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State of New Jersey v. Janean Owens


September 4, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-01-0155 and 07-01-0158.

Per curiam.


Submitted February 1, 2012

Before Judges Cuff, Waugh, and St. John.

Defendant Janean Owens appeals her conviction for first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a); third-degree conspiracy to commit theft by unlawful taking, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3; two counts of theft by unlawful taking, contrary to N.J.S.A. 2C:20-3; second- degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and fourth-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(a). She also appeals the resulting aggregate custodial sentence of twenty-five years, subject to an eighty-five-percent period of parole ineligibility, plus a consecutive aggregate sentence of imprisonment for four years. We affirm the conviction. We reverse the decision to make the four-year sentence for the theft offenses consecutive and vacate the sentence for the possession of a weapon for unlawful purposes, which should have been merged with the theft offense.


We discern the following facts and procedural history from the record on appeal.

On the evening of Thursday, October 19, 2006, Owens went to a bar in Carteret for drinks with Timisha Sanford, whom she had known for about ten years. Robert Funderberk, also known as "EZ," was at the bar and bought drinks for Owens. She knew Funderberk and told Sanford that "he liked her."

When the bar closed at 2:00 a.m., Owens and Sanford left together but headed in different directions. After Sanford had walked a few blocks, Owens "rode up" to her in a gray Suburban driven by Funderberk. Owens asked Sanford to ride with them to purchase cigarettes. Funderberk drove them to Owens' apartment to pick up co-defendant Keith McBride, also known as "Special" or "SP."

When they arrived at the apartment, Owens went upstairs to get McBride. They returned about six or seven minutes later. Owens and McBride then stood behind the Suburban talking "for a minute or two." Sanford exited the vehicle "to see what they [were] talking about. What was going on." McBride told Sanford "to handle it" and "[g]ave her something wrapped up in a red towel." Based on the weight, Sanford thought the towel contained a gun. She said that she "wasn't doing it," and Owens "snatched" the package from her and told her "she was going to get [Funderberk]." Sanford thought they were talking about a robbery.

Owens got back into the Suburban and sat in the back seat behind Funderberk, next to Sanford. McBride sat in the front passenger seat. While Funderberk was driving, Sanford saw that Owens "had a gun in the back of [Funderberk's] head and she asked [McBride] should she pull it." He said "trill," which, according to Sanford, is slang for "yes." Owens then pulled the trigger. Funderberk "[s]lumped to the side," "ran off the road," and the vehicle stopped.

McBride "said what the fuck did you do." Owens helped McBride move Funderberk to the front passenger seat. Owens and McBride then got in the back seat, and McBride told Sanford to drive to Newark. According to Sanford, Owens was acting "[l]ike herself" and was "[n]ot really too bothered."

After they arrived in Newark, McBride told Sanford to stop the Suburban near a building because it was a "good place" for the body. Owens assisted McBride in getting the body out of the vehicle and placing it next to a dumpster. They drove away, but eventually abandoned the Suburban and walked to the home of Owens' aunt.

Later that night, Sanford noticed that McBride had a necklace with "a big medallion on it," which he told her belonged to his uncle. Owens told her "something about [Funderberk's] chain." However, Sanford did not see Owens or McBride take anything from Funderberk.

Funderberk's body was found on October 20, 2006. His Suburban was not found until early the next morning, in a residential area approximately a five- or ten-minute drive from where his body was recovered.

Funderberk typically carried large sums of cash on Thursdays, which was his payday. The night he was killed, he had been wearing his usual jewelry, which included two gold chains, one with a scorpion medallion. When his body was found, however, there was only one necklace, a ring, and some small change. The scorpion necklace was never recovered.

On October 24, 2006, Tamika Brown, Funderberk's fiancee, received a telephone call from an unidentified individual who told her what had happened to Funderberk. Brown reported the information to the Newark police. After some investigation, the police located Sanford and brought her to the police station for questioning.*fn1

Based on Sanford's interview, Carteret Police Officer Matthew Failace and two other officers conducted a surveillance of Owens' home. The officers were told that a possible homicide suspect lived at the residence. They observed Owens and four others enter a vehicle and drive away. Failace stopped them for speeding. Because Owens and the others had outstanding warrants, he brought them to headquarters at approximately 12:55 a.m. on October 25.

Failace read Owens her Miranda*fn2 rights. She signed a rights card at approximately 1:00 a.m. Failace described Owens as "very calm" and not under the influence of any substances. She was detained on the outstanding warrants.

Owens was brought to an interrogation room at approximately 1:30 a.m. The entire interrogation was video recorded. Sergeant George Trillhaase read Owens the Miranda rights, and she initialed each right before signing the second rights card. Trillhaase, Prosecutor's Detective William Krowl, and Prosecutor's Detective Sergeant Ivan Scott took turns questioning Owens. There were no more than two of them in the room during the majority of the interrogation.

After almost three hours of questioning, during which Owens was given water to drink, the officers informed her that Sanford had spoken with them. She expressed disbelief and eventually asked to see her. Owens was given an eighteen-minute break, during which she was allowed to leave the room, use the facilities, have some food, and smoke a cigarette. During the break, Owens saw that Sanford was, in fact, at the station. After the questioning resumed, Owens confessed to shooting Funderberk and provided details about her actions on the night of the shooting.

According to Owens, McBride told her that Funderberk was "about to get robbed" while they were at her apartment. She claimed that "it wasn't supposed to be a homicide" because she knew Funderberk and his family, but McBride was high and "ratchet happy." Owens admitted that she sat in the back seat of the Suburban behind Funderberk, had the gun, and shot him: "So then I was like[,] 'If you pull this trigger' . . . 'is it really gonna go off?' McBride was like, 'Yup, yup[.]' Then it . . . just happened." She demonstrated how she held the gun. She told the officers that the gun "just really went off" after McBride said, "'Trills[,]' like do it." According to Owens, McBride took Funderberk's money, chain, and the gun. She described the chain and said that McBride sold it in Newark.

Owens signed consent-to-search forms for her mother's home, where she used to live, and for her apartment. The police recovered a white bag with clothing in a garbage can at her mother's home. Owens accompanied the police to her apartment and showed them the pair of sneakers she had worn the night Funderberk was killed and the ceiling vent where McBride had stored the gun prior to the shooting. McBride was eventually arrested in New York City.

On January 19, 2007, Owens and McBride*fn3 were indicted and charged with first-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:11-3(a)(1), (2), and 2C:5-2 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count two); second-degree conspiracy to commit armed robbery and theft, contrary to N.J.S.A. 2C:15-1, 2C:20-3, and 2C:5-2 (count three); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count four); two counts of third-degree theft, contrary to N.J.S.A. 2C:20-3 (counts five and six); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count seven); second-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count nine); and third-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(a)(3) (count ten). Sanford was charged in count ten.

In a separate one-count indictment, Owens was charged with fourth-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(a).

Owens moved to suppress her statement to the police. She argued that "on no less than 15 instances . . . [she] asserted [the] right to remain silent and needless to say it was not honored." She also argued that her statement was involuntary.

A Miranda hearing was held over three days in May and June 2008. Failace testified about Owens' arrest. Trillhaase testified and chronicled the investigation leading up to the interrogation. He described Owens as reluctant and not forthcoming prior to the break in her interview, but disputed defense counsel's assertions that "[s]he seemed to indicate" or "repeated that she wanted to terminate the discussion." According to Trillhaase, Owens was more forthcoming after the break because, once she saw Sanford, she knew that the police officers had not lied about having spoken to her.

Dr. Gerald Cooke, a clinical and forensic psychologist, testified as an expert on Owens' behalf. According to Cooke, Owens had a borderline personality disorder with antisocial and paranoid features, alcohol and drug dependency, and "adjustment disorder with mixed anxiety and depressed mood." He opined that Owens was "very susceptible to being manipulated by others, though she can also manipulate others as well." He also described her as "easily distracted," and as having "very great difficulty sustaining her attention." He testified that, if Owens wanted to terminate questioning, she "doesn't know how to go about actually doing that, to be assertive to follow through on what she wants."

Cooke outlined the results of IQ testing, which placed Owens in "the borderline range of intellectual functioning," "at about the fifth percentile of the population." But because she had a tendency to "give[] up almost before she starts," Cooke concluded that the IQ score "really underestimate[d] her ability" and that she was "brighter than that." He estimated Owens' intellectual function as in the low average range.

On August 18, 2008, the motion judge delivered an oral decision in which he concluded that Owens had not invoked her right to remain silent and that her statement was voluntary.

In a subsequent motion, Owens moved to exclude portions of her statement, including references to McBride's gang affiliation and his prior criminal activity. On April 3, 2009, a new judge told counsel that he was "sympathetic" to redaction and to providing a curative instruction to the jury. However, he later ruled that the entire statement was relevant and admissible. As a result, no limiting or curative instructions were given at trial.

The trial took place over ten days from April through May 2009, before the second judge and a jury. During opening remarks, the prosecutor described how the police initially came to focus on Owens:

So, now, we're going to Tuesday, the 24th. . . . Brown has lived in Carteret for a while. [Funderberk] has lived there for ten years. [Brown] is from Carteret longer. Someone calls her up, and, basically, gives her a statement of what occurred. She was told that there were three people in the car when [Funderberk] was shot. A male by the name of Special or SP. A female named Janean. And a female named Misha or Timisha.

. . . Brown contacts the Carteret Police Department. She gives them this information. . . . They told her to contact Newark. So, on the 24th, this is Tuesday, . . . Brown is directed to get a hold of the people in Newark. And that information, for whatever reason, did not get to the Newark Detectives. . . .

It's not until that afternoon, that they get that information from Carteret, from . . . Brown. These three females, they come down to Newark Police. They come down to Carteret. The Carteret guys are familiar with them. It's a small town. They know Special, SP. His full name is Keith McBride. They know Janean as Janean Owens.

And Misha as Timisha Sanford. So, with that information, now, they get some addresses on these folks. They go over to . . . Sanford's house. She is there. They ask her to come back with them. They take her back with them to Newark.

After finishing his own opening, Owens' defense counsel objected to the quoted portion of the prosecutor's opening and moved for a mistrial, or at least a curative instruction. The trial judge instructed him to develop an instruction "to

[e]nsure that [the jury] understand[s] that no negative inferences may be drawn by the fact that a police officer may know somebody in the community. That's the only inference I get from the statement." The judge subsequently charged the jury:

[I]n connection with the [p]rosecutor's opening statement, I want to advise you, that you may make no negative inference. No negative inference may be drawn from the fact that the [p]rosecutor mentioned that the police in Carteret knew . . . Owens.

The [p]rosecutor indicated it was a small town. They might have known her from high school, elementary school. You may not make any inferences from that, that they might know who . . . Owens was.

Sanford testified and provided a detailed account of what occurred on the night of the shooting. Sanford also testified that when she and Owens were held together at Middlesex County Jail, Owens told her that "[s]he wanted [Sanford] to say [McBride] did it."

Lisa Johnson, Owens' cellmate for about two weeks in March 2007, testified that Owens "was going on about her case." Specifically:

[s]he told me the circumstance. She was there about this guy named Funderberk. And she described to me what happened. And what happened, what she told me was that, she met up with this guy, her and her boyfriend and some girl named Misha. They went out to rob him. Then things got bad. Dude got shot. She told me he had a van. It was at night. It was a gray van. They took the body to somewhere in Newark.

Brown also testified for the State. Despite a defense objection, the trial judge permitted the prosecutor to ask her about the telephone call she received on October 24, 2006, but not to elicit details about its contents. Brown stated that she called the police after receiving a call concerning Funderberk, which "gave [her] a lot of details about what had occurred to [him]."

Detective Vincent Vitiello then testified that he received information from Brown, which ultimately led to the questioning of Sanford. Failace testified about the surveillance of Owens' home after Officer Freeman had been "notified to stand by Locust Street in an unmarked vehicle because [a] possible suspect in a homicide resided there."

A DNA expert testified that Owens and McBride could not "be excluded as partial contributors to the mixed DNA profile" obtained from Funderberk's pants. An expert in biological stain analysis testified that items of Owens' clothing tested positive for Funderberk's blood. His DNA was also found on her sneaker.

Gary Charydczak, an investigator with the Middlesex County Prosecutor's Office, identified a surveillance video taken from the site where Funderberk's body was discovered, which depicted "individuals taking a body out of an SUV." The tape, which was played for the jury showed McBride pulling Funderberk's body from the truck, after Owens and McBride went behind the dumpster where they left the body. McBride returned to the vehicle before Owens.

The entire video of Owens' interrogation was played for the jury. Krowl testified that, during the eighteen-minute break, Owens went to the lobby, used the facilities, smoked, and had a snack. According to Krowl, Owens was able to view Sanford through a glass divider, make eye contact with her, and wave.

Following the charge conference and summations, the prosecutor asked the judge to charge accomplice liability for theft and armed robbery, citing defense counsel's argument during summation that Owens "had nothing to do with the theft." The judge agreed to give the charge, despite defense counsel's objection to such a change in the proposed jury charge after summations had been completed.

During their deliberations, the jury asked to rewatch the video of Owens' statement and requested written copies of the charges and a definition of theft. The jury found Owens guilty of the lesser included offense of aggravated manslaughter on count two; conspiracy to commit theft on count three; theft on counts five and six; and the weapons offenses on counts eight and nine. The jury acquitted Owens on counts one (conspiracy to commit murder), four (armed robbery), and ten (hindering apprehension), and did not consider count seven (felony murder), because of her acquittal for armed robbery. The judge then asked the jury to consider the separate charge of certain persons not to possess weapons. The jury returned a guilty verdict.

Prior to sentencing on June 26, 2009, the judge denied Owens' motion for a new trial. He sentenced her to a twenty-five-year term on count two, subject to the eighty-five-percent parole ineligibility of the No Early Release Act (NERA), N.J.S.A. 2C:7.2; four-year sentences on each of counts three, five, and six (the theft offenses), to run concurrent to each other but consecutive to the term for count two. Finally, he imposed a ten-year term on count eight and a five-year term on count nine, to run concurrent to each other and to the sentence for count two. As to the certain persons offense, the judge imposed a sentence of eighteen months, to run consecutive to the sentences for aggravated manslaughter and the theft offenses. The judge also imposed the required penalties, fines, and assessments. This appeal followed.


Owens raises the following issues on appeal:






A. The Statements of an Unknown

Person were Inadmissible Hearsay.

B. These Hearsay Statements were

Inadmissible Under Crawford v. Washington, 541 [U.S.] 36 (2004).

C. These Hearsay Statements were

Inadmissible Under State v. Bankston, 63 N.J. 263 (1973).




CERT. DENIED, 475 U.S. 104 (1986).



We start our review with the arguments related to the denial of Owens' motion to suppress the statement she gave to the police following her arrest. Owens argues that the motion judge erred in refusing to suppress her statement following the Miranda hearing because (1) she sought to invoke her right to remain silent several times during the interrogation, but the police officers refused to honor her request, and (2) any waiver of her rights was not voluntarily given.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause");

State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]

If, however, the judge's decision on a motion to suppress a statement is based primarily on the motion judge's review of a video of the interrogation, a reviewing court does not owe the same level of deference. State v. Diaz-Bridges, 208 N.J. 544, 566 (2011). Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). Subject to Diaz-Bridges, we generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," Locurto, supra, 157 N.J. at 471, nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's rights to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).

In Diaz-Bridges, supra, 208 N.J. at 564-67, the Supreme Court reiterated the considerations applicable to determining whether a defendant has invoked the right to remain silent.

If that invocation is clear and unambiguous, we have required that it be scrupulously honored. State v. Johnson, 120 N.J. 263, 281 (1990) (citing Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). If, however, the invocation is equivocal or ambiguous, leaving the investigating officer "reasonably unsure whether the suspect was asserting that right," id. at 283, we have not required that the interrogation immediately cease, but have instead permitted officers to clarify the otherwise ambiguous words or acts. Ibid.

As it relates to the invocation of the right to remain silent, both the words used and the suspect's actions or behaviors form part of the inquiry into whether the investigating officer should have reasonably believed that the right was being asserted. As a result, the court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked. For this reason, it may be inadequate to confine appellate review to the transcript of the interrogation. Instead, as this appeal demonstrates, if the trial court has based its findings on conduct or behaviors that defendant exhibited during a videotaped interrogation that may be observed and analyzed with equal precision by an appellate court, a review of the videotape of the interrogation is appropriate.

We do not suggest that we have altered our admonition to appellate courts that they give due deference to the fact-finding role of the trial courts. See [Locurto, supra, 157 N.J. at 471] (concluding that reviewing court should defer to factual findings of trial judge as long as they can reasonably be reached on sufficient credible evidence present in the record). Indeed, as we have recently reiterated, if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified. Elders, supra, 192 N.J. at 245 (observing that trial court based its evaluation on police testimony because patrol car's videotape showed only part of interaction with individuals involved in traffic stop).

However, when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, as we have observed, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself. [State v. Alston, 204 N.J. 614, 626 n.2 (2011)] (citing [Harris, supra, 181 N.J. at 415-16, 419]). When the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required. Appellate courts need not, and we will not, close our eyes to the evidence that we can observe in the form of the videotaped interrogation itself.

We have considered whether defendants invoked the right to silence in a variety of contexts, and have established principles that can be summarized without great detail. A suspect who repeatedly responded to questions by saying "I can't talk about it" and who engaged in a persistent pattern of refusal to answer was not "obligat[ed] to state his position more clearly" in order to invoke the right to silence. Johnson, supra, 120 N.J. at 284. A suspect who told the investigator "I don't believe that I want to make a statement at this time" sufficiently invoked the right to silence that the failure to honor the request required suppression. State v. Hartley, 103 N.J. 252, 255-58 (1986) (requiring re-administration of Miranda warnings during renewed attempt to initiate questioning).

On the other hand, we deemed a suspect's statement that he wanted an opportunity to "lie down and think about it" before responding, although arguably far less ambiguous a reference to the right to remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent. [Bey], supra, 112 N.J. at 136-37 ("law enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning"). Similarly, as our Appellate Division has concluded, a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored. [Burno-Taylor, supra, 400 N.J.

Super. at 604].

A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42. The trial judge must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include consideration of the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether . . . questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).

Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).

A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

Because the motion judge relied primarily on his review of the video recording in denying the motion to suppress, we base our review primarily on our own review of the same recording. Diaz-Bridges, supra, 208 N.J. at 565-66.

Owens' first contention with respect to her statement is that she sought to invoke her right to remain silent, but the police officers persisted in questioning her. Our review of the video recording of the interrogations leads us to a different conclusion. Although Owens told the police officers that she was "scared" of McBride and expressed concerns about her safety and that of her family if she disclosed information about him, she also told the police officers that "I'm the one that got the evidence. I'm the one that knows everything . . . ." About one hour into the interrogation, Owens told the officers: "But I will do what I gotta do . . . participate with the investigation as far as it's gonna go." She also stated, "I'll leave yawl satisfied with what yawl need to hear."

During the interrogation, the police officers told Owens that they knew what had happened based on their investigation, but they wanted to hear it from her. She initially disclosed minimal information, hoping to satisfy them with the least possible disclosure. They persisted in seeking the full story, disclosing additional facts as they continued to question Owens. As they disclosed more, Owens began to disclose more. She was apparently hoping that she would be released if she disclosed enough to satisfy them. However, the officers eventually made it clear that she would not be released in any event.

As Owens continued to disclose additional information, she continued to deny that she was the shooter. The officers continued to press her for additional details, which she appeared reluctant to give. For example, the following exchange ensued:

A. . . . I don't feel safe.

Q. Det. Krowl: . . . [B]ecause of circumstances, ok, and the thing is I didn't create that feeling for you. You know what I mean.

A. No, I'm not, no I'm not talking about that, I'm not talking about that. I'm talking about safe meaning him safe. I ain't talking about . . . I have . . . there ain't no guilty consciences that I feel.

Q. Det. Krowl: Mm . . . huh.

A. There's no guilty consciences that I feel cause I know. I know. . . . I'm talking about as far as him safe like.

Q. Det. Krowl: In what way?

A. I don't know, I ain't . . . I ain't gonna say no more and . .

Q. Det. Krowl: I mean you gotta explain to me if you just give me half of a statement. I can pretty much read what you['re] trying to say, but then again, I can't add what you['re] trying to tell me. You gotta finish your sentence. You hear me?

A. So I still can't go home? Like I'm willing to participate . . .

Taken in context, we are satisfied that statements such as "I ain't gonna say no more" were not invocations of the right to remain silent or requests that the interrogation be terminated, but were attempts by Owens to avoid areas of detail into which she did not want to delve at the time. In other words, she wanted to change the area of inquiry to avoid specifics.

Owens also argues that her confession was not voluntary. Again, our review of the interrogation video convinces us otherwise. As already noted, even as she provided more detail, Owens continued to deny that she had been the shooter. Towards the end of the interrogation, however, the officers told Owens that they had spoken to Sanford. Owens appeared to discount that assertion. They then disclosed that Sanford was actually at the police station ready to give a statement. Owens then expressed an interest in seeing her to verify that fact. Once Owens confirmed Sanders' presence during the eighteen-minute break shortly after 4:00 a.m., she agreed to cooperate and gave a full account of the shooting, admitting that she had been the shooter.

While there is no doubt that the interrogators continually pressed Owens for further details and an admission that she was the shooter during the three hours that led up to the break, our review of the video, taken as a whole, convinces us that it was the revelation that Sanford was present and willing to give a statement that led to Owens' decision to admit her role as the shooter. The confession was the result of Owens' change of mind, based on her knowledge that Sanford was cooperating with the police, rather than a broken will. Galloway, supra, 133 N.J. at 654.

Although lengthy, the interrogation was not unduly long. A review of the video demonstrates that there were long pauses throughout. The room was small, but there were no signs that Owens was in fear of the officers or that they were attempting to intimidate her by crowding around her. Cooke testified that in his opinion Owens functioned in the lower portion of the average range. A review of the video reflects that Owens was not psychologically or developmentally impaired during her interchanges with the officers.

We are satisfied that Owens' will was not "overborne" and her capacity for self-determination was not "critically impaired." P.Z., supra, 152 N.J. at 113. There was no showing in this case of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

In summary, we find no error in the denial of the motion to suppress.


We now turn to Owens' arguments with respect to several trial errors that she asserts deprived her of a fair trial.

With respect to evidential rulings, our standard of review is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted).


Owens argues that Brown's testimony, during which she told the jury that an unidentified person provided her with information about what had happened to Funderberk, along with the prosecutor's opening statement describing the contents of that conversation, "deprived her of a fair trial" because the caller's statements to Brown were "clearly testimonial," in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). She further argues that, in light of Brown's testimony and the prosecutor's opening remarks, "Failace's testimony directly told the jury that based on information received from a non-testifying source, the police knew she was involved in the murder," in violation of Bankston, supra, 63 N.J. 263.

The State argues that the judge's "limiting instructions to the jury put into context the purpose of evidence that explained how the police investigation came to focus on defendant and her cohorts, thus not violating the tenets of [Bankston]."

In Bankston, the Court found:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him. [Id. at 268-69 (internal citations omitted).]

See also Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203 (holding that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands . . . unavailability [of the declarant] and a prior opportunity for cross-examination"). The Bankston Court added that, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271.

"The common thread that runs through Bankston [and its progeny] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005). The Branch Court held that, [i]n contexts other than a photographic identification, the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. [Id. at 352.]

In State v. Luna, 193 N.J. 202, 216-17 (2007), the Court considered the hearsay testimony of a homeowner who testified that "after speaking to her housekeeper, she telephoned [9-1-1] and reported what the housekeeper had told her: that five men with guns had invaded her home." The housekeeper did not testify. Id. at 216. The Court held that "witnesses may testify that they took certain investigative steps based 'upon information received.' [Bankston, supra, 63 N.J. at 268-69].

But they cannot repeat specific details about a crime relayed to them by . . . another person without running afoul of the hearsay rule." Luna, supra, 193 N.J. at 217.

Erroneous admissions of hearsay in violation of Bankston are reviewed under the harmless error standard:

The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. [Bankston, supra, 63 N.J. at 273 (citing State v. Macon, 57 N.J. 325, 335-36 (1971)).]

See also State v. Douglas, 204 N.J. Super. 265, 271 (App. Div.) (finding that hearsay violations are reviewed for plain or harmless error), certif. denied, 102 N.J. 378 (1985).

In State v. Alston, 312 N.J. Super. 102, 113-16 (App. Div. 1998), we found that admission of an officer's hearsay testimony, which revealed information provided by an anonymous caller about the defendants, was not harmless. We "note[d] that the prosecutor did not merely make a fleeting reference to the contents of the anonymous telephone call." Id. at 115. He referred to it in both his opening statement and summation and elicited testimony about it during trial. Ibid.

We further found that the evidence "was sufficient to convict," but "the proofs were considerably less than overwhelming," ibid., particularly in light of witness impeachment, recantation, and inconsistent testimony, id. at 116. Having considered "[t]he aggregate effect of the nature of the right infringed upon, the denial of the right of confrontation, coupled with the extent to which the contents of the . . . call was used by the prosecution in the presentation of evidence and summation," we concluded that "the error may well have been the decisive factor in leading the jury to a verdict it might not otherwise have reached." Id. at 117.

Conversely, in Douglas, supra, 204 N.J. Super. at 272, despite the admission of an officer's hearsay testimony about information obtained from a non-testifying co-defendant, "[t]here was substantial credible evidence upon which the jury could predicate its finding of guilt without any hearsay testimony," id. at 274. We concluded "that the hearsay evidence did not prejudice a substantial right of the defendant" and was harmless, ibid., which was unlike other cases, including Bankston, where "the hearsay testimony was prejudicial . . . because of the weakness of the State's case," id. at 275.

Here, in his opening statement, the prosecutor related that Brown had received a call from an individual who told her "that there were three people in the car when [Funderberk] was shot.

A male by the name of Special or SP. A female named Janean. And a female named Misha or Timisha." He also told the jury that the Carteret police were "familiar" with all three defendants. At the close of both opening statements, defense counsel objected to the prosecutor's comments pertaining to information related by Brown that she "heard on the street" and to his comments that the police already knew the defendants. Defense counsel asked for a mistrial or, in the alternative, a curative instruction. The judge instructed the jury, in pertinent part, that "[n]o negative inference may be drawn from the fact that the [p]rosecutor mentioned that the police in Carteret knew [Owens]." However, his instruction did not address the prosecutor's comments pertaining to information from an unknown source that was related by Brown to the police.

During the trial, over a defense objection, Brown was permitted to testify that she had called the police after receiving the call that "gave [her] a lot of details about what had occurred" to Funderberk. Then, Vitiello subsequently testified, without objection, that the police received information from Brown that, combined with information they received from the Carteret police, led to their locating Sanford. Again without objection, Failace testified that he and other officers conducted surveillance of Owens' home after having been "notified to stand by Locust Street in an unmarked vehicle because [a] possible suspect in a homicide[, who he knew was Owens,] resided there."

Owens argues that the prosecutor's statements combined with the testimony of Brown and Failace*fn4 violate her right to confrontation. We agree that the prosecutor's statements during opening and the subsequent testimony violated the tenets of Bankston and that "the logical implication to be drawn from the [subsequent] testimony [would lead] the jury to believe that a non-testifying witness has given the police evidence of [Owens'] guilt." Bankston, supra, 63 N.J. at 271; see also Luna, supra, 193 N.J. at 216 (applying Bankston rule to a non-officer's testimony). The judge should have taken stronger action to prevent or cure those errors.

Nonetheless, we conclude that the errors taken together were harmless. See Bankston, supra, 63 N.J. at 273; Douglas, supra, 204 N.J. Super. at 271. Unlike the testimony in Alston, supra, 312 N.J. Super. at 115, where "the proofs were considerably less than overwhelming" and "the error may well have been the decisive factor in leading the jury to a verdict it might not otherwise have reached," id. at 117, in this case there was "substantial credible evidence upon which the jury could predicate its finding of guilt without any hearsay testimony," Douglas, supra, 204 N.J. Super. at 274. Owens' confession, consistent witness testimony, particularly from Sanford, forensic evidence, and the surveillance video provided overwhelming evidence of Owens guilt.

Although troublesome, the errors here were harmless because they were "[in]sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Bankston, supra, 63 N.J. at 273.


Owens also challenges references during the interrogation video to information that the officers received during their investigation. She argues that "the only police investigation known to the jury was the phone call to [Brown]." We disagree with that premise, inasmuch as Sanford's cooperation was specifically mentioned during the video. In any event, the trial judge provided an appropriate limiting instruction:

[L]et me advise you that, in the course of this recording, the statements of . . . Owens, you heard the police investigator's [sic] refer to various information, that is claimed to be in their possession as a result of the investigation. They made various references to different times, different things.

I direct you not to consider any of the assertions, any of the statements, as evidence, made by the police officers. Rather, they are before you as techniques of interrogation.

In light of the judge's specific instruction about interrogation techniques, we find no error.


Owens also argues that Sanford's testimony that Owens and McBride "wanted to rob [Funderberk]" was inadmissible. The State argues that Sanford's testimony was properly admitted because she "was testifying from personal knowledge and her opinion was helpful to the jury."

Pursuant to N.J.R.E. 602, a witness must have personal knowledge of the matter he or she testifies about at trial. Pursuant to N.J.R.E. 701, the testimony of a lay witness "in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." As to part (a), "a lay witness must have actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." See State v. LaBrutto, 114 N.J. 187, 197 (1989).

In State v. Johnson, 309 N.J. Super. 237, 262-63 (App.

Div.), certif. denied, 156 N.J. 387 (1998), a witness testified that, based on his experience on the streets and in prison, he knew that the expression "get paid" was understood "to mean getting money or sex." We found that his testimony assisted with the meaning of unfamiliar street slang and was admissible under N.J.R.E. 701. Id. at 263. We concluded that he had properly testified about his own understanding of the phrase, not the defendant's. Ibid.

Here, Sanford initially testified that, when she, Owens, and McBride were standing behind Funderberk's truck, McBride "mentioned something about like I want to rob [Funderberk]." However, on cross-examination and again on redirect, she stated that she had not actually heard anyone use the word "robbery." On redirect, the prosecutor asked her what her impression was based on. Sanford responded "[t]hat they wanted to rob him." Defense counsel objected.

The judge permitted the prosecutor to "ask her upon what she bases her understanding." Sanford responded that she had known Owens for eight or nine years, McBride for several months, and had seen them interact. McBride told Sanford to "[h]andle it," and when Owens snatched the gun, she said "[t]hat she was going to do it. That she was going to get him." Based on these words and how Owens and McBride interacted in the past and behind the truck, Sanford said she thought they were talking about a robbery.

Sanford's opinion was not irrelevant, because the testimony had a tendency to prove that Owens and McBride planned to steal from Funderberk. See N.J.R.E. 401. Because Sanford formed her opinion based on what she had seen and heard, as well as her prior experiences with Owens and McBride, it was "rationally based on her perception." In addition, it would assist the jury with determining a fact in issue, whether or not they planned to steal from Funderberk, by interpreting the language used during the exchange. N.J.R.E. 701. As in Johnson, supra, 309 N.J. Super. at 263, Sanford testified about her own impression of the communications between Owens and McBride. Because the jury was given enough information about the basis of Sanford's lay opinion to evaluate it, we do not see it as preempting the jury's role.

Although the evidence issue involved presents something of a close question, we find no abuse of discretion. In addition, Owens herself told the officers during her interrogation that a theft was contemplated and Owens' cellmate testified to the same effect, so any error was harmless.


Owens' also argues that the judge erred by failing to redact portions of the confession video in which she discussed McBride's gang membership and activities. She contends that those facts were irrelevant and prejudicial, because they associated her with gang activity. Although we agree that the judge should have redacted the video to exclude those references, we conclude that the error was harmless because the sections at issue did not relate to the issues before the jury and the evidence of guilt was overwhelming.


We next address the issue of the trial judge's decision to grant the State's request that he charge accomplice liability after the summations had been completed. Owens argues that she was prejudiced because her defense attorney's summation focused on a lack of evidence that Owens engaged in a theft, and did not address accomplice liability, which had not been part of the charge discussed during the charge conference required by Rule 1:8-7(b).

Although accomplice liability was not specifically charged in the indictment, the indictment charged Owens with conspiracy to commit theft. "[O]ne indicted as a principal may be found guilty as an accomplice if the evidence produced at trial supports that finding." State v. Mancine, 124 N.J. 232, 256 (1991). Further, "accomplice liability need not be alleged in the indictment." State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1985). "[T]he proofs must warrant presentation of the case to the jury on accomplice liability," ibid., and "[w]here the facts warrant such an instruction, the court may give it even without request of either party," id. at 389. However, the judge "should indicate [his or her] intention to so charge, with or without request, before summations." Ibid.

The prosecutor did not request such a charge until after summations, which is inconsistent with the practice outlined in Hakim, supra, 205 N.J. Super. at 389, or the requirements of Rule 1:8-7(b). In addition, the judge did not offer defense counsel an opportunity to supplement his summation. See id. at 389 n.3.

The evidence at trial supported Owens' conviction for theft under either a principal or an accomplice theory.*fn5 In her statement, Owens told the officers that McBride told her before they left her apartment that Funderberk was "about to get robbed." She also took the gun when Sanford refused it and eventually shot Funderberk. The surveillance video showed that Owens accompanied McBride behind the dumpster where they left the body, and that she was alone with the body before they left the scene.

Consequently, we conclude that the judge's error was harmless. Bankston, supra, 63 N.J. at 273.


Owens also argues that the judge's failure to give a specific jury instruction on conspiracy to commit theft deprived her of due process and constitutes plain error.

The judge charged the jury on the crime of conspiracy and explained its requisite elements. He told the jury that it applied to count one (murder) and count three, which contained charges of conspiracy to commit armed robbery and theft. However, he did not specifically state that she was charged with conspiracy to commit theft.

The following day, when charging the jury on theft, the judge did not include an instruction regarding conspiracy to commit theft or repeat the conspiracy charge when he outlined the elements of theft. Defense counsel did not object to that omission. Thereafter, the judge told the jurors that count three included charges for both conspiracy to commit armed robbery and theft, and that they needed to answer both questions. During deliberations, the jury requested a written copy of the charge and a definition of theft.

Because Owens did not raise this issue before the trial judge, we apply the plain error standard, which requires reversal only if the error was "clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing 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." Macon, supra, 57 N.J. at 336.

Appropriate and proper jury charges are essential to a fair trial. The most critical part of any jury instruction is an explanation of the applicable law, which, in a criminal trial, includes an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt. [State v. R.T., 411 N.J. Super. 35, 46 (App. Div. 2009), aff'd, 205 N.J. 493 (2011) (internal citations and quotation marks omitted).]

A 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." State v. Martin, 119 N.J. 2, 15 (1990).

In considering a jury charge, plain error is legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." "In determining whether a charge was erroneous, the charge must be read as a whole.

[State v. Jordan, 147 N.J. 409, 422 (1997) (internal citations and quotation marks omitted).]

See also State v. Wilbely, 63 N.J. 420, 422 (1973) ("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.").

The indictment included charges of conspiracy to commit murder, armed robbery, and theft. Owens does not challenge the jury charge pertaining to conspiracy or the charge pertaining to theft. Although the judge did not specifically reiterate the requirements for a finding of conspiracy when he outlined the elements of theft, he told the jury that conspiracy applied to both counts one and three and provided the jury with accurate descriptions of both conspiracy and theft, including the State's burden to prove each element beyond a reasonable doubt. He clearly explained that conspiracy is a crime separate and distinct from a predicate offense, and outlined the requisite elements and mental state.

The judge also informed the jury that "there is more than one conspiracy charge and they must be considered by you separately." Further, during deliberations, the jury requested written copies of the charges and crime definitions, which also permitted them to review the charge as a whole.

Viewing the charge in its entirety, Jordan, supra, 147 N.J. at 422, it contained the requisite components, see R.T., supra, 411 N.J. Super. at 46, not "incorrect charges on substantive elements of a crime[, which would] constitute reversible error," State v. Rhett, 127 N.J. 3, 7 (1992). Consequently, we find no basis to reverse the theft conviction.


Finally, we turn to the issues raised by Owens with respect to the sentence.


First, Owens argues that count eight, possession of a weapon for an unlawful purpose, should have been merged with count two, under which she was convicted of aggravated manslaughter. The State concurs, as do we. Consequently, we vacate the sentence imposed on count eight and remand for correction of the judgment of conviction.


Owens also argues that the sentence was manifestly excessive and that the trial judge failed to comply with the requirements of Yarbough in imposing a consecutive sentence.

"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Having reviewed Owens' arguments with respect to the excessiveness of the sentence, apart from the issue of consecutive sentencing, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Owens challenges the application of aggravating factors one, two, and thirteen. Factors one and two are "normally considered jointly." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-1, at 1089 (2012). Factor one concerns "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). Factor two considers "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim . . . was particularly vulnerable or incapable of resistance" or was "substantially incapable of exercising normal physical or mental power of resistance." N.J.S.A. 2C:44-1(a)(2).

When a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether [factor two] is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants. [State v. Kromphold, 162 N.J. 345, 358 (2000).]

The judge found that, in applying factor two, he was not double counting Funderberk's death, but was considering "the fact that the victim was facing the wrong way, did not see what was happening, clearly incapable of exercising any power whatsoever to resist." Further, the evidence supported a finding that Funderberk knew and trusted Owens and was kind to her. Thus, he found Owens' actions to be "particularly depraved," and although "not a heavy factor," factors one and two applied.

Owens argues that State v. Abrams, 256 N.J. Super. 390 (App. Div.), certif. denied, 130 N.J. 395 (1992), stands for the proposition that factor two does not apply when the victim is merely surprised, unarmed, and overpowered. Here, however, the judge found Funderberk to be vulnerable, in part, because of his trust and prior relationship with Owens. These findings are supported by the record. State v. L.V., 410 N.J. Super. 90, 108 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). Owens told Sanford that Funderberk "liked her," and he bought her drinks socially. He believed that he was driving Owens and her friends to purchase cigarettes when she shot him in the back of the head from a close distance. Those facts also support the finding of depravity under factor one.

Owens also contends that the judge should have considered mitigating factor twelve, Owens' willingness to cooperate with the authorities, N.J.S.A. 2C:44-1(b)(12). In Dalziel, supra, 182 N.J. at 505-06, the Court remanded for resentencing, in part, because the sentencing judge erred by failing to acknowledge that factor. The Court found that the defendant's "cooperation with law enforcement" warranted consideration of this factor, even if not ascribing it much weight. Ibid. Here, Owens cooperated with law enforcement by providing consent to search her home and that of her mother's and informing the police as to where McBride had stored the gun. Defense counsel never raised this factor at sentencing, and the judge did not reference it.

While we agree with Owens that the judge should have applied this factor, we conclude that it would not have changed the length of the sentence because the aggravating factors substantially outweighed the mitigating factors, even considering Owens' limited cooperation.

Finally, Owens argues that the judge failed to consider mitigating factor thirteen, "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than [her]," N.J.S.A. 2C:44-1(b)(13). However, it is listed on the judgment of conviction. Furthermore, the judge stated that he was not sentencing Owens to the maximum term, in part, because of her youth. Thus, her argument is without merit.

Leaving aside the issue of the consecutive sentencing for the theft offenses, we conclude that Owens' sentence was not excessive and does not "shock[] the judicial conscious." Roth, supra, 95 N.J. at 364.


We reverse, however, on the issue of the consecutive sentence for the theft offenses. In Yarbough, supra, 100 N.J. at 643, the Supreme Court held that that "there can be no free crimes in a system for which the punishment shall fit the crime." Nevertheless, the Court required judges imposing sentence for multiple crimes to consider "the facts relating to the crimes," which includes whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous[.] [Id. at 644]

"Where separate crimes grow out of the same series of events or from the same factual nexus, consecutive sentences are not imposed." State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994), certif. denied, 142 N.J. 453 (1995).

In a brief explanation of his reasons for imposing a consecutive sentence on the theft offenses, the trial judge relied on the jury's verdict of acquittal on the robbery and felony murder charges to find that the theft was a separate criminal act. Even so, the State's theory of criminal liability was that Owens and McBride intended to steal from Funderberk prior to getting into his car and the proofs supported that theory. The fact that the jury found reasonable doubt on those counts does not, in our view, alter their close relationship for analytical purposes. They were not "predominantly independent of each other;" they were "committed so closely in time and place as to indicate a single period of aberrant behavior;" and there was a single victim.

We see no error, however, with respect to the consecutive sentence for the certain persons offense. Such a sentence although not required, State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010), certif. denied, 205 N.J. 520 (2011), is consistent with the Legislature's clear intent to discourage possession of weapons by those convicted of a crime.

Consequently, we reverse as to the consecutive nature of the theft sentence, but affirm the consecutive sentence for the certain persons offense.


In summary, we affirm the Owens' conviction. We vacate the sentence on count eight and reverse the imposition of consecutive sentences for the theft offenses. We affirm the remainder of the sentence. We remand for correction of the judgment of conviction.

Affirmed in part, vacated in part, reversed in part, and remanded.

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