September 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON SMILEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-982.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012
Before Judges Payne, Reisner and Hayden.
At approximately 11:30 p.m. on July 24, 2007, Husan Denson died as the result of blows to the head administered by defendant Jason Smiley and his co-defendant Robert Street, using a one and one-half pound lifting weight contained in a sock. Following Denson's death, he was carried by Smiley and Street to the basement of the East Orange building in which Smiley resided. Three days later, Smiley's father, Theopolis Smiley and another unnamed individual aided Smiley and Street in taking Denson's body from East Orange to Newark, where it was left in a pool of water created by a sump pump in the sub-basement of a former hospital building scheduled for demolition. The transfer of the body was witnessed, and upon investigation, it was discovered by the Newark police. Identification of the van used to carry the body led to the identification of Smiley and Street. Both confessed, implicating themselves and each other in their confessions.
On March 28, 2008, an indictment was returned against Smiley and Street charging them with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1) and (2) (count one); first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and second-degree disturbing human remains, N.J.S.A. 2C:22-1a(1)(a). Defendants' trial was scheduled for Monday, January 4, 2010.
One month before trial, by letter dated December 2, 2009, counsel for co-defendant Street informed the prosecutor and trial judge that his client declined to waive his right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), a case holding that Bruton's Sixth Amendment right of confrontation was violated when the confession of his non-testifying co-defendant, which also implicated Bruton, was introduced at trial with a limiting instruction that the jury should disregard the confession when considering Bruton's guilt. Defense counsel stated in his letter: "Should the State wish to sever, I anticipate it will file an appropriate motion under Rule 3:15-2(a)."
The State's motion was served at approximately 4:00 p.m. on January 4, 2010, prior to the commencement of jury selection. On Tuesday, January 5, oral argument was held and, over defense counsels' objections, the trial judge granted severance, scheduling Smiley's trial proceedings to begin on the following day. Jury selection then took place on January 5 and January
12. The trial itself commenced with opening statements being given on the afternoon of Wednesday, January 13, 2010.
At the conclusion of the trial, at which Smiley had presented a defense of self-defense, Smiley was found guilty of second-degree aggravated manslaughter, N.J.S.A. 2C:11-4b, and second-degree disturbing human remains, N.J.S.A. 2C:22-1a. Street thereafter pled guilty to the same charges for which Smiley had been convicted. Both were sentenced on the same day. Smiley received a ten-year sentence for the manslaughter, subject to an eight-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive ten-year sentence for disturbing human remains. Street received a sentence of seven years, subject to NERA, for the manslaughter and a concurrent seven-year sentence for disturbing human remains.
Smiley has appealed, raising the following issues for our consideration:
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SEVER THE TRIAL.
POINT TWO THE SENTENCE IMPOSED ON THE DEFENDANT/APPELLANT WAS EXCESSIVE AND DISPROPORTIONATE.
Rule 3:15-2(a) provides:
(a) Motion by State Before Trial. If two or more defendants are to be jointly tried and the prosecuting attorney intends to introduce at trial a statement, confession or admission of one defendant involving any other defendant, the prosecuting attorney shall move before trial on notice to all defendants for a determination by the court as to whether such portion of the statement, confession, or admission involving such other defendant can be effectively deleted therefrom. The court shall direct the specific deletions to be made, or, if it finds that effective deletions cannot practically be made, it shall order separate trials of the defendants. Upon failure of the prosecuting attorney to so move before trial, the court may refuse to admit such statement, confession or admission into evidence at trial, or take such other action as the interest of justice requires.
The remainder of the Rule does not pertain to the issue raised here. Paragraph (b) permits either a defendant or the State to move for severance if "for any other reason" the party is prejudiced by joinder. Paragraph (c) relates to motions for separate trials of counts of an indictment.
In the present case, our review of the two confessions satisfies us that each contained statements that incriminated both defendants in their common endeavors. Further, we are satisfied that, because defendants were described by each as essentially working together, deletion of material incriminating the person other than the speaker would not have been practical. The prosecutor, a very experienced attorney, undoubtedly was aware of that fact and was undoubtedly also aware of the key role that the confessions would play as evidence in the prosecution of the two defendants. For that reason, we cannot condone the delay that occurred in the filing of the Rule 3:15-2(a) motion.*fn1 Nonetheless, the record does not reflect anything that would suggest that trial proceedings had commenced when the motion was served. As a consequence, we find no literal violation of the applicable Rule. Further, we note that, given the significance of Smiley's and Street's confessions to the prosecution, it would have been aspirational for defense counsel to have concluded that the prosecutor would forego use of this incriminating evidence at trial. Although late, service of such a motion for severance was surely anticipated.
At the hearing on the motion, the trial judge questioned counsel for Street, the spokesperson on the motion, at length regarding the prejudice to be suffered as the result of the late service. In essence, counsel was unable to articulate anything other than the loss of an opportunity for a trial at which the confessions were not used as evidence. Moreover, we note that, as a practical matter, trial of Smiley's case, the first to be scheduled, did not commence until January 13, 2010, eight days after severance was granted. Nothing in the record suggests that those days provided an insufficient period for trial preparation by an experienced defense attorney. As a consequence, we find no abuse of discretion on the part of the trial judge in determining to sever the trials of Smiley and Street, rather than holding a joint trial and suppressing their confessions.
Smiley claims additionally that his sentence was excessive and disproportionate to that given to Street. We reject the claim that it was excessive. Smiley testified at trial that he had been the victim of a home invasion by Denson several days before the fatal attack, and at that time he had been robbed of $900. Smiley additionally claimed that the incident at issue was precipitated by another attempt by Denson to rob him at gunpoint, and that his attack on Denson was defensive in nature. However, other evidence at trial supported the position that Smiley was the first person to attack Denson, and that Denson's death was the result of blows delivered by him. Further, evidence supported the State's position that, after it was determined that Denson was not dead, Smiley was complicit in Street's determination to finish him off. Additionally, it was Smiley who, despite his father's urging that he call the police, declined to do so. Instead, he arranged for removal of Denson's body from the basement of Smiley's residence in East Orange and participated in the deposit of that partially naked body in the sump pool in the sub-basement of the abandoned building in Newark.
Our review of Smiley's criminal record discloses that he had a prior history of four juvenile dispositions and three indictable convictions, two that were drug-related and one for criminal mischief. He had been arrested eleven times before his arrest for murder.
On the basis of that record and evidence, the judge found aggravating factors 1 (the nature and circumstances of the offense), 3 (the risk of reoffense), 6 (the extent of defendant's criminal record), and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(1), (3), (6), and (9), as grounds for imposing the ten-year sentence for manslaughter. No mitigating factors were found. We find nothing improper in the imposition of that sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010).
The imposition of a ten-year consecutive sentence on Smiley's conviction for the second-degree crime of disturbing human remains was likewise warranted by the grisly nature of the facts and by the factors set forth by the Court in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The crime was committed at a different time from the murder and the disposal had a different objective than that which arose at the time of the initial killing. Its circumstances disclosed an appalling lack of respect for human remains.
We likewise reject Smiley's claim that his sentence was disproportionate to that given to Street and was imposed solely because he declined the State's offer of a plea, finding that there was good cause for disparity between the sentences of the two defendants. State v. Hubbard, 176 N.J. Super. 174, 178 (Resentencing Panel 1980); see also State v. Roach, 146 N.J. 208, 233 (Roach I) (requiring a determination whether, in the case of disparate sentences, the defendants are identical or substantially similar in connection with all relevant sentencing criteria), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Here, evidence suggested that Smiley was the primary actor with respect to the attack on Denson, that he likely struck the fatal blow, and that it was he who set in motion the scheme to dump Denson's body in the sump pool. Although Street participated in the crimes, his role throughout appears to have been that of a follower. Further, Smiley's criminal record was greater than that of Street, who had been arrested twice as a juvenile and five times as an adult and had received pre-trial intervention, a disorderly-persons conviction and an indictable conviction for burglary. As a consequence, we conclude that the imposition of disparate sentences was justified.