Opinion
DOCKET NO. A-1692-12T4
02-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY SUTTLE, a/k/a BOBBY B. SUTTLE, a/k/a GARY WILLIAMS, a/k/a BOBBY SUTTLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1327. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Gary Suttle was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and possession of a weapon (a hammer) for an unlawful purpose, N.J.S.A. 2C:39-4(d). His first trial resulted in a hung jury on the murder count and an acquittal on the weapon charge. The re-trial on the murder count resulted in a conviction.
He appealed the conviction, arguing: under the Double Jeopardy Clause, collateral estoppel barred a re-trial on the murder charge; the trial court erroneously excluded evidence of third-party guilt; and the court erroneously excluded evidence of a statement by the victim. We rejected defendant's first argument, but agreed with his second and third arguments. We reversed his conviction and remanded for a re-trial on the murder charge. Defendant unsuccessfully sought certification from our Supreme Court.
Defendant was tried for a third time, and was again convicted of first-degree murder. He was sentenced to fifty-five years in prison, subject to the No Early Release Ace (NERA), N.J.S.A. 2C:43-7.2, and thirty years of parole ineligibility. He now appeals. We affirm the conviction and the fifty-five-year NERA sentence, but we remand to eliminate the separate thirty-year parole disqualifier.
I.
We begin with the following brief overview of the evidence adduced in the third trial. Lois Zukowitz, a sixty-year-old woman, was beaten to death with a hammer. The crime occurred on the evening of March 11, 2004, in her apartment in Elizabeth. The police found her body after the tenant in the adjacent apartment called 9-1-1 to report that "the lady nextdoor [sic] is being beat up." According to the tenant, he heard the victim "screaming and [a man's voice] telling her to shut up, shut up, shut up and it sounded like someone was being punched."
When the police officers arrived ten to fifteen minutes after the tenant's call, they noticed that the victim's door was unlocked and that her apartment had been ransacked. They found the victim face down in her bedroom in a pool of blood. They discovered several bloody footprints, which were later matched to a pair of Reebok sneakers owned by defendant, which he tried to conceal from police when he was arrested. The officers located a jacket and a set of keys that were later traced to an apartment defendant was living in. Officers also found a hammer with the victim's blood on it. Defendant's DNA or fingerprints were not detected on the hammer.
Defendant's girlfriend and her son were living with defendant at the time. They testified that defendant was wearing the jacket found by police when he left the apartment, and that when he later returned, he did not have the jacket or the keys. They also testified that defendant disappeared for one week after the murder occurred.
The victim was a heroin addict. Two friends of the victim, who attended the same methadone clinic as the victim, testified that on separate occasions they had accompanied the victim when she bought heroin from a black male who lived in the apartment which police determined was occupied by defendant, a black male. Two other witnesses testified that they saw the victim on the day of the murder with a black male wearing a jacket matching the one found in the victim's apartment and later traced back to defendant.
Arthur Barber, a drug dealer who knew defendant, testified that defendant told him he had killed a woman by "bang[ing]" or "bust[ing]" her head, and that he was leaving town because of the crime.
The third jury found defendant guilty of murdering the victim. The trial court sentenced defendant to fifty-five years in prison.
Defendant appeals the August 9, 2012 judgment of conviction, raising the following arguments:
Point 1: In light of the jury's not guilty finding on the possession of a weapon for an unlawful purpose charge in defendant's first trial, the trial court erred and violated defendant's Double Jeopardy rights by denying defendant's motion to preclude the prosecutor from introducing the hammer into evidence and arguing to the jury that defendant used the hammer to kill the victim.
Point 2: The trial court violated defendant's confrontation rights by permitting a State witness to relay to the jury the results of an autopsy conducted by an out-of-court witness (plain error).
Point 3: The matter should be remanded for clarification of whether Arthur Barber, a prosecution witness at trial below who was incarcerated at the time of trial, appeared before the jury in prison garb (plain error).
Point 4: Other crimes testimony about defendant's prior drug dealings and defendant's incarceration on an "unrelated matter" relayed to the jury by a prosecution witness deprived defendant of a fair trial (plain error).
Point 5: Defendant's sentence is improper and excessive.
II.
Defendant's first argument is essentially the same as his argument we rejected in State v. Suttle, A-2417-08 (App. Div. June 10, 2011), certif. denied, 208 N.J. 599 (2011). We hold that our prior decision on this issue is the law of the case.
"The law-of-the-case doctrine 'is a non-binding rule intended to "prevent relitigation of a previously resolved issue"' in the same case." State v. K.P.S., 221 N.J. 266, 276 (2015) (quoting Lombardi v. Masso, 207 N.J. 517, 538 (2011)). "[O]nce an issue has been fully and fairly litigated, it ordinarily is not subject to relitigation between the same parties either in the same or in subsequent litigation." Id. at 277 (citation omitted). "Law of the case is a discretionary rule that calls on one court 'to balance the value of judicial deference for the rulings of a coordinate [court] against those "factors that bear on the pursuit of justice and, particularly, the search for truth."'" Id. at 276 (quoting Lombardi, supra, 207 N.J. at 538-39) (citation omitted).
Here, that balance bars relitigation. Defendant again argues that the State was collaterally estopped from arguing that defendant killed the victim with a hammer, because defendant was acquitted of possession of the hammer for an unlawful purpose at his first trial. Although defendant argues this is a new theory of collateral estoppel, we find he makes essentially the same arguments he made in his prior appeal. Thus, this issue has been fully and fairly litigated and is the law of the case.
In our prior opinion, we distinguished defendant's case from Ashe and Yeager, which he again invokes. Suttle, supra, slip op. at 4-16 (distinguishing Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009)). As we explained, the weapons offense in the first case was a throwaway charge, which the State made no effort to prove or argue. Indeed, neither attorney had referred to the charge in their summation. Thus, we could not "accept defendant's argument that the first jury's verdict established, by principles of collateral estoppel, that defendant did not use the hammer to kill the victim. The first verdict therefore did not estop the State from retrying defendant on the murder charge." Suttle, supra, slip op. at 16.
Defendant attempts to distinguish his argument from the previously-decided federal constitutional claim by making the same argument under the New Jersey Constitution. Defendant takes the position that New Jersey courts have "consistently applied a flexible 'same evidence' test." Defendant is incorrect.
Defendant relies on State v. Salter, 425 N.J. Super. 504 (App. Div. 2012). However, Salter only discusses the "same evidence" test in the context of traditional double jeopardy barring reprosecution for an offense, not collateral estoppel precluding redetermination of an issue of fact. See State v. Kelly, 201 N.J. 471, 484-88 (2010).
It is also unclear if the "same evidence" test remains good law. The "same evidence" test was set forth by our Supreme Court in State v. DeLuca, 108 N.J. 98, 108-09, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). "However, the Court's statement of the applicable test [in DeLuca] was expressed before the United States Supreme Court's last word on the subject" in United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). Russo v. N.J. Dept. of Corr., 324 N.J. Super. 576, 586 (App. Div. 1999). Dixon repudiated every test, including the "same evidence" test, except for the traditional Blockburger analysis. Dixon, supra, 509 U.S. at 703-12, 113 S. Ct. 2859-64, 125 L. Ed. 2d at 572-78; see State v. Miles, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip. op. at 19). We have said that as a court of intermediate review, it is beyond our authority to decide whether our Supreme Court will follow Dixon in its interpretation of the Double Jeopardy Clause of our State Constitution. See, e.g., Miles, supra, slip op. at 20.
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306, 309 (1932).
On the other hand, our Supreme Court has repeatedly stated, including in DeLuca itself, that New Jersey's double jeopardy "clause has been 'consistently interpreted . . . as co-extensive with the guarantee of the federal Constitution.'" State v. Gibson, 219 N.J. 227, 243 (2014) (quoting DeLuca, supra, 108 N.J. at 102). "There is no distinction in the protections afforded by one provision as opposed to the other, and thus '[o]ur State's double-jeopardy jurisprudence mirrors federal law.'" State v. Schubert, 212 N.J. 295, 304 (2012) (quoting Kelly, supra, 201 N.J. at 484).
Even if the "same evidence" test is still good law, "New Jersey has traditionally placed the burden upon a defendant seeking protection of the double jeopardy bar." Salter, supra, 425 N.J. Super. at 520. "[A] defendant in a criminal proceeding who relies upon the defenses of double jeopardy or collateral estoppel must place in evidence such material as he wishes the court to consider in support of this plea." Ibid. (quoting State v. Ebron, 61 N.J. 207, 217-18 (1972)). Here, defendant has not carried his burden. He has not provided us with transcripts from his first two trials so that we might apply the "same evidence" test. Thus, we reject defendant's double jeopardy and collateral estoppel claims.
III.
We next address defendant's remaining claims. Dr. A. Wayne Williams, a medical examiner, performed the autopsy of the victim. At trial, Dr. Zhongxue Hua, the Union County Medical Examiner, testified as a forensic pathology expert. In 2004, when the victim's autopsy was prepared, Dr. Hua was Dr. Williams' supervisor. Indeed, Dr. Hua reviewed and approved the victim's autopsy report at the time it was generated. At trial, Dr. Hua testified that he agreed with Dr. Williams' findings as to the cause and manner of the victim's death, indicating she died of blunt injury to the head and that the cause of death was homicide.
Defendant argues that by eliciting testimony from a pathologist other than the one who performed the autopsy, the State violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. He cites State v. Williams, 219 N.J. 89 (2014), but Williams does not support his claim.
In Williams, our Supreme Court explained:
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution confer on a defendant the right to confront the witnesses against him. That right gives a defendant the opportunity to bar testimony in violation of the Confrontation Clause and the opportunity to cross-examine a witness. A defendant, however, is not obliged to exercise his confrontation right if doing so will harm his cause. As part of a reasonable defense strategy, he may waive his right of confrontation and choose not to object to testimony or choose not to cross-examine a witness. Therefore, generally, a defendant must attempt to exercise his confrontation right and object when necessary, if he wishes later to claim that he was denied that right.
[Id. at 92-93 (emphasis added)].
Here, defense counsel expressly stated he did not object to Dr. Hua's testifying as the forensic pathology expert. Indeed, defense counsel offered to stipulate to Dr. Hua's qualifications. Therefore, under Williams, defendant waived his right to confront the pathologist who originally created the report. Id. at 93.
Thus, defendant's claim is barred by the doctrine of invited error. "Under that settled principle of law, trial errors that '"were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]"'" State v. A.R., 213 N.J. 542, 561 (2013) (citation omitted). As our Supreme Court held in Williams, "[t]he doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify — hopefully to his advantage — and then when the strategy does not work out as planned, cry foul and win a new trial." Williams, supra, 219 N.J. at 101.
IV.
Next, defendant argues the case should be remanded for clarification of whether prosecution witness Arthur Barber testified in prison garb. He does not allege Barber did testify in prison attire, but instead that the record is unclear as to what Barber was wearing when he testified. However, the record provides no indication that Barber testified in prison garb. In fact, the record implies that Mr. Barber testified in street clothes.
Without the jury present, the trial court noted:
The prosecutor has indicated [its] next witness is an individual named Arthur Barber who is in custody. We are making efforts to arrange Mr. Barber's production in court through the Prosecutor's Office; that is, I will sign a writ in order to produce the defendant (sic) in court. Mr. Barber will be brought to court by the prosecutor's investigators. We will put him in the jury box, assuming he's come to court with appropriate attire on, and we'll take his testimony at that point.Given that the court thereafter took Barber's testimony, we can infer he had "come to court with appropriate attire on."
Defendant argues that Barber was likely in prison garb, because the trial court instructed, out of the jury's presence, that Barber "need[ed] to be uncuffed." Rather, this indicates the court was taking another precautionary measure to ensure the jury did not see any indication that Barber was in custody.
In any event, because defendant did not make an objection that Barber was in prison garb, "we must review defendant's contentions under the plain error standard." State v. Kuchera, 198 N.J. 482, 497 (2009). In Kuchera, our Supreme Court held that where a "defendant did not object to [the witness's] appearance in prison garb," and instead sought "to capitalize on it and what it represented," the conviction and sentences should be upheld. Id. at 502. The Court ruled that "any error that might have arisen as a result of allowing [the witness] to testify in prison garb clearly was harmless." Ibid.
Here, Barber was not a defense witness, but rather testified for the State. At trial, both the prosecution and the defense elicited testimony as to whether Barber was currently incarcerated and why he was incarcerated. Indeed, defense counsel's first question to Barber was: "you're incarcerated. Is that correct?" Like the defense in Kuchera, defendant sought to capitalize on Barber's incarceration by repeatedly mentioning his incarceration when arguing in closing that Barber was a liar, a "con man, a conniver." Thus, even if Barber was wearing prison garb, defendant cannot show that it was "clearly capable of producing an unjust result." R. 2:10-2.
V.
Defendant also argues that the trial court permitted Barber to testify regarding past drug dealings with defendant, and thus committed plain error. However, no such testimony was admitted.
Prior to Barber's testimony, the defense objected to any testimony by Barber regarding past drug dealings with defendant. The trial court sustained the objection "except with respect" to the "date in question." Further, the court also sustained an objection when Barber said, with no reference to defendant, that "[a] lot of times I would come to New Jersey to purchase drugs." When Barber testified about his interactions with defendant prior to the murder, Barber made no mention of drugs. Describing the last time he saw defendant, Barber simply testified that he "had to come to New Jersey for something and [defendant] told me he probably would be able to help me out."
The only testimony by Barber about defendant and drugs was that defendant told him "[h]e had killed somebody, a lady," after "something happened over — over some money or — or some drugs or something and things got out of hand." Defendant does not claim that testimony was improperly admitted. --------
In any event, the trial court instructed the jury that the drug-related evidence it did admit could not be used to show defendant was a bad person or used as the basis to convict him of murder. Thus, defendant has failed to show such testimony was "clearly capable of producing an unjust result." R. 2:10-2.
VI.
Next, defendant argues that it was plain error to admit the testimony that defendant was "locked up" from prosecution witness Sergeant Harvey A. Barnwell. However, this testimony was elicited by defendant's counsel on re-cross as follows:
[DEFENSE COUNSEL:] What was the date of the arrest of Gary Suttle?
[BARNWELL:] The 24th.
[DEFENSE COUNSEL:] And he was locked up at that time?
[BARNWELL:] He was, on an unrelated matter.
[DEFENSE COUNSEL:] But he was locked up?
[BARNWELL:] Yes.
This line of questioning arose in the context of when evidence was collected and processed, as well as when officers interviewed another possible suspect. In closing, defense counsel mentioned defendant being "locked up," arguing that the State did not properly investigate other suspects, and suggesting to the jury that the State was focused only on a "prosecution at all costs of [defendant]." For example, defense counsel argued that the handle of the hammer was not tested for DNA until after defendant was already "locked up."
Because defense counsel elicited this testimony, defendant's argument fails under the doctrine of invited error. See, A.R., supra, 213 N.J. at 561. Defense counsel's question about whether defendant was "locked up" when cross-examining Sergeant Barnwell provides defendant no basis for reversal. See State v. Krivacska, 341 N.J. Super. 1, 44 (App. Div.), certif. denied, 170 N.J. 206 (2001).
VII.
Finally, we address defendant's sentencing claims. "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). This court is "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted). We must hew to this standard of review.
First, we reject defendant's argument that the sentence was excessive. Bludgeoning the victim with a hammer ten to twenty times about the face and head, causing extensive fracturing of the skull, while she repeatedly called out "stop" was sufficient to justify aggravating factors one and two. N.J.S.A. 2C:44-1(a)(1), (2). "[A] sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense." State v. Fuentes, 217 N.J. 57, 75 (2014) (citing State v. Soto, 340 N.J. Super. 47, 52-54, 71-72 (App. Div.) (wrestling with, and then repeatedly hitting the murder victim on the head with a shotgun, supported aggravating factors one and two), certif. denied, 170 N.J. 209 (2001)). Further, defendant plainly knew that the sixty-year-old woman "was particularly vulnerable or incapable of resistance due to advanced age." N.J.S.A. 2C:44-1(a)(2); see also State v. McBride, 211 N.J. Super. 699, 704 (App. Div. 1986) (finding this factor applied where the defendant beat "the victim, who was 56 years old").
The trial court also adequately explained why defendant's five indictable convictions, remaining criminal record, and recalcitrant attitude justified aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (9). These aggravating factors clearly outweighed the non-existent mitigating factors.
Second, defendant asserts, and the State agrees, that his judgment of conviction requires correction. The NERA requires that if a defendant is convicted of murder, the court "shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a), -(b), -(d)(1). However, the Judgment of Conviction also included a thirty-year period of parole ineligibility:
Defendant is remanded to the custody of the Commissioner of the department of Corrections for a period of 55 YEAR(S) with 30 YEAR(S) parole disqualifier, and until released in accordance with law. Defendant must serve 85% of this sentence, and until released in accordance with the No Early Release Act.We agree that only the NERA parole disqualifier was applicable. Thus, we remand for correction of the judgment of conviction by removing any reference to a thirty-year parole disqualifier.
We therefore affirm defendant's conviction. We also affirm his sentence, except we remand only for correction in accordance with this opinion.
Affirmed in part, and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION