Opinion
DOCKET NO. A-4939-12T4
04-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOR T. FREY, a/k/a LACOUR TEDDY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-01-0024. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from a judgment of conviction for felony murder, N.J.S.A. 2C:11-3(a)(3), second-degree robbery, N.J.S.A. 2C:15-1(a)(1), second-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), after a jury trial. We affirm.
I.
We discern the following facts and procedural history from the record. On the morning of August 18, 2006, the body of seventy-five year old Mary Bostian was found in a bedroom of her home in Phillipsburg, New Jersey. Her hands and feet were bound with cords. An autopsy subsequently revealed that she suffered blunt force trauma to many parts of her body, bruising on her hands consistent with defensive injuries, and several displaced fractures. The Warren County Medical Examiner determined that the cause of Bostian's death was asphyxia, or suffocation, and the manner of death was homicide.
The investigation revealed that Bostian's bedroom had been ransacked, and a sledgehammer was located in the hallway outside of her bedroom. The police found tools, Bostian's purse, and a metal medallion on the floor in the living room.
Bostian's son, John Counterman, kept a 146-pound fireproof safe in the closet of a spare bedroom in Bostian's house. The safe had been framed into the back corner of a closet, and contained a handgun, receipts from Counterman's business, and $25,000 in bills, coins, and commemorative quarters. When the police responded to Bostian's home on August 18, 2006, the safe was missing.
A detective made a sketch of the medallion found on the floor of the living room and showed it to Counterman and Naomi Frey, Counterman's girlfriend and defendant's estranged wife. She recognized the medallion and said she had purchased identical "Thor's Hammer" medallions from a mail order catalogue. She had given one to Counterman, which he showed the police was located in his car. Frey gave another medallion to defendant's sister to give to defendant, and Frey had received a card from defendant thanking her for the medallion. A photograph of defendant taken three weeks before Bostian's murder, which showed defendant wearing the Thor's Hammer medallion, was admitted into evidence at trial.
Based upon the information supplied by Frey, the police attempted to locate defendant and learned he was living in Pennsylvania with his fiancé, Robin O'Grady. Robin was the ex-wife of Donald O'Grady (O'Grady), with whom defendant worked at a construction site in Pennsylvania.
We use Ms. O'Grady's first name only to avoid confusion and intend no disrespect by this informality.
Robin testified that on August 17, 2006, defendant went to work in the morning, and she baked a cake for him because it was his birthday, but he did not return home until early the following morning. Defendant gave Robin $800 and told her he had "robbed somebody." She recalled that defendant became upset after watching a news report regarding a murder that occurred in Phillipsburg, and that defendant said he "robbed that house" with O'Grady but "did not hurt that lady." Defendant told Robin that the house belonged to his estranged wife's boyfriend's mother and that he had taken a safe while O'Grady "was with the lady" in the house.
According to Robin, she told defendant to leave her home, but he returned a few days later with O'Grady, and they had "a lot of money." She later went to visit defendant at a motel in Wind Gap, Pennsylvania, and saw defendant and O'Grady drinking and getting tattoos.
On August 24, 2006, Pennsylvania State Troopers were asked by members of the Phillipsburg Police Department to assist in locating defendant. They went to a motel in Wind Gap, showed a photograph of defendant to a maid, and were told that he was staying in Room 136. They approached the room, observed the door was open and the room was vacant, and determined the occupant had just exited and fled into a nearby wooded area. Using a police dog, an officer tracked a scent from the room to an area in the woods where defendant was found hiding. Defendant was handcuffed and removed from the scene. A sock with $2400 in cash was located nearby.
Within an hour of defendant's apprehension, a motor vehicle with O'Grady in the front passenger seat entered the motel parking lot. O'Grady was found to be in possession of $1712 in cash and a small amount of cocaine, and was arrested.
The driver of the vehicle was also found to be in possession of a small quantity of drugs and was taken into custody. The driver testified at trial that he first met defendant and O'Grady at the motel, and he gave them tattoos for $600. Just prior to his arrest at the motel, the driver took O'Grady to a dirt road in Bangor, Pennsylvania, where O'Grady went into the woods to look for a handgun and where there was a safe, paper, and coins.
The driver took the police to the area where the police recovered Counterman's safe, which had been pried open, and his coin wrappers, receipts, tin cannisters, nine millimeter handgun, and ammunition. During a search of Room 136 at the motel, police recovered additional items that had been in Counterman's safe.
While in custody, defendant was administered his Miranda warnings and responded to the officers' questions. A recording of defendant's statements was played during the trial. Defendant said that on August 17, 2006, he and O'Grady drank beer and smoked marijuana and that he was "really really really really drunk." After he and O'Grady left a bar at 2:00 a.m. on August 18, 2006, O'Grady mentioned committing a burglary. They targeted Bostian's house because defendant had been told by his estranged wife Frey that there was a safe in the house that contained a lot of money.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant admitted going with O'Grady to Bostian's home but denied entering the house. According to defendant, due to his intoxication he passed out in the backyard and sometime later O'Grady woke him up and had a safe. Defendant said that O'Grady told him that he had gone into the house and "did what he had to do." Defendant said he attempted to lift the safe but was unable to do so because he had an injured arm and was intoxicated.
Defendant told the officers that O'Grady left the scene, returned with O'Grady's son's car, and he helped O'Grady put the safe in the car. He said he then fell asleep in the car and awoke when they were in the woods, where he and O'Grady put the safe.
Defendant admitted that the $2400 found in the sock in the woods was money taken from Counterman's safe. Defendant stated that he was unaware that Bostian had been killed until he saw the news report the following morning. Defendant acknowledged helping O'Grady pry open the safe, and explained that he had been staying at the motel since August 19, 2006, because he did not want to be questioned regarding Bostian's death.
Defendant was charged in an indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(3) (count one); second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); third-degree burglary, N.J.S.A. 2C:18-2 (count three); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count four). Defendant was found guilty on all of the charges after a jury trial.
Defendant appealed. We affirmed the trial court's denial of defendant's motion to suppress his statements to the police, but reversed defendant's conviction because the trial court did not instruct the jury on lesser included offenses. State v. Frey, A-1716-09 (App. Div. Aug. 15, 2011). The State's petition for certification was denied. State v. Frey, 209 N.J. 232 (2012).
At defendant's second trial, the jury found defendant guilty on the four counts charged in the indictment. Prior to sentencing, the court denied defendant's motions for a new trial based on newly discovered evidence and for a judgment of acquittal, or a new trial, based on the weight of the evidence.
Defendant was sentenced to an extended term sentence, N.J.S.A. 2C:44-3, of forty-years on count one with the requirement that he serve eighty-five percent of the term without parole eligibility and a five-year term of parole supervision after his release from incarceration pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to concurrent custodial terms of ten-years on count two, five-years on count three, and eighteen-months on count four. Defendant was ordered to pay fines, penalties, and $2500 in restitution to the Victims of Crime Compensation Board. This appeal followed.
On appeal, defendant's counsel makes the following arguments:
POINT I:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR [A] MISTRIAL MADE AFTER THE PROSECUTOR'S DISCOVERY VIOLATION RESULTED IN THE PROSECUTOR ELICITING TESTIMONY THAT DEFENDANT WAS INCARCERATED.
POINT II:
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN SUMMATION.
POINT III:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO REDACT THE PHOTOGRAPH OF HIM BECAUSE THE PROPOSED REDACTION WOULD HAVE ELIMINATED THE RISK OF UNDUE PREJUDICE WITHOUT LESSENING THE PROBATIVE VALUE.
POINT IV:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS ON A PROCEDURAL BAR BECAUSE, SINCE THE FULL EXTENT OF THE UNLAWFUL PRETEXTUAL ARREST OF DEFENDANT DID NOT BECOME COGNIZABLE UNTIL AFTER DEFENDANT'S FIRST TRIAL AND APPEAL, THE COURT'S RULING RESULTED IN A FUNDAMENTAL INJUSTICE.
POINT V:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
POINT VI:
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
POINT VII:
THE 40 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
(A) THE COURT MISAPPLIED ITS DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE.
(B) THE 40 YEAR BASE TERM WAS MANIFESTLY EXCESSIVE.
In defendant's pro se supplemental brief, he argues:
POINT I:
THE STATE VIOLATED ITS [BRADY] OBLIGATION UNDER [RULE] 3:13.
POINT II:
[THE] TRIAL COURT ERRED BY NOT GIVING AN ADVERSE INFERENCE CHARGE.
In defendant's pro se supplemental letter brief, he argues:
POINT I:
THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING DEFENDANT'S MOTION FOR AN ADVERSE-INFERENCE JURY INSTRUCTION CONCERNING THE DESTRUCTION OF THE HANDWRITTEN NOTES OF DETECTIVE CARROLL AND DETECTIVE SWICK.
II.
We turn our attention first to defendant's argument that the court erred by denying his request for a mistrial based upon a discovery violation by the State that defendant contends resulted in testimony from Rachel Glester that defendant had been incarcerated. Glester testified as a defense witness that she saw defendant on the evening of August 17, 2006, that defendant said he wanted to celebrate and get drunk, and that he appeared drunk. When asked by the prosecutor on cross- examination if she had remained in contact with the defendant, she responded: "When he first got incarcerated, we haven't, we never really stayed in contact, and since my incarceration, we've been, I guess you could say reunited. So we stayed in contact fairly since then, but no." The prosecutor then asked Glester if the defendant sent her a letter in January 2012, and she said that he did.
Defendant moved for a mistrial, arguing that the State did not provide during discovery the jail records reflecting that defendant sent correspondence to Glester in January 2012, and that the prosecutor's questioning of Glester regarding the correspondence resulted in her testimony about defendant's incarceration. The court denied the motion for the mistrial, finding the State's failure to turn over the letter did not prejudice the defense.
The court also found that Glester's testimony was not prejudicial because there was other evidence that defendant had been arrested, it was "no secret that the defendant was at one time incarcerated in connection with these charges," and Glester's testimony did not define "temporally the parameters of [defendant's] incarceration" or "define when and if defendant was let out of jail." In addition, the court instructed the jury to disregard Glester's testimony regarding her contacts and communications with defendant.
"A mistrial should only be granted 'to prevent an obvious failure of justice.'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). "Whether an event at trial justifies a mistrial is a decision 'entrusted to the sound discretion of the trial court.'" Ibid. (quoting Harvey, supra, 151 N.J. at 205). We "will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Ibid. (quoting State v. Jackson, 211 N.J. 394, 407 (2012)).
"To address a motion for a mistrial, trial courts must consider the unique circumstances of the case." Ibid. (citing State v. Allah, 170 N.J. 269, 280 (2002); State v. Loyal, 164 N.J. 418, 435-36 (2000)). "If there is 'an appropriate alternative course of action,' a mistrial is not a proper exercise of discretion." Ibid. (quoting Allah, supra, 170 N.J. at 281). "For example, a curative instruction, a short adjournment or continuance, or some other remedy, may provide a viable alternative to a mistrial, depending on the facts of the case." Ibid.
We are satisfied the trial court did not abuse its discretion by denying defendant's request for a mistrial. "The choice of sanctions for discovery-rule violations is left to the broad discretion of the trial court." State v. Marshall, 123 N.J. 1, 134 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). "[W]here the State's discovery-rule violation caused no apparent prejudice to defendant, the grant of a mistrial would have been manifestly inappropriate." Ibid.
As the trial court correctly found, the prosecutor's failure to disclose that defendant had sent correspondence to Glester in January 2012 was improper but not material and did not result in any prejudice to defendant. There was other evidence showing defendant and Glester knew each other. Glester's admission that defendant sent correspondence to her was not significant, and the court instructed the jury to disregard in its entirety Glester's testimony regarding her contact and communications with defendant after August 17, 2006.
The court also did not abuse its discretion in rejecting defendant's argument that a mistrial was required because of Glester's statements regarding defendant's incarceration. "Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). "[A]n appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)). "[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (quoting R. 2:10-2).
The prosecutor did not ask Glester directly about defendant's incarceration, and her reference to his incarceration was not in response to a question regarding the undisclosed correspondence defendant sent to her. Glester's inadvertent revelation that defendant had been incarcerated was an unsolicited answer to a direct question about whether she had contact with defendant after August 17, 2006. We are convinced the record supports the conclusion that Glester's statement was not capable of producing an unjust result, and the court's curative instruction was sufficient under the circumstances to ensure the jury did not consider Glester's statements during its deliberations. We therefore conclude the court properly denied defendant's motion for a mistrial.
Defendant opposed the State's request that the curative instruction make specific reference to Glester's statements regarding defendant's incarceration. It was then agreed the court would direct the jury to disregard Glester's testimony regarding her contact and correspondence with defendant, and that the court would ask if the jurors could honor the instruction. The court gave the requested instruction and no juror indicated an inability to comply with it.
III.
Defendant next argues that his conviction should be reversed based upon prosecutorial misconduct. He contends that the prosecutor's comment during summation, that defendant celebrated Bostian's death by getting a tattoo, was improper, prejudicial, and requires reversal of his conviction. We disagree.
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Cordero, 438 N.J. Super. 472, 489-90 (App. Div. 2014), certif. denied, 221 N.J. 287 (2015) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). "[I]n the prosecutor's effort to see that justice is done, the prosecutor 'should not make inaccurate legal or factual assertions during a trial.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting Frost, supra, 158 N.J. at 85). "Rather, a prosecutor should 'confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Ibid. (alteration in original) (quoting State v. Smith, 167 N.J. 158, 178 (2001)).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial, the issues presented, and the general approaches employed." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Nelson, 173 N.J. 417, 460 (2002) (alterations in original) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
We are not convinced that the prosecutor's statement that defendant celebrated Bostian's death was clearly and unmistakenly improper. Prosecutors are permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996). Here, the prosecutor's statement was supported by the evidence and was made expressly in response to defense counsel's arguments that defendant knew nothing about what occurred in Bostian's house; defendant first learned of Bostian's murder from a news report; and defendant went to the motel to wait for an investigation to reveal he was not involved.
The prosecutor was entitled to argue that defendant's actions with O'Grady were inconsistent with defense counsel's assertions regarding defendant's innocence. We reject defendant's reliance upon State v. Blakney, 189 N.J. 88 (1996), in support of his contention that the prosecutor's statement triggered an irrelevant "emotional flashpoint" in the minds of the jury that had the capacity "to anger" the jury against him. In Blakney, the Court determined that the prosecutor's expression of personal outrage at injuries inflicted by the defendant "crossed the bounds of propriety" because the "prosecutor's personal feelings of outrage and revulsion were not relevant to the consideration of any issue in the case and were unnecessarily inflammatory." Id. at 95.
Here, the prosecutor did not express any personal outrage, his comments were supported by reasonable inferences from the evidence, and his statements were made in direct response to defense counsel's arguments to the jury. The prosecutor's comments were appropriate and were not capable of producing an unjust result.
IV.
Defendant next contends the court erred by denying his motion to redact a portion of a photograph of defendant that was admitted in evidence and which he contends included a tattoo which appeared to be a swastika. "The trial judge has broad discretion to exclude evidence as unduly prejudicial pursuant to N.J.R.E. 403." State v. Nantambu, 221 N.J. 390, 402 (2015). The trial judge's "evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." Ibid. (quoting State v. Harris 209 N.J., 431, 439 (2012)). A reviewing court does not, however, accord deference to the trial judge's legal conclusions. Ibid. Thus, this court should "uphold the facts found by the motion judge to the extent they are supported by sufficient credible evidence in the record, but 'apply the law as [it] understand[s] it' to those facts." Id. at 403 (quoting State v. Mann, 203 N.J. 328, 337 (2010)).
We have reviewed the photograph and find no basis to reverse the court's decision to admit it into evidence without the requested redaction. "[T]he admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests with the discretion of the trial judge, 'whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture.'" State v. Conklin, 54 N.J. 540, 545 (1969) (quoting State v. Smith, 32 N.J. 501, 525 ( 1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961)).
The photograph was highly probative because it showed defendant, three weeks before Bostian's murder, wearing the medallion found in Bostian's living room. We have reviewed the photograph and are convinced that the court's finding that the challenged tattoo did not resemble a swastika and "look[ed] more like some mechanical bug" is supported by the evidence. As a result, admission of the photograph did not prejudice defendant and the trial court did not abuse its discretion by denying defendant's redaction motion.
V.
Defendant contends the court erred by denying his motion to suppress his statements and the evidence seized at the time of his arrest. Defendant argues that the court incorrectly found that our decision on his appeal from his first conviction, which sustained the denial of his motion to suppress, barred consideration of the suppression motion made prior to his trial after remand. He alleges that facts developed after his first trial required that the court consider again his motion to suppress.
On August 21, 2006, a Pennsylvania Magisterial District Judge found probable cause for the issuance of an arrest warrant for defendant and a complaint charging defendant with burglary, criminal trespass, theft of movable property, receiving stolen property, and criminal mischief in violation of Pennsylvania law. Three days later, on August 24, 2006, the Pennsylvania State Police were first contacted and requested to assist in locating defendant in connection with the investigation of Bostian's murder, and took defendant into custody based upon the arrest warrant after finding him in the woods by the motel.
On January 26, 2011, after defendant's first trial, the Pennsylvania charges against defendant were dismissed. Defendant contends that the dismissal of the Pennsylvania charges demonstrates that they were filed as an impermissible connivance for the purpose of unlawfully taking him into custody in connection with Bostian's murder. He argues that his statements and the seizure of evidence were the product of his arrest in Pennsylvania and therefore should have been suppressed because the dismissal of the Pennsylvania charges established that the arrest was unlawful. Defendant asserts that the dismissal of the Pennsylvania charges constituted a change in circumstances requiring the trial court to consider again his motion to suppress even though the denial of the suppression motion had been affirmed on appeal. Frey, supra, slip op. at 22.
On our "review[] [of] a grant or denial of a motion to suppress [we] must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We "should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" Id. at 425 (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
"A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference." Ibid. "Therefore, a trial court's legal conclusions are reviewed de novo." Ibid.
Defendant contends that the court incorrectly concluded that it could not consider defendant's motion to suppress because we affirmed the first trial court's denial of the motion. Although the trial court correctly noted that Rule 2:2-5 generally precludes reconsideration of a motion to suppress which had been affirmed on appeal, it considered defendant's argument that the dismissal of the Pennsylvania charges subsequent to defendant's first trial constituted a potential change in circumstances warranting reconsideration of the denial of the suppression motion.
We are satisfied the court correctly denied defendant's suppression motion because there was no dispute that there was a validly issued Pennsylvania arrest warrant for defendant when he was taken into custody on August 24, 2006. The arrest warrant was based upon a finding of probable cause made by a Pennsylvania magistrate on August 21, 2006, three days before the Pennsylvania State Police were first requested to assist in locating defendant.
Defendant relies upon State v. Moore, 260 N.J. Super. 12 (App. Div. 1996), arguing that evidence obtained pursuant to an invalid warrant must be suppressed. In Moore, the police arrested the defendant on a warrant that had been vacated, but the police were unaware it was no longer valid due to an administrative error. Id. at 14-15. We held that the evidence seized as a result of the defendant's arrest must be suppressed because the good faith of the police officers did not provide an exception to the requirement that "the fruits of such an unlawful arrest are not available to the State for [defendant's] prosecution." Id. at 16.
Our holding in Moore is inapplicable here because the Pennsylvania arrest warrant was valid when defendant was taken into custody. "The warrant requirement provides citizens with protection from unreasonable arrests by having a neutral magistrate determine probable cause before an arrest is made." State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Brown, 205 N.J. 133, 144 (2011)). Defendant did not present any challenge to the Pennsylvania magistrate's finding of probable cause. The trial court therefore correctly denied defendant's motion to suppress because there was no basis to conclude the Pennsylvania arrest warrant was invalid.
VI.
Defendant also challenges the court's denial of his request for a new trial based upon newly discovered evidence. Defendant's motion was founded upon the certifications of two individuals who stated that Robin admitted that she falsely implicated defendant in order to protect her son, Donald O'Grady, III. The certifications were obtained after defendant's second trial ended.
"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (alteration in original) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)). Moreover, the governing standard as set forth in Rule 3:20-1, states, in pertinent part:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Evidence is considered "newly discovered" and requires "a new trial when it is '(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.'" State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). A defendant must establish all three prongs of the standard in order for a new trial to be granted. State v. Ways, 180 N.J. 171, 187 (2004).
Under prong one of the standard, "'[m]aterial evidence is any evidence that would have some bearing on the claims being advanced,' and includes evidence that supports a general denial of guilt." Nash, supra, 212 N.J. at 549 (alteration in original) (quoting Ways, supra, 180 N.J. at 188). "Moreover, '[d]etermining whether evidence is merely cumulative, or impeaching, or contradictory,' necessarily implicates prong three, 'whether the evidence is of the sort that would probably change the jury's verdict if a new trial were granted.'" Ibid. (alteration in original) (quoting Ways, supra, 180 N.J. at 188-89).
"[E]vidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory." Ibid. (quoting Ways, supra, 180 N.J. at 189). Thus, as "prongs one and three are inextricably intertwined, . . . 'evidence [that] would shake the very foundation of the State's case and almost certainly alter the earlier jury verdict' could not be categorized as 'merely cumulative.'" Ibid. (second alteration in original) (quoting Ways, supra, 180 N.J. at 189). "The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 549-50 (quoting Ways, supra, 180 N.J. at 191-92).
"Prong two requires that 'the new evidence must have been discovered after completion of trial and must not have been discoverable earlier through the exercise of reasonable diligence.'" Id. at 550 (quoting Ways, supra, 180 N.J. at 192). "The defense must 'act with reasonable dispatch in searching for evidence before the start of the trial.'" Ibid. (quoting Ways, supra, 180 N.J. at 192).
Here, the certifications of the two witnesses were proffered solely for the purpose of impeaching the credibility of Robin, and the record supports the court's conclusion that the newly discovered evidence would have not altered the jury's verdict. Id. at 549. As noted by the court, there was substantial evidence supporting defendant's conviction independent of Robin's testimony, including the testimony of witnesses who saw defendant and O'Grady together on the evening Bostian was murdered, defendant's admissions to the police, the recovery of defendant's medallion in Bostian's home, testimony that two people were required to lift and move the heavy safe, defendant's access to and use of the proceeds of the robbery, and defendant's flight with O'Grady to the motel in Pennsylvania. We are therefore satisfied that the court correctly denied defendant's motion for a new trial.
VII.
In his pro se submissions defendant argues that the State violated its obligation to turn over exculpatory materials under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because two of the detectives who investigated Bostian's murder destroyed notes they made after preparing their police reports. Defendant also argues that the court erred by failing to give the jury an adverse-inference charge based upon the detectives' destruction of their notes.
The evidence at trial was that one of the detectives destroyed his notes upon completion of his police report in 2006. The other detective was unsure if he had made notes, but testified that if he did, they were destroyed upon completion of his report in 2006.
Whether there has been a violation of the discovery rules is an issue of law, which this court reviews de novo. State v. Dabas, 215 N.J. 114, 131 (2013). "A prosecutor's obligation to 'turn over material, exculpatory evidence to the defendant' is well established . . . ." Nash, supra, 212 N.J. at 544 (quoting State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). "The obligation extends as well to impeachment evidence within the prosecution's possession." Ibid. "A breach of this duty of disclosure — in appropriate circumstances — violates a defendant's due process rights." Ibid. (citing Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218).
"In order to establish a Brady violation, defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Nelson, 330 N.J. Super. 206, 212 (App. Div. 2000) (citing State v. Martini, 160 N.J. 248, 268 (1999)). "The Brady disclosure rule applies to information of which the prosecution is actually or constructively aware." Id. at 213. Moreover, "evidence is material for Brady purposes 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 156 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985) (plurality opinion of Blackmun, J.)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
The record does not support defendant's contention the State committed a Brady violation because there is no evidence the notes would have been favorable to his defense. Defendant speculates that the contemporaneous notes may have shown that the Thor's Hammer medallion was not actually found in Bostian's home because one of the detectives did not initially notice the medallion. There was, however, other evidence showing that the medallion was recovered from the home, including another detective's testimony that he saw the medallion in the home and subsequently drew a sketch of it, and a video recording of the crime scene which shows the medallion in Bostian's home on the day her body was discovered.
For the same reason, defendant fails to demonstrate that the notes are material. The record does not support a conclusion that there is a reasonable probability that, had the handwritten notes been provided to the defense, "the result of the proceeding would have been different." Marshall, supra, 148 N.J. at 156. Under such circumstances, the prosecutor's alleged failure to provide defendant with the detectives' handwritten, contemporaneous notes did not constitute a Brady violation.
We are also not persuaded that the court erred by failing to give an adverse-inference charge based upon the destruction of the notes. Whether there was a violation of a discovery rule and "whether the trial court was empowered to impose the sanction of an adverse-inference charge" are legal issues, which this court reviews de novo. Dabas, supra, 215 N.J. at 131. "On the other hand, if the trial court had the legal authority to give the adverse-inference charge, [we] must then answer whether the trial court abused its discretion in not doing so." Id. at 132. "The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." Ibid. (quoting Marshall, supra, 123 N.J. at 134).
We discern no abuse of discretion in the court's denial of defendant's request for an adverse-inference charge. The detectives' notes were destroyed in 2006, contemporaneous with the completion of their reports, and prior to defendant's indictment in 2008. The notes were destroyed before the Supreme Court's decision in State v. W.B., 205 N.J. 588, 607-08 (2011), which prospectively required law enforcement officers to maintain their notes and imposed the remedy of an adverse-inference charge where law enforcement officers destroyed notes made during their investigations. As the trial court here noted, an adverse-inference charge was not required because the destruction of the detectives' notes occurred many years prior to the Supreme Court's decision in W.B.
The Court noted, however, that an adverse-inference charge would not be required in every case where notes are lost or stolen. Id. at 608-09, n.10.
Defendant relies on Dabas, where the Court found that the destruction of an investigator's contemporaneous notes prior to a defendant's trial in 2007, four years before the W.B. decision, was a discovery violation warranting an adverse-inference charge. Dabas, supra, 215 N.J. at 139-41. In Dabas, however, the notes were destroyed more than one year after the defendant was indicted and therefore the obligation to produce the notes was mandatory under Rule 3:13-3(b). Id. at 132. Thus, the Court recognized that the situation was not governed by W.B. because W.B. addressed a different issue, the pre-indictment destruction of a law enforcement officer's notes. Id. at 137-38.
Here, the notes were destroyed before defendant was indicted; and therefore, defendant's reliance on Dabas is misplaced. The trial court correctly concluded the officers' destruction of their notes did not constitute a discovery violation under Rule 3:13-3 and was not subject to the requirements of W.B. Under the circumstances presented here, we are convinced that the court did not abuse its discretion in denying defendant's request for the adverse-inference charge.
VIII.
Defendant argues that his sentence was excessive and that the court impermissibly weighed and balanced the aggravating and mitigating factors. We disagree.
We review a "trial court's 'sentencing determination under a deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155, 169-70 (2006). We may "not substitute [our] judgment for the judgment of the sentencing court." Lawless, supra, 214 N.J. at 606. We must affirm a sentence if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 195 N.J. 334, 364-65 (1984)).
Based upon our review of the record, we discern no basis to reverse the court's imposition of sentence. Defendant contends the court engaged in impermissible double counting of aggravating factor two, N.J.S.A. 2C:44-1(a)(2), and aggravating factor twelve, N.J.S.A. 2C:44-1(a)(12), because its finding of each was based upon Bostian's age. The argument is not supported by the record.
Bostian was seventy-five years of age on August 18, 2006, and therefore her age properly supports the court's finding of aggravating factor twelve. N.J.S.A. 2C:44-1(a)(12). We are also satisfied there is substantial evidence unrelated to Bostian's age supporting the court's finding of aggravating factor two. The evidence showed that Bostian suffered a savage blunt force beating, which did not cause her death, but resulted in numerous and extensive injuries including bruising to the head, eye area, lips, right arm and shoulder, left wrist and forearm, and four displaced rib fractures. We therefore conclude the "gravity and seriousness of the harm inflicted on the victim," separate from the suffocation that actually caused her death, supported the court's finding of aggravating factor two. N.J.S.A. 2C:44-1(a)(2); see Lawless, supra, 214 N.J. at 610 ("N.J.S.A. 2C:44-1(a)(2) compels 'a pragmatic assessment of the totality of harm inflicted by the offender on the victim.'" (quoting State v. Kromphold, 162 N.J. 345, 358 (2000))).
For the same reason, we reject defendant's argument that, in its finding of aggravating factor two, the court impermissibly double counted Bostian's death.
We also are not persuaded by defendant's argument that his sentence is manifestly excessive. The court properly considered defendant's substantial prior criminal record and the circumstances of the offenses for which he was convicted, found and weighed the aggravating and mitigating factors, and imposed a sentence in accordance with the applicable legal principles that does not shock our judicial conscience. Bolvito, supra, 217 N.J. at 228.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written 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