On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Following a jury trial, defendant was convicted of purposeful or knowing murder*fn1 and related charges. On the murder conviction, he was sentenced to life imprisonment, with a thirty-year parole disqualifier, and on the other charges, to a consecutive fifty-two-year term. Defendant appeals both the convictions and sentences imposed. We affirm the convictions and sentences imposed, except we remand for correction of the Judgment of Conviction (JOC).
In the early morning hours of January 31, 2007, a murder occurred at a gas station in Orange, New Jersey. No one witnessed the incident, and the station's manager discovered the murdered employee inside an office in the back of the station's outside kiosk. The victim was found covered in blood, and the medical examiner on the scene concluded the victim died of "[m]ultiple blunt force trauma to the head" in a homicide.
One day later, defendant and another man were arrested in connection with a separate incident, a robbery at a Dunkin' Donuts. After two individuals were injured there, surveillance tape showed two persons, later identified as defendant and his brother, walking toward the Dunkin' Donuts, then running away from it a few minutes later. During the course of their subsequent arrest, police found a hammer in the pocket of one of the two men.
Homicide investigator Christine Witkowski, who had been called to the murder scene two nights earlier, questioned defendant about the Dunkin' Donuts robbery and also questioned him about the gas station incident. Defendant told Witkowski that he and his brother went to the gas station where the murder occurred on February 1, 2007. He claimed the attendant repeatedly told him and his brother to leave the station or else he would call the police. When they did not immediately leave, defendant claimed the attendant took a hammer and swung it at him, narrowly missing. Defendant then took the hammer from the attendant, striking him until the attendant fell to the floor. The attendant got up, and a more lengthy physical confrontation ensued, with the parties hitting each other multiple times. The attendant eventually was knocked unconscious. He and his brother then left the gas station with the hammer in their possession.
Defendant admitted he wore blue jeans, a blue jacket, a brown hooded sweatshirt, and sneakers on the night of the murder. Upon obtaining a search warrant and searching defendant's house, Witkowski found and collected each of those items. While defendant did not dispute that he made the incriminating statements to Witkowski, he testified at trial that he confessed to the Dunkin' Donuts robbery because he was coerced and threatened by the police officers during his interrogation. He also claimed Witkowski told him he would go to jail whether he testified or not.
Defendant moved to suppress the statement he provided to police, claiming it was the product of coercion. The court denied the motion, finding defendant knowingly and voluntarily waived his Miranda*fn2 rights. Defendant also filed a pro se motion to suppress evidence obtained when he was stopped, along with his brother, on February 1, 2007. He argued he was illegally stopped and searched, and therefore all evidence obtained during the search and seizure should be suppressed. The court denied this motion.
Both at the time the court conducted the Miranda hearing and just before the testimonial stage of the trial commenced, defendant sought removal of his trial counsel. The court granted defendant's second motion to represent himself, but also appointed trial counsel as standby counsel. The court subsequently denied defendant's motions for a substitute standby counsel and for a continuance to allow him time to prepare his case.
In addition to the suppression motions and the motions to relieve his attorney, defendant filed additional motions: (1) to sever the two cases, (2) for a bill of particulars, (3) for a continuance to seek funding for a DNA expert, (4) to adjourn the trial date, (5) to dismiss the indictment for failure to provide an arraignment, (6) for Grand Jury voting record, (7) to suppress crime scene and autopsy reports, (8) to dismiss Counts Eight and Nine of the indictment, and (9) to suppress an out-of-court identification. During trial, the court denied or rendered moot each of these motions. It specifically denied the motion to sever the two cases because "the two crimes [we]re similar in character and they [we]re connected together by numerous factors."
The jury found defendant guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) (Count Three); first- degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Seven); first-degree robbery, N.J.S.A. 2C:15-1 (Count Eight); second-degree aggravated assault, N.J.S.A. 2C:12-1(b), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Nine); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Ten); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Eleven); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Twelve).
At sentencing, the court imposed a life sentence with a thirty-year parole disqualifier on the first-degree murder conviction and the first degree felony murder conviction, (Counts Three and Four), and a consecutive fifty-two-year sentence with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree robbery convictions (Counts Two and Eight), the second-degree aggravated assault conviction, and the first-degree attempted murder conviction (Counts Nine and Ten).
The court dismissed Count One, second-degree conspiracy to commit robbery, as merged into Count Two; Count Five, fourth-degree unlawful possession of a weapon, as merged into Count Six, third-degree possession of a weapon for an unlawful purpose; Count Seven, second-degree conspiracy to commit robbery, as merged into Count Eight, first-degree robbery; and Count Eleven, fourth-degree unlawful possession of a weapon, as merged into Count Twelve, third-degree possession of a weapon for an unlawful purpose. The four-year sentence imposed on Count Six, third-degree possession of a weapon for an unlawful purpose, and the four-year sentence imposed on Count Twelve, third-degree possession of a weapon for an unlawful purpose, were to be served concurrently with the sentences imposed on Counts Two, Three and Four.
On appeal, defendant initially raised the following arguments:
THE SELF-DEFENSE CHARGE DENIED MR. CLIFTON-SHORT DUE PROCESS OF LAW BECAUSE IT INEXPLICABLY FAILED TO INFORM THE JURY OF THE STATE'S BURDEN TO DISPROVE SELF-DEFENSE. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, [¶] 1, 9 AND 10 (NOT RAISED BELOW).
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER,
DESPITE EVIDENCE OF SELF-DEFENSE, WAS PLAIN ERROR. MOREOVER, DEFENSE COUNSEL'S FAILURE TO REQUEST A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
A. FAILURE TO CHARGE THE JURY ON PASSION/PROVOCATION MANSLAUGHTER WAS PLAIN ERROR.
B. DEFENSE COUNSEL'S FAILURE TO REQUEST A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S REFUSAL TO SEVER COUNTS SEVEN THROUGH TWELVE FROM THE REMAINING COUNTS IN THE INDICTMENT VIOLATED MR. CLIFTON-SHORT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS ...