October 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAMILA CASON, A/K/A KAEREN SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Cuff, Lihotz and St. John.
Following a jury trial, defendant Kamila Cason appeals from her conviction of one count of felony murder, contrary to N.J.S.A. 2C:11-3a(3), and three counts of second-degree aggravated arson, contrary to N.J.S.A. 2C:17-1a.
The trial judge merged the three counts of aggravated arson into the felony murder count, and imposed a forty-year sentence of incarceration subject to a No Early Release Act (NERA)*fn1
eighty-five percent parole ineligibility term on the felony murder count. Defendant is serving a term of forty years, thirty-four of which are subject to NERA. The appropriate fees, assessments, and penalties were also imposed.
The trial record reveals that at approximately 9:00 p.m. on June 4, 2005, defendant and Krystal Wesley began arguing when Wesley demanded that defendant settle a ten dollar debt. When defendant told Wesley she did not have her money, Wesley took a pack of cigarettes and a five dollar bill from defendant's pocket. The argument took place in Wesley's first floor apartment, in a two-family home at 262 Duncan Avenue, Jersey City. At the time, there were several other people in the apartment, including Wesley's young daughter and one of Wesley's friends, Shaymicha. The argument continued on the street outside of the apartment. Wesley grabbed defendant and unknowingly dropped her only key to her apartment. Wesley then left to go to a store and upon arrival realized she did not have her key. Wesley returned and asked defendant for the key, but defendant refused to return it until Wesley returned defendant's cigarettes.
Wesley told her friend Shaymicha to grab defendant. Her friend ran after defendant and defendant ran face first into a car, which caused her to faint and fall on the ground. Wesley and Shaymicha starting kicking her and left her unconscious. Subsequently, Wesley took her daughter, went to 320 Duncan Avenue where she found her brother, and asked him to watch her daughter.
Approximately twenty minutes later, defendant arrived at that location. The women resumed arguing on the street. Wesley went upstairs to her mother's apartment on the third floor at 320 Duncan Avenue. Sometime thereafter, defendant followed her and sought entrance to the apartment. Wesley's mother allowed defendant to enter the apartment. Once inside, she told defendant to leave and when she did not, she proceeded to punch defendant in the face. Defendant then stated "I'm going to kill that B." Wesley's friend then "slammed" defendant onto a coffee table. Wesley and her friend left the apartment while defendant remained on the floor inside. Defendant still had Wesley's key.
Approximately ten minutes later, while Wesley was outside her mother's apartment talking to her uncles, she saw defendant leave and begin "running around the project."
At approximately 11:35 p.m., Wesley's next door neighbor, Desiree Ortega, and her friend, Latoya Fuentes,*fn2 were sitting in Fuentes' car outside of 264 Duncan Avenue, talking and applying makeup before going out for the evening. Their attention was suddenly drawn to what Fuentes described as a "burst" of noise that sounded like a door opening. Fuentes stated that she saw someone coming out of 262 Duncan Avenue, "stumbling a little bit, in a rush." The person was carrying bags. She did not recognize the person who emerged from the doorway. However, Fuentes later identified that person as the individual whose picture appeared in The Jersey Journal. That picture was of defendant. Fuentes reiterated the photographic identification in court, but could not make an in-court identification of defendant. In an out-of-court proceeding, Ortega was able to identify the person as the defendant, who she knew as an acquaintance of Wesley, her next door neighbor. However, when asked if she could identify the defendant in-court as the person who she saw leaving the house, she responded, "not really." The prosecutor asked the court, "Could I have the defendant rise?" Defendant objected, and the court denied the request.
Ortega and Fuentes then began driving to Hoboken. Approximately five minutes after leaving Duncan Avenue, Ortega received a "frantic" telephone call from her niece, who was baby-sitting Ortega's four children that evening at 264 Duncan Avenue. The women quickly returned to find Ortega's house and the adjoining building, 262 Duncan Avenue, on fire.
In the meantime, Wesley and two friends were walking from 320 Duncan Avenue toward Wesley's apartment. Wesley observed smoke coming from her house. When she got to the front of her house, she saw defendant run into the house and then out of the house. Wesley asked defendant, "Why would you set my house on fire," to which defendant replied, "I didn't do it." Wesley, Shaymicha, and defendant then proceeded to fight.
Jersey City Police Detective Frank Caraballo was off-duty that night but happened upon the fire while driving in his personal vehicle. When he arrived at the scene, he saw smoke and observed Wesley and defendant fighting in front of the burning house. Caraballo observed emergency responders exiting the house carrying a small child, who firefighters were attempting to resuscitate on the hood of a car. The child was seven-week-old Lucas Gwinnett. Lucas and his brother, Jude, were sleeping in the upstairs apartment of 262 Duncan Avenue, when sometime before midnight, their mother, Jennifer Gwinnett, heard "banging noises" and noticed smoke in her hallway. Within minutes her apartment was engulfed in smoke. The family was pulled through their second floor window by firefighters. Jude suffered no injuries. However, Jennifer suffered third-degree smoke inhalation, and Lucas tragically died from carbon monoxide poisoning at the hospital later that night.
Arson Investigator Giacomo Antonicello arrived at the scene and inspected the interior condition of 262 Duncan Avenue shortly after the fire was extinguished. He noted there was evidence of fires ignited in several places in Wesley's ground floor apartment. Antonicello also found that all the stove top burners in the kitchen were turned to the "on" position and that there was debris intentionally piled on them. Antonicello concluded that a total of five separate fires were intentionally started throughout the apartment. As a result, the Gwinnett's upstairs apartment was filled with noxious smoke.
Defendant was convicted of the aggravated arsons and felony murder. This appeal ensued.
Defendant raises the following issues on appeal:
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE NONE OF THE WITNESSES SAW THE DEFENDANT SET FIRE TO THE HOME AT 262 DUNCAN AVENUE AT ANY OF THE FIVE POINTS OF ORIGIN, AND THE STATE FAILED TO PRODUCE ANY EVIDENCE CONNECTING DEFENDANT TO THE ARSON. (Partially Raised Below).
BY ASKING THE DEFENDANT TO STAND WHEN THE STATE'S WITNESS FAILED TO MAKE AN IN-COURT IDENTIFICATION, THE PROSECUTOR BOLSTERED THE CREDIBILITY OF THE STATE'S WITNESS, MINIMIZED ITS OWN BURDEN OF PROOF, AND DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. VI; N.J. CONST. ART. I. ¶¶ 1, 9, 10.
THE COURT'S SENTENCING ERRORS WERE SO EGREGIOUS THAT INDIVIDUALLY AND COLLECTIVELY, THEY ENTITLE THE DEFENDANT TO A REMAND FOR RE-SENTENCING BEFORE A DIFFERENT JUDGE.
A. In Precluding The Defendant's Mother From Speaking Prior To Defendant's Sentencing, The Court Failed To Adequately Determine Whether There Was Sufficient Evidence To Augment Defendant's Argument For Remorse As A Non-Statutory Mitigating Factor, Thus Entitling Defendant To A Remand Pursuant To State v. Blackmon.
B. The Trial Judge Erred Because He Inappropriately Considered The Fact That The Defendant Exercised Her Right To A Fair Trial As An Aggravating Factor. U.S. Const. amend. V, VI, XIV; N.J. Const. (1947), art. I, ¶¶ 1, 9,
10. (Not Raised Below).
C. The Defendant's Sentence Is Excessive. (Partially Raised Below).
Defendant first argues that the trial court erred in denying her motion to acquit at the close of the State's case because the State failed to meet its burden of identifying her as the perpetrator of the arson when none of the State's witnesses testified that they actually saw defendant set the fire inside Wesley's apartment.
Rule 3:18-1 provides that: "[a]t the close of the State's case . . . , the court shall, on defendant's motion . . . , order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." On a motion for judgment of acquittal, the governing test is whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. [State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).
Our review of a trial court's denial of a motion of acquittal "is limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case[.]" Ibid. (citing Reyes, supra, 50 N.J. at 459).
Obviously, the evidence adduced by the State was circumstantial in nature, but it is well settled that circumstantial evidence by itself may be sufficient to support a guilty verdict. State v. Franklin, 52 N.J. 386, 406 (1968); State v. Kamienski, 254 N.J. Super. 75, 105 (App. Div.), certif. denied, 130 N.J. 18 (1992). As our Supreme Court has stated, circumstantial evidence may be "more certain, satisfying and persuasive than direct evidence." State v. Dancyger, 29 N.J. 76, 84, cert. denied, 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959) (internal quotations and citation omitted).
Nevertheless, no matter what kind of evidence is presented, the State must prove every element of a criminal offense beyond a reasonable doubt for a conviction. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970); State v. Gardner, 51 N.J. 444, 459 (1968). Accord N.J.S.A. 2C:1-13(a).
The trial court properly denied defendant's motion of acquittal. The State's evidence demonstrated, among other things: the physical altercation between Wesley and defendant on the night of the arson and felony murder; defendant's verbal threat to Wesley; defendant's possession of the only key to Wesley's apartment; defendant's presence at Wesley's building prior to and contemporaneous with the fire; defendant's possession of bags while she exited Wesley's building; Jude's death by carbon monoxide poisoning and Jennifer's third-degree smoke inhalation from the fire; the condition of Wesley's apartment after the fire; and Antonicello's conclusion that a total of five separate fires were intentionally started throughout the apartment.
Applying the Reyes test, we conclude, based on a thorough review of the proofs, that the evidence presented by the State's various witnesses together with the reasonable inferences that could have been drawn from that evidence, considered in a light most favorable to the State, were sufficient for a reasonable jury to find that the State proved all elements of the three counts of arson and felony murder beyond a reasonable doubt.
Additionally, defendant maintains, for the first time on appeal, that the jury's verdict was against the weight of the evidence because none of the State's witnesses testified that they actually saw defendant set the fire inside Wesley's apartment. Defendant made no motion for a new trial. Having previously recited at length the evidence presented at trial, we reject defendant's contention that the guilty verdict was against the weight of the evidence.
Rule 2:10-1 prohibits our review of whether a jury verdict is against the weight of the evidence "unless a motion for a new trial on that ground was made in the trial court." But see State v. Smith, 262 N.J. Super. 487, 511 (App. Div.) (noting we can reach the merits of such an appeal, "if we choose, in the interest of justice"), certif. denied, 134 N.J. 476 (1993). In considering whether a jury verdict was against the weight of the evidence, we will not intervene "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. No miscarriage of justice exists where the "'trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (quoting Smith, supra, 262 N.J. Super. at 512).
As noted, the trial court properly denied defendant's motion for judgment of acquittal after the State concluded its case, as a jury properly could have found beyond a reasonable doubt that defendant was guilty of the crimes charged. See
supra, 191 N.J. at 163. The only evidence thereafter presented by defendant was the testimony of Rupert Haller, who only related testimony regarding a civil action to evict Wesley.
We conclude the jury's finding of guilt was not against the weight of the evidence.
Defendant argues that the prosecutor's request to the court to have defendant stand up after the witness stated she could not make an in-court identification of defendant warrants reversal of the jury's verdict. Defendant objected to the request and the court sustained the objection. This contention is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Defendant argues that the court committed three errors at sentencing which individually and collectively entitle her to a remand for resentencing before a different judge. We disagree.
"[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) (plurality decision) (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)).
Defendant argues the judge erred at sentencing when defense counsel stated, "I believe the [defendant's] mother would like to address the court," and the judge replied, "I don't generally hear family members of the defendant." The judge declared that "on the rare occasion when I have, it has not worked out well." She explained, "You know, it[']s somebody coming in to start telling me that someone who has pled guilty is not really guilty[.]" Defense counsel replied, "I understand." Counsel offered no proffer concerning the scope of defendant's mother's statement. Additionally, counsel asserted defendant's innocence commenting, "It's not an issue of Ms. Cason being unremorseful at this time because she maintains her innocence." However, the judge did review several letters submitted on defendant's behalf.
Defendant contends that her mother's address to the court could have provided "real insight" in evaluating defendant's assertion of remorse. Without her mother's statement, defendant argues, the court improperly failed to consider a non-statutory mitigating factor that may have ultimately reduced her sentence. Defendant further contends that, in light of our Supreme Court's decision in Blackmon, supra, 202 N.J. at 283, the judge erred by not providing sufficient reasons for prohibiting defendant's mother from speaking, which amounted to an abuse of discretion warranting a remand and resentencing. We note defendant's sentencing took place before the Court's decision in Blackmon.*fn3
Although the Rules of Court do not provide explicit guidance, trial judges have discretion "in allowing members of a defendant's family or others" to be heard at sentencing. Blackmon, supra, 202 N.J. at 300. But cf. id. at 308-09 (Long, J. and Rabner, C.J., concurring) (concluding that defendant has a right to present evidence that bears on an aggravating or mitigating factor).
We need not address the retroactive application of Blackmon because defense counsel did not make a proffer of any mitigating factor, nor object to the judge's decision, and the judge's reason for the exercise of her discretion was set forth on the record. Further, defense counsel stated, "Your honor, with regard to mitigating factors I will concede there are . . . no mitigating factors."
Defendant also contends that the judge erred by linking the decision to go to trial to a finding of lack of remorse by defendant. The record belies this contention. The judge's statements reflect the exact opposite of what defendant argues. The judge stated, "I'm not saying that you don't have the right to a trial, and I'm not going to punish you for exercising your right to a trial. I believe in that. I believe in your Constitutional Right."
The court found three aggravating factors: the gravity and seriousness of harm inflicted, N.J.S.A. 2C:44-1(a)(2);*fn4 defendant's risk of recidivism, N.J.S.A. 2C:44-1(a)(3); and the need to deter "the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). The court stated, "I don't find any mitigating factors."*fn5 Concluding that "the aggravating factors substantially outweigh the mitigating factors," N.J.S.A. 2C:43-6(b), the court sentenced defendant to a term of forty years subject to NERA.
Defendant properly notes that "a defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision." State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986); see N.J.S.A. 2C:44-1(c)(1). The court laid a factual basis for each of the three aggravating factors and properly found that no mitigating factors were present. Because the sentence was within the statutory range and the court's findings were supported by "sufficient credible evidence contained in the record," we will not disturb it. Marks, supra, 201 N.J. Super. at 539; State v. Perry, 124 N.J. 128, 176 (1991).
Defendant's conviction is affirmed, and the matter is remanded for entry of an amended judgment of conviction removing the mitigating factor.