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State v. Tate

Supreme Court of New Jersey

November 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TROY N. TATE, Defendant-Appellant.

Argued March 12, 2013

On certification to the Superior Court, Appellate Division.

Rochelle M.A. Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson and William P. Welaj, Designated Counsel, on the briefs).

Courtney M. Cittadini, Assistant County Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney).

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

The issue in this appeal is whether a conviction for possession of a weapon for an unlawful purpose merges with a conviction for aggravated manslaughter and, if merger is required, under what circumstances.

Defendant, Troy M. Tate, was convicted by a jury of the first-degree aggravated manslaughter of Sheri Farren and related offenses. Defendant, Sheri Farren, Farren's boyfriend Paul Freas, Frank Mulholland, and Kevin Green were homeless acquaintances. Farren, Freas, and Mulholland would often drink and panhandle for money together on the Atlantic City boardwalk. Mulholland testified that, on the night of March 24, 2007, he met Farren and Freas on the boardwalk and they went to a small room under Boardwalk Hall, where they found Green asleep. Mulholland had been drinking all day and, after arriving at the room, the group drank a substantial quantity of vodka and beer. At some point that night, Mulholland and Green fell asleep and Freas left the room. Mulholland awoke and saw defendant standing over Farren, yelling at her, and swinging a club-like object. Farren asked Mulholland to find Freas. Mulholland recalled that Farren said something before he left to find Freas about some damaged playing cards. Mulholland spent the rest of the night looking for Freas, and only learned of Farren's death from a subsequent conversation with a police officer.

Green testified that he awoke that evening and saw defendant swinging a caulking gun with two hands, striking Farren on her back, legs, and head, and yelling at her about the torn playing card. After speaking with Green and Mulholland, the police identified defendant as a suspect. When the police arrested and searched defendant, they discovered a large deck of novelty playing cards that contained a torn ace of clubs. The weapon used in the homicide was never recovered. The medical examiner testified that Farren died on the morning of March 25, 2007, from "massive bleeding into the abdominal cavity due to blunt force injury" to her torso and lacerations to the spleen.

Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, second-degree aggravated assault, third-degree aggravated assault, and third-degree possession of a weapon for an unlawful purpose. The judge did not merge any of the convictions. Defendant appealed. The Appellate Division affirmed the convictions but merged the convictions for second and third-degree aggravated assault into the first-degree aggravated manslaughter conviction. However, the panel rejected defendant's argument that the conviction for possession of a weapon for an unlawful purpose should be merged with the aggravated manslaughter conviction. Relying on State v. Bowens, 108 N.J. 622, 639 (1987), the panel explained that "each offense requires proof of a fact not required by the other."

The Supreme Court granted defendant's petition for certification. 210 N.J. 119 (2012) .

HELD: A conviction for possession of a weapon for an unlawful purpose must merge with a conviction for aggravated manslaughter when the evidence does not support the existence of another unlawful purpose for possession of the weapon.

1. The doctrine of merger is based on the concept that "a defendant who has committed one offense ' "cannot be punished as if for two." ' " State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Brown, 138 N.J. 481, 561 (1994)). N.J.S.A. 2C:1-8a sets forth the parameters for merging offenses. However, " '[t]he standard for merger of offenses set forth by N.J.S.A. 2C:1-8, providing that offenses are different when each requires proof of facts not required to establish the other, has been characterized as "mechanical." ' " Id. (quoting State v. Diaz, 144 N.J. 628 (1996)). In Diaz, this Court found that "[w]hen the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required." 144 N.J. at 636. Thus, if a "jury is explicitly instructed that the unlawful purpose was to use the gun against the victim of the substantive offense, unless that unlawful purpose extended over a substantial period, merger is required notwithstanding that the evidence was sufficient to support a separate unlawful purpose." Id. at 641. Importantly, the Court explained that merger is not required when the weapon possession is for a broader purpose. When a jury's verdict is ambiguous as to whether defendant had a broader purpose in possessing the firearm than committing the substantive offense, the Court adopted a four-prong test to determine if merger is required. Id. at 639. To give proper guidance, a "jury instruction 'must include an identification of such unlawful purposes as may be suggested by the evidence.' " Id. at 640. In this case, because "the only unlawful purpose submitted to the jury was possession of the gun to use it in the killing, " merger was required. Id. at 642. (pp. 7-14)

2. The approach to determine merger of offenses used in Diaz is applicable here. The evidence tends to prove that defendant possessed the weapon unlawfully only to commit the substantive offense. No broader unlawful purpose was supported directly or circumstantially by the evidence. Both the possession of the weapon for an unlawful purpose and the aggravated manslaughter resulted from a single course of conduct. Additionally, both charges require proof of the same fact: that defendant beat Farren with the caulking gun. The cases not requiring merger have had clear statutory differences illustrating legislative intent to fractionalize a course of conduct. The Court has determined, however, that the better course is to follow Diaz in deciding this and future merger disputes. This case contains no evidence to support a separate unlawful purpose, and, significantly, the jury was specifically instructed that defendant's unlawful purpose was "to assault Sheri Farren." Thus, under the Diaz rationale, merger is required because the evidence against defendant was that he possessed a weapon for the purpose of beating Farren with it – the substantive offense. (pp. 14-18)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division for correction of the judgment of conviction to reflect that the conviction for possession of a weapon for an unlawful purpose merges into the aggravated manslaughter conviction.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ's opinion.

OPINION

RODRÍGUEZ, JUDGE

The doctrine of merger is based on the concept that "an accused [who] committed only one offense . . . cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). As such, "[m]erger implicates a defendant's substantive constitutional rights." State v. Miller, 108 N.J. 112, 116 (1987); accord State v. Truglia, 97 N.J. 513, 522 (1984); Davis, supra, 68 N.J. at 77. "Not only does merger have sentencing ramifications, it also has a measurable impact on the criminal stigma that attaches to a convicted defendant." State v. Rodriguez, 97 N.J. 263, 271 (1984).

In this appeal, considering the application of merger principles, we hold, consistent with the approach utilized in State v. Diaz, 144 N.J. 628 (1996), that a conviction for third-degree possession of a weapon for an unlawful purpose must merge with a conviction for first-degree aggravated manslaughter when the evidence does not support the existence of another unlawful purpose for possession of the weapon.

I.

Defendant, Troy N. Tate, was convicted by a jury of the first-degree aggravated manslaughter of Sheri Farren and related offenses. The evidence revealed that defendant, Farren, Farren's boyfriend Paul Freas, Frank Mulholland, and Kevin Green were homeless acquaintances. Farren, Freas, and Mulholland would often drink and panhandle for money together on the Atlantic City boardwalk.

Mulholland testified that, on the night of March 24, 2007, he met Farren and Freas on the boardwalk. They went to a small room under Boardwalk Hall where they found Green asleep. Mulholland had been drinking all day. After arriving at the room, the group drank a substantial quantity of vodka and beer. At some point that night, Mulholland and Green fell asleep and Freas left the room.

Mulholland awoke and saw defendant standing over Farren, yelling at her, and swinging a club-like object. Mulholland, however, was not sure if defendant was hitting Farren, and asked defendant what was going on. Defendant did not respond and left the room. Mulholland asked Farren if she needed help. She asked him to find Freas. Mulholland recalled that Farren said something before he left to find Freas about some damaged playing ...


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