Opinion
DOCKET NO. A-3344-10T4
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREW T. PENDER a/k/a DREW PENDER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-01-0018.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury convicted defendant Andrew T. Pender of murder, N.J.S.A. 2C:11-3(a)(1), attempted passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) and N.J.S.A. 2C:5-1, two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), witness tampering, N.J.S.A. 2C:28-5(a)(2), unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), hindering prosecution, N.J.S.A. 2C:29-3(b)(3), and aggravated assault, N.J.S.A. 2C:12-1(b)(4). The court sentenced defendant on the murder conviction to a term of sixty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed a consecutive term of eight years, half without parole, for witness tampering. All other sentences were concurrent.
Defendant appeals from the conviction and from the aggregate sixty-eight year sentence, raising the following points of argument.
POINT I
BECAUSE THE QUESTIONING OFFICERS FAILED TO HONOR DEFENDANT'S REQUEST TO END THE QUESTIONING, THE BULK OF HIS STATEMENT, TAKEN AFTER HIS REQUEST, MUST BE SUPPRESSED. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S DENIAL OF COUNSEL'S REQUEST THAT THE DEFENDANT BE EXAMINED FOR COMPETENCY. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S REPEATED MOTIONS FOR A MISTRIAL.POINT IV
THE PROSECUTION'S PEREMPTORY STRIKE OF THREE AFRICAN-AMERICAN JURORS VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PARS. 5, 9, 10.POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. The Length Of the Sentence Is Excessive.
B. The Trial Court Erred in Imposing A Consecutive Sentence For Witness Tampering.
Having reviewed the record, we find no merit in any of those contentions. We affirm the conviction and the sentence. We remand for the limited purpose of correcting a typographical error on page one of the August 19, 2010 judgment of conviction (JOC), which should state that defendant's "Total Custodial Term" is sixty-eight years rather than sixty years.
I
In light of the issues raised on this appeal, we will briefly summarize the trial record here, and will discuss the record in more detail when we address defendant's legal contentions. Through eyewitness and expert testimony, the State presented unrebutted evidence of the following events. After getting into a fistfight with Dareem Collins over a debt defendant owed Collins, defendant told Collins's girlfriend, Tonya Garron, that he was going to kill her parents. Apparently, the threat was motivated by defendant's belief that Garron had told Collins where to find him. After leaving the restaurant where he worked, and where the fight had occurred, defendant went to Garron's home in Millville. There, he encountered her father, Charles Jones, and shot Jones to death in front of several witnesses.
The "parents" were actually Garron's mother, Loretta McGaha, and Charles Jones, the man with whom she had lived for over a decade. However, Garron and everyone in her family referred to Jones as her father and we will do the same.
Fearing that defendant would carry out his threat, or might already have done so, Garron, Collins, and two of their friends drove to her house. They heard a gunshot as they arrived, and they drove off to summon the police. As they stopped at an intersection, they saw defendant walking in the direction of their car. He spotted them as well and tried to shoot at the car, but the gun would not fire. Garron drove through a red light to escape a further assault. As the police arrived and defendant was fleeing the scene, he encountered a thirteen-year-old girl whom he threatened with the gun and told to be quiet.
Defendant was arrested less than an hour after the shooting. The arresting officer saw a gun in defendant's hand as he approached, and saw defendant throw it away. After subduing defendant, the officer found the gun on the ground. The bullet recovered from Jones's body matched that gun. Defendant was given his Miranda warnings, waived his right to counsel, and made a confession. The entire police interview with defendant, beginning with the administration of the Miranda warnings, was recorded on videotape.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was taken to the Bridgeton police station for questioning, because the Millville police station did not have video equipment.
II
We begin our legal discussion by addressing the suppression issue. Defendant filed a motion to suppress the confession, which the trial court denied after a N.J.R.E. 104 hearing. Two police officers testified at the hearing. Defense counsel questioned both of them concerning a remark defendant made about seventeen minutes after he began giving his statement. That remark must be understood in the context in which it occurred.
During the first approximately seventeen minutes of his statement, defendant admitted shooting Jones and tried to explain that he did so because he was upset that Collins, whom defendant called "D," had come to his workplace and threatened him. Following up on that explanation, Detective Henry asked defendant to tell him more about his reaction to "D." In response, defendant stated that he knew he was going to the county jail and explained that if he had time to think about it, he could remember more about his thought process at the time. Henry responded that defendant did not need to talk about that issue and redirected the questioning to whether defendant intended to hurt anyone. We quote the exchange in full below.
Det. Henry: And like you're talking about. And what you're saying, each time you keep bringing this up, it's about him. About "D." That shows that it's in your head about this guy. You understand what I mean? That he's doing this.
Andrew Pender: (indiscernable) I don't really want. I don't know what's going on, that's why I just need, like alright, I'm going to County, I probably tell you all, can bring me back if I have some time to think about it, so that I can recollect.
Det. Henry (indiscernable) Don't talk about certain things, that's fine. You know what I mean. All, but what's important to know is, did you mean to hurt somebody tonight? Did you mean for this to happen?
Andrew Pender: Not him, no.
Det. Henry: What was your intentions then? What did you want to happen?
Andrew Pender: For people to just leave me alone, just take my word, if I say I'm not playing no more, I'm not playing no more, man. I don't play no more, you know what I mean. I handled my business, I work six days a week, man.
Det. Henry: Did Bunky [Jones] go ahead and have anything on him or do something to you?
Andrew Pender: Nah, he just happened to be, (indiscernible), man, I feel sorry for him, but you can't bring him back, but.
From that point, the interview continued for more than an hour, during which defendant did not request a break or give any indication that he wanted to stop talking to the detectives. At the suppression hearing, Detectives Patitucci and Henry both testified that they did not understand defendant to be asserting his right to remain silent. According to Patitucci, although defendant was visibly upset, he believed defendant meant that "he didn't know what was going on at the time when he was walking around with his handgun in his hand[] when the incident took place" and "needed some time to think . . . [and] focus." According to Henry, he believed defendant "want[ed] to recollect certain things that happened" and Henry wanted defendant "to see if he could . . . [describe] the things that he remembered."
At the suppression hearing, defendant testified that his statement meant that he wanted to be taken to the county jail and he wanted the questioning to cease. He testified that he continued giving his statement because he thought that if he stopped talking, the detectives "w[ere] going to beat [him] up." He testified that when he was arrested, the arresting officer, Romanik, kicked him in the face and bruised his lip, and this caused him to fear that other officers would beat him if he was uncooperative. However, on cross-examination, defendant conceded that Romanik was not present at the interrogation, and he had no reason to fear any law enforcement official other than Romanik.
In a written opinion, Judge Richard J. Geiger found defendant's testimony to be completely incredible, for reasons he explained in detail. On the other hand, he credited the police witnesses' version of the relevant events. The judge believed their testimony that the police refrained from any questioning until after they read defendant his Miranda rights, and, based on viewing the video, he found that they conducted the questioning in a completely non-threatening, non-coercive manner. Judge Geiger found that the detectives told defendant repeatedly that he could "stop talking at any time" and could "'pick and choose' which questions he wanted to answer." The judge further found that defendant "never asked for the questioning to stop."
The judge credited Patitucci's and Henry's testimony that they did not construe defendant's statement about going to the county jail as an assertion of his right to remain silent. Nor did the judge "perceive how any reasonable police officer could have so construed that statement." Judge Geiger reasoned that:
[Defendant] did not expressly state that the questioning should end or that he did not want to answer any more questions. He did not even ask for a break in the questioning. He did not refuse to continue the questioning or to answer subsequent questions about the case. This did not constitute an invocation of his right to remain silent or to terminate questioning. Instead, his comment appears at most to indicate that he may be able to recollect more details later.
Judge Geiger found this situation analogous to State v. Bey (Bey II), 112 N.J. 123, 138-39 (1988), in which the defendant asked for some time to "lie down and think about" prior events. In Bey, the Court found that the defendant's statement was not an assertion of the right to remain silent. In denying the suppression motion, Judge Geiger concluded:
The record simply does not support the conclusion that defendant intended to cut off questioning and remain silent. Therefore, the detectives were not required to stop the questioning or to re-advise defendant of his Miranda rights.
In reviewing a trial court's decision on a motion to suppress, we defer to the judge's factual findings so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007). While we retain discretion to make our own evaluation of videotaped evidence, we owe particular deference to factual findings and credibility determinations that are based on the judge's observation of witness testimony at the suppression hearing. See State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012). On the other hand, our review of a trial judge's legal conclusions is always de novo. State v. Handy, 206 N.J. 39, 44-45 (2011).
Once a suspect in custody unambiguously invokes the right to counsel, the interrogation must cease. State v. Wessells, 209 N.J. 395, 402 (2012). On the other hand, if a suspect makes an ambiguous statement, the police may ask further questions designed only to clarify the statement. As the Court has explained:
[T]he inquiry begins with whether the suspect invoked his or her right to remain silent. If that invocation is clear and unambiguous, we have required that it be scrupulously honored. If, however, the invocation is equivocal or ambiguous, leaving the investigating officer "reasonably unsure whether the suspect was asserting that right," we have not required that the interrogation immediately cease, but have instead permitted officers to clarify the otherwise ambiguous words or acts.
As it relates to the invocation of the right to remain silent, both the words used
and the suspect's actions or behaviors form part of the inquiry into whether the investigating officer should have reasonably believed that the right was being asserted. As a result, the court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked.
[Diaz-Bridges, supra, 208 N.J. at 564-65 (citations omitted).]
However, taken in context, a suspect's pause, request for a brief rest, or request for time to recollect thoughts, will not necessarily qualify as an ambiguous assertion of Miranda rights. Id. at 566-67. Nor will the fact that a suspect is temporarily overcome by emotion at the "enormity" of his crime. Id. at 568-69.
We have considered whether defendants invoked the right to silence in a variety of contexts, and have established principles that can be summarized without great detail. A suspect who repeatedly responded to questions by saying "I can't talk about it" and who engaged in a persistent pattern of refusal to answer was not "obligat[ed] to state his position more clearly" in order to invoke the right to silence. A suspect who told the investigator "I don't believe that I want to make a statement at this time" sufficiently invoked the right to silence that the failure to honor the request required suppression.
On the other hand, we deemed a suspect's statement that he wanted an opportunity to "lie down and think about it" before responding, although arguably far less ambiguous a reference to the right to
remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent. Bey II, supra, 112 N.J. at 136-37 ("law enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning"). Similarly, as our Appellate Division has concluded, a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored. State v. Burno-Taylor, 4 00 N.J. Super. 581, 604 (App. Div. 2008).
[Id. at 566-67 (additional citations omitted).]
Against the backdrop of those legal principles, we find no error in Judge Geiger's decision. First, we will not second-guess his finding that defendant's hearing testimony was not credible and, thus, we reject defendant's claim that the police assaulted or intimidated him. We also discount defendant's after-the-fact assertion that his statement about going to the county jail was intended as a request that the questioning cease.
Having reviewed the record, we agree with Judge Geiger that defendant's statement, viewed objectively, was not an ambiguous request to stop the interview, and no reasonable police officer would have construed it that way. Rather, as in Bey II, the statement simply conveyed that if defendant had more time to think about the particular issue the detectives were asking him about, he might be able to remember more. See Bey II, supra, 112 N.J. at 138. Therefore, instead of pressing him on that point, the detectives reasonably switched to a different topic. There was no Miranda violation, and we affirm the denial of the suppression motion.
III
Next, we address defendant's claim that the prosecutor improperly used peremptory challenges to excuse three African-American jurors. See State v. Gilmore, 103 N.J. 508, 522 (1986). Defendant is African-American. On the second day of jury selection, the trial judge sua sponte raised a Gilmore issue after the prosecutor had used three of seven challenges to excuse African-American jurors. After the judge raised the issue, defense counsel made a formal motion on the record, and the judge required the prosecutor to set forth his reasons for excusing the three jurors. See Gilmore, supra, 103 N.J. at 537-38.
The case was not tried before the judge who heard the suppression motion.
The prosecutor explained that the first juror, N.T., stated that she knew one of the defense witnesses. He explained that the second juror, T.J., knew another one of the defense witnesses and was currently serving as that witness's youth pastor. T.J. also had a brother who had a criminal conviction, and had previously served on a child abuse case in which the jury deadlocked. The prosecutor stated that all of those factors, taken together, led him to excuse the juror. The prosecutor further noted that he had also excused non-minority jurors "because of their familiarity with a witness."
The defense attorney did not contradict the prosecutor's statement, and the record appears to support his contention. For example, the prosecutor excused juror P.S.M., who also knew one of the trial witnesses. Defendant does not claim that this juror was African-American.
Finally, the prosecutor stated that he excused juror S.T.-S., because during voir dire, she revealed that she was a close friend of a state police sergeant named Brian Lloyd. The prosecutor explained that he had spent three and one-half years prosecuting Lloyd for misconduct, theft and fraud. The prosecutor stated that the sergeant was "no fan of mine" and he was concerned that the juror might "have a specific prejudice against me for prosecuting a close friend of [hers]."
Defense counsel did not object to the prosecutor's explanations, or offer any rebuttal, and the trial judge concluded that the prosecutor had provided valid reasons for excusing the three jurors. He therefore found that any prima facie inference of discrimination had been rebutted and he denied the Gilmore motion.
We review the trial judge's ruling for abuse of discretion. State v. Osorio, 199 N.J. 486, 509 (2009). We find none. We approve the judge's action in sua sponte raising the Gilmore issue. Hitchman v. Nagy, 382 N.J. Super. 433, 444 (App. Div.), certif. denied, 186 N.J. 600 (2006). However, once the prosecutor provided a legitimate, non-discriminatory explanation for excusing each juror, and the defense provided no rebuttal, we cannot fault the trial judge's decision to deny the motion.
We note that "the court made no finding as to the racial composition of the jury either at the time defendant[] objected to the prosecutor's alleged discriminatory use of [his] peremptory challenges or when jury selection was completed." State v. Clark, 316 N.J. Super. 462, 475 (App. Div. 1998). We agree with defendant that the court should have taken that step. Ibid. However, defendant did not raise the issue of the jury composition at the time of the motion or at the end of jury selection, and hence, the defense did not properly preserve a record for our review on that issue. On the record presented to us, we affirm the denial of the Gilmore motion.
IV
We next address defendant's two related points concerning his disruptive conduct during the trial. Defendant contends that the judge should have adjourned the trial to permit his attorney to arrange for a competency examination. He also argues that the judge should have declared a mistrial based on defendant's various disruptive outbursts during the trial.
These are the most pertinent facts. On the third day of the trial, defendant asked the judge for permission to release his attorney and represent himself. The judge denied the motion because it was untimely and granting it was likely to result in delay and disruption of the trial. Defendant was obviously dissatisfied with that ruling and, thereafter, engaged in conduct the judge reasonably found was designed to disrupt the trial.
For example, defendant repeatedly interrupted his attorney and the judge, argued with the judge over evidentiary rulings, and interjected comments about the proceedings in front of the jury. On the first day of testimony, he appeared in court wearing a handkerchief on his head, and when the judge directed him to remove it, defendant slipped the kerchief down around his neck and twisted it as if strangling himself. He then refused the judge's direction to give the handkerchief to the sheriff's officer. As a result, the judge ordered the sheriff's officer to remove defendant from the courtroom.
The next day, defendant appeared in court with a three-foot rope around his neck, which he refused to remove despite the judge's direction. Again, he was removed from the courtroom. On another occasion, defendant appeared to be deliberately attempting to draw the jury's attention to the fact that his feet were shackled, despite the court's appropriate efforts to conceal the shackles from the jurors.
There is no claim that the shackling was inappropriate. Outside the jury's presence, the prosecutor placed on the record that, while in jail awaiting this trial, defendant was accused of stabbing another inmate. Nor does defendant challenge the judge's several decisions to exclude him from the courtroom based on his disruptive behavior.
Defendant's pattern of disruptive and disrespectful behavior was repeated on several court days. Each time, the judge displayed extraordinary patience in attempting, firmly but fairly, to convince defendant to behave with appropriate decorum. Each time defendant was removed from the courtroom, the judge arranged for him to be provided with a recording of the proceedings to listen to in the jail, so defendant could assist his attorney in his defense. Each time, the judge also gave the jury a cautionary instruction to disregard defendant's absence and base their verdict only on the evidence presented in the courtroom.
Further, the judge did not exclude defendant for longer than absolutely necessary. When defendant was removed from the courtroom in the morning, the judge arranged for him to be brought back into the courtroom for the afternoon session. Finally, when defendant interrupted the prosecutor's summation and made remarks to the jury about an absent witness, after the judge had denied defense counsel's Clawans motion, the judge ordered that defendant be excluded from the courtroom for the remainder of the trial.
State v. Clawans, 38 N.J. 162 (1962).
On the fifth day of the trial, defendant's attorney asked the judge to adjourn the trial while he arranged to have a competency evaluation. The judge responded that nothing he observed led him to believe that defendant was not competent to stand trial. Rather, the judge found that defendant's comments indicated that he understood very well what was going on, including the defense theory of the case, and was trying to force the judge to conduct the proceedings in the way defendant thought appropriate. The judge declined to adjourn the trial, and declined to allow defendant to control the trial.
However, the judge repeatedly told defense counsel that he was welcome to arrange for a competency examination during a court break or after court hours. Although the trial lasted three weeks, with breaks of several days between some of the trial dates, the record does not reflect that defense counsel ever arranged for defendant to be examined or attempted to do so. Nor does the record presented to us contain any expert report or other legally competent evidence that defendant suffered from a mental illness during his trial.
The Pre-sentence report (PSR) contains a passing reference to defendant having been diagnosed as bi-polar several years before the trial occurred. However, the report does not mention whether that information came from defendant or from another source. The PSR contains no supporting documentation for that diagnosis. When defense counsel first asked for time to obtain a competency evaluation, he admitted that an earlier psychiatric examination noted insufficient evidence "to rule in or rule out" whether defendant was feigning symptoms of mental illness. The issue of alleged mental illness was not mentioned at the sentencing hearing.
"[A] defendant tried or convicted while incompetent to stand trial has been deprived of his due process right to a fair trial. Consequently, a court must hold a competency hearing where the evidence raises a bona fide doubt as to a defendant's competence." State v. M.J.K., 369 N.J. Super. 532, 547 (App. Div.) (citations omitted), appeal dismissed, 187 N.J. 74 (2004). The standard for competence has been defined by statute:
b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
(2) That his elementary mental processes are such that he comprehends:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense.
[N.J.S.A. 2C:4-4b.]
Our review of the trial judge's decision on a competency issue is "'highly deferential.'" M.J.K., supra, 369 N.J. Super. at 548 (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000)). After reviewing the entire trial transcript, we arrive at the same conclusions the trial judge reached in denying the application for a competency hearing. Obviously dissatisfied with the denial of his self-representation motion, and facing the near-absolute certainty of a conviction, defendant was determined to disrupt the trial. On this record, we find no basis to second-guess the judge's decision that a competency evaluation was not required.
Defendant's related point concerning a mistrial is equally meritless. We will not overturn the trial judge's denial of a mistrial motion "absent an abuse of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); State v. Montgomery, 427 N.J. Super. 403, 406-07 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013). On this record, we find no abuse of discretion and no miscarriage of justice.
At several points during the trial, after defendant had engaged in an in-court outburst, his attorney moved for a mistrial. Those motions were pro forma, with little or no explanation, and they were properly denied. However, as noted, after every incident, the judge appropriately instructed the jury to disregard defendant's comments and, where applicable, his absence from the trial. While the judge did not question the jurors as to their ability to follow his instruction, we presume that they did so. See State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007).
"[A] defendant cannot engage in courtroom misconduct and then expect to be rewarded with a mistrial or new trial for his or her egregious behavior where the trial judge took appropriate cautionary measures to ensure a fair trial." Montgomery, supra, 427 N.J. Super. at 404. Defendant was not entitled to a mistrial based on his own disruptive conduct. Id. at 410. Further, given the overwhelming evidence against him, we could not conclude that the verdict represented a miscarriage of justice. Accordingly, we affirm defendant's conviction.
The jury was clearly not unfairly inflamed against defendant, because they found him not guilty of attempted murder for trying to shoot at the car carrying Garron and Collins. Instead they found that was a crime of "passion," apparently due to the prior fight with Collins, and convicted defendant of attempted passion/provocation manslaughter.
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Finally, defendant argues that the sixty-year NERA sentence was excessive and that the sentence for witness tampering should have been concurrent rather than consecutive. Those arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the trial judge at the sentencing hearing on August 11, 2010. We add the following comments.
Apparently angry at Garron and Collins, defendant shot and killed Garron's father — an unarmed, innocent victim — while Garron's mother watched in horror. We agree with the trial judge that the senseless brutality of the crime was an aggravating factor which the court could properly consider under N.J.S.A. 2C:44-1a(1) (whether the crime was "committed in an especially heinous, cruel, or depraved manner"). See State v. Bowens, 108 N.J. 622, 639 (1987).
Nor can we disagree with the judge's decision to impose a consecutive sentence for witness tampering. While fleeing from the police, defendant encountered a thirteen-year-old girl sitting in her back yard, pushed the muzzle of a gun into her neck and told her to be quiet. This was a separate crime from the murder, with a separate victim, and a consecutive sentence was warranted. See State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 309 (1986).
We affirm the conviction and the sentence. We remand for the limited purpose of correcting a typographical error in the JOC.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION