Opinion
DOCKET NO. A-2990-11T3
02-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH M. WATFORD, a/k/a KENNETH WATFORD, DAKEE B. MUKHWANNA, and EUGENE WATFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, and Danielle R. Pennino, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-11-0960. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, and Danielle R. Pennino, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Kenneth M. Watford appeals from the October 5, 2011 judgment of conviction finding him guilty after trial by jury of the passion/provocation manslaughter of his cousin, Ronald Rollines, and two weapons offenses. On February 15, 2012, defendant filed a notice of appeal. On July 15, 2013, we granted a limited remand for DNA testing, and retained jurisdiction. We now affirm defendant's convictions and sentence.
I.
We glean the following facts from the trial record. At approximately 4:00 a.m. on January 1, 2009, Jennifer Denby was driving in the southbound lane of the Maurice River Parkway when she spotted a body on the right side of the road. Denby called the Vineland Police Department and Detective Christopher Ortiz responded. Ortiz checked for a pulse on the body, later identified as Ronald Rollines, and found none. Minutes later, emergency medical services arrived and declared Rollines dead at 4:28 a.m.
Medical Examiner Ian Hood performed an autopsy and found sixteen stab wounds on Rollines' body; most were on his back but there were additional wounds on his upper arms, right thumb, right cheek, neck, and stomach. Several of the wounds had the capacity to be fatal and were delivered with considerable force, penetrating bones and organs. One stab wound severed Rollines' aorta and perforated his heart. Hood determined that the cause of death was the stab wounds, and classified the death as a homicide.
Rollines was defendant's cousin, and lived with defendant in Millville along with defendant's son, defendant's girlfriend, Nikia Ives, and Ives' son and daughter. One week before his death, Rollines moved to Philadelphia and began living with Daniel Stevens and Stevens' girlfriend, Nicole Lawson.
On December 31, 2008, Stevens drove Rollines to defendant's home to collect Rollines' social security disability check, which Rollines later cashed. After returning to Philadelphia, Rollines began receiving calls from defendant. At some point, Rollines asked Stevens to speak with defendant and give him directions to the apartment. Rollines told Stevens that defendant had some things that belonged to him. When defendant could not find the apartment, Stevens told him to meet at a nearby bar.
As Stevens and Rollines left Stevens' apartment, they saw defendant who told Rollines, "I want my fucking money." Defendant accused Rollines of taking $800 from defendant's safe. As Stevens was about to return to his apartment to get Lawson, he heard defendant say to Rollines "let Dan go because you ain't going nowhere." When Stevens and Lawson left the apartment a few minutes later, Rollines and defendant were gone.
Lawson confirmed that defendant had been outside the apartment with Rollines and Stevens that night, and that later, when she and Stevens returned, Rollines and defendant were gone. Lawson called Rollines, but got no answer. Lawson then called defendant, who told her Rollines had taken $800 out of his safe. Lawson told defendant that was not possible because Rollines, Stevens, and Lawson were not at defendant's house long enough. Lawson asked to speak with Rollines and spoke with him on defendant's other phone. Rollines told Lawson that he was "around the corner" with defendant. When Lawson asked what was going on, Rollines replied that he was being accused of taking $800. Rollines said that he would call Lawson back, but never did. Lawson tried calling Rollines the following morning but got no answer. When Lawson called defendant, he told her that Rollines "caught a cab to Camden" to go to the home of his niece, Lanell Rollines.
Lanell Rollines testified that she spoke with Rollines on the evening of December 31, 2008, but that Rollines did not visit her on January 1, 2009, and that Rollines had never been to Camden to see her.
Nikia Ives testified that she was running errands on December 31, 2008, and defendant called her just before 3:00 p.m. to ask her to go back to the house because Rollines was going to give him money. Ives came home, saw Rollines' house key on the counter, and called defendant, who told her to meet Rollines at a check cashing store. Ives went to the store and Rollines gave Ives some money, but not the full amount that defendant requested; defendant was on the phone when the exchange took place, and did not seem upset when Rollines did not give the full amount.
That evening, Ives went to church and then to a New Year's Eve celebration. She called defendant between midnight and 1:00 a.m., and defendant told her he was upset about money missing from his safe and he believed Rollines stole it. When Ives returned home around 1:00 a.m., defendant was there and told her that Rollines stole $800 and that he was going to go find Rollines. Ives asked defendant not to go, but he left the house in his black Ford F-150.
Ives then went to her cousin's house, where she spoke with defendant on the phone several times that evening. In one call, defendant told Ives that he was at a gas station on Route 322, and was going to look for Rollines in Philadelphia. In another, defendant said he was with Rollines, who denied taking the money and accused Ives's children of taking the money. In a third call, Ives could hear Rollines in the background; defendant said that he was in Philadelphia and they were on their way back. At some point between 3:00 and 4:00 a.m., Ives received another call from defendant, who said he was home.
Ives returned home and saw defendant's Ford F-150 in the backyard, which she found unusual because defendant never parked his truck there. Ives noticed that defendant's truck was dripping water. Ives expected Rollines to be there, but defendant told her he had dropped Rollines off. At some point, defendant told Ives, if anyone asks, to say that he was with her all night.
The following morning, defendant and Ives went to a restaurant for breakfast, and then drove to deliver a paycheck to defendant's brother. Defendant received a call that morning in which he responded to the caller that he did not know where Rollines was and that he dropped him off.
Police executed a search warrant at defendant's home and recovered a pair of men's sneakers. They also seized the F-150 and a burgundy truck. A drop of Rollines' blood was found on defendant's sneaker, and two small drops of blood were found on the F-150's bedcover. Ives testified that Rollines received dialysis treatment three times per week and once, when he was living with them, he came home and had a little bit of bleeding from his treatment. Ives also testified that when Rollines was still living there, he occasionally wore defendant's shoes.
Police traced the location of defendant's two cell phones that evening. Between 12:00 and 1:00 a.m., defendant's phone was pinging off towers near his home; between 1:08 and 1:23 a.m., the phones were moving northbound on Route 55; at 1:23 a.m., the phones were pinging near a Sunoco gas station in Mullica Hill; the call made at 1:23 a.m. lasted fifty-two minutes, and pinged off of towers near the Ben Franklin Bridge and, as the call continued until approximately 2:15 a.m., the phone pinged off towers near Stevens' residence; between 2:50 and 3:17 a.m., defendant's phone began moving along Broad Street in Philadelphia and progressed over the Ben Franklin Bridge; a call originating at 3:17 a.m. and ending at 3:28 a.m. showed defendant's phone location along Route 55 with the call ending near Sewell, approximately 21 miles north of where Rollines' body was found. Analysis of this call revealed that, if the phone was transported southbound toward defendant's home at the same rate of speed that it had been travelling in the call immediately prior, the phone would have passed through the location where Rollines' body was found on the Maurice River Parkway at about 3:47 a.m., fifteen minutes before his body was discovered.
There were no calls between 3:28 and 5:17 a.m., but between 5:17 and 5:51 a.m., the phones were located near defendant's home.
Police obtained surveillance tapes from a Sunoco gas station in Mullica Hill, as well as from the Ben Franklin Bridge, which were introduced at trial. The gas station tape showed a truck similar in appearance and features to defendant's F-150, pulling in between 1:24 and 1:27 a.m. The bridge tape showed a similar truck driving across the bridge at approximately 1:45 a.m.
Defendant was brought in for questioning on January 1, 2009, and denied killing Rollines. He claimed that he and Rollines never argued over money, and that Rollines did not owe him money. Defendant suggested that Rollines was robbed, and that "the true perpetrator intended to kill Rollines." When asked about Rollines' blood found on his sneaker and his truck, defendant said Rollines lived with him, had dialysis shunts that bled, would sometimes wear defendant's sneakers, and had previously been in defendant's truck. Defendant was subsequently arrested.
After defendant's arrest, he was held in the Cumberland County Jail. A warrant was obtained to intercept and record defendant's outgoing calls from the jail. Five of these calls were played for the jury.
In a call made at 10:40 a.m. on January 4, 2009, between defendant and his son, defendant stated: "I don't want nothing but the best for you, man. I'm so sorry I done let you down again. I done fucked up. I let that fucking anger get me on."
In a second call made at 1:20 p.m. between defendant and Ives, defendant stated, "New Year's night, did you -- did you grab me? Did you say 'baby don't go, please?' Did you do any of that? You didn't do any of that." Ives responded that she told defendant to get "anger management," and defendant replied "How come you didn't help me manage it then?"
In a third call on January 6, 2009, at 8:55 p.m. between defendant and his sister, his sister asked if defendant's ex-girlfriend was "part of his alibi," to which defendant responded by maintaining his innocence and saying "I don't need no fucking alibi."
In the call, defendant's sister refers to defendant's ex-girlfriend by her nickname "Tiny." Tiny's name is Carla Langley. Langley went to police on January 7, 2009, and claimed that defendant was at her residence at 4:00 a.m. on New Year's, that they had sex, and, when she awoke, defendant was gone. Subsequent investigation failed to validate this claim.
A portion of this tape was ruled inadmissible at trial due to speculative statements by defendant's sister.
In a fourth call on January 8, 2009, at 12:48 p.m. between defendant and Ives, Ives said she did not understand why the police seized the burgundy truck. Defendant responded, "I don't understand why they took the black truck. Baby, did you tell them when I left home I was driving the black truck? . . . I told them I drove my car. They just took it upon themselves to take both of my fucking trucks."
In a fifth call on January 8, 2009, at 8:25 p.m. between defendant and his brother, defendant indicated that he did not want Ives to see what he had been doing outside that night.
Defendant did not testify at trial. The jury began deliberations late in the day on July 6, 2011, and returned with a verdict the following day, finding defendant guilty of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
In defendant's counselled brief, he raises the following points:
POINT ONE
THE TRIAL COURT ERRED IN CHARGING THE JURY ON PASSION/PROVOCATION MANSLAUGHTER WHERE THERE WAS NO RATIONAL BASIS FOR THE CHARGE. (NOT RAISED BELOW)
POINT TWO
THE TRIAL JUDGE ERRONEOUSLY RULED THAT DEFENDANT'S REMOTE CONVICTIONS COULD BE INTRODUCED BY THE STATE TO IMPEACH DEFENDANT'S CREDIBILITY IF DEFENDANT TESTIFIED IN HIS OWN DEFENSE.
POINT THREE
DEFENDANT'S EIGHTEEN-YEAR EXTENDED TERM IS NOT SUPPORTED BY A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.
In defendant's pro se supplemental brief, four additional points are raised:
POINT ONE
THE TRIAL COURT IMPERMISSIBLY DOUBLE COUNTED DEFENDANT'S PRIOR CONVICTIONS WHEN THE COURT IMPOSED EXTENDED TERM ON DEFENDANT'S MAXIMUM TERM AND 85% PAROLE DISQUALIFIER IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS AND DUE PROCESS OF LAW U.S. CONST. AMEND. 6 & 14 AND NEW JERSEY CONST. ART. 1 PAR. 10.
POINT TWO
THIS PETITIONER'S DUE PROCESS RIGHTS AND RIGHT TO TRIAL BY JURY WERE VIOLATED IN VIOLATION OF THE 6th AND 14th AMENDMENTS OF THE U.S. CONSTITUTION AND NEW JERSEY'S CONSTITUTION—1947 ARTICLE 1 PARA's 8 & 10 WHEN THE COURT REFUSED TO ADMIT THE PHILADELPHIA POLICE REPORT INTO EVIDENCE FOR THE JURY'S CONSIDERATION.
POINT THREE
DID THE COURT ABUSE ITS DISCRETION BY DOUBLE COUNTING BOTH THE AGGRAVATING FACTORS AND DEFENDANT"S PRIOR CONVICTIONS WHILE DECIDING WHETHER TO IMPOSE AN EXTENDED TERM AND ITS GRADING OF THE RANGE OF THE EXTENDED TERM TO BE IMPOSED, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS [UNITED STATES] CONST. AMEND.14, ART. 1 PAR. 1, N.J.S.A. 2C:43-7.2.
POINT FOUR
DEFENDANT'S CONVICTIONS SHOULD BE SET ASIDE AS DEFENDANT AND DECEDENT WERE RULED OUT AS SOURCE OF HAIR FIBERS FOUND IN HANDS OF DECEDENT.
II.
For the first time on appeal, defendant argues that the trial court erred in giving a jury charge on passion/provocation manslaughter. The State maintains this argument should be barred because defendant invited any error at trial and, alternatively, there was a rational basis for the charge. As defendant did not raise this claim of error before the trial court, we review for plain error and will reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
During a jury charge conference, the State argued that only first-degree knowing and purposeful murder should be submitted to the jury and the lesser-included crimes of second-degree reckless manslaughter, aggravated manslaughter, and passion/ provocation manslaughter should not. Defendant's trial counsel argued that all three lesser-included crimes should be submitted to the jury. As to reckless manslaughter, defense counsel argued that because no one observed the killing, the court should "give the jury all possible determinations because they're ultimately the judges of the facts. . . . So we have to give them the widest range . . . of opportunities because they have to be given that province."
The judge agreed and decided to charge reckless manslaughter. The State then argued against submitting passion/provocation manslaughter. Defense counsel responded that the evidence that defendant accused Rollines of stealing money from him would support passion/provocation manslaughter:
[DEFENSE COUNSEL]: Judge, the other issue here too . . . is the length of time. Nobody sees this happen so I would say that the State might have a better argument if they're out sitting on the porch [and] Stevens and Rollin[es] and [defendant] come[] up and [Rollines] says hi and all of a sudden he stabs him for no reason at all, then you could say, hey look, there's no passion provocation but the problem here is nobody sees any of these people for the next at least hour and [a] half. Accepting what the State's theory is here, we don't know what happened intervening. For all we know, they could have gone to the [Maurice] River Parkway because they were going to talk it out and all of a sudden Rollin[es] said, hey, I've been hitting your woman for the last six months. We don't know. We have no idea what caused this but alone the theft of
the money could be sufficient provocation and that is for the jury to decide.
[COURT]: Yes, sir.
[PROSECUTOR]: It's words.
[DEFENSE COUNSEL]: No, it's an action.
[PROSECUTOR]: It's an allegation made by defendant that there is no basis in the record to support.
. . . .
[COURT]: I'm not willing to substitute my judgment for the jury's judgment. That's what I think the jury does and I think that especially in cases where you don't know what happened and there's considerable period of time even under the State's theory of the case where the two parties interacted, the jury could glean things that you and I may not and I don't think I should take it from their province. . . .
Clearly, defendant advocated for the charge at trial that he now claims there was no rational basis in the record to support. Defendant concedes that his trial counsel "inexplicably" requested the passion/provocation charge, but suggests the court erred in granting counsel's request.
Under the invited error doctrine, trial errors that are "induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). The doctrine provides that a "'disappointed litigant' cannot argue on appeal that a prior ruling was erroneous 'when that party urged the lower court to adopt the proposition now alleged to be error.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)). The principle is grounded in considerations of fairness, and is designed to "prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004).
Clearly, any error by the trial court in charging passion/ provocation manslaughter was invited by defendant. However, we will not apply the doctrine if doing so would "cause a fundamental miscarriage of justice[.]" A.R., supra, 213 N.J. at 562 (quoting M.C. III, supra, 201 N.J. at 342). A trial court has an independent obligation to assess the appropriateness of a lesser-included offense "even when requested by the defendant." State v. Crisantos, 102 N.J. 265, 276 (1986).
For a court to charge a jury "on an unindicted offense, the court must conclude not only that the offense is included in the charged offense but also that the evidence at trial present[ed] a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser." State v. Brent, 137 N.J. 107, 123 (1994); see N.J.S.A. 2C:1-8(e) ("The court shall not charge the jury with respect to an included offense unless there is a rational basis for . . . the included offense."). If the evidence supporting a lesser-included offense "leaves room for dispute," the charge is appropriate. Crisantos, supra, 102 N.J. at 278 (quoting State v. Sinclair, 49 N.J. 525, 542 (1967)). Conversely, if there is not a rational basis to support the charge, it should not be given because it "invites a jury verdict based on sheer speculation or compromise." State v. Bishop, 225 N.J. Super. 596, 602 (App. Div. 1988).
Passion/provocation manslaughter is defined as a "homicide which would otherwise be murder . . . [but] is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). "Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two elements constitute the objective standard[.]" State v. Robinson, 136 N.J. 476, 490 (1994). "The third and fourth elements are more subjective because they relate to the defendant's actual response." Ibid. "[A] trial court in charging a jury . . . must find first that the two objective elements of passion/provocation manslaughter are clearly indicated by the evidence." Id. at 491. "If they are, the two subjective elements 'should almost always be left for the jury.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 413).
Here, the trial testimony demonstrated that defendant travelled to Rollines' residence in Philadelphia after concluding that Rollines stole money from him; defendant confronted Rollines and demanded that he give him his "fucking money"; defendant spoke with Lawson after leaving with Rollines and told her, "The m-f'er took $800 out of my safe"; Rollines' injuries included sixteen stab wounds, which were initially interpreted by the State's investigator as a passion killing; and defendant's admission in a jailhouse call that he "let that fucking anger get me on."
We are satisfied that, although the evidence supporting a passion/provocation charge was not compelling, it was sufficient to support the trial judge's charging decision.
Defendant next contends that the trial court erred by holding that, if defendant testified, he could be impeached with convictions from more than a decade ago. The State sought to admit evidence of five of defendant's prior convictions, which occurred between fifteen and twenty years before his trial: 1990 convictions for conspiracy to commit armed robbery and burglary; a 1993 conviction for aggravated assault; a 1995 conviction for contempt; and a 1996 conviction for distribution of cocaine.
It was not determined until sentencing that defendant was released on parole for the 1996 conviction on October 12, 1999. When the trial court made its admissibility determination in this case, the date of release was still a contested issue that the State had not proven, and the trial court did not make a finding on it.
Even though defendant did not testify, he is permitted to challenge the trial court's ruling on the admissibility of these convictions because it had the potential to influence defendant's decision to testify. State v. Whitehead, 104 N.J. 353, 360 (1986).
We review a trial court's determination on the admissibility of a defendant's prior convictions under an abuse of discretion standard. State v. T.J.M., 220 N.J. 220, 234 (2015). "[W]hether a prior conviction may be admitted . . . rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978).
At the time of defendant's 2011 trial, former-N.J.R.E. 609 provided:
After defendant's trial, N.J.R.E. 609 was modified, effective July 1, 2014, with a more stringent test governing admissibility of more-than-ten-year-old convictions. Because neither party contends that the new version applies retroactively, we apply the prior version of N.J.R.E. 609. N.J.R.E. 609 currently provides, in pertinent part:
(b) Use of Prior Conviction Evidence After Ten Years
(1) If, on the date the trial begins, more than ten years have passed since the witness's conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.
(2) In determining whether the evidence of a conviction is admissible under Section (b)(1) of this rule, the court may consider:
(i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud,
(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. . . .
In considering the admissibility of a defendant's prior convictions, a trial court "must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Sands, supra, 76 N.J. at 144-45. In balancing the probative value of the convictions against their prejudicial effect, a court must balance various factors, including, remoteness; the nature of the convictions; and whether there were intervening convictions. Ibid.
These factors are comparable to those codified in the amended version of N.J.R.E. 609. However, if a conviction is more than ten years old, the new rule shifts the burden of proof to the proponent of the evidence, not defendant. --------
It was not disputed that defendant was not convicted of any crimes between his 1996 conviction and the current offense. In admitting the convictions, the trial court noted the seriousness and repetitiveness of the offenses. We see no abuse of discretion in the trial court's decision to admit these convictions for the purpose of impeaching defendant's credibility if he testified.
Defendant next claims that his eighteen-year extended term sentence is "manifestly excessive" and not supported by a qualitative weighing of aggravating and mitigating factors.
Our review of a sentencing determination is in accordance with a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We will affirm the sentence unless the sentencing guidelines were violated; the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
The sentencing court found aggravating factors one, two, and twelve. Aggravating factor one allows a sentencing court to consider "[t]he nature and circumstances of the offense, . . . including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2C:44-1(a)(1). Factor two allows a court to consider "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew . . . that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health . . . or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]" N.J.S.A. 2C:44-1(a)(2). Factor twelve considers whether a "defendant committed the offense against a person who he knew or should have known was . . . disabled[.]" N.J.S.A. 2C:44-1(a)(12).
The court "consider[ed] these [three] factors as one factor and place[d] a substantial weight on this one factor." Specifically, the court found that Rollines "was stabbed 16 times" and that defendant, who was Rollines' cousin and lived with Rollines for a period of time, had "the appearance of a halfback" and "knew the victim was disabled, on social security and was recently hospitalized" before the attack. The court found that these factors are "all related to the conduct of attacking a helpless individual with a knife in an isolated area."
Next, the court applied aggravating factors three, six, and nine, which account for a defendant's criminal history and the need for deterrence. Factor three allows a sentencing judge to consider whether there is a "risk that defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). Factor six allows a sentencing judge to consider "the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6). Factor nine allows consideration of the "need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9).
We are satisfied that the trial court appropriately applied these factors and considered defendant's "lengthy criminal history" that began in 1985, and the "seriousness of the offenses for which he's been convicted." We find no abuse of discretion in the judge's decision that the aggravating factors substantially outweighed the mitigating factor and the sentence imposed does not shock our judicial conscience. See Roth, supra, 95 N.J. at 365.
Finally, we note that on July 15, 2013, we granted a limited remand to the trial court for purposes of DNA testing of certain hair fibers found in Rollines' hands at the crime scene, which were not presented to the jury.
Six items were analyzed by the New Jersey State Police Office of Forensic Science:
• head hair from the victim (item #2);
• hair recovered from victim's right hand (item #3);
• hair recovered from victim's left palm (item #4);
• buccal sample from victim (item #5);
• head hair from defendant (item #6); and
• buccal sample from defendant (item #7).
The first test subjected two hair samples recovered from Rollines' hands (items #3 and #4), to a microscopic examination. Item #3 was described as "medium brown mixed-race Caucasian- Negroid head hair" and item #4 as a "medium to dark brown mixed-race Caucasian-Negroid hair fragment." The conclusion was that the hairs found in Rollines' hands were "physically and microscopically dissimilar" from defendant's hair.
A subsequent mitochondrial DNA test determined that Rollines and defendant "cannot be excluded as the source" of the hair found in Rollines' hands.
Defendant argues in his pro se brief that these results warrant a new trial because neither defendant nor Rollines "were born of a Caucasian parent." Defendant focuses on the microscopic examination but ignores the DNA test which does not exclude him as the source of the hair found in Rollines' hands. The evidence of defendant's guilt was compelling, and the inconclusive test results, if presented at trial, are unlikely to have changed the jury's verdict.
We find the remaining arguments raised by defendant in his pro se brief lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION