On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Salem County, Indictment No. 09-07-00422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted September 10, 2012
Before Judges Sabatino, Fasciale and Maven.
Defendant Brooks G. Harris appeals his convictions for first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one and two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) or (2) (counts five and six); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1) (count seven); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6b(3) (count eight); third-degree theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6b(3) (count twelve); second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6b(3) (count fifteen); and second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count sixteen).*fn1 We affirm.
The relevant proofs developed by the State at defendant's*fn2 jury trial established that in the summer of 2008, over the course of several weeks, defendant conspired, both by phone and in person, with his former co-worker Jerry Loatman to kill Jeremy Huff, with whom defendant's wife was having an affair.
The State's evidence showed that on the night of August 13, 2008, defendant dropped off Loatman and Loatman's friend, Lee A. Williams, Jr., near Huff's house, where the two assailants entered, obtained knives, located Huff asleep in his bedroom, and stabbed him nearly forty times, causing his eventual death several hours later. Meanwhile, defendant waited at a bar, apparently in an effort to create an alibi. In the early morning hours of the next day, defendant voluntarily agreed to an interview with State Police detectives and he confessed to the murder conspiracy after only a few hours.
More specifically, the record reflects that in May 2008, defendant's wife, who testified at trial, began an affair with Huff. In June 2008, she separated from defendant and moved out. Defendant insisted that they "stay together for the kids" and started "call[ing] [her] all throughout the day, non-stop, constantly." When she informed defendant about her relationship with Huff, defendant "reacted very bad, very violently . . . ."
On July 4, 2008, defendant's wife was with Huff at his residence when defendant arrived and began "banging on the windows." Huff called 9-1-1 and then went outside, where the two men had a physical altercation. State Trooper Mark Manzo, who testified at trial, arrived at the residence and observed defendant "standing outside," he was "shirtless, covered in mud, [with] some scrapes and bruises on him, some cuts." Trooper Manzo observed Huff in "the same condition."
According to his wife's testimony, following the July 4th incident, defendant told her, "I'm going to kill [Huff]," and "I'd rather talk to my kids in jail than to let [defendant's wife] be with [Huff]." Around that same time, according to Loatman's trial testimony, defendant first told Loatman that "he wanted [Huff] murdered." Loatman, who was seventeen years old at the time of the conversation, had known defendant for "[a] year or so" because they worked together at a tire shop in Salem City.
In their initial conversation about the subject at the tire shop, defendant told Loatman that he would pay Loatman $5000 to kill Huff. Thereafter, defendant and Loatman had approximately ten to fifteen conversations over the phone about killing Huff. Cell phone records showed that defendant placed 125 calls to Loatman between July 28, 2008 and August 14, 2008. During this timeframe, they also had five in-person conversations outside Loatman's residence. At some point, Loatman asked Williams to "go along with [him] to kill [Huff]." Williams agreed.
On the morning of August 13, 2008, defendant called Loatman and told him that he wanted Huff killed that night because defendant was going on vacation the next day and did not want his wife to be alone with Huff. Defendant told Loatman that he wanted him to get a gun and shoot Huff. Loatman and Williams tried to obtain a gun but were unsuccessful. In total, defendant called Loatman thirteen times that day.
At some point between 10:30 and 11:00 p.m. that night, defendant
picked up Loatman and Williams outside Loatman's residence.*fn3
As the three men drove toward Huff's residence, Loatman told
defendant that he could not get the gun. The three then decided that
Loatman and Williams would use knives to kill Huff. Defendant
explained how to approach and enter Huff's residence. He instructed
them to walk along a guardrail to avoid triggering a spotlight and to
wait behind Huff's house for thirty to forty-five minutes so that
defendant would have time to arrive at a bar and be filmed on a
security camera. They could then enter "through the window where the
air conditioner was." Defendant told them that when they got inside,
Huff would likely be in his bedroom, the second door on the left, and
that after killing him they should take his wallet, phone, and keys
from the entertainment center and leave in his truck. They were to
contact defendant when the homicide was done.
Dropping off Loatman and Williams near Huff's house, defendant gave them a pair of gloves to avoid fingerprints. He paid them $50 as a "down payment" and promised "[t]he rest of the money" the next day. Defendant then drove away, and Loatman and Williams approached Huff's residence. They waited for thirty minutes before attempting to enter. Unable to get in the window with the air conditioner, Williams climbed through a different window and let Loatman in the front door. When he opened the door, Williams had two knives, one of which he gave to Loatman. Williams had also obtained a second pair of gloves from under the deck of Huff's house.
The two men entered Huff's bedroom and found him asleep in bed. As they were standing over his bed "debating on who was going to stab [him]," Huff woke up and said, "Don't do this, Brooks." Loatman then "hopped on [Huff] and started stabbing him" in "[h]is head, his neck, [and] his back." Huff "struggled to his feet and stood up," but Loatman "threw him to the ground." Williams then joined the stabbing and eventually Huff stopped resisting.
Believing Huff was dead, Loatman and Williams entered the living room, took Huff's wallet, phone, and truck keys, and went outside to the truck. Both had blood on them. Police later found blood matching Huff's DNA in the truck and on Loatman's underwear. After leaving in the truck, Loatman sent defendant a text message stating that "the job was done." Defendant texted Loatman back, asking if Loatman was all right. The two drove for ten minutes before abandoning Huff's truck behind a house in Salem City. They "threw the gloves and keys over a wooden fence" and went to Williams's residence to clean up. Before splitting up, they went to a Chinese restaurant to make change for the money defendant had paid them.
Meanwhile, Huff survived the attack and called 9-1-1. State Police Detective Thomas Daltwas, who testified at trial, responded to the scene and observed blood "smeared along the wall" and "fecal matter at the front door . . . ." Detective Daltwas found Huff "slumped over the toilet in the bathroom," partially conscious and bleeding from "numerous stabbings." Huff had "fecal matter all over the front of his body." Detective Daltwas asked Huff who had done this to him. Huff gave defendant's name.
Emergency responders arrived and treated Huff's wounds. At trial, Paramedic John F. Ruhl, Jr. described Huff's condition as "pretty severe." He was "coated in blood, pale, diaphoretic" and had "common . . . signs of shock." He had several stab wounds to the chest and was in respiratory distress. When Ruhl asked Huff who had done this to him, Huff again gave defendant's name. At 4:31 a.m. on August 14, 2008, after being airlifted to a hospital, Huff died during emergency surgery.
Within hours of the stabbing, defendant met and voluntarily
accompanied officers to the police station. Being advised of his
rights, defendant signed a Miranda*fn4 waiver card at
5:30 a.m., and detectives Robert Gates and Glenn Garrels, both of whom
testified at trial, conducted a recorded interview.*fn5
Initially, defendant denied any involvement in the stabbing,
insisting that he had been at the Oakwood Inn in Elsinboro from 11:00
p.m. to 1:30 a.m.*fn6 Eventually, however, defendant
told detectives that he had hired "two kids" from Salem to "lump
[Huff] up." He identified one as "Jarrod,"*fn7 whom he
knew from work, and the other as Jarrod's friend, whom defendant did
not know. He admitted that he dropped them off near Huff's residence
around 11:00 p.m. before going to the bar and paid them $50, promising
an additional "couple hundred as [he] got it."
At 6:43 a.m., the detectives took a break. They continued the interview at 7:12 a.m. Defendant admitted to telling "Jerry" he wanted Huff dead, speaking with Jerry on five to ten occasions over a several-week period, and offering him $500*fn8 to kill Huff. Defendant stated that on August 13, 2008, he spoke to Jerry over the phone about obtaining a gun, and that, at approximately 10:45 p.m., he picked up Jerry and Jerry's friend to bring them to Huff's house. Defendant stated that because Jerry did not have a gun, they discussed using knives to kill Huff, and that defendant then dropped the two off near Huff's residence and paid them only $50. Defendant further told detectives that the plan was for Jerry and his friend to take Huff's truck after the killing. He stated that after dropping them off, he "hauled ass to the bar," where, sometime after midnight, he received a text message from Jerry saying that "it's done" and sent Jerry a text message asking if he was okay.
Defendant's interview ended at 7:50 a.m. At a later point, between 3:00 p.m. and 5:00 p.m. of the same day, Trooper Charles Vicente, who also testified at trial, took defendant outside to smoke a cigarette. At that time, defendant told Detective Vincente that he had "messed everything up by hiring this Jerry Loatman" to murder Huff.
At trial, defendant testified in his defense that he paid Loatman "to beat up" Huff, but not to kill him. He admitted that he dropped off the two assailants near Huff's home, but claimed that he believed they did not have weapons. Defendant called no other witnesses. [verify]
On the second day of deliberations, the jury returned its verdict, finding defendant guilty of first-degree murder, first-degree conspiracy to commit murder, and the other previously-noted crimes.
On June 1, 2010, the trial judge sentenced defendant to an aggregate sentence of fifty years imprisonment with an 85% period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.*fn9 The judge found aggravating factors two, three, six, nine, and thirteen and mitigating factors ten and twelve, and determined that "the aggravating factors quite fairly substantially outweigh the mitigating factors." This appeal followed.
On appeal, defendant raises the following points:
THE COURT ERRED IN PROHIBITING DEFENDANT FROM TESTIFYING AS TO WHAT HE WAS TOLD BY INTERROGATING OFFICERS DURING THE PERIOD BETWEEN HIS TWO RECORDED STATEMENTS AND IN CHARGING THE JURY THAT IT MUST EVALUATE THE CREDIBILITY OF THOSE STATEMENTS WITHOUT TELLING IT THAT IT MUST ALSO DETERMINE WHETHER THOSE STATEMENTS HAD ACTUALLY BEEN MADE.
THE TRIAL JUDGE ERRED IN PERMITTING THE PROSECUTOR TO IMPEACH THE DEFENDANT BASED ON HIS VIOLATIONS OF ...