rational basis in the evidence for the instruction. State v. Thomas, 187 N.J. 119, 131-32 (2006) (citing State v. Brent, 137 N.J. 107, 115-17 (1994)). In the absence of a request to charge, the court has an independent obligation to instruct the jury on the lesser offenses "'when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" Id. at 132 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

Here, defendant conceded that he stomped on Hoopes's face with his boot. Defendant also told Wadsworth that he kicked Hoopes in the head. Moreover, defendant stated that he took these actions after Sluzalis and Springer had already seriously injured Hoopes. He said that he did so to "put her out of her misery."

Thus, the evidence did not clearly indicate that defendant was merely endeavoring to inflict serious or significant bodily injury by stomping upon and kicking Hoopes. The evidence showed that defendant acted under circumstances indicating that Hoopes probably would die from the injuries she sustained. Indeed, the jury could reasonably find that this was precisely what defendant intended.

D. Instructions on Accomplice Liability.

Defendant further argues that the court's instructions on accomplice liability were erroneous. Defendant maintains that the instructions were confusing, misleading and inaccurate. We are satisfied, however, that the instructions were not erroneous.

The trial court instructed the jury that a conviction on accomplice liability required a finding that "[d]efendant's purpose was to promote the facility of the commission of the specific crime of either aggravated manslaughter . . . ." The court told the jury that it must find that "[d]efendant possessed the criminal state of mind that's required for the commission of the aggravated manslaughter . . . ." In our view, the charge properly instructed the jury on the determinations it was required to make in order to find defendant guilty as an accomplice.

V.

Defendant also argues that his sentence is excessive. In our view, these arguments are entirely without merit.

Here, the trial court found that defendant was a persistent offender for purposes of extended-term sentencing pursuant to N.J.S.A. 2C:44-3(a). The court based this finding for defendant's 1995 conviction of attempted burglary, and his 2003 conviction for attempted criminal trespass.

The court found aggravating factors two, N.J.S.A. 2C:44-1(a)(2) (listing the "gravity and seriousness of harm inflicted on the victim" including the fact that the victim was particularly vulnerable as an aggravating factor); three, N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense[.]"); six, N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[.]"); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law).

The court additionally found mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) ("The willingness of the defendant to cooperate with law enforcement authorities[.]"). The court determined that the aggravating factors predominated over the single mitigating factor. The court sentenced defendant on the conviction for aggravated manslaughter to a forty-year term of incarceration, subject to NERA; and imposed concurrent terms of incarceration on the convictions for hindering apprehension and prosecution.

Defendant argues that the court erred by finding aggravating factor two. He says that the victim was not "unusually defenseless" and he did not inflict any "egregious harm" upon her when he stomped on her face at the end of the altercation. Defendant also says that the court erred by finding aggravating factor nine because there was nothing about the case or his prior record which justified a need for deterrence. He also says that the court failed to consider the NERA consequences of his sentence.

We are satisfied that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We conclude that the sentences imposed here are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.


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