July 11, 2013
STATE OF NEW JERSEY IN THE INTEREST OF J.B., JR.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-0002-07.
Joseph E. Krakora, Public Defender, attorney for appellant J.B., Jr. (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Alvarez.
Tried as a juvenile, fifty-four-year-old J.B., Jr. was convicted of first-degree murder, N.J.S.A. 2A:113-1, and felony murder, N.J.S.A. 2A:113-2, pursuant to the criminal laws in effect on April 5, 1972, the date of the offense. On July 15, 2011, after adjudicating J.B. guilty, the trial judge merged the offenses, and imposed the maximum permissible term of twenty years, consecutive to a sentence J.B. was then serving. With J.B.'s consent, the trial judge sentenced him under the more favorable current New Jersey Code of Criminal Justice and not the Code in effect at the time of the offense. The court also imposed a $30 Victims of Violent Crimes Compensation (VCCB) penalty and a $15 payment to the Law Enforcement Training and Equipment Fund (LEOTEF). J.B. now appeals, and we affirm.
The State's principal trial witness was J.B.'s younger brother, M.B. He testified that during the evening of April 5, 1972, when he was four years old, he and his brother V.B., then six years old, accompanied by J.B., then fifteen, walked to a construction site near their home. While there, playing on the equipment, M.B. found a sheathed knife in a red truck. J.B. asked to see it, so M.B. passed it to D.B., who in turn handed it to J.B.
Because the boys had been frequently sexually assaulted by J.B., they became alarmed and attempted to climb out of the truck. J.B. then tried to push the boys back into the cab of the truck at which point they fled. J.B. grabbed V.B., telling him "[g]et the f--- back here, I'll whip your a--." M.B. hid behind a pile of rocks, and watched while J.B. stabbed V.B. in the stomach. The child began to scream. M.B. ran back, attempting to aid V.B. J.B. fended him off, at one point choking him, telling him that he could not help V.B. and to stay away. J.B. returned to V.B., who was lying on the ground, picked him up, and stabbed him again, this time under the armpit.
M.B. ran home, grabbing V.B.'s scapular,  which had fallen to the ground during the struggle. M.B. lived with his parents and siblings in an apartment building on the first floor, his aunt, uncle, and cousins lived on the second floor, and his grandparents in the basement.
M.B. said that, beginning on the night of the murder, J.B. regularly threatened and intimidated him into remaining silent, for example, by saying "[s]hut the f--- up or you're next." As a result, when questioned by police, M.B. denied knowing anything regarding V.B.'s murder. A few days later, J.B. told M.B. to blame "two black guys" for the murder, a lie which M.B. repeated for years. M.B. also said, however, that whenever he tried to tell his father about J.B.'s role in the killing, his father would beat him with a belt buckle.
On October 19, 2006, M.B. gave a statement to the Bergen County Prosecutor's Office to the effect that there was an unidentified person that M.B. saw out of the corner of his eye who did not participate in V.B.'s murder. M.B. testified that he hears his brother screaming and crying every day, does not sleep at night, and still fears J.B. is "coming to get me."
A.B., a fourth brother who was then twelve, testified that he arrived home at approximately 9:00 p.m., looked into the bedroom which V.B. and M.B. shared with their younger sisters, and saw that V.B. was missing. He awakened his father, who asked him to check the grandparents' and the aunt and uncle's apartments to eliminate the possibility that V.B. was with other family members.
A.B.'s uncle and his mother, S.B., returned home at approximately 10:00 p.m. At around that time, A.B. observed his brother J.B., wearing a t-shirt smeared with blood near the collar, enter from the grandparents' basement apartment. He had not been present earlier when A.B. searched for V.B. A.B. witnessed J.B. take off his t-shirt and throw it into the washing machine. A.B. said that his mother was already home when J.B. returned, even though when interviewed on March 21, 1988, he had told the Bergen County Prosecutor's Office that J.B. returned home before his mother. The police were notified upon S.B.'s return, and everyone began searching the neighborhood. A.B.'s brother P.B., and cousin C.C., found the child's body later that evening.
Louis V. Napolitano, M.D., the former Bergen County Medical Examiner, also testified. He recalled arriving at the murder scene with Bergen County Prosecutor's Office Detective Wilbert Coleman and seeing V.B.'s naked body lying on his back on the bloodied floor of the truck cab.
Napolitano's autopsy revealed that there were four linear abrasions on his right cheekbone, similar abrasions beneath the angle of his right jaw, bluish discolorations on the right side of the neck, and one concentric one and one-half inch laceration of the frontal scalp at the center of the child's forehead. There were two separate lacerations caused by a knife through the muscle of V.B.'s right arm, one of which was a deep penetrating wound of the armpit about one and one-quarter inch deep. To Napolitano, this established that the child's arm was raised when he was stabbed. He concluded the cause of death to be massive intraperitoneal hemorrhage caused by stab wounds to the abdomen.
In addition to the stab wounds, the victim suffered numerous injuries from blunt force trauma. V.B.'s skull was severely fractured, including front and side bones.
During the autopsy, Napolitano observed that V.B.'s anal cavity was about one and one-half inches wide, significantly larger than should have been the case for a child his age. This condition was not a congenital disorder. He opined that it resulted from penetration.
Coleman, who was also retired, testified that when he arrived at the murder scene, he noted the presence of a trailer about seventy-nine feet west of the red truck in which the child's body was found. The child's garments had been neatly piled together even though the child's suede jacket had slashes and cuts on the left side and a cut on the right sleeve, and placed beneath the trailer. A bloody rock was found nearby.
P.C., M.B.'s uncle, said that the day after the murder, he saw finger marks on M.B.'s throat. When asked who choked him, M.B., whom he described as "very slow" and "not articulate, " responded "the man." Later on that day, M.C., another aunt of the victim, found the victim's scapular in front of the apartment house. The ends had been torn.
Over the years, the police extensively interviewed everyone in the family and many others in an ongoing effort to identify the child's murderer. This included submitting A.B. to sodium amytal, during which time A.B. said that he had sexually assaulted V.B., and had witnessed V.B. being killed at the construction site. Later, on the stand, A.B. did not remember providing that information to detectives, but in any event, the trial judge restricted his testimony with regard to the interview conducted while A.B. was under the influence of the drug.
M.B.'s extensive criminal history and pending charges, as well as his institutionalizations in the Vroom Building, were extensively explored on direct and cross-examination. The first time M.B. informed law enforcement that J.B. had killed V.B. was in 1988 when now-retired Detective Vincent Markowski, a former Bergen County Prosecutor's Office Investigator, visited him in the Vroom Building. While at Trenton State Prison, M.B. told a treating psychologist that an ex-police officer had killed V.B. He had previously reported to a psychiatrist at Bergen Pines County Hospital that he and V.B. were "assaulted, raped, and stabbed by teenagers" and taken to the hospital by EMS, but that V.B. did not survive. Contrary to his prior statements, at trial M.B. said that he saw J.B. stab V.B. once in the truck cab and once by the trailer.
During the course of the ongoing investigation, J.B. was repeatedly interviewed. On April 4, 1988, when Markowski picked him up on charges of witness tampering in an unrelated arson case, his opening comment was "I guess you got me for my brother's murder." The statement was volunteered prior to Miranda warnings being administered. He was then advised that he was under arrest for the witness tampering, but that the murder continued to be investigated. J.B. proceeded to tell Markowski that he had discussed the situation with his wife and aunt, and that they would discredit the police, the prosecutor, and the investigation, and contact the media with regard to the case. He added that the police could not prove he killed V.B. and that there was no evidence to the contrary.
When Markowski confronted J.B. with A.B.'s statement regarding the blood smear on his t-shirt, J.B. responded "[y]ou're never going to be able to prove it." "You don't know what happened then and you don't have the f---ing shirt. . . . [Y]ou can't prove s---." When confronted with M.B.'s sworn statement, J.B. responded "I don't give a f--- what he saw or what he tells you. He was only four and a half years old then and you can't use it against me." He did not deny committing the murder, but merely said that someone advised him "not to worry" about M.B.'s testimony. "[I]t would be inadmissible, . . . [because] he was too young."
During J.B.'s 1988 interview, Markowski played A.B. and M.B.'s recorded statements to him, including A.B.'s claim that J.B. had blood smears on his shirt. J.B. claimed A.B. was lying. He denied sexually abusing his brothers or sisters, elaborating that he lied to the police about having been forcibly taken to the site blindfolded by two men, and that he made up the story because he "was an a ------ ."
On his way to the Bergen County Jail after the interview, Markowski's partner, Detective Goldrich, told J.B. to call them in the morning if he wanted to tell the truth, at which point J.B. responded, "What do you think, I'm going to call you and give myself up on a murder?"
The State presented several additional witnesses to whom J.B. made inculpatory statements. Melvin McCarroll, who had known J.B. since he was eight or nine years old, testified that as young men, he and J.B. often drank together. McCarroll, who had a criminal record, recalled discussing V.B.'s murder in the mid-1980s when he and J.B. were drinking in a park. J.B. admitted killing his brother and told McCarroll that he wished he had not done it. McCarroll said J.B. was simultaneously "rageful, remorseful, angry, " becoming so violent that he smashed a wooden fence panel and broke a window on an abandoned building. On another occasion, in 1988, J.B. told to him that "he had gotten away with [the murder of V.B.] for so long" and did not know why it was being reinvestigated.
McCarroll gave a written statement to law enforcement in 1988, both with regard to the admissions concerning the murder and implicating J.B. on an arson. When J.B. came to McCarroll's home, hoping to convince him to change his testimony about the arson and he refused, J.B. warned him: "what happened to my brother could happen to you." Nothing came of the 1988 investigation. In 2006, while suffering from what he believed to be terminal cancer, McCarroll contacted Markowski and confirmed that his 1988 statement was true and accurate.
Eugene Alberti, a childhood friend of V.B., also testified that after the murder he heard J.B. threaten M.B. on various occasions, using phrases such as "Keep it up, [M.B.], you're going to be dead like your brother." On one occasion, sometime between 1990 and 2000, when Alberti and J.B. were drinking at the cemetery where V.B. was buried, J.B. became distraught and angry, pushing and kicking headstones, saying "What did I do? I f---ed up" and "Why did I do this to my brother?"
On another occasion in the late 1990s, Alberti and J.B. were partying with some women in a motel room, drinking and smoking crack cocaine. When the women went out to purchase more drugs, Alberti asked J.B. if the reason he was so "screwed up" was because of the murder. J.B. placed his hands on his face and kept repeating "I f---ed up, I f---ed up, I f---ed up." Alberti said J.B. appeared very upset and remorseful. Alberti recalled a third occasion when he and J.B. were drinking in the boiler room of J.B.'s childhood home and J.B. began to cry and say "Why did I do it, [Eugene]? He was only six years old. He was a good kid. Why did I f--- up like this?"
Joanne Giltner, a neighbor, also heard J.B. admit to killing V.B. She witnessed J.B. and his brother P.B. fistfighting in a courtyard. After actually stabbing P.B., J.B. said "I'm going to kill you like I killed [V.B.]" Giltner said she thought this incident occurred in 1978 but was uncertain as to the date.
Cherice Ritchie, P.B.'s former wife, also overheard J.B. admit to killing V.B. on the occasion when J.B. stabbed P.B. But she said, P.B. and J.B. were constantly fighting, and Ritchie heard J.B. threaten P.B. on several occasions, threatening to kill him like he killed V.B.
Sometime in the 1980s Ritchie's daughter borrowed some tape from J.B.'s room without asking for permission. When he discovered this, J.B. demanded the return of the item, telling her: "Give me the right time and place and I'll kill that kid." When drunk, he would say, "I'll kill your daughter like I killed [V.B.]." Such threats eventually prompted Ritchie to move out of the home.
Joseph Gardner, another friend of J.B. with an extensive criminal history who lived nearby, heard J.B. admit to killing V.B. J.B. had initially tried to implicate Gardner in the murder, which Gardner had never understood as the two had been friends. He did not see J.B. after that until sometime in the mid-1980s when he and J.B. ran into each other at a bar, and began drinking and using cocaine together. At one point, Gardner asked J.B. if anyone had ever located V.B.'s murderer. J.B. then put his hands on his forehead, his elbows came down on a glass table, and he said "I didn't mean to do it." The admission stuck in Gardner's mind because the statement was made with such intensity that he thought J.B. was going to break the glass table.
After the State rested its case, J.B. called his maternal aunt M.C. and his brother P.B. as witnesses. M.C. asserted that the time frame on the evening of the murder excluded J.B. as the killer as he was in the house when V.B.'s absence was discovered.
P.B. said that J.B. was home at approximately 9:30 p.m. the night of the murder, and that he had noticed earlier at approximately 7:30 p.m. that M.B. was in bed asleep and V.B. was outside playing. When he testified, however, P.B. also did not remember testifying before the grand jury. He claims to have walked out of the courtroom in response to "unnecessary" questions and insisted he had not been properly served with the subpoena. When he was confronted with seventy-six pages of grand jury minutes from 1988, P.B. denied remembering his testimony. In 1988, P.B. had stated that he left the house closer to 6:00 p.m. and did not say he saw M.B. in bed when he left the home.
P.B. agreed that he and J.B. had many conflicts, and that on one occasion J.B. stabbed him with a small pen knife. However, he denied that J.B. ever said anything about killing him or anything regarding V.B.'s murder during the fights.
The trial judge observed that the case against J.B. had been "built, in large part, on statements made by [the witnesses], and also upon statements purported to have been uttered by [J.B.] himself, concerning his actions on the night of the murder and thereafter." In assessing credibility, the judge took into account "the demeanor of the witness, the witness' prior testimony, if there was any, the witness' body language as such, and any motives that the witness may have to not tell the truth." He noted that thirty-nine years had passed since the child's murder, and that so long a span of time would naturally distort memory and details. The judge also relied on statements made by the witnesses shortly after the murder and at various times over the years.
The judge found M.B.'s testimony on direct to have been "persuasive, " although dramatically different on cross-examination. In light of the other witnesses' testimony, including that of the medical examiner, however, he accepted his version of the murder as true. Although Giltner was uncertain about the exact year of J.B.'s statements, he found her credible as to J.B.'s threats to kill P.B. like he had V.B., a statement also heard by Ritchie. Neither Giltner nor Ritchie had a motive to lie and their recollection of J.B.'s actual words was consistent. The judge also observed that McCarroll, Alberti, and Gardner had all heard J.B. confess, albeit while under the influence. All described J.B. as "at once remorseful for having killed his brother, and at the same time furious and boiling over with rage at the thought of [V.B.'s] death."
Additionally, J.B., in his statements to Markowski, did not deny that he committed the murder, but instead focused on his mistaken belief that the State could not successfully prove its case.
After reviewing the testimony of the various State's witnesses in some detail, the judge returned to M.B.'s testimony. He said: "lifted by the buoyancy of supporting witnesses at trial, [M.B.'s] testimony not only remains afloat, but steers a straight and direct course to [V.B.'s] murderer." This included A.B.'s recollection of a blood smear on J.B.'s shirt. Despite M.B.'s inconsistencies during the trial, ultimately the judge found him to be a credible witness who, when only four-and-one-half years old, saw his brother stabbed to death. Accordingly, the judge found J.B. guilty of first-degree murder as well as felony murder, concluding the killing was committed during the course of an attempt to commit a sexual assault.
On appeal, J.B. raises the following points for our consideration:
THE TRIAL JUDGE'S ERROR IN ADMITTING THE TESTIMONY OF THE STATE'S EYEWITNESS PREJUDICED THE JUVENILE AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. U.S. Const. Amend. V and XIV. N.J. Const. Art. 1, para. 10. (Not Raised Below).
THE TRIAL JUDGE IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
THE VCCB AND LEOTEF PENALTIES MUST BE VACATED.
J.B. contends that the court committed reversible error in permitting M.B., who was forty-four when the matter was tried, to testify about the events he witnessed at age four and one- half. In support, counsel argues that the former rules of evidence required that he be qualified as a witness. Although not entirely clear, it appears that the argument is premised on the witness's age at the time the event occurred, and P.C.'s statement that M.B. was "very slow" and inarticulate as a child. J.B. also identifies various conflicts in M.B.'s testimony, his criminal history, and his pending charges as factors that should have diminished his credibility, making his testimony unreliable, and thus an insufficient basis for an adjudication of guilt.
As a threshold matter, we see no merit in J.B.'s contention that the evidence rules in effect at the time of the offense apply to this proceeding. Even if we did, we simply do not agree that the uncle's statement that M.B. was very slow and inarticulate as a child to be sufficient to obligate the court to explore M.B.'s competence. M.B. had no difficulty responding to questions, albeit there certainly were discrepancies in the details between his past statements and the testimony given at the time of the trial. As the trial judge observed, the passage of time alone would explain that phenomenon, not to mention J.B.'s intimidation, and the obviously traumatic circumstances of the event itself.
J.B. also contends it was error for the court to impose the maximum sentence for the crime, consecutive to the sentence J.B. was then serving. He argues that because some of the aggravating factors are "tied to the juvenile's subsequent adult record, " therefore "those factors should be accorded a somewhat diminished weight."
The court exhaustively reviewed the sentencing factors, finding six aggravating factors and one mitigating factor. The court specifically found aggravating factor (a), the nature and circumstances of the offense. See N.J.S.A. 2A:4A-44(a)(1)(a). This finding resulted from the circumstance that the victim "was found naked, sprawled across the front seat of a trailer – tractor of a truck, with his clothes some 79 feet away." The court also noted the child's multiple stab wounds and his suffering. As to aggravating factor (b), N.J.S.A. 2A:4A-44(a)(1)(b), the court found there was grave harm inflicted on a child only six years old. Given the relationship between perpetrator and victim, J.B. was certainly aware of the child's vulnerability. The record supports these aggravating factors.
Additionally, the court found aggravating factor (c), N.J.S.A. 2A:4A-44(a)(1)(c), the likelihood that J.B. would commit another offense. The court recited the juvenile's extensive prior criminal history as an adult in support of that factor. The trial judge reasoned that for consistency's sake, sentencing him under the current Code, which was more lenient, permitted him to take into account his subsequent criminal history. This too was reasonable.
The court found aggravating factor (g), N.J.S.A. 2A:4A-44(a)(1)(g), the need to deter. That factor is certainly applicable in virtually every instance and is of particular relevance in the killing of a child.
The court also found aggravating factor (j), N.J.S.A. 2A:4A-44(a)(1)(j) because the murder's obvious impact on V.B. as well as on all family members was substantial. The judge drew attention to M.B., himself a victim of the juvenile's conduct and affected by the murder. It is unclear, however, if that factor should include the harm inflicted on the victim's surviving family members. If considered to parallel N.J.S.A. 2C:44-1(a)(2), such harm cannot be included. See State v. Radziwil, 235
N.J.Super. 557, 575 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990). Even if one considers the impact on V.B. alone and excludes the impact on the family, there is ample evidence to support factor (j).
Additionally, the judge considered the effect of the offense on the community. See N.J.S.A. 2A:4A-44(a)(1)(k). Given the nature of the crime and the age of the victim, the entire Borough of Lodi must have been deeply affected by the commission of this offense. The court also found aggravating factor (l). See N.J.S.A. 2A:4A-44(a)(1)(l). J.B. was as much a threat to the public at the time of sentence as he was at fifteen.
The court did find as a mitigating factor that J.B. had no prior juvenile adjudications. N.J.S.A. 2A:4A-44(a)(2)(h). This conflicted with the court's decision to sentence J.B. as the whole man standing before him on July 15, 2011, including his prior criminal history.
Nonetheless, enough evidence supported aggravating factors (a), (b), (c), (g), and (k) to warrant the maximum sentence. This six-year-old was found naked, dead from multiple stab wounds and blunt force trauma.
J.B. also objects to the imposition of a consecutive sentence, but offers no reason the offenses should be served on a concurrent basis. We consider this argument to be so lacking in merit as to warrant no further discussion in a written opinion. R. 2:11-3(e)(2).
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. R. 3:21-4(g); R. 5:1-1; State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Bieniek, supra, 200 N.J. at 607-09.
Lastly, J.B. challenges the imposition of the VCCB and LEOTEF penalties because they were not in effect at the time of the commission of the offense. We agree with the State, that having chosen to be sentenced under the current juvenile statute because it provided for more lenient treatment, those penalties should be imposed. See State v. Fortin, 178 N.J. 540, 611 (2004); State v. Chapman, 187
N.J.Super. 474, 477 (App. Div. 1982).