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State v. Lawrence

Superior Court of New Jersey, Appellate Division

August 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ERNEST LAWRENCE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-3241.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph Glyn, Deputy Attorney General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

Before Judges Axelrad, Sapp-Peterson and Nugent.

PER CURIAM.

A jury found defendant, Ernest Lawrence, guilty of murder, two weapons offenses, and hindering his own prosecution; and a judge sentenced him to an aggregate forty-five year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant contends he is entitled to a new trial because: two statements he gave to law enforcement authorities should have been suppressed; he was unduly prejudiced when the prosecutor asked a witness whether she knew if defendant had ever struck the victim; the court admitted prior bad acts evidence without giving a proper limiting instruction; the court erred in its instruction to the jury about defendant's attempt to leave the country; and the prosecutor made inflammatory and unduly prejudicial remarks in her opening statement and summation. Defendant also contends that his sentence is excessive. Having considered defendant's arguments in light of the record and controlling law, we remand for correction of the judgment of conviction to reflect appropriate jail credits. In all other respects, we affirm the judgment of conviction.

I.

The State's trial evidence established that early on the morning of January 8, 2008, in the basement of a Camden row home where defendant lived with nineteen-year old Jennifer Lane and their two small children, he stabbed Lane seventeen times with a paring knife. Lane staggered upstairs to the first floor where she collapsed and died. Defendant hurried upstairs and exited the row home, dropping the paring knife by the front door as he left. The police found defendant a short distance away, suffering from five stab wounds to his chest. At the time, the police did not know his wounds were self-inflicted.

Defendant was admitted to Cooper Hospital where he underwent surgery for a collapsed lung. The next day, Camden County Prosecutor's Investigator John Greer and Camden City Detective Isidoro Reyes questioned defendant at the hospital. When the officers first began to question defendant, they did not inform him of his Miranda[1] rights, but after he told them that Lane had stabbed him and he had stabbed Lane, they informed him of his rights, which he waived. Defendant told Investigator Greer that he and Lane stabbed each other during an argument, but he did not know who stabbed the other first. Denying that he would ever cut himself, defendant told Investigator Greer that all of his wounds had been inflicted by Lane. Defendant also said that after he got hit a couple of times, he "pulled" the knife and began swinging at her. After stabbing Lane, defendant left the row home to calm down. Unaware of the extent of his wounds, he intended to return, but he passed out.

Later the same day, Investigator Greer returned to the hospital to photograph defendant's hands because defendant had claimed he and Lane were stabbing each other, but he had no defensive wounds on his hands. Defendant consented, and Investigator Greer photographed his hands.

The police did not charge defendant with Lane's murder until January 22, 2008. They were unable to apprehend him for two days. On January 24, 2008, at five o'clock in the morning, defendant purchased a round-trip ticket for a flight from Atlantic City to Kingston, Jamaica with a stop in Florida. Florida authorities arrested defendant when his plane landed in Fort Lauderdale. The next day, Investigator Greer and Detective Reyes travelled to Florida and questioned defendant a second time. Defendant told Investigator Greer that throughout the day and night leading up to the homicide, Lane "kept leaving every minute with a friend of hers" who defendant characterized as her "Ex." When Lane returned after one visit with her friend, defendant argued with her about taking care of the children, who were hungry. According to defendant, the argument escalated and "we [got] stabbed." Defendant said, "I got stabbed, she got stabbed and that's all I can remember from there."

Defendant blamed Naquia Rollins, a friend with whom Lane previously had an intimate relationship, for repeatedly interfering with, and jeopardizing, his relationship with Lane. Nevertheless, defendant did not believe Lane had resumed her affair with Rollins. Defendant eventually admitted that he stabbed Lane and then stabbed himself.

According to Rollins and the first and second floor residents of the row home where defendant lived, defendant had previously threatened Lane. Rollins testified about the threat defendant made the afternoon before he stabbed Lane. On the day before Lane's death, Rollins visited Lane for about twenty minutes early in the day, then returned later and drove Lane to a grocery store to get some milk. When they returned to the row home, defendant walked up to the van Rollins was driving and accused Rollins of lying to him on a previous occasion. According to Rollins, defendant said "he didn't like what was going on and that he would make sure that I never see her again and there was nothing nobody can do about it."

Rollins and Lane drove away in the van, watched television at Lane's aunt's house, then returned to Lane's row home at approximately 9:45 p.m. While they talked inside the van, defendant came out of the row home, unbuckled Lane's seatbelt, and "grabbed her out of the car." Rollins drove away. That was the last time Rollins saw Lane alive.

James Glover, who lived on the second floor of the row home, was sitting on the front porch when defendant returned from work. Later that evening, a white van "pulled up" with Lane in the passenger seat. Defendant emerged from the row home, walked to the white van, said something to Lane, then returned to the porch. He said to Glover, "I'm gonna kill that girl." He then waited about two minutes, and went into the house.

Kimell Young, who owned the row home and lived on the first floor, talked to defendant while he was sitting on the front steps of the home the day before Lane's death. Lane was getting into Rollins' white van, and defendant was angry. Defendant told Young, "if [I] can't have her, nobody is gonna have her. I hate that bitch." Young also testified that on a previous occasion defendant said the only way Lane would listen to him was if he shook her up, meaning that he had to push her around.

Defendant called one witness at trial, his sister. She testified that when defendant was discharged from the hospital he was so physically debilitated and mentally depressed that she could not care for him, so she suggested he return to their family in Jamaica where he could be properly cared for during his recuperation.

A Camden County grand jury charged defendant in an indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count four). After he was indicted, defendant filed a motion to suppress the statements he had made in the Camden hospital and while in custody in Florida. Following three days of hearings, [2] the court denied defendant's motion.

The court also conducted pre-trial hearings in which it ruled that the State could present the testimony of Young, Glover, and a first-floor boarder, Harry Winsch, concerning defendant's threats to harm Lane, and about the relationship defendant and Lane shared.

The trial took place on five non-consecutive days in September 2010. Defendant did not dispute that he stabbed Lane and then stabbed himself. Rather, he attempted to persuade the jury that he did not intend to kill Lane, but repeatedly stabbed her during an uncontrollable jealous rage caused by his fear that Lane might abandon him and the children and resume her relationship with Rollins.

The jury found defendant guilty on all counts. At sentencing, the court merged counts two and three into count one and sentenced defendant on count one to a forty-five year custodial term subject to NERA. The court also sentenced defendant to a concurrent eighteen-month prison term on count four, and imposed required fees and assessments. Defendant appealed from the judgment of conviction.

Defendant raises the following points for our consideration:

POINT I
THE DEFENDANT'S STATEMENTS WERE TAKEN IN VIOLATION OF HIS CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION, AND ACCORDINGLY MUST BE SUPPRESSED. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART 1, PAR.10.
A. THE FIRST STATEMENT
B. THE SECOND STATEMENT
POINT II
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DELIVER A LIMITING INSTRUCTION AS TO HIGHLY PREJUDICIAL EVIDENCE OF PRIOR STATEMENTS BY THE DEFENDANT.
POINT III
THE DEFENDANT WAS GREATLY PREJUDICED BY BASELESS AND UN-REMEDIATED TESTIMONY PRODUCED BY THE STATE THAT HE HAD PREVIOUSLY HIT THE VICTIM.
POINT IV
THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE, AND IN DENYING JAIL CREDIT FOR THE PERIOD DURING WHICH DEFENDANT WAS AWAITING EXTRADITION.
A. THE SENTENCE IS EXCESSIVE.
B. THE COURT ERRED IN DENYING JAIL CREDIT FOR THE TIME THAT THE DEFENDANT WAS AWAITING EXTRADITION.

Additionally, defendant argues in his pro se supplemental brief:

POINT I
THE APPELLANT HEREIN ARGUES THAT THE TRIAL COURT ERRED IN ITS RULING BY ADMITTING PRIOR BAD ACT EVIDENCE OVER TRIAL COUNSEL'S OBJECTIONS AND WITHOUT LIMITING INSTRUCTIONS IN VIOLATION OF HIS DUE PROCESS UNDER BOTH NEW JERSEY STATE AND FEDERAL CONSTITUTIONAL AMENDMENTS.
A. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL WHICH WAS PREVIOUSLY BASED ON PRIOR BAD ACT EVIDENCE AND SHOULD HAVE BEEN GIVEN A LIMITED INSTRUCTION.
POINT II
THE DEFENDANT WILL ARGUE PROSECUTOR MISCONDUCT FOR SUBMITTING OVERLY PREJUDIC[IAL] EVIDENCE DURING SUMMATION AND THROUGH THE USE OF STATE WITNESSES CONCERNING THE DEFENDANT'S CHILDREN WALKING IN A POOL OF BLOOD AND LYING DOWNSTAIRS NEAR A POOL OF BLOOD.
POINT III
THE TRIAL COURT GAVE ERRONEOUS JURY INSTRUCTIONS CONCERNING THE JURY CONFUSION TO CLARIFY COUNT 4 AS TO ATTEMPT TO LEAVE THE COUNTRY ON THE 8TH DAY OF JANUARY 2008.
POINT IV
FAILURE OF THE TRIAL COURT TO SUPPRESS THE DEFENDANT'S FIRST STATEMENT TO INVESTIGATORS WAS ERROR BECAUSE IT WAS NOT FULLY ESTABLISHED THAT THE DEFENDANT'S MEDICATION MADE HIM COHERENT TO THE QUESTIONS PRESENTED WHICH INCRIMINATED HIM.

II.

We first address defendant's argument that the court erred by denying his motion to suppress the incriminating statements he made in the Camden Hospital and in Florida. Defendant contends that the hospital interview was a custodial interrogation from its inception, and because Investigator Greer did not read defendant his Miranda rights until after defendant disclosed that he and Lane stabbed each other, the statement should have been suppressed.

These are the facts developed by the State at the suppression hearing. On January 8, 2008, at approximately 5:00 a.m., Investigator Greer was assigned to investigate Lane's homicide. When Investigator Greer arrived at the row home where Lane had been killed, his partner, Detective Reyes, informed him that Lane lived in the row home's basement with defendant. Detective Reyes explained that the crime scene covered several city blocks, including not only the residence where the homicide had occurred, but also a "location around the corner" where the police had found defendant bleeding from a wound. The police who found defendant transported him to the hospital. Detective Reyes also told Investigator Greer that two children had been involved, and two witnesses had been transported to the Camden Police Administration Building.

Investigator Greer subsequently interviewed the row home's owner, Young, and the boarder, Winsch. Winsch had heard defendant and Lane arguing in the basement. Lane emerged from the basement stairs and "defendant ran up behind her and out of the door." The owner said Lane had come to her door, and collapsed.

The following day, accompanied by Detective Reyes, Investigator Greer went to the hospital at approximately 11:00 a.m. and asked permission to speak with defendant. Investigator Greer explained his purpose:

We went there to find out what happened to him. We had to establish a foundation for which direction our investigation was going to go in. And the first was to find out who was the victim and who was the defendant, or were they both victims, since there was a paramour involved.

According to Investigator Greer, he "went through the proper channels to be able to go up to the room" occupied by defendant. Although uniformed officers were posted outside the door of defendant's hospital room, they were there to protect him and watch him, not to guard him because he was under arrest. Defendant had spoken with the officers before Investigator Greer arrived and confirmed they were there to protect him and that he was free to come or go as he pleased.

When Investigator Greer and Detective Reyes entered the room, defendant was awake, coherent, and able to speak. Investigator Greer introduced himself and Detective Reyes, explained that he was there to find out exactly what happened to defendant, and told defendant "he was not under arrest in any way." Investigator Greer told defendant that if he were physically capable of standing up and walking out of the hospital he was certainly free to do so as far as Investigator Greer and Detective Reyes were concerned, because he was not under arrest.

Defendant agreed to speak with Investigator Greer and Detective Reyes. He explained that he had an argument with Lane, and during the course of the argument she stabbed him and he stabbed her, but he did not recall who stabbed who first. When defendant made that statement, Investigator Greer realized defendant was incriminating himself, so he stopped the interview and informed defendant of his Miranda rights. Although defendant was lying on the hospital bed with a suction tube in his chest, he appeared to be resting comfortably. Investigator Greer read the Miranda rights from a pre-printed form. Defendant acknowledged that he understood each right. Investigator Greer asked defendant to circle either the yes or the no adjacent to each right on the form, and to initial his answer, which defendant did.

Defendant appeared to understand the questions, was able to speak coherently, did not appear to be under the influence of drugs or alcohol, did not appear groggy or unclear, and responded appropriately to questions. Defendant waived his rights and signed the waiver on the pre-printed form. Investigator Greer made no promises to defendant to induce him to make a statement, and did not threaten or coerce him. Investigator Greer perceived that defendant freely and voluntarily made his statement.

Investigator Greer testified that he did not initially record his conversation with defendant, and did not initially inform defendant of his Miranda rights, because his questioning did not constitute a custodial interrogation. Investigator Greer had gone to the hospital "to find out what happened." Investigator Greer did not believe defendant was in custody during the interview. Once Investigator Greer decided to inform defendant of his Miranda rights, he taped-recorded the remainder of the interview.

Detective Reyes testified and confirmed Investigator Greer's account of what transpired in the hospital between Investigator Greer and defendant. He testified not only that defendant was never under arrest, but also that he thought defendant was a victim when they first began speaking with defendant in his hospital room. Detective Reyes also confirmed that the officers posted outside defendant's room were there for his protection. According to Detective Reyes, Investigator Greer spoke with defendant for less than five minutes before turning on the tape recorder and informing defendant of his Miranda rights. Detective Reyes also perceived that defendant understood his Miranda rights and voluntarily gave his statement.

In a written decision, the trial court denied defendant's suppression motion. The court found that Investigator Greer and Detective Reyes had significant experience with interviewing and interrogating suspects, and that their testimony was credible. Based upon the credible testimony of the officers, the court concluded that Investigator Greer's initial questioning of defendant was part of an investigatory procedure rather than a custodial interrogation.

The court determined that when Investigator Greer and Detective Reyes went to the hospital, their purpose was to "find out what happened and who was the victim in the incident[, ]" particularly in view of Investigator Greer's knowledge that Lane had a paramour that might have been involved. The court further concluded that defendant knowingly and voluntarily made the statement that Investigator Greer recorded.

When reviewing a trial court's denial of a defendant's motion to suppress a statement, we defer to the factual findings of the trial court if they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409, cert. denied, 588 U.S. 831, 130 S.Ct. 65, 175 L.Ed.2d 48 (2009); see also State v. W.B., 205 N.J. 588, 603 n.4 (2011) ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions.") (citing State v. Elders, 192 N.J. 224, 242-44 (2007)). That is so because the trial court has had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

In view of our deference to the trial court's fact-finding, we will disturb a trial court's findings of fact only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 102). Our review of a trial court's legal conclusions, however, is plenary. State v. Handy, 206 N.J. 39, 45 (2011).

The United States Supreme Court "in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination." J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310, 321 (2011). Those "measures protect the individual against the coercive nature of custodial interrogation[.]" Id . at ___, 131 S.Ct. at 2402, 180 L.Ed.2d at 322. For that reason, Miranda warnings are required only during custodial interrogation, that is, "'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, 719 (1977) (quoting Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706).

"Whether a suspect is in 'custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 615 (2007) (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994)). When making this fact-sensitive determination, a judge should consider the "time, place and duration of the detention; the physical surroundings, the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." State v. Smith, 374 N.J.Super. 425, 431 (App. Div. 2005). Custody exists if "the totality of the objective circumstances attending the questioning, viewed from the perspective of the reasonable person, impose a 'restraint on freedom of movement of the degree associated with a formal arrest.'" Id . at 430 (quoting Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938, 951 (2004)).

Considering the totality of circumstances in the case before us, we conclude the trial court did not err by denying defendant's suppression motion. Investigator Greer and Detective Reyes did not know that defendant had stabbed himself when they interviewed him in the hospital. Nothing at the crime scene and nothing that any witness had told the detectives suggested that defendant's wounds had been self-inflicted. One witness had given a statement that suggested a third party may have been involved in the stabbing. Although Investigator Greer and Detective Reyes admittedly considered defendant a suspect, the circumstances surrounding the homicide were anything but clear.

Defendant's confinement to a hospital bed due to his injuries did not present an atmosphere suggestive of custodial interrogation. As our Supreme Court has recognized, a hospital room is "totally lacking the 'compelling atmosphere inherent in the process of in-custody interrogation.'" State v. Zucconi, 50 N.J. 361, 364 (1967) (quoting Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d. at 726). And though police were posted at the door of defendant's room, defendant had confirmed with them, before Investigator Greer and Detective Reyes arrived to question him, that they were there for his protection. Investigator Greer made clear to defendant, almost immediately after Investigator Greer introduced himself and Detective Reyes, that defendant was not under arrest and, if capable, was free to leave.

Investigator Greer and Detective Reyes also explained to defendant that their purpose in speaking to him was to learn what happened at the row home. They did not make any accusations, and spoke with defendant less than five minutes before he told them that he and Lane stabbed each other.

Defendant's reliance on State v. Stott, 171 N.J. 343 (2002), is unpersuasive. There, while involuntarily committed to a State-run psychiatric hospital, defendant was questioned on two separate days by a total of four law enforcement officers; the questioning occurred in a secluded basement area reserved solely for police purposes; and at least one officer acknowledged at the suppression hearing that he questioned the defendant in a manner likely to elicit incriminating statements. Id . at 365. None of those facts are present here.

Defendant also suggests that we should reject the trial court's credibility determinations. Those credibility determinations were supported by sufficient credible evidence. Our standard of review requires that we give deference to them and not engage in the type of second-guessing urged by defendant. See Johnson, supra, 42 N.J. at 161. Accordingly, we affirm the trial court's determination that Investigator Greer's initial questioning of defendant in the hospital room was not a custodial interrogation.

Defendant further contends that the trial court erred by not suppressing the incriminating statement he gave to Investigator Greer and Detective Reyes while he was in custody in Florida. Defendant asserts that contrary to State v. A.G.D., 178 N.J. 56, 68 (2003), Investigator Greer did not advise defendant that a murder charge was pending. Immediately after making that assertion in his brief, however, defendant argues that "Investigator Greer's" assertion that he did so at the outset of the encounter, and in fact that . . . defendant expressed knowledge of the murder charge before the questioning began, is not borne out by a close examination of the evidence." Defendant urges that inconsistencies between Investigator Greer's testimony and Detective Reyes's testimony preclude a finding that the State proved beyond a reasonable doubt that his inculpatory statement was made voluntarily and intelligently. In essence, defendant again urges that we reject the trial court's findings of fact.

Investigator Greer testified that he and Detective Reyes flew to Florida and interviewed defendant in the Broward County Correctional Facility. On the day they interviewed defendant, when they entered the correctional facility's interview room, defendant was already seated. According to Detective Reyes, as they were walking in, defendant asked them why he had been charged with murder.

Investigator Greer testified that he informed defendant of the murder charge "[i]n the very beginning of the interview when we initially met in the interview room." Defendant asked why he had been charged with murder. According to Investigator Greer, defendant said something, in the form of either a question or statement, that led Investigator Greer to believe that defendant knew of the murder charges. Investigator Greer explained that the exchange occurred before he was able to set up his tape recorder.

In its written decision, the trial court concluded defendant knew of the charges. The court found that defendant expressed his knowledge of the charges as the officers entered the interview room and that defendant did so before the officers could start a tape recorder. The court also found that nothing in defendant's statement or conduct suggested a hint he was unaware that he had been charged with murder.

The court's findings are supported by sufficient credible evidence in the record. In view of the deference that we owe to the trial court's factual determinations, we decline to accept defendant's invitation to reject the court's findings. See State v. Locurto, 157 N.J. 463, 471-72 (1999). Rather, we affirm the denial of defendant's suppression motion. The trial court did not err by admitting the statement at trial.

III.

Defendant next contends that the court erred by permitting Young, Glover, and Rollins to testify about defendant's threats to harm Lane without a limiting instruction. Defendant argues that his statements were prior bad acts and the judge erred by not giving the "prior bad acts jury charge, " which defendant requested in the charge conference. The judge determined that the statements were in fact statements, not prior bad acts, and denied the request.

The State argues that the trial court correctly ruled defendant's statements were admissible under N.J.R.E. 803(b) as statements by a party-opponent. The State further contends that because the disputed statements were components of the pending murder charge, and not evidence of other crimes, there was no need to instruct the jury on the limited purpose for which the jury could consider the statements.

The threshold issue is whether the statements attributable to defendant were intrinsic to the charged murder of Lane, or whether they were in fact other crimes. "[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b)[3] even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not 'evidence of other crimes, wrongs, or acts.'" State v. Rose, 206 N.J. 141, 177 (2011). Intrinsic evidence is evidence that either "'directly proves the charged offense['] . . . [or consists of] 'uncharged acts performed contemporaneously with the charged crime . . . if they facilitate the commission of the charged crime.'" Id . at 180 (quoting U.S. v. Green, 617 F.3d 233, 248 (3d Cir. 2010)).

Defendant asserts that N.J.R.E. 404(b) applied to five statements attributable to him. Three of those statements, made the afternoon or evening before the homicide, were: "'If [I] can't have her, nobody is gonna have her. I hate that bitch[, ]'" attributed to him by Young; "'I'm gonna kill that girl[, ]'" attributed to him by Glover; and, "'he didn't like what was going on and that he would make sure that [Rollins] never see[s] her again and there was nothing nobody can do about it[, ]'" attributed to him by Rollins. Additionally, defendant challenges statements attributed to him that were made on unspecified dates before the homicide. Those statements were, "'the only way she'll listen to him is if he shake her up, as far as - - as meaning he has to push her around. That's the only way she'll listen[, ]'" attributed to defendant by Young; and, that "'he hates that bitch and he does what he wants with her. He'll throw her out the window if he wanted to[, ]'" attributed to defendant by Rollins.

The threats defendant made on the afternoon and evening immediately preceding the homicide directly proved an element of the charged crime, namely, murder, which requires that an actor purposely cause a death or serious bodily injury resulting in death, or knowingly cause death or serious bodily injury resulting in death. N.J.S.A. 2C:11-3(a)(1) and (2). Defendant's threats were an explicit expression of his intent to kill Lane, which he carried out within twelve hours.

On the other hand, his statement that the only way he could get Lane to listen was to push her around, made at some unknown time earlier than the afternoon before the homicide, was not direct evidence that he intended to kill Lane. Nor were his statements to Rollins, made sometime in 2006 or 2007, that he hated Lane, did what he wanted with her, and would throw her out a window if he desired to do so. Rather than direct evidence of an element of a charged crime, those statements were circumstantial evidence that he either abused Lane or might choose to do so on a whim, but were not evidence that he had formed the intent to kill her. Although the trial court found that the statements were relevant and that their probative value was not substantially outweighed by the risk of undue prejudice, the statements were prior bad acts. In view of the court's pre-trial ruling that the statements were admissible, and because they were prior bad acts, they should have been admitted with an appropriate limiting instruction.[4]

Nevertheless, the omission of such an instruction in the court's charge was harmless error, that is, it was not "clearly capable of producing an unjust result." R. 2:10-2. Defendant did not dispute that he stabbed Lane seventeen times. The three statements that he made within twelve hours of stabbing Lane, including that he was "gonna kill that girl, " were compelling evidence that he formulated the intent to kill Lane hours before he did so, and that he did not kill her in a jealous rage. There is little or no likelihood that the court's omission to give a limiting instruction as to the vague statements defendant made on previous occasions caused the jury to reach a result it otherwise might not have reached.

Defendant also asserts that he was unduly prejudiced by the State's "utterly unsupported and gratuitous question" to Young, "did you ever see the defendant hit Jenny?" The following exchange occurred:

[State:] Okay. Did you ever see the defendant hit Jenny?
[State:] Oh, withdrawn.
[The Court:] Okay, Thank you.
[Witness:] Oh, I seen –
[State:] No, no. It's withdrawn.
[The Court:] It's withdrawn.
[State:] Never mind.
[The Court:] Next question, please.

Because defendant did not bring this issue to the attention of the trial court, we review it under a plain error standard. R. 2:10-2. When we review an issue under a plain error standard, we will not reverse a conviction unless an error committed at trial was "clearly capable of producing an unjust result[.]" Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J.Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011).

The witness failed to complete her answer. Moreover, during its charge, the judge instructed the jury:

I have sustained objections to some questions asked by counsel, which may have contained statement of certain facts. The mere fact that an attorney asked a question and inserts facts or comments or opinions in that question in no way proves the existence of those facts. You will only consider such facts which in your judgment have been proven by the testimony of witnesses or from exhibits admitted into evidence by the Court.
[(Emphasis added).]

Jurors are presumed to follow the court's instructions. State v. Winder, 200 N.J. 231, 256 (2009).

Considering that the witness did not finish her answer, and further considering that the court instructed the jury to disregard statements embedded in the attorneys' questions, we find no plain error. Moreover, the prosecutor's unanswered question about whether the witness had seen defendant strike Lane could hardly have caused the jury to return a verdict it otherwise would not have reached, particularly in view of the undisputed testimony that defendant stabbed Lane seventeen times, after threatening to kill her.

IV.

Defendant next argues that his sentence is excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive or unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989). When the sentencing judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court], " we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations and citations omitted).

Here, after considering the pre-sentence report, statements from members of the victim's family, their impact statements, the written submissions of counsel, and defendant's statement, the sentencing court found as aggravating factors: the crime was committed in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); and, the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found one mitigating factor, namely, defendant had no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7), but explicitly ruled out the remaining mitigating factors enumerated in N.J.S.A. 2C:44-1(b).

The court gave little weight to the first and second aggravating factors, heavy weight to aggravating factor nine, and minimal weight to mitigating factor seven. The court sentenced defendant to an aggregate custodial term of forty-five years with an eighty-five percent period of parole ineligibility as required by NERA.

Defendant acknowledges that aggravating factors one and two "may apply, " but "urges that [the] trial court erred in ascribing more than minimal weight to them." Defendant's argument is difficult to reconcile with the court's explicit statement that "these factors are to be given some weight, but not great weight." We fail to discern any significant distinction between the trial court giving "some weight, but not great weight" to the first two aggravating factors, and "minimal weight" as urged by the defendant.

Defendant also urges that the trial court erred by giving "heavy weight" to the need to deter defendant and others from violating the law. Defendant suggests that because the need for deterrence is present in nearly every case, it should be accorded little weight. We are unpersuaded by that argument, which amounts to little more than second-guessing the trial court's determination. In making its determination, the court correctly determined that the need for public safety and deterrence increases proportionately with the degree of the offense. See State v. Megargel, 143 N.J. 484, 500 (1996) ("The higher the degree of the crime, the greater the public need for protection and the more need for deterrence.").

As to mitigating factors, defendant argues that the trial court erred by giving little weight to the fact that defendant had no prior convictions; and by failing to find that defendant acted under a strong provocation, N.J.S.A. 2C:44-1(b)(3).

The court did not abuse its discretion by giving little weight to the fact that defendant had not previously been convicted of a crime, especially in view of the serious nature of the crime defendant committed, and the fact that he was still in his twenties when he committed it. Nor did the court abuse its discretion when it declined to find that defendant acted under a strong provocation Nothing in the record suggests that mitigating factor

The trial court exercised its sentencing discretion appropriately in accordance with the principles set forth in the Code of Criminal Justice There is no basis for second-guessing the trial court's exercise of its discretion See Bieniek supra 200 N.J. at 607-08

Defendant also argues that he should have received jail credit for the time he was incarcerated in Florida The State agrees Accordingly this matter shall be remanded for correction of the judgment of conviction to reflect the appropriate credits

V.

The remaining arguments in defendant's pro se supplemental brief that have not already been addressed are without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2)

Remanded for correction of the judgment of conviction Affirmed in all other respects.


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