NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2012
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-02-00116, 08-03-00192.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes, Graves and Koblitz.
On February 17, 2005, a Somerset County grand jury returned Indictment No. 05-02-00116 against defendant Mike Martinez, charging him with first degree aggravated manslaughter of Kerron Butler, N.J.S.A. 2C:11-4(a)(1), first degree attempted murder of Earnest Earvin, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2), third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). On May 18, 2008, another Somerset County grand jury returned Indictment No. 08-03-00192 against defendant, charging him with one count of third degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
Starting in April and ending on May 16, 2008, defendant was tried before a jury over a period of nine non-sequential days on the homicide and related charges in Indictment No. 05-02-00116. The jury found defendant guilty of second degree aggravated assault of Earnest Earvin, N.J.S.A. 2C:12-1(b)(3), (as a lesser-included offense of the charge of attempted murder), third degree possession of a weapon for unlawful purposes, and fourth degree unlawful possession of a weapon. The jury was unable to reach a unanimous verdict on the charge of first degree aggravated manslaughter of Kerron Butler, forcing the court to declare a mistrial on that charge.
Defendant was retried before another jury on the charge of first degree aggravated manslaughter over a six-day period in April 2009. That jury found defendant guilty of second degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), which is a lesser-included offense of aggravated manslaughter. Defendant thereafter pleaded guilty to the single count in Indictment No. 08-03-00192 charging him with third degree possession of cocaine with the intent to distribute.
On the charges reflected in Indictment No. 05-02-00116, the court sentenced defendant to an aggregate term of fifteen years with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Specifically, after merging the convictions of third degree possession of a weapon for unlawful purposes and fourth degree unlawful possession of a weapon with the second degree aggravated assault conviction, the court imposed an eight-year term on the reckless manslaughter of Kerron Butler, to run consecutive to a seven-year term on the aggravated assault conviction involving Earnest Earvin. These two terms of imprisonment are subject to the parole restrictions in NERA. On the charge of possession of cocaine with intent to distribute in Indictment No. 08-03-00192, the court sentenced defendant to a term of four years, to run consecutive with the sentence imposed on Indictment No. 05-02-00116. Thus, defendant received a total aggregate term of imprisonment of nineteen years, with twelve years and nine months to be served without parole.
In this appeal, defendant argues that both the prosecutor and the trial judge made improper comments before the jury during the first trial that irreparably tainted the fairness of those proceedings, warranting reversal of his convictions. Defendant also argues the trial judge erred in his instructions to the jury on voluntary intoxication, by refusing to modify the definition of "reasonable belief" in the part of the charge that explains self-defense and defense-of-others. Defendant also claims the trial judge erroneously admitted into evidence an autopsy photograph of the victim's heart that should have been excluded under N.J.R.E. 403 because its prejudicial effect far exceeded its probative value. Finally, defendant challenges the imposition of consecutive sentences on the manslaughter and aggravated assault charges, and claims the judge improperly found and considered certain aggravating factors while failing to find or properly consider countervailing mitigating factors.
After carefully reviewing the record before us and mindful of prevailing legal standards, we are not persuaded that any of defendant's arguments require reversal of the verdicts reached by the jury in either the first or second trial. We are also satisfied the sentence imposed by the trial judge, which included the imposition of consecutive terms for violent crimes committed by defendant against two separate victims, is supported by the record and constitutes a reasonable exercise of the judge's discretionary authority under Title 2C.
Because defendant's appeal involves issues that overlap into both trials, our factual recitation will cover the entire spectrum of evidence presented by the parties during both trials. Where appropriate, however, we will identify the differences in the presentations between the first and second trial.
On December 31, 2004, a group of friends and relatives gathered at the Clarion Suites Hotel in Franklin Township to celebrate the new year. The group included Quiyana Johnson, her cousin Stephanie McGaw, Johnson's friend Brian Butler, and his brother Kerron Butler. The Butlers' cousins Earnest Earvin, IV and Rashod Eato were also at the hotel, as were Brian Butler's friends Craig Rawles, Devraun Thompson, and twin brothers Christopher and Calvin Lamont. All of these individuals were young adults in their late teens or early twenties.
Some of the youths who came to the New Year's party did not book rooms in the hotel. As the evening festivities progressed, those in attendance eventually migrated into the hallways; shortly after midnight, hotel management asked anyone who was not a registered guest of the hotel to leave. Johnson, McGaw, and the Lamont brothers were among those who heeded management's request and left the hotel premises and headed in the direction of a parking lot located behind the hotel.
Defendant, who was nineteen years old at the time, was also in the hotel that night celebrating the new year with some of his friends, including Miguel Reyes and Kevin Robinson. They attended a party in a room booked by Reyes' cousin. Shortly after they arrived, defendant and his friends learned Reyes' cousin had been asked to leave the hotel; they thus decided to join him and headed toward the parking lot behind the hotel.
Defendant and his friends eventually came upon Johnson and McGaw. Johnson testified she was highly intoxicated at the time and was running around the parking lot "screaming and acting crazy." The witnesses who testified at trial or gave statements to the responding police officers disagree about the precise nature of the event or acts that triggered the violent, and ultimately tragic, chain reaction that caused the death of one young man and left another young man seriously injured. There is no dispute, however, that the precipitating event was an altercation between Johnson and Reyes.
The State contends defendant and his friend Miguel Reyes attempted to sexually harass Johnson by putting their hands down her shirt. The State emphasized that Reyes took advantage of Johnson's vulnerable state of intoxication. Earvin testified he saw Reyes choke Johnson. From this point, what began as a verbal confrontation between Earvin and Reyes, quickly escalated into physical violence; when Reyes attempted to strike Earvin, a full blown fight erupted. McGaw described the melee as "a humongous fight" at which "a group of people" attacked Reyes. Thompson testified that he attempted to separate Earvin and Reyes and thereby break up the fight.
As the initial altercation between Reyes and Earvin appeared to subside, another one soon erupted when Reyes pulled his shirt off and, in an enticing manner, said: "come on, shoot me a fair one . . . fear don't live here." According to Earvin, the fight began as a one-on-one altercation with Reyes. However, almost immediately, other fights broke out around them. Earvin testified he punched Reyes in the face, causing Reyes to fall to the ground; when he began to kick Reyes as he lay prostrate, defendant jumped on Earvin and "hit" him in the back. Earvin fell to the ground and noticed he was bleeding. He then heard gunshots, and the fighting stopped. Craig Rawles stayed by Earvin's side until the ambulance arrived.
Christopher Lamont's testimony corroborated Earvin's account of how the confrontation developed and ended. He described how Miguel Reyes took off his shirt and invited Earvin to "square up, " which Lamont explained meant to engage in a "face to face fight." When asked specifically by the prosecutor whether Reyes was carrying any weapons, Lamont answered: "He didn't have one as far as I know." Lamont testified he saw Earvin had Reyes in a "headlock" when they fell to the ground. At this point, "nice Spanish guys comes over, [sic] starts punching three times, four times in his [Earvin's] back, what we thought was a punch at the time." (Emphasis added.)
According to Lamont, Kerron Butler pulled defendant off Earvin's back. From Lamont's perspective, the fatal event that took Kerron Butler's life occurred almost imperceptibly. That is, the chaos and fluidity that characterized this act of extreme violence made it nearly impossible for Lamont to discern exactly when and how Butler sustained his mortal wounds. Lamont's description of the events he witnessed captured the essence of this fog of violence:
Stuff started going on. Commotion starts to happen. I - - I'm - - I'm on the other side. So I'm just walking around not knowing what's going on yet, but then I turn around and then Kerron's [Butler] like, walking over, like, you all been hit, I been hit. So we look up and he was bleeding through his chest. So he falls to the ground. So, like, when he fall [sic] to the ground I go attend to Kerron. I'm looking at him try to see what is going on with him, where he is hit at. Earnie [Earvin] walking around my back hurt. My back hurt. Calvin [Christopher Lamont's twin brother] walks over to him to see what is going on with him. Then when I am looking down with Kerron, see what is going with him, gunshots go off. So when gunshots go off everybody scatters. So when everybody scatters that's the end of that - - end of that part of that situation. All the fighting commences, everything else happens and we're just dealing with the problems we have then.
Christopher Lamont also testified that he did not see either Earnest Earvin or Kerron Butler carry or use a knife, a firearm, or any other object fashioned as a weapon against defendant, Reyes, or any other person involved in that fateful early morning incident.
Brian Butler testified that he was inside the hotel during the fighting; his brother Kerron had already been stabbed and was on the ground bleeding when he and Rashod Eato went outside. Brian denied being involved in any of the various fights that allegedly occurred at the same time Reyes and Earvin were engaged. In response to the prosecutor's question on direct examination, Brian also testified that he told the police officers investigating the incident that Kerron used to sell marijuana and owned a nine millimeter handgun. However, he did not see his brother with drugs or weapons on the night he was killed.
On cross-examination by defense counsel, Brian Butler admitted that several months before the start of the first trial, he pleaded guilty to two counts of hindering apprehension or prosecution and one count of tampering with physical evidence. He was sentenced to a term of three years imprisonment. As framed by defense counsel, Brian admitted that the charge of hindering apprehension or prosecution and one count of tampering with physical evidence involved
taking a gun that Rashod Eato used to kill another human being and hiding it under the car so it wouldn't be found and he wouldn't be prosecuted for that crime, correct sir?
BRIAN BUTLER: I removed the handgun from the scene. That's all.
DEFENSE COUNSEL: You removed the handgun, left the scene and kept possession of the handgun, correct?
BRIAN BUTLER: Yes.
DEFENSE COUNSEL: And thereafter you got rid of it, correct?
BRIAN BUTLER: Yes.
DEFENSE COUNSEL: And that was the same handgun that fired the two gunshots that went off at the scene of this incident, correct, sir?
BRIAN BUTLER: I'm not sure.
DEFENSE COUNSEL: That was the same handgun, the nine millimeter handgun that your brother Kerron Butler owned, wasn't it, sir?
BRIAN BUTLER: No sir.
Several Franklin Township police officers responded to the hotel after receiving a report of shots fired. Detective Bryan Stillwell gave the following description of the chaotic situation he witnessed: "a very, very large crowd acting violently, fighting, a lot of yelling and screaming. We just tried to maintain the crowd, gain control as other officers arrived." He estimated there were between 50 to 100 people in the parking lot. Although he did not know how many officers were actually at the scene, Stillwell conceded on cross-examination that the responding police officers "were vastly outnumbered." He also characterized the crowd as "loud" and "disorderly."
Despite the daunting nature of the task, the responding police officers were eventually able to secure the scene. There were two injured men in the parking lot; Kerron Butler had a wound to his chest and was non-responsive; and Earnest Earvin had an apparent stab wound to his back but was able to talk.
Butler's cousin Rashod Eato accompanied him in the ambulance to Robert Wood Johnson University Hospital. Attending trauma surgeon Dr. Jeffrey Stuart Hammond was the emergency room physician on call that day. Dr. Hammond testified that Butler arrived by ambulance showing "a single large stab wound to the chest." He did not display any vital signs. Dr. Hammond ...