Opinion
DOCKET NO. A-3704-12T4
12-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN MICHAEL MERTZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno, and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-06-00488. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a judgment of conviction for first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and/or (2), following a jury trial. We affirm.
I.
We discern the following facts from the record. On May 26, 2002, the body of J.W. (victim) was found in a field in West Deptford. The victim's clothing was in disarray: her boots were loosely laced and were on the wrong feet, her blouse was inside out, and her brassiere was unhooked. An autopsy revealed the victim had been beaten and strangled, suffered multiple stab and slash wounds, and a vaginal swab disclosed the presence of semen. There was expert testimony the victim died between 3:15 a.m. and 2:00 p.m. on Saturday, May 25, 2002.
Law enforcement officers knocked on the doors of the rooms at a motor lodge (lodge) located across the street from the field where the victim was found, but did not find evidence of any struggle or any blood within the rooms. In the parking lot they saw a yellow Honda CR-X vehicle that was registered to defendant. Officers spoke to defendant, who was staying at the lodge, and observed he appeared calm and not nervous.
The semen found in the victim's body was sent to the New Jersey State Police for testing. During the investigation, law enforcement officers obtained buccal swabs from approximately one hundred men, but none resulted in a positive match to the DNA obtained from the semen.
On July 10, 2007, law enforcement received information from the New Jersey State Police Lab which led to an investigation of defendant. During a July 16, 2007, interview with detectives, defendant said that at the time of the victim's murder he was a heavy drug user, he owned a yellow Honda vehicle, and he was staying at the lodge. Defendant was shown a picture of the victim but denied knowing her. He was advised his DNA was found in the victim's body, but he denied having sex with her and ever having been with her. The interview ended when defendant requested an attorney.
Defendant voluntarily returned to the police station the next day and the interview continued. Defendant said he had been "petrified" while giving his statement the prior day, and admitted he met the victim at a bar late in the evening of May 24, 2002, had sex with the victim in his car, and then dropped her off at a trailer park near the lodge. Defendant said he went to work the next day, for which he was paid off the books in cash. He denied killing the victim and provided a buccal swab to the officers. The buccal swab was sent to the New Jersey State Police Lab where it was determined that defendant's DNA profile "matched the major contributor DNA profile" obtained from the semen.
On December 21, 2008, defendant was arrested and charged with the victim's murder and other offenses. In December 2011, officers executed a search warrant at the residence where defendant lived with his grandmother, and seized a pocketknife found in a tool chest in the garage.
After his arrest, defendant was held in custody with H.L. at the Gloucester County Jail. H.L. testified defendant said he had been had been staying in a "hotel" and had a relationship with the victim which they kept secret because of defendant's girlfriend. H.L. described the yellow Honda CR-X defendant owned at the time of the murder. According to H.L., defendant said he "was the one that did it and that he was going to get away with it [because] they couldn't prove that he did it. There was no evidence."
H.L. testified defendant said he and the victim were getting high and having sex and when the victim refused his request for money to buy drugs, he hit the victim several times with his hands, and stabbed her with a knife. H.L. testified that defendant mentioned using a fishing knife that would not be found because he hid it.
According to H.L., defendant said he needed an alibi, so he went to work on the day following the murder, and also to his grandmother's house to change his clothes and hide the knife. Defendant told H.L. the victim was wearing her shoes on the wrong feet and her shirt was inside out. H.L. testified that he never reviewed any discovery materials related to the case against defendant.
On June 10, 2008, a State Grand Jury returned an indictment charging defendant with: first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree aggravated sexual assault during the commission of a crime, N.J.S.A. 2C:14-2(a)(3) (count three); first-degree aggravated sexual assault while armed, N.J.S.A. 2C:14-2(a)(4) (count four); first-degree aggravated sexual assault resulting in severe personal injury, N.J.S.A. 2C:14-2(a)(6) (count five); and first-degree aggravated sexual assault upon a mentally incapacitated victim, N.J.S.A. 2C:14-2(a)(7) (count six).
After the State rested at trial, the court granted defendant's motion for acquittal on counts two through six. On October 25, 2012, after five days of deliberations, the jury found defendant guilty of knowing and/or purposeful murder (count one).
On October 30, 2012, a deliberating juror (juror five) contacted defendant's counsel and the court. As a result of these contacts, defendant's counsel filed a motion under Rule 1:16-1 requesting leave to interview the juror. The court conducted a proceeding on the record during which the court questioned the juror over the telephone in the presence of counsel and defendant. The court subsequently denied defendant's motion for reasons set forth in a written opinion.
The court sentenced defendant to a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision upon release under the No Early Release Act, N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant raises the following points.
POINT I
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING LEAVE TO INTERVIEW A JUROR WHO CONTENDED THAT HER VOTE OF GUILTY DID NOT REFLECT HER DETERMINATION. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PAR. 9.
POINT II
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN FAILING TO CHARGE THE JURY THAT IT MUST FIND THAT THE DEFENDANT'S ALLEGED STATEMENTS TO AN INFORMANT WERE SUFFICIENTLY CORROBORATED. U.S. CONST., AMEND. XIV; N.J. CONST., (1947) ART. 1, PAR. 10 (NOT RAISED BELOW).
POINT III
THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S.
CONST., AMEND. XIV; N.J. CONST., (1947) ART. 1, PARS. 9, 10 (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
II.
Defendant first argues the court erred when it denied his motion for leave to interview juror five. We consider the court's denial of defendant's motion under the abuse of discretion standard of review. See State v. R.D., 169 N.J. 551, 559-60 (2001) (holding the abuse of discretion standard of review applies to trial court determinations regarding whether a juror has been tainted by extraneous information during a trial); State v. Brown, 442 N.J. Super. 154, 182 (App. Div. 2015). Deference is accorded to trial courts "in exercising control over matters pertaining to the jury." R.D., supra, 169 N.J. at 560.
Rule 1:16-1 provides that, "[e]xcept by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney, interview, examine, or question any grand or petit juror with respect to any matter relating to the case." "'Good cause intended by the rule . . . [refers to] [] some event or occurrence that injected into the deliberation in which the capacity for prejudice inheres.'" State v. Loftin, 146 N.J. 295, 381 (1996) (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 1:16-1 (1996)).
Courts are "reluctant to attack a verdict after a trial by probing into the deliberative process of the jurors." State v. Scherzer, 301 N.J. Super. 363, 495 (App. Div.), certif. denied, 151 N.J. 466 (1997). Interrogation of jurors after they have been discharged "is an 'extraordinary procedure'" which should "be utilized 'only upon a strong showing that a litigant may have been harmed by jury misconduct.'" Davis v. Husain, 220 N.J. 270, 279 (2014) (quoting State v. Athorn, 46 N.J. 247, 250 (1966), cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966)). "That exacting standard balances the litigant's interest in ensuring an impartial jury with the importance of keeping deliberations secret." Husain, supra, 220 N.J. at 279.
Where there is "no suggestion of outside influence, racial prejudice, media exposure, or any of the other sorts of irregular influences sufficient to create a potential for prejudice," a court has not abused its discretion in denying a request to question a juror or denying a motion for a new trial. Scherzer, supra, 301 N.J. Super. at 495-96. "Only when there is proof of juror bias or the injection by a juror in the deliberations of personal knowledge of material facts not in evidence will reversal be required." State v. Young, 181 N.J. Super. 463, 471 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982).
During the court's careful questioning, juror five confirmed she voted for a guilty verdict on the murder charge and acknowledged she affirmatively advised the court of her guilty verdict when the jury was polled. She also disclosed that as a result of her interactions with her fellow jurors during the deliberative process, she made a decision to find defendant guilty of murder. She explained that she "just went along with everybody at the very last half hour, [or] hour," and that she was "afraid to speak up[,]" and that she thought her verdict was wrong. As the trial court correctly found, the information provided by juror five supports only the conclusion that she had second thoughts about the verdict she rendered.
Juror five did not reveal any "outside influences, racial bias, media exposure," juror misconduct, or any other extraneous influences that created the capacity to prejudice defendant. Scherzer, supra, 301 N.J. Super. at 495-96; see also State v. LaRocca, 81 N.J. Super. 40, 44 (App. Div. 1963). In contrast, she disclosed nothing more than that she made a decision based upon her discussions with the deliberating jurors about which she had regrets.
"Generally, discussions that jurors have while deliberating remain shielded from litigants, attorneys, and the public eye, and may not provide grist for overturning the jury's verdict." Husain, supra, 220 N.J. at 280. A juror's change of heart does not provide good cause under Rule 1:16-1. See, e.g., Athorn, supra, 46 N.J. at 253 (finding frivolous a claim of jury misconduct where a juror alleged that he was tricked into voting guilty, that another juror called him stubborn, and that the jury "looked at him as if they were looking to get home or something . . . ."); Young, supra, 181 N.J. Super. at 470-71 (finding no "proof of juror bias or the injection by a juror in the deliberations of personal knowledge of material facts not in evidence" when a juror allegedly told defense counsel she felt pressured).
We reject defendant's contention that our decision in State v. Bisaccia, 319 N.J. Super. 1 (App. Div. 1999), requires a reversal here. In Bisaccia, we held the court should have conducted a voir dire of a juror where there was information that during a month long break in the trial, the juror may have been exposed to prejudicial information that he shared with other jurors, and which caused him to conclude he could not be fair. Id. at 14. We noted that our courts "have permitted and, indeed, have required voir dire inquiry of jurors, even while deliberating, about the possibility and impact of outside or non-evidentiary extraneous considerations or influences affecting the ability of a juror to be fair and impartial." Id. at 15 (citations omitted.)
Unlike the information before the court in Bisaccia, there is nothing in what juror five related to the court regarding "outside or non-evidentiary extraneous considerations or influences affecting the ability" of the jurors to be fair and impartial. Ibid.; see also Scherzer, supra, 301 N.J. Super. at 495-96. Juror five indicated only that she rendered a guilty verdict and upon reflection believed her decision was wrong.
We are convinced the trial court did not abuse its discretion when it denied defendant's request to interview juror five. The court correctly found there was no information establishing good cause to interview juror five under Rule 1:16-1.
III.
Defendant next argues his conviction should be reversed because the court did not sua sponte charge the jury that it must find defendant's alleged statements to H.L. were sufficiently corroborated. A failure to object to a trial court's instructions is deemed a waiver of the right to object to the instruction on appeal. R. 1:7-2; State v. Torres, 183 N.J. 554, 564 (2005); State v. Whitaker, 402 N.J. Super. 495, 513 (App. Div. 2008), aff'd in part, 200 N.J. 444 (2009). Because defendant did not request the jury charge at trial and did not object to the court's failure to provide it, we review his argument under the plain error standard. R. 2:10-2. To constitute plain error, the errors or omissions must be "of such a nature as to have been clearly capable of producing an unjust result." Ibid.; see also State v. Galicia, 210 N.J. 364, 386 (2012).
Confessions must be "corroborated by independent evidence that 'bolster[s] the confession and tend[s] to generate a belief in its trustworthiness.'" State v. Cook, 179 N.J. 533, 560 (2004) (alterations in original) (quoting State v. Lucas, 30 N.J. 37, 56 (1959)). The corroboration requirement serves both legal and factual components. Cook, supra, 179 N.J. at 564. "As a matter of law, the trial court initially must determine whether the State has presented independent corroborative evidence of the trustworthiness of the confession." Ibid. If the State presents "'some' corroboration, the confession is submitted to the [jury] to 'resolve arguments and speculation about its weight and sufficiency.'" Id. at 564-65 (citation omitted) (quoting State v. DiFrisco, 118 N.J. 271, 272 (1990)).
While the "primary onus is on the defense to request" a corroboration charge, "the failure of the trial court [sua sponte] to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and '[t]he entire thrust of the defense' was that the statements at issue were untrue." State v. Reddish, 181 N.J. 553, 621 (2004) (alteration in original) (quoting State v. Roach, 146 N.J. 208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).
We conclude the trial court did not commit plain error by failing to sua sponte instruct the jury regarding corroboration. There was ample evidence presented which corroborated the statements H.L. attributed to defendant. Defendant's admission to H.L. that he had sexual relations with the victim on the evening she was murdered was corroborated by the semen found in the victim. Defendant's statement that he used a knife to commit the murder was supported by evidence regarding the victim's numerous stab and slash wounds. Defendant's description of the victim's clothing and his statement that her shoes were on the wrong feet were corroborated by testimony regarding the condition of the victim's clothes and shoes when she was found. Defendant's statements to H.L. regarding the make and model of defendant's car, defendant's drug habits, and that defendant went to work the day after the murder were corroborated by other evidence introduced during the trial, including statements defendant had made to the police. We are convinced the State presented "more than sufficient evidence" to corroborate H.L.'s statements, "for purposes of sending the question of its reliability to the jury for determination." Cook, supra, 179 N.J. at 565.
Moreover, the court instructed the jury generally with regard to making a determination of the credibility of statements. In part, the court explained:
In considering whether or not any statement is credible, you should take into consideration the circumstances and facts as to how the statement was made as well as all other evidence in this case relating to this issue. If after consideration of all these facts you determine that a statement was not actually made or that the statement is not credible, then you must disregard the statement completely. If you find that any statement was made and that part or all of that statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.
The court also provided the jury with a more specific instruction regarding its consideration of H.L.'s testimony.
You have [] heard testimony from a witness, [H.L.], regarding discussions which occurred with the defendant while the defendant was incarcerated in the Gloucester County Jail
. . . . The testimony regarding the discussions which alleged[ly] occurred [between defendant and H.L.] is offered for [] your use as evidence in this matter and just as any other testimony, you are to determine what weight, if any, it should be given using the instructions . . . on credibility of statements.
H.L.'s credibility was also a focal point of defense counsel's summation. Defense counsel emphasized the inconsistencies in H.L.'s testimony, the lenient sentences he received for two robberies he had committed, and H.L.'s demeanor during his testimony as evidence that H.L. was not a credible witness. Consistent with the court's instructions to the jury, defense counsel argued during summation that it was the jury's obligation "to judge [H.L.'s] credibility."
We conclude the trial court properly informed the jury of its duty to assess credibility, in general, as well as the credibility of H.L.'s testimony regarding defendant's statements. "In assessing the statements' credibility, the jury must have considered the independent corroborative facts submitted by the State." Reddish, supra, 181 N.J. at 622. The failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). We are therefore convinced the judge's failure to sua sponte instruct the jury on its "duty with respect to corroboration," Reddish, supra, 181 N.J. at 622, does not amount to an error of "such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; Galicia, supra, 210 N.J. at 386.
IV.
We reject defendant's next contention that three statements made during the prosecutor's summation constituted misconduct requiring reversal of his conviction. While "[p]rosecutors are expected to assert vigorously the State's case and are given considerable leeway" to do so in summation, State v. Daniels, 182 N.J. 80, 96 (2004), they also have a duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play . . . ." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"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 . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.
"'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 . . . defense.'" State v. Nelson, 173 N.J. 417, 460 (2002) (first alteration in original) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). "In evaluating claims of prosecutorial misconduct and plain error the fundamental question we must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Defendant argues that during closing arguments the State improperly suggested defendant had a burden to produce evidence. The prosecutor said, "there is a lack of evidence that anybody ever born in the history of the world anybody alive today other than this man right over here, Brian Michael Mertz, murdered [] [the victim]."
We are not convinced the statement improperly suggested defendant bore a burden to produce evidence. The statement supported the State's permissible argument that defendant's guilt was proven beyond a reasonable doubt and that the proofs established no one else could have murdered the victim. These arguments were consistent with the evidence presented, including the evidence which showed that defendant's DNA from the semen found in the victim could be from only one in 5.48 trillion people.
The record also does not support a conclusion the statement "substantially prejudiced" defendant's right to have the "jury fairly evaluate the merits of his . . . defense." Nelson, supra, 173 N.J. at 460. Again, the statement did not suggest defendant had a burden to present evidence. Defense counsel did not object to the prosecutor's remarks, indicating he perceived no prejudice. Frost, supra, 158 N.J. at 84.
Moreover, the court properly instructed the jury that the State had the burden of proving each and every element of the offense beyond a reasonable doubt, that defendant had no burden of proof, and that to the extent counsel's statements conflicted with the judge's instructions, the jury was required to follow the court's instructions. Jurors are presumed to "follow[] the court's instructions." Smith, 212 N.J. at 409. We therefore are convinced the prosecutor's statement was neither improper nor prejudicial and does not require reversal of defendant's conviction.
Defendant next contends the prosecutor improperly appealed for sympathy for the victim and engendered hatred for the defendant when he told the jury, "[t]hese pictures [of the victim's wounds] are graphic. The State documented what happened to her. Who's responsible for these pictures? Him. You wouldn't be seeing these pictures, you wouldn't even be[] here if he hadn't done this to her." Defendant contends the statement requires a reversal. We disagree.
We conclude the prosecutor's statements regarding what the pictures depicted and defendant's responsibility for causing the victim's injuries were acceptable commentary about the evidence. Nelson, supra, 173 N.J. at 472. While we also conclude the statement — that the jury would not have been required to look at the pictures absent the defendant's actions — was inappropriate, it does not require reversal because when it is considered in the context of the entire trial, it did not "'substantially prejudice[] [the] defendant's fundamental right to have [the] jury fairly evaluate the merits of his . . . defense.'" Nelson, supra, 173 N.J. at 460 (second alteration in original) (quoting Papasavvas, supra, 163 N.J. at 625); see, e.g., State v. Marshall, 123 N.J. 1, 163 (1991) (holding that the prosecutor's comment during summation, stating, "[the victim] had a right to live her life in full, to watch her boys continue to grow, to watch them graduate from school, to get married and have families of their own . . ." were inappropriate, but were "neither extensive nor inflammatory," and thus harmless beyond a reasonable doubt), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Defendant also contends the State committed prejudicial misconduct and violated the rule against exalting the role of the prosecutor by stating:
[M]y role as a prosecutor, part of it is to protect defendant's rights as well and to ensure that he gets a fair trial and the State submits that he has had a fair trial. The state has done what I told you at the outset was its job, to provide you with the evidence to put you in the position, the best position possible, to do your job.Defendant argues this statement exalted the prosecutor's role by proclaiming that the State afforded defendant a fair trial, which "necessarily denigrate[d] the defense, by implying that only one party to the case h[ad] an overall interest in justice."
The role of the prosecutor is to seek justice, not merely a conviction. State v. R.B., 183 N.J. 308, 332 (2005). A prosecutor may neither "exalt[] her role at length, nor disparage[] the role of defense counsel." State v. Kelly, 97 N.J. 178, 218 (1984); see also, Negron, supra, 355 N.J. Super. at 576 (finding improper prosecutor's statements that were "designed to prejudice the jury into viewing the State's case with undue favor").
Here, the prosecutor's comment did not "cast unjustified aspersions on defense counsel or the defense . . . ." State v. Lazo, 209 N.J. 9, 29 (2012). It also did not exalt the role of the State, but rather constituted proper argument that defendant received a fair trial and that the State did what it committed it would do — presented evidence which permitted the jury to serve its function. There is nothing in the comments which was capable of "prejudice[ing] the jury into viewing the State's case with undue favor" because the prosecutor's statement was not excessive and was not "calculated to produce a verdict based on the jurors' prejudices rather than the evidence in the case." Negron, supra, 355 N.J. Super. at 576-77.
We are convinced that, when considered in the context of the entire trial, none of the challenged statements requires a reversal of defendant's conviction because they were not highly improper, they did not "substantially prejudice[] [the] defendant's fundamental right to have a jury fairly evaluate the merits of his . . . defense," Nelson, supra, 173 N.J. at 460 (second alteration in original) (citations omitted), and it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the statements had not been made. Walden, supra, 370 N.J. Super. at 562.
V.
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). When reviewing a trial court's sentencing decision, this court may "not substitute its judgment for the judgment of the sentencing court." Lawless, supra, 214 N.J. at 606. We 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 conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).
Defendant does not challenge the court's finding of the aggravating factors or its lack of finding of any mitigating factors. He does not dispute there was sufficient evidence to support the court's finding of aggravating factors one, two, three, six, and nine. State v. Case, 220 N.J. 49, 64 (2014) (finding aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b) must be "supported by competent, credible evidence in the record"). While defendant argues that his drug use at the time the murder was committed goes to the "intentionality of the unquestionably excessive attack[,]" he acknowledges that his drug addiction does not support a finding of any mitigating factors here. See State v. Ghertler, 114 N.J. 383, 390 (1989) (rejecting the argument that "one who demonstrates that the motive for unlawfully acquiring the funds of another was to purchase cocaine has satisfied the mitigating factor of N.J.S.A. 2C:44-1b(4), namely, 'substantial grounds tending to excuse or justify [one's] conduct, though failing to establish a defense'").
Defendant's argument that his sentence is excessive is based upon the sole contention that the court placed too great a weight upon aggravating factors three and nine and, as a result, it erred in finding the aggravating factors substantially outweighed the mitigating factors. The trial court placed "moderate to substantial weight" upon aggravating factor three based upon defendant's three prior misdemeanor convictions in Texas for which he received custodial terms, his three municipal court convictions, and his prior New Jersey criminal convictions for which he received probation. See State v. Dalziel, 182 N.J. 494, 502 (2005) (defendant's history of criminality consisting of four juvenile adjudications, a violation of probation, and a disorderly persons conviction supported a finding of aggravating factor three). The court gave "substantial" weight to aggravating factor nine based upon the need for general deterrence and also because defendant was a repetitive offender who required specific deterrence. See Grate, supra, 220 N.J. at 337 (holding that defendant's prior record and conviction for a gun possession offense supports a finding of a need for deterrence under aggravating factor nine).
Based upon our review of the record, we conclude the court's determination of the weights it assigned to aggravating factors three and nine does not constitute an abuse of discretion. The court did not simply enumerate the factors, but instead engaged in a "qualitative analysis" which was based upon the credible evidence in the record. Case, supra, 220 N.J. at 65 (citing State v. Kruse, 105 N.J. 354, 363 (1987)).
Finally, the length of the sentence imposed was within the permissible range under N.J.S.A. 2C:11-3(b)(1) and does not shock our judicial conscience. Ghertler, supra, 114 N.J. at 393; State v. Faucette, 439 N.J. Super. 241, 273 (App. Div.), certif. denied, 221 N.J. 492 (2015).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION