STATE OF NEW JERSEY VS. CARL JONES (17-02-0116, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1994-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARL JONES, a/k/a DEAN
JONES,
Defendant-Appellant.
_________________________
Submitted October 28, 2019 – Decided December 17, 2019
Before Judges Sabatino, Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 17-02-0116.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
After a fifteen-day jury trial, defendant Carl Jones was found guilty of
first-degree murder of a homeless heroin addict. Defendant was also found
guilty of second-degree burglary for breaking into the victim's Jeep and selling
some of its contents, and other lesser offenses. The trial court imposed a sixty -
year sentence on the murder count, plus a consecutive eight-year custodial term
on the burglary count.
On appeal, defendant challenges the admissibility of statements he gave
to the police, the court's failure to instruct the jury as to lesser-included offenses,
the admission of evidence of certain recorded telephone conversations of jail
inmates, the admissibility of the medical examiner's testimony, the weight of the
evidence supporting the second-degree burglary conviction, and the claimed
excessiveness of his sentence.
For the reasons that follow, we affirm defendant's conviction and his
sentence, except for a limited remand to correct monetary assessments that were
imposed.
I.
The State's proofs adduced the following pertinent facts. The State's case
was largely based upon the testimony of a co-defendant and two jail house
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informants, coupled with defendant's admissions of burglary and theft during
his police interrogations.
The Initial Investigation
On August 30, 2013, Paterson police officers were dispatched to an
abandoned four-story brick factory building, which at one time had been the site
of a brewery. On a cement patio at the rear of the building they found the body
of a young man resting in a pool of blood.
An investigator from the medical examiner's office arrived on the scene,
which she described as an overgrown open area that was littered with concrete
blocks, drug paraphernalia, and human feces. The dead man was lying on his
right side, face into the ground. The decomposition of the body indicated that
he had been there for some time. There were abrasions on the man's knees and
elbows, bruising under his right eye, and bruising on the inside of his upper
forearm. There was also a wound on his chest that appeared to be from a rusty
chain that was lying underneath his body.
An examination of the man's pockets produced a drivers license, bank
card, birth certificate, state syringe access card, and Social Security card, all in
the name of Timothy Linnartz. Money, car keys, and five packages of heroin
were also found in Linnartz's clothing.
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The police personnel on the scene concluded Linnartz probably died from
a drug overdose. His body was removed and taken to the medical examiner's
office.
The Autopsy
An autopsy was performed that evening by Dr. Abraham Phillip. 1
Although there was no external evidence of a skull injury, once Linnartz's scalp
was pulled back a roughly circular, depressed fracture above the right eyebrow
ridge became apparent. There was extensive hemorrhaging around the muscles
in his neck, his right ninth rib was fractured, the right side of his liver was
lacerated, and there was free blood in his abdominal cavity.
From the circular configuration of Linnartz's head wound and the force
required to inflict it, the medical examiner believed that the weapon used may
have been a hammer. Linnartz's neck injuries could have been caused by blunt
force trauma or strangulation; his broken rib, which was the cause of the liver
laceration, was likely due to a blow to the lower right chest with a heavy
instrument or a kick. Morphine, a break-down product of heroin, was found in
1
At the time of trial, Dr. Phillip was no longer employed by the medical
examiner's office. Testimony concerning the autopsy was presented instead by
Dr. Andrew Falzon, State Medical Examiner of New Jersey, based upon his
independent review of Dr. Phillip's notes, reports, and photographs. We discuss
the admissibility of Dr. Falzon's testimony, infra, in Part II.E.
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Linnartz's blood and vitreous fluid at levels consistent with a chronic drug user
and was not likely the cause of death.
Dr. Phillip concluded the cause of Linnartz's death was blunt force injuries
to the head, neck and torso, and the manner of death was a homicide . The
injuries were not instantly fatal and Linnartz may have lived anywhere from
thirty minutes to two hours after sustaining them. Indeed, from the condition of
weeds surrounding the body, it appeared that Linnartz may have lain there for
some time struggling to get up. Given the state of the body's decomposition,
Linnartz's time of death was estimated to be at least twenty-four hours before
police arrived on the scene.
Further Investigation
On August 31, 2013, the police instituted a homicide investigation,
returning to the factory to look for witnesses and other evidence. A detective
from the crime scene unit retrieved a cell phone from the ground near where
Linnartz's body was found but was unable to extract any fingerprints from it .
The detective then entered an abandoned grain silo at the rear of the property
and found an older man sleeping inside. The man, Samuel Pauling, had alcohol
on his breath but was coherent and cooperative. At the back of the silo next to
Pauling's sleeping area, officers found two hammers.
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Investigators observed that neither footprints nor drag marks were visible
in the overgrown ground where Linnartz was found. Further, none of the trash
in the area was disturbed so as to suggest that his body had been dragged .
The Discovery of the Victim's Jeep
Detectives who notified Linnartz's family of his death reported that the
family had received a phone call from the Sheriff's Office on August 30, 2013,
informing them that two men had been pulled over driving Linnartz's Jeep
Cherokee. The men had said they were friends of Linnartz and had permission
to drive the Jeep.
Investigating that claim, detectives learned the Jeep had been stopped
because the driver was not wearing his seat belt. When asked for his driver's
license, the driver, who said his name was Carl Jones, admitted that he did not
have one. A passenger in the vehicle identified himself as Christopher Daut.
Both men were friendly and non-belligerent. They claimed the Jeep belonged
to a friend of theirs.
The officer who stopped the vehicle observed that the Jeep was very dirty,
with garbage strewn all over. The front passenger-side window was broken and
there was glass on the front seats. The ignition was being started with a
screwdriver. A records check revealed the Jeep was not reported as stolen and
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that the registered owner was Linnartz.
The officer asked defendant to call Linnartz to come get the Jeep.
Defendant said that Linnartz was in the Bergen County Jail, but when the officer
contacted the jail he learned that Linnartz had been released. Defendant then
gave the officer the phone number of Linnartz's parents, with whom the officer
spoke. After this conversation, the officer had the impression that defendant
had permission to use the vehicle. The Jeep was towed from the scene, and
defendant and Daut were released on foot.
Detectives looked into the information that Linnartz had been held in the
Bergen County Jail earlier in the week. They learned that on August 27, 2013,
a patrolman in Fairfield Township had responded to a complaint about a woman
panhandling in front of a market. The patrolman stopped two people leaving the
scene in a Jeep. The vehicle's occupants – a man, who identified himself as
Linnartz, and a woman, who identified herself as Brandi Pasquoche – looked
disheveled and appeared to be homeless. Both were very thin and both had fresh
needle marks on their arms. Because Linnartz and Pasquoche had multiple
warrants for their arrest, the patrolman took them into custody. Pasquoche was
ultimately released to the Morris County Sheriff's Department, while Linnartz
remained in Bergen County.
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Linnartz was released from jail on the afternoon of August 28, 2013. At
10:54 p.m. that night the Paterson Police License Plate Reader System recorded
Linnartz's Jeep parked on a dead-end street next to the factory.
On September 1, 2013, a detective went to the Morris County Correctional
Facility to speak to Pasquoche and obtained photographs of defendant and Daut .
The police searched for them throughout that day and found them panhandling
near Route 46 that evening. They were arrested and taken to the detective bureau
for interrogation.
Defendant's Statements to the Police
After waiving his Miranda2 rights, defendant was questioned for several
hours in the early morning of September 2, 2013, and again in the evening of
September 3, 2013.3 In the interrogations, which were ultimately played for the
jury at trial, defendant explained to the police that he, Daut, Linnartz, and
Pasquoche had been living on the second floor of the factory, in an area they
called "the loft," for several months. Defendant initially explained that
Pasquoche was incarcerated in Bergen or Morris County, and he had no idea
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
We discuss the circumstances of defendant's interrogations in more detail in
Part II, infra.
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where Linnartz was. He speculated that Linnartz may have entered
rehabilitation at Straight and Narrow, a treatment center located near the factory.
Defendant stated that the four of them used the factory for shelter while
they got high on drugs. He had been using heroin and cocaine for several years
and needed to panhandle to get money to buy drugs so he would not be "drug
sick." At the time of his arrest, he was using ten bags of heroin a day. Linnartz
had a very heavy heroin habit, using as much as a brick 4 of heroin daily.
Defendant said that Pasquoche made a lot of money panhandling. She
usually went out with Linnartz, who drove her to panhandling locations, while
defendant and Daut remained back at the loft. Pasquoche and Linnartz would
leave the loft, panhandle, buy drugs, and return to get high, repeating this cycle
about five times over the course of a day. The last time defendant saw
Pasquoche was on the afternoon of either August 26, 2013, or August 28, 2013, 5
when she and Linnartz left the loft to panhandle. Defendant believed that they
must have been arrested because there were warrants out for them. At first, he
claimed that he learned of their arrests from Linnartz, who came back to the
4
A "brick" of heroin consists of fifty glassine bags.
5
The dates given by defendant were inconsistent throughout his statements and
do not agree with the police records, which indicate that Pasquoche and Linnartz
were arrested on August 27, 2013.
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factory after being released from custody. Defendant later changed that claim,
saying that he never saw Linnartz, and that he only said that he did to make it
seem like he had permission to drive the Jeep.
Defendant and Daut woke up "drug sick" on the morning of August 29,
2013, because they had not had heroin since the day before. They left the loft to
panhandle. They did not see Linnartz's Jeep when they walked by its usual
parking spot. They first saw the Jeep around 5:00 p.m. that day when returning
to the loft.
Later that night, defendant brought a hammer that he kept in the loft down
to the Jeep to break the window, but decided not to do it because the police
patrolled the area at night. He dropped the hammer by the fence, and later
learned that Pauling, who lived in a silo behind the factory, had collected it as
scrap.
According to defendant, on the morning of August 30, 2013, defendant
and Daut were again "drug sick." They left the loft and noticed that the Jeep
was still there. Defendant threw a rock through the Jeep's window, removed the
radio and some tools, and sold them to a scrap dealer for drug money. They got
about $25 for the radio, bought drugs and returned to the loft to get high.
When leaving the loft to panhandle again they saw the body, which was
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surrounded by flies. Neither of them recognized the dead man as Linnartz.
When defendant saw the body, he "freaked" and "weirded out" because he had
never seen a dead body before. He did not want to get close to it.
Defendant and Daut discussed calling the police to report the body, but
decided to wait until they could clear their needles and drugs out of the loft.
Later that afternoon, Daut used a pay phone to call in a report of a man lying on
the ground behind the factory. Shortly after Daut made the call they were pulled
over for the seatbelt violation and the Jeep was towed.
Defendant claimed he must have walked past the body a few times without
seeing it. He insisted that he did not recognize who it was and that he only
looked at it for "half a second." He thought it was someone who had overdosed.
When the detectives revealed that the dead man was Linnartz, defendant
expressed disbelief. He adamantly denied killing Linnartz.
Defendant admitted, however, to getting into a fight with Linnartz "a
while ago." He said that Linnartz came at him and he hit Linnartz in the chin.
They did not speak for a few days, but then things got back to normal. He further
admitted that he and Daut had been planning on calling the police and having
Linnartz arrested on his warrants "because he was an asshole."
Defendant's statements had inconsistencies and implausibilities that were
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challenged by the detectives. For example, at first defendant could not explain
how, if he had not seen Linnartz on August 28 or 29, 2013, he knew that Linnartz
and Pasquoche had been arrested in Bergen County. He thereafter explained,
however, that the officer who pulled him over for driving without a seatbelt gave
him that information. That explanation changed when he later claimed that he
and Daut went to the Paterson police complex on August 29, 2013, to ask about
Pasquoche and Linnartz, and the officer at the desk said they had been arrested
in Clifton.
Detectives paid particular attention to defendant's inconsistent recitation
of dates and events, which, as discussed previously, was seriously confused.
The only notable consistency in defendant's statements was his denial of having
anything to do with Linnartz's murder.
Other Prosecution Witnesses
Margaret Linnartz
Linnartz's mother, Margaret, 6 testified that her son was twenty-nine years
old when he died. He was addicted to heroin and had been in and out of
rehabilitation programs several times. When sober he worked as an electrician
and lived at home, but he always slipped back into addiction. She eventually
6
For clarity we refer to the mother by her first name, intending no disrespect.
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asked him to leave the house and told him not to return until he completed a
rehabilitation program.
On August 27, 2013, Margaret received a call from the Fairfield police,
informing her that Linnartz had been arrested for panhandling. She and her
husband picked up his Jeep from the police station and drove it home. The Jeep
was messy inside, but the windows were intact, the radio was in place, and it
operated with keys.
Margaret thought that Linnartz would be transferred to the Bergen County
Jail on outstanding motor vehicle warrants and was surprised to learn that he
was being released on August 28, 2013. She met him at the jail around 9:30
p.m. that night. She brought him his Jeep and gave him $100. He told her that
he had been accepted into Straight and Narrow, starting the next Monday. She
told him to call her once he entered the program. She did not hear from him
again.
Margaret recalled that at their last meeting Linnartz seemed extremely
frightened. She had never seen him act so scared. He wanted to come back
home, but she refused. She hoped a "tough love" approach would force him into
rehabilitation.
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Brandi Pasquoche
Pasquoche testified that as of the time of trial she had been sober for
almost three years. In the summer of 2013, however, she was using heroin and
crack cocaine daily. She was living in the factory with defendant, Daut, and
Linnartz.
Pasquoche described Daut as her "common law husband" with whom she
had had a relationship for almost twenty years. She had known defendant for
about four years. She met Linnartz in 2011.
The four drug addicts lived in tents in the loft on the second floor of the
factory. There was no electricity and no running water. Other people lived in
the factory from time to time, but no one other than the four of them stayed on
the second floor. An older man, Pauling, lived behind the factory. Pauling was
an alcoholic who collected aluminum cans and other metal, which he would sell
as scrap.
When they first moved into the loft, defendant met a man who claimed
that the factory was his property. The man said he had no problem with the
group staying there, however, if they secured the building. To that end he gave
defendant a hammer, nails and plywood. The hammer became defendant's; only
he used it; he slept with it under his pillow. Pasquoche identified a hammer that
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had been recovered from Pauling's silo as the one belonging to defendant.
Pasquoche, defendant, Linnartz, and Daut were using heroin and cocaine
four or five times a day. According to Pasquoche, defendant used eight to ten
bags of heroin every day; Linnartz used twenty. They were always "drug sick"
and irritable when they woke up in the morning.
Pasquoche explained that the group made money for drugs by
panhandling. In the beginning, all four of them would go out in Linnartz's Jeep
to parking lots and gas stations where there was a lot of traffic. Pasquoche
would always be the one interacting with passers-by because she was better at
gaining people's trust and asking for money. Having so many people in the car,
however, was stressful. Eventually only Pasquoche and Linnartz went out to
panhandle, while defendant and Daut waited in the loft for them to return with
drugs.
Pasquoche recounted it took about an hour of panhandling for her to make
$80, which she used to buy a $40 bundle of heroin and two $20 vials of crack
cocaine. She typically would share the drugs with defendant and Daut when she
got back to the loft. She was the one "in charge" because she made the money
and she controlled the drugs. If one of the men did not listen to her, she would
withhold drugs from him.
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Tensions arose among the group as Pasquoche and Linnartz came to resent
the fact that they were "floating" defendant and Daut. Linnartz drove the Jeep
and Pasquoche begged, while defendant and Daut stayed in the loft to take care
of the group's kittens. At the same time, defendant and Daut worried that
Pasquoche would not return with drugs or would not share the drugs if she did
come back.
According to Pasquoche, a day or two before the arrests of her and
Linnartz on August 27, 2013, defendant and Linnartz got into a fight. The
addicts were angry and frustrated because they could not decide who would go
panhandling. They all knew that Pasquoche had an outstanding warrant for
failure to pay child support and that there was a risk that she would be arrested
if she went out.
As recalled by Pasquoche, Linnartz and defendant started pushing each
other. Defendant punched Linnartz in the head, breaking his glasses. Linnartz
did not hit back; he simply exclaimed, "What the hell is wrong with you?"
Pasquoche yelled for the fight to stop. Daut backed into a corner and did not
get involved. Defendant then warned Linnartz: "If you ride around with her
and . . . she [gets] lock[ed] up, do not come back without her because I'm going
to beat you to death and kill you."
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After the fight, the four of them continued to live together. Pasquoche
recalled defendant and Linnartz got along "for the most part."
On the afternoon of August 27, 2013, Linnartz asked to borrow
defendant's cell phone so that he could call his drug dealer. Defendant gave it
to him. Linnartz and Pasquoche then went to a market parking lot to panhandle.
They were arrested as they tried to drive away. Linnartz was wearing his glasses
at the time of his arrest. He needed them to see, and Pasquoche could not recall
ever seeing him without them.
Christopher Daut
Daut also testified as a witness for the prosecution. Daut had entered into
a plea agreement under which the State dismissed the felony murder charge
pending against him, and he pled guilty to second-degree burglary and second-
degree endangering an injured victim. The sentencing recommendation for the
second-degree charges was fifteen years, with an eighty-five percent parole
disqualifier. In exchange for testifying truthfully at defendant's trial, however,
the State agreed to reduce that recommendation to six years with an eighty-five
percent parole disqualifier. Daut explained that he wanted this agreement very
much because he hoped to return to Pasquoche, whom he considered to be his
wife.
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Daut's testimony about the circumstances and conditions of life at the loft
was substantially consistent with that of Pasquoche. According to Daut,
Linnartz moved into the loft in June or July 2013. Defendant complained to
Daut that "a lot changed" after Linnartz moved in, and that he was getting less
drugs. Defendant also complained that Linnartz and Pasquoche were leaving
him out of things.
Daut described a fight between Linnartz and defendant that occurred
around August 21, 2013. Linnartz was calling defendant names and taunting
him. Defendant taunted back. Linnartz ran towards defendant, who punched
him and knocked his glasses off. Pasquoche became hysterical and the fight
stopped. Linnartz told defendant that he could never ride in the Jeep again.
According to Daut, on August 27, 2013, defendant did not want Pasquoche
to go out with Linnartz. Linnartz planned to drop Pasquoche off to panhandle
while he went to his parents' house to get money, but Pasquoche was afraid she
would be arrested and did not want to be left alone. Defendant warned Linnartz
that if he did not come back with Pasquoche, something would happen to him .
Daut recalled defendant saying, "If you don't come back with Brandi I'm going
to hit you with something."
As Daut described it, Linnartz and Pasquoche left around 4:30 p.m. that
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day. Defendant and Daut waited in the loft for them to come back with drugs .
When they did not return after four hours, defendant and Daut went out to
panhandle. Later they walked to a donut shop by the police station to get
something to eat from the trash bins.
Daut walked into the station to ask if Pasquoche and Linnartz had been
arrested. He asked the officer to call Pasquoche's phone to see if she answered,
but she did not.
Defendant and Daut woke up "drug sick" on August 28, 2013, although
defendant appeared much sicker than Daut. They went to panhandle, got drugs,
and went back to the loft. Defendant remained at the loft while Daut went out
to panhandle and procure drugs in the afternoon.
At about 3:30 a.m. on August 29, 2013, Daut saw the Jeep pull up to the
dead-end street near the factory. He then saw Linnartz come through the fence.
Defendant, who also saw Linnartz, said that he wanted to talk to him and went
outside to meet him. Daut followed.
Defendant walked up to Linnartz, asking him what he was doing and
saying, "I don't want you on the property here no more." Linnartz refused to
leave. Defendant then demanded drugs or money, but Linnartz responded that
"you don't own the place" and "I'm not giving you shit." Defendant punched
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Linnartz in the eye. Linnartz went down on his knee and put his hands up, asking
"Why are you hitting me for?" Daut told defendant to leave Linnartz alone, but
defendant hit Linnartz in the head with a hammer.
Daut identified the hammer that had been recovered from Pauling's silo,
which was orange with a black handle, as the hammer with which defendant hit
Linnartz. Daut did not know where defendant got the hammer. According to
Daut, defendant always had the hammer with him and slept with it under his
pillow. Daut had never seen anyone other than defendant use it.
When Linnartz dropped to the ground, Daut ran outside the fence to where
the Jeep was parked. Defendant followed him, but he no longer had the hammer
with him. Defendant said that now that they had the Jeep, they could break into
it to get money for dope. Defendant threw a rock through the passenger side
window and removed the radio and a tool chest from inside. Defendant and
Daut went to an auto body shop, waited for it to open, and sold the radio for $25
and the tools for $10 or $15. They bought heroin and cocaine and went back to
the factory to get high. They walked past Linnartz, who was lying there dead.
Later, Daut left defendant at the loft and went out to panhandle. When he
returned, he and defendant returned to the Jeep and spoke to a man who gave
them a device to rip out the Jeep's ignition. After using the device, they were
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able to insert a screwdriver into the ignition and start the Jeep. They drove to
Clifton, panhandled, got money, bought drugs, and returned to the loft to get
high.
Daut estimated that he and defendant walked by Linnartz's body three
times prior to his calling 9-1-1 on the morning of August 30, 2013. Before he
made the call, however, he and defendant vacated the loft and moved to a spot
near the Salvation Army where they had lived before. They took all of their
belongings as well as the kittens.
On cross-examination, the defense questioned Daut about various
inconsistencies in his testimony. For instance, Daut admitted that in neither of
the statements he gave to the police did he say that he saw defendant kill
Linnartz. Further, he admitted that he told the police that he and defendant saw
Linnartz's Jeep when they returned to the loft on the evening of August 28, 2013,
and that they assumed Linnartz must have checked in to Straight and Narrow.
Daut also acknowledged on cross that, in a letter that he wrote to defendant
while they were incarcerated in the county jail, he claimed that the prosecutors
wanted him to lie on the witness stand.
Daut agreed that the version of events that he related in his plea allocution
differed from his testimony at trial—at least in the details—but he insisted he
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told the truth both times. When presented with the transcript of his plea hearing,
Daut admitted that he told the court that he and defendant were attempting to
break into Linnartz's Jeep on August 29, 2013, when Linnartz confronted them.
He said that he made a mistake when he said the confrontation happened at the
Jeep, and that it really happened at the rear of the building. Daut also admitted
he was incorrect when he said that defendant used the hammer to break the Jeep's
window, rather than a rock. He said he was confused when he gave his plea and
did not know what he was thinking. He said that when the prosecution team was
preparing him for trial they pointed out the areas where he was confused and
then he remembered things differently.
Bryant Castillo
Bryant Castillo also testified for the State pursuant to a cooperation
agreement. Under his plea bargain, Castillo pled guilty to possession of heroin
with intent to distribute. In exchange for his truthful testimony at defendant's
trial, his period of parole ineligibility would be cut from three years to eighteen
months. Castillo had been deported twice, and he understood the cooperation
agreement did not protect him from another deportation when he was released
from prison.
According to Castillo, he and defendant were housed together at the
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Passaic County Jail for four or five months. Defendant spoke to Castillo about
his case several times, and Castillo took notes of what he said.
As recounted by Castillo, defendant revealed to him that he was being
charged with the murder of Linnartz. Defendant stated he and Linnartz got into
an argument and were struggling in some grass near the factory. Defendant said
he hit Linnartz with "a piece of metal," which he later described as a hammer.
Linnartz covered his head with his hands and fell. Defendant searched Linnartz
and found some money and bags of heroin. He took Linnartz's glasses because
Linnartz was unable to see without them. He did not want Linnartz to go looking
for help.
Defendant told Castillo he discarded the hammer in an area of the factory
where some tanks were located. A homeless man who lived in the tanks had a
cart and would go about picking up everything he could find. Defendant knew
the man would take the hammer.
Eduardo Perales
Eduardo Perales also testified for the State pursuant to a cooperation
agreement. He pled guilty to third-degree possession of a controlled dangerous
substance with intent to distribute and received a five-year sentence with two-
and-a-half years of parole ineligibility. In exchange for testifying truthfully at
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defendant's trial, his sentence would be reduced to three years with an eighteen -
month parole disqualifier.
Perales and defendant were housed together at the Passaic County Jail
from March 31, 2016, until January 5, 2017. Perales had some limited legal
knowledge and would sometimes help other inmates prepare documents for
court. Defendant brought Perales information about his case and wanted Perales
to help him revise letters he had written, which Perales did.
Defendant frequently talked about his case with Perales. He told Perales
that he, Pasquoche, Daut, and Linnartz had been living on the second floor of an
abandoned factory. Defendant said he hated Pasquoche because, while they
were living together, he helped her with burglaries to support her drug habit, but
now she was encouraging her boyfriend, Daut, to tell the prosecutor's office that
he (defendant) beat Linnartz to death. Defendant kept asking Perales if Daut
could be used as a witness against him.
Knowing that Perales was about to be released on bail, defendant asked
him for help. He wanted Perales to look for a hammer that was in a construction
glove, thrown near the silos behind the factory. He said that the hammer might
be gone because a "bum" who lived in the silos picked up metal in a shopping
cart. He also asked Perales to try to find the eyeglasses he took from Linnartz .
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Defendant told Perales that after the fight, he took eyeglasses, money,
some packs of heroin, and a syringe kit from Linnartz. The heroin was not good
quality, however, so defendant used the money to buy better drugs. After his
purchase, defendant remembered that he had Linnartz's eyeglasses in his pocket.
He took them out and threw them toward the river. The glasses did not fall in
the water, but landed in the dirt near the riverbank. Defendant told Perales was
worried that if the police found the glasses, they could detect his DNA on them.
A few days before Perales made bail, defendant drew him a map showing
the area where the bum lived, where the dead body was lying, where he tossed
the glasses, and where he purchased drugs. On the back of the map, Perales
wrote down defendant's personal information and details about the detective
who arrested defendant.
Perales testified that he saw an inmate deliver a letter to defendant that
was written by Daut. Perales read the letter at least five times. In it, Daut
claimed the prosecutor's office wanted him to lie.
Perales explained that defendant's best friend in and out of jail was
Richard Horn.7 Defendant had asked Horn to try to get in touch with Daut, who
7
Richard Horn is sometimes referenced in the transcripts as Richard Hawn. In
their briefs, defendant has adopted the appellation "Hawn," while the State uses
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25
was housed in a different area of the jail. Perales saw defendant use the phones
located in the jail to call Horn. He later provided the prosecutor's office with
the telephone number defendant had given him for Horn.
Telephone Records and Recordings from The County Jail
Detectives from the Passaic County Prosecutor's Office obtained
telephone records from the jail for every call made to or from the phone number
provided by Perales. The records did not specifically identify which inmate
made a particular call, but they did show the inmate number and the pin number
associated with that inmate. Based on information contained in the records, the
detectives subpoenaed audio recordings of ten telephone calls involving Horn's
number. Portions of two of those calls, each lasting no more than five minutes,
were played for the jury. We discuss those calls in more detail, infra, in Part
II.C of this opinion.
Defendant's Proofs
Defendant elected not to testify. He presented two witnesses on his behalf,
Ricky Ortiz and Commander David Stillman from the Passaic County Sheriff's
Department.
"Horn." Because "Horn" is the most frequent spelling in the transcripts, we use
that version of the name.
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26
Ortiz testified that he worked at General Carbon, a company located next
to the abandoned factory where Linnartz's body was found. The garage door at
the back of the General Carbon building opens onto the dead-end street where
Linnartz normally parked his Jeep.
One day at the end of August 2013, Ortiz noticed a lot of police activity
in the back yard of the abandoned factory. The day before that, Ortiz had been
working near the open garage door when he saw a Jeep parked on the dead-end
street and a man standing next to it who looked like he needed help. Ortiz
approached the man, who said he was trying to get into the car. Ortiz assumed
he was locked out. Ortiz could not remember what the man looked like, nor
could he remember whether he gave him a tool to help him get inside . Ortiz
returned to work, and when he went back outside about twenty minutes later,
the Jeep was gone. He recalled seeing broken glass on the ground where the
Jeep was parked.
Looking at various photographs, the only person Ortiz could definitively
identify was Pasquoche, whom he described as someone who lived at the factory
and fed cats living there.
Stillman, the records custodian at the Passaic County Jail, also testified
for defendant. He identified an inmate grievance form filed by defendant on
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27
February 25, 2017. That form, designated as D-22, was admitted into evidence
in its entirety. In it, defendant claimed other inmates took his personal and legal
papers following a shakedown of their living quarters in January 2017. The
grievance was dismissed by the jail as untimely.
II.
On appeal, defendant raises the following arguments:
POINT ONE
DEFENDANT'S STATEMENTS WERE NOT THE
PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO
REMAIN SILENT AND, THEREFORE, SHOULD
HAVE BEEN SUPPRESSED BY THE TRIAL
COURT.
POINT TWO
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY AS TO THE LESSER INCLUDED
OFFENSES OF AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER WAS PLAIN
ERROR (Not Raised Below).
POINT THREE
THE ADMISSION OF OTHER CRIMES EVIDENCE
CONSISTING OF RECORDINGS OF JAIL
TELEPHONE CALLS DENIED DEFENDANT A
FAIR TRIAL.
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POINT FOUR
THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S JUDGMENT OF ACQUITTAL AND
NEW TRIAL MOTIONS REGARDING THE CRIME
OF SECOND-DEGREE BURGLARY.
POINT FIVE
THE TESTIMONY OF THE MEDICAL EXAMINER
SHOULD HAVE BEEN STRICKEN AS AN
INADMISSIBLE "NET OPINION."
POINT SIX
THE AGGREGATE SENTENCE OF 68 YEARS IN
PRISON, SUBJECT TO THE NO EARLY RELEASE
ACT, WAS EXCESSIVE.
Defendant adds the following points in his reply brief:
REPLY POINT ONE
DEFENDANT'S STATEMENTS WERE NOT THE
PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO
REMAIN SILENT AND, THEREFORE, SHOULD
HAVE BEEN SUPPRESSED BY THE TRIAL
COURT.
REPLY POINT TWO
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY AS TO THE LESSER INCLUDED
OFFENSES OF AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER WAS PLAIN
ERROR.
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Lastly, in a pro se supplemental brief, defendant makes these arguments:
SUPPLEMENTAL POINT I
THE STATEMENT ALLEGEDLY MADE BY
APPELLANT SHOULD HAVE BEEN SUPPRESSED
BECAUSE THE PROCEDURES UTILIZED BY LAW
ENFORCEMENT OFFICERS, DURING THE
CUSTODIAL INTERROGATION OF MR. JONES,
FAILED TO COMPLY WITH MIRANDA V.
ARIZONA, VIOLATING THE FIFTH, AND THE
FOURTEENTH AMENDMENT, OF THE UNITED
STATES CONSTITUTION, AND ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
SUPPLEMENTAL POINT II
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN FAILING TO CHARGE THE JURY ON
THE LESSER INCLUDED OFFENSES OF
AGGRAVATED MANSLAUGHTER,
PASSION/PROVOCATION MANSLAUGHTER
AND RECKLESS MANSLAUGHTER, THIS
DEPRIVED APPELLANT OF A FAIR TRIAL AND
DUE PROCESS OF LAW. U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. ART I, PARS. I, 10.
SUPPLEMENTAL POINT III
THE DEFENDANT-PETITIONER WAS
SUBJECTED TO EXTENSIVE UNDUE PREJUDICE
RESULTING FROM THE INTRODUCTION OF
EXCESSIVE INADMISSIBLE OTHER-CONDUCT
EVIDENCE THAT SHOULD NOT HAVE BEEN
ADMITTED PRIOR TO COFIELD/MARRERO
TESTS, AND IF ADMITTED SHOULD HAVE BEEN
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30
SANITIZED AND FOLLOWED BY MANDATORY
LIMITED-USE INSTRUCTIONS.
SUPPLEMENTAL POINT IV
THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION FOR JUDGMENT OF
ACQUITTAL, AND THE MOTION FOR A NEW
TRIAL.
SUPPLEMENTAL POINT V
THE TRIAL COURT SHOULD NOT HAVE
PERMITTED THE RECORDINGS OF THE
TELEPHONE CALLS WITHOUT FIRST
CONDUCTING A WADE HEARING TO IDENTIFY
THE VOICE RECORDINGS. (not raised below).
SUPPLEMENTAL POINT VI
THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL
UNFAIR.
We have carefully considered each of these arguments in light of the
record and the applicable law. For the reasons we now amplify, none of them
have merit.
A.
Defendant argues that the admission of statements he made following his
arrest violated the privilege against self-incrimination guaranteed by the Fifth
Amendment to the United States Constitution. This issue was the subject of a
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31
two-day pretrial hearing under Rule 104.
Specifically, defendant contends that even though he was suffering the
effects of heroin withdrawal during questioning, the detectives did not provide
him with medical treatment. He claims the detectives were utilizing his pain
and discomfort to aid them in their interrogation. He asserts these circumstances
resulted in a statement that "provided the State with a suspicious, disjointed
scenario, the product of a mind that was 'fried' . . . to be presented to the jury. "
Defendant argues the denial of medical care in order to induce physical pain
coerced him. The trial court rejected these contentions of involuntariness after
the Rule 104 hearings. We sustain that ruling.
Sergeant Todd Pearl, who led the investigation into Linnartz's murder,
testified concerning defendant's interrogations. Sergeant Pearl explained that
defendant and Daut were arrested, handcuffed, transported to police
headquarters, and placed in separate interview rooms. Defendant's first
interrogation began about two hours later, in the early morning hours of
September 2, 2013, and continued for approximately three hours. The
interrogating officers were Pearl, a Lieutenant Ribeiro, and a Captain Rodriguez.
Pearl read defendant his Miranda rights from the Paterson Police Miranda
form. Defendant was asked if he understood his rights, he nodded, and he wrote
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32
"yes" on the form, indicating that he did understand. Pearl then read the waiver
portion of the form aloud and asked defendant if he wished to waive his rights .
Defendant wrote "yes" on the form, indicating that he wished to make a
statement and to waive his right to an attorney. Pearl recalled that defendant
spoke coherently at this time and gave no indication that he did not know what
was going on.
During the interrogation, defendant sometimes seemed confused and
complained that his brain was "screwed up" or "fried." His overall demeanor
nevertheless appeared to be coherent and alert. He looked the detectives in the
eye when they spoke to him and answered their questions directly.
Toward the end of the interview, Captain Rodriguez referred to
defendant's heroin addiction and said: "As soon as your habit starts to kick in,
as soon as that pain – you know that pain. I'm going to tell you about it. As
soon as that pain starts coming in and you start fucking with that—start–he's
[Daut's] fucking you." Rodriguez asked defendant how many bags of heroin he
used a day, then said: "Oh, you're going to feel pain, a lot of pain. You're going
to go through a lot of pain." He added that once Daut began feeling that pain,
he would talk.
When the interrogation was finished, defendant was taken to the cell block
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33
at the Paterson Police holding facility. He remained there until his next
interrogation, which occurred on the evening of September 3, 2013, and lasted
about two hours. The interrogating officers at this session were Sergeant Otero,
Detective Lugo, Detective Alba, and Sergeant Pearl.
Otero asked if defendant remembered his rights and still wanted to talk to
them, and defendant said that he did. In general, the questioning was less heated
than in the first interrogation, with the detectives doing most of the talking .
Defendant appeared sick at this time. When the detectives were not in the room,
he rested his head on the table and later started spitting up into a trash can .
While being questioned, he rocked in the chair with his arms wrapped tightly
around his chest.
Pearl testified that defendant was not examined by medical personnel prior
to the interrogations. He pointed out that Otero was with him throughout the
interviews and that she had extensive training as an emergency medical
technician. However, he did not think she performed a physical examination on
him. He was aware that defendant was a heroin addict and acknowledged that
it was possible that defendant was going through withdrawal while being
interrogated. Indeed, Pearl thought withdrawal was very likely by the time of
the second interview. He testified that defendant never requested medical
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34
treatment, never asked to be taken to the hospital, and never appeared to be in
medical distress.
The trial judge found Pearl's testimony at the Rule 104 hearing to be
credible. Based on his review of the video recordings of both interrogations, the
judge found there was a clear and unambiguous manifestation of defendant's
desire to waive his rights. The judge observed that defendant was a middle-aged
man who could read and write English and who had a great deal of experience
with the criminal justice system. The judge found the police questioning was
not prolonged and did not involve physical or mental abuse.
As to defendant's argument that he was feeling sick during the
interrogations, the judge stated: "I don't find that his lack of using drugs
contributed, in any way, to . . . giving any statement as a result of being
uncomfortable." The judge stated that it was clear that defendant might not have
felt well, but no discomfort was manifested in the interviews. Accordingly, the
judge concluded that defendant's statements would be admissible in the State's
case in chief. The statements consequently were presented to the jury.
Our review of the trial judge's decision on admissibility of evidence is
deferential. State v. Hubbard, 222 N.J. 249, 269 (2015) ("an appellate tribunal
must defer to the factual findings of the trial court when that court has made its
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35
findings based on the testimonial and documentary evidence presented at an
evidentiary hearing or trial."). Where, as here, the evidence consists of
testimony of one or more witnesses and a videotaped recording of a statement
by a witness or a suspect, "an appellate court is obliged to review the entire
record compiled in the trial court to determine if the factual findings are
supported by substantial credible evidence in the record." Ibid.The governing law is well established. "Miranda safeguards come into
play whenever a person in custody is subjected to either express questioning or
its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
There is no question here that defendant's statements were taken while he was
in police custody. Thus, for them to be admissible, the prosecutor was required
to prove beyond a reasonable doubt that defendant's waiver was knowing,
intelligent and voluntary. State v. A.M., 237 N.J. 384, 398 (2019).
"A determination of voluntariness depends on an 'evaluation of the totality
of all the surrounding circumstances.'" State v. Roach, 146 N.J. 208, 227 (1996)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)); State v. L.H.,
239 N.J. 22, 42 (2019). "In the totality-of-the-circumstances analysis, we
consider such factors as the defendant's 'age, education and intelligence, advice
as to constitutional rights, length of detention, whether the questioning was
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36
repeated and prolonged in nature and whether physical punishment or mental
exhaustion was involved.'" State v. Nyhammer, 197 N.J. 383, 402 (2009)
(quoting State v. Presha, 163 N.J. 304, 313 (2000)).
Here, there is no dispute that Miranda rights were clearly and
appropriately explained to defendant, and that he expressed his desire to waive
them. The question is whether the interrogations produced voluntary statements.
That question has two parts: (1) whether Captain Rodriguez's alleged taunts
about defendant's "pain" constituted overbearing psychological pressure; and (2)
whether failing to provide defendant with medical attention and interrogating
him while he was experiencing heroin withdrawal constituted physical
punishment.
Courts have recognized that an involuntary confession can result from
psychological as well as physical coercion. State v. Galloway, 133 N.J. 631,
654 (1993). Confessions derived from "'very substantial' psychological
pressures that overbear the suspect's will" are not voluntary. Cook, 179 N.J. at
563 (quoting Galloway, 133 N.J. at 656). Nevertheless, use of a
psychologically-oriented technique is not, in and of itself, inherently coercive.
State v. Knight, 183 N.J. 449, 463 (2005); Galloway, 133 N.J. at 654. "The real
issue is whether the person's decision to confess results from a change of mind
A-1994-17T4
37
rather than from an overbearing of the suspect's will." Galloway, 133 N.J. at
655.
Here, Rodriguez's references to the pain that defendant would be
experiencing, while arguably insensitive, did not rise to the level of overbearing
psychological pressure under the applicable law. Rodriguez did not promise to
do anything to alleviate defendant's pain in exchange for his cooperation.
Rather, Rodriguez was suggesting that Daut would turn on defendant once the
pain of withdrawal started, and that it would be in defendant's interests to be the
first to talk.
Moreover, Rodriguez's questioning did not manifestly cause defendant to
change his statement. The fact that Rodriguez's alleged taunts may have caused
defendant emotional distress is not legally sufficient to render his statements
involuntary. See, e.g., State v. Faucette, 439 N.J. Super. 241, 259-61 (App. Div.
2015) (describing an interrogator's threat to incarcerate the defendant in the
same jail where a co-defendant was housed as a "psychological ploy" that did
not strip the defendant of his capacity for self-determination).
Long ago in State v. Wade, 40 N.J. 27 (1963), the Supreme Court made
clear that "[a] confession made by a person while under the influence of drugs
is not per se involuntary." Id. at 35. Because the defendant in Wade had
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38
received a Demerol injection an hour and a half before answering detectives'
questions, the Court phrased the issue of voluntariness as whether the Demerol
deprived the defendant "'of a rational intellect and a free will.'" Ibid. (quoting
Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). Despite medical testimony
that the defendant was almost certainly under the influence of Demerol at the
time of questioning, the trial court credited the testimony of the interrogators
who stated that the defendant appeared normal and spoke coherently. Id. at 36.
The Court affirmed, finding that the State had carried the burden of proving that
the defendant's will had not been overborne. Ibid.
Similarly, in State v. Warmbrun, 277 N.J. Super. 51, 61-64 (App. Div.
1999), this court rejected the defendant's argument that he was too intoxicated
to have voluntarily waived his Miranda rights. In so doing, it concluded that
there was substantial credible evidence in the record to support the trial court's
finding that although the defendant was very intoxicated, "he was capable of
communicating and that he was responsive to answering questions and could
answer correctly questions such as his name, age, etc." Id. at 64.
Although in a slightly different context, the United States Supreme Court
has held that "a defendant's mental condition, by itself and apart from its relation
to official coercion, should never dispose of the inquiry into constitutional
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39
'voluntariness.'" Colorado v. Connelly, 479 U.S. 157, 164 (1986). In Connelly,
the defendant, who suffered from chronic schizophrenia, moved to suppress his
confession because he claimed that the "voice of God" had compelled him to
confess. Id. at 161. The Court rejected that argument, finding there needed to
be some link between coercive activity on the part of the State and the resulting
confession. Id. at 165-66, 170. The Court held that "[t]he voluntariness of a
waiver of [the Fifth Amendment] privilege has always depended on the absence
of police overreaching, not on 'free choice' in any broader sense of the word."
Id. at 170.
The reasoning of Wade, Warmbrun, and Connelly is consistent with the
trial court's conclusion that defendant's statements to the police were voluntary.
While defendant was possibly experiencing heroin withdrawal during the first
interrogation and likely was having those symptoms during the second, he never
requested medical treatment. He said he was sick only once, at the end of the
second interview, when asked why he reacted badly to a photograph of
Linnartz's body. Shortly thereafter, questioning stopped. Throughout the
interrogations, defendant spoke coherently, answered questions fully, and even
verbally sparred with the detectives.
When asked by police about inconsistencies in his statements, it is true
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40
that defendant said his brain was "fried" and that he was confused. Nevertheless,
he was alert to his surroundings, and after being informed that the dead body
was that of Linnartz, he realized that he was being questioned about the murder
and understood the gravity of the situation. At no point did he manifest a lack
of a rational intellect or free will.
Because being under the influence of drugs does not render a statement
per se involuntary, the demeanor of defendant and the content of his responses
supports the trial court's finding that he was capable of knowingly, intelligently,
and voluntarily answering waiving his Miranda rights and answering the
detectives' questions. The finding was largely based on the court's credibility
determinations, to which we owe deference. We therefore affirm the trial court's
ruling.
B.
Defendant argues that the court erred in not charging the jury as to
aggravated manslaughter, passion/provocation manslaughter, and manslaughter
as lesser-included offenses to homicide. He admits that his defense counsel
requested that lesser-included offenses not be charged but claims that the court's
failure to issue those charges, sua sponte, was plain error. He contends that the
states of mind required to support such lesser-included jury charges were
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41
established by evidence of Linnartz's habit of saying things that angered people,
defendant's chronic dope sickness, and defendant's conduct in telling Castillo
that he and Linnartz were struggling with one another. We are not persuaded by
these contentions of error.
At the initial charge conference, defense counsel requested that the court
charge lesser-included offenses for the burglary and theft offenses. Regarding
murder and felony murder, defense counsel stated the lesser included charges
conceivably would be aggravated manslaughter or manslaughter, but that he and
defendant would have to decide whether to request those charges. Counsel
stated that he believed that any decision in that regard prior to the close of the
evidence was premature.
At a second charge conference, the court again asked defense counsel for
his position on the lesser included offenses. Defense counsel replied that
defendant "does not want lesser includeds on the homicide included in the jury
charge, or on the jury verdict sheet." The prosecutor acknowledged that the
court must charge any lesser-included offenses that apply but argued that none
applied and requested that none be given.
The next day, defendant was personally questioned by defense counsel
and the court out of the jury's presence. Defendant testified that he had spoken
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42
with defense counsel about the lesser-included offenses of aggravated
manslaughter and manslaughter. They had "strategic discussions" and reviewed
the advantages and disadvantages to lesser included offenses. After giving it
thought, defendant told the court he did not want to charge the jury with lesser-
included offenses to murder. He said that he reached that decision freely and
voluntarily.
Later, at the close of defendant's case, the court read a portion of the
proposed jury charge to counsel, explaining what lesser-included offenses were
and how they would be applied to the burglary and theft charges. Counsel had
no objections.
Accordingly, the court charged the jury as to burglary and theft and
included an instruction as to those lesser-included offenses. It charged the jury
as to felony murder and murder but did not include an instruction as to lesser
included offenses. Counsel took no exceptions to the charge.
It is well established that "[t]rial errors which were induced, encouraged
or acquiesced in or consented to by defense counsel ordinarily are not a basis
for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.
1974). "The defendant cannot beseech and request the trial court to take a course
of action, and upon adoption by the court, take his chance on the outcome of the
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43
trial, and if unfavorable, then condemn the very procedure he sought and urged,
claiming it to be error and prejudicial." Ibid. (quoting State v. Pontery, 19 N.J.
457, 471 (1955)). See also State v. A.R., 213 N.J. 542, 561 (2013) (similarly
applying the doctrine of "invited error"). In order to warrant a reversal when
the claimed error was invited by defense counsel, "a defendant must show that
the error was so egregious as to cut mortally into his substantive rights." State
v. Ramseur, 106 N.J. 123, 282 (1987) (internal quotations omitted).
When determining whether a court erred in failing to issue an included
offense charge, the first consideration is whether the charge would have satisfied
the definition of an included offense that is set forth in N.J.S.A. 2C:1-8(d).8
State v. Thomas, 187 N.J. 119, 130-31 (2006). That initial requirement is met
8
N.J.S.A. 2C:1-8(d) provides that an offense is "included" when:
(1) It is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged; or
(2) It consists of an attempt or conspiracy to commit the
offense charged or to commit an offense otherwise
included therein; or
(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.
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44
here. The offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and
manslaughter, N.J.S.A. 2C:11-4(b)(1), conceptually are lesser-included offenses
to murder, N.J.S.A. 2C:11-3(a)(1) and (2). See, e.g., State v. Jenkins, 178 N.J.
347, 360-61 (2004); State v. Purnell, 126 N.J. 518, 540 (1992); State v. Ramsey,
415 N.J. Super. 257, 263-64 (App. Div. 2010).
The next consideration is whether such a jury charge was requested by the
State, the defense, or neither. Thomas, 187 N.J. at 131-32. Here, no one
requested a lesser-included offense instruction on the murder charge.
"An unrequested charge on a lesser included offense must be given only
where the facts in evidence clearly indicate the appropriateness of that charge."
State v. Savage, 172 N.J. 374, 397 (2002) (emphasis added) (internal quotations
omitted); accord State v. Walker, 203 N.J. 73, 86 (2010). Simply stated, "a trial
court has no duty to instruct the jury sua sponte on an included offense charge
if the evidence does not clearly indicate or warrant such a charge." Thomas,
187 N.J. at 132 (internal quotations omitted). The court is not required to scour
the statutes to determine if there are some uncharged offenses of which the
defendant may be guilty. Savage, 172 N.J. at 397.
If a lesser-included charge is clearly indicated by the evidence, however,
the court has a "supervening responsibility" to issue it, even if it is contrary to
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45
defendant's trial strategy. State v. Taylor, 350 N.J. Super. 20, 38 (App. Div.
2002) (internal quotations omitted). The critical question here, then, is whether
there was evidence in the record that "clearly indicated" the appropriateness of
the manslaughter charges. We conclude the record lacks such requisite proof.
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and (2), for "purposely" or "knowingly" causing the death of Linnartz, or
inflicting "serious bodily injury resulting in death" upon him.
In Jenkins, 178 N.J. at 361-64, the Court distinguished the elements of
"SBI" (Serious Bodily Injury) murder, N.J.S.A. 2C:11-3(a), from those of
manslaughter, N.J.S.A. 2C:11-4. The Court explained:
To be guilty of SBI murder, the defendant must have
knowingly or purposely inflicted serious bodily injury
with actual knowledge that the injury created a
substantial risk of death and that it was "highly
probable" that death would result.
The Court continued:
In aggravated manslaughter, by contrast, the defendant
must have caused death with an "awareness and
conscious disregard of the probability of death."
Lastly:
If, instead, the defendant disregarded only a
"possibility" of death, the result is reckless
manslaughter.
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46
[178 N.J. at 363 (citing State v. Breakiron, 108 N.J.
591, 605 (1987); State v. Pearson, 318 N.J. Super. 123,
136 (App. Div. 1999)).]
The primary evidence against defendant came from several fact witnesses:
(1) Pasquoche, who testified that defendant had threatened to kill Linnartz if he
returned to the loft without her; (2) Daut, who testified that he witnessed
defendant confront Linnartz and hit him in the head with a hammer; and (3)
Castillo, who testified that defendant told him that he hit Linnartz in the head
with a hammer during a struggle. There was also circumstantial evidence from:
(4) Margaret Linnartz, who testified that her son was afraid to return to the loft
after he was released from jail on August 28, 2013; (5) Pasquoche and Daut,
who identified the hammer found in the silo as belonging to defendant; (6)
Perales, who testified that defendant drew him a map showing where to find the
hammer and Linnartz's eyeglasses; and (7) the officer who stopped defendant
for a seatbelt violation, who testified that defendant phoned Linnartz's parents
to prove he had permission to drive the Jeep rather than phoning Linnartz
himself.
This evidence cumulatively supports a conviction for murder under
N.J.S.A. 2C:11-3(a) (1) or (2), because it bespeaks of defendant's purposeful or
knowing plan to cause death or serious bodily injury to Linnartz. However, it
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47
does not "clearly" support a manslaughter conviction under either N.J.S.A.
2C:11-4(a) or (b).
Aggravated manslaughter requires that "[t]he actor recklessly causes
death under circumstances manifesting extreme indifference to human life."
N.J.S.A. 2C:11-4(a)(1). 9 Nothing in the evidence, however, suggests that
defendant's behavior was reckless. Either he purposely initiated the
confrontation with Linnartz and hit him in the head with a hammer, or he did
not. There is no evidence that defendant simply disregarded the probability tha t
hitting Linnartz with the hammer would kill him. Jenkins, 178 N.J. at 363.
Likewise, non-aggravated manslaughter requires that the homicide be
committed recklessly or be committed in the heat of passion resulting from a
reasonable provocation. N.J.S.A. 2C:11-4(b)(1) and (2). Again, there was no
evidence of recklessness and although Linnartz was described as argumentative,
there is no evidence of provocation on Linnartz's part before the confrontation.
Although Castillo testified that defendant told him that defendant and Linnartz
had been struggling, Castillo did not say anything about who started the fight.
According to the evidence, the only person wielding a weapon was defendant.
9
N.J.S.A. 2C:11-4(a)(2) involves causing a death while eluding law
enforcement and is not relevant here.
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In sum, neither side requested the lesser-included jury instructions on the
murder charge. The court had no independent duty to issue them if the evidence
did not clearly indicate that such charges were appropriate. Thomas, 187 N.J.
at 132. Because the evidence did not support a conviction under either N.J.S.A.
2C:11-4(a) or (b), the court's failure to issue such jury charges, sua sponte, was
not plain error.
C.
Defendant contends he is entitled to a new trial because the trial court
admitted into evidence, over his objection, two recordings of telephone calls
placed to and from inmates at the Passaic County jail while the charges against
defendant were pending. Defendant was a party to one of those taped
conversations. 10 The other conversation involved defendant, but he did not
participate in it.
The first call took place on December 20, 2016, at 11:56 a.m. While the
voices are not specifically identified, Voice 1 is apparently Jeff Kemp, a friend
of Horn's who was housed with Daut, Voice 2 is apparently Horn, and Voice 3
is apparently Daut.
10
In his brief on appeal, defendant erroneously states that both recordings were
between him and Richard Horn.
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In this conversation, Horn asks Daut, "You're not talking are you?" to
which Daut replies, "No." Horn then says, "No, just write the kid, man. Because
he's flipping, man. He's losing his composure, bro. . . . And he loves you, bro,
like a brother, man." Daut denies cooperating, while Horn promises to get him
whatever he needs for trial. When Daut says he does not know what is going on
and "they're going to try to have me sign some, or what . . . ," Horn warns "you
can't sign . . . that's going to implicate him." Horn tells Daut to rely on Kemp
because "that's my dude. You know, stay white type shit, you know." Horn
closes the call by again pleading, "Please write him, though, man, please." Daut
promises that he will.
The next call played for the jury took place on the same day, December
20, 2016, at 12:39 p.m. Voice 1 is apparently defendant and Voice 2 is
apparently Horn.
In the conversation, Horn tells defendant that he spoke to Daut and told
him to write to defendant right away. Defendant worries that Daut is a problem
and will testify against him, but Horn insists that Daut is not cooperating . The
following exchange then takes place:
Voice 1: He can't cop out without me. It's impossible.
Unless he's testifying.
Voice 2: I - - I understand that. I told him that. I said,
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"You can't do nothing without him." So, he said, "I
know." He said, "But, this is what they offered me."
Then, he says, you know, "I'm signed to it."
Voice 1: He signed it?
Voice 2: And, I said, "No. Don't sign." No, he didn't.
And I said, "When you go back, don't sign."
Voice 1: He's going to . . . he made a story about me.
There's no ifs, no ands, no buts. There's no way around
it.
Voice 2: So, I mean, I don't want to make it worse,
want my dude to get at him? Or, what do I do?
Voice 1: I don't know what to do, bro.
The following context is pertinent to the court's admission of these two
recordings. During cross-examination at trial by defense counsel, Daut testified
that he wrote defendant a letter in which he stated that the prosecutors wanted
him to lie on the stand. Perales corroborated Daut's testimony, saying that
defendant showed him the letter and in it, Daut wrote that the prosecutor's office
wanted him to lie. The State initially sought to admit the telephone recordings
to show the circumstances under which Daut wrote that letter.
Defendant objected to the admission of the telephone recordings, arguing
they were irrelevant and served no purpose except for "making [defendant] look
bad." The court listened to the audio recordings of the phone conversations and
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overruled defendant's objections. First, it found that evidence of the existence
of Daut's letter was admissible. It also found that the jail's call logs fell under
the business records exception to the rule against hearsay. See N.J.R.E.
803(c)(6).
As to the substance of the recorded conversations themselves, the court
found a logical connection between the State's proffer and facts at issue
concerning Daut's letter. Among other things, the court found the recordings
showing discussions about Daut's cooperation with the State were relevant to a
material issue in dispute. In particular, the conversations were deemed relevant
to explain a possible reason for the variance between Daut's testimony at trial
and his testimony at his plea allocution. In addition, the court found that the
evidence of the conduct on the calls was clear and convincing, and that the
probative value of the calls outweighed any prejudice arising from unpleasant
language on the calls.
As part of its ruling, the court also tracked elements of State v. Cofield,
127 N.J. 328 (1992), concerning the admissibility of "other bad acts" evidence
under N.J.R.E. 404(b). The court presumably did so because defense counsel
had invoked Rule 404(b) in his objection. After applying the Cofield factors, the
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court agreed with the State that they were also admissible evidence of
defendant's consciousness of guilt.
Our scope of review of the court's evidential ruling is limited. In general,
we defer to a trial court's rulings on the admissibility of evidence unless the
appellant demonstrates the court abused its discretion or made a "clear error of
judgment." State v. J.A.C., 210 N.J. 281, 295 (2012); State v. Brown, 170 N.J.
138, 147 (2001). Defendant fails to make such a demonstration.
We agree with the trial court the recordings were relevant proof to counter
the defense's efforts to show Daut had made false accusations about defendant
in his dealings with the prosecution. The recordings tend to show attempts were
made, or at least discussed, with Horn's assistance, to dissuade Daut from
cooperating with the State. Those efforts could explain why Daut's testimony
at defendant's trial was at variance in some respects with his plea colloquy
testimony, at which he had more pointedly inculpated defendant. The activities
and discussions may well have caused Daut to have misgivings about his
cooperation. The probative value of this relevant proof was not substantial ly
outweighed by undue prejudice. See N.J.R.E. 403.
To a lesser degree, we also agree that the second recording (i.e., the one
in which defendant is one of the speakers) was relevant evidence for the State
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of defendant's alleged consciousness of guilt. We recognize that at one point
during the call defendant expressed a worry that Daut had "made a story" about
him, and did not explicitly state that he had taken part in the killing. Even so,
that only signifies the second call is open to competing interpretations, which
were for the jury to assess.
We also reject defendant's argument that the trial court provided the jurors
with an inadequate instruction about the evidential use of the recordings. The
court expressly cautioned the jury that it could "not use this evidence to decide
that [he] has a tendency to commit crimes, or that he is a bad person." The court
also admonished the jurors that if they found defendant had taken part in phone
calls from the jail, they could not infer "he must be guilty of the present crimes."
This instruction is consistent with the "anti-propensity" prohibition of N.J.R.E.
404.
Notably, neither party at trial objected to the court's issuance of the
instruction, or its sufficiency. Because of that lack of objection, defendant must
now establish plain error that is "clearly capable of producing an unjust result."
Afanador, 151 N.J. 41, 54 (1997); see R. 2:10-2. Defendant fails to demonstrate
such plain error.
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Defendant complains for the first time on appeal that the trial court should
have specified a particular use or uses of the recordings as "other bad acts"
evidence. However, the recordings were not necessarily used as proof of "other
bad acts" by defendant, but instead counterproof by the State to explain why
Daut's trial testimony had varied from his plea colloquy. Moreover, even if the
evidence is analyzed strictly as Rule 404(b) evidence, we are not persuaded the
omission of further specification in the court's instruction was clearly capable
of producing an unjust verdict. No plain error occurred.
D.
Defendant further challenges the sufficiency of the State's evidence to
support his conviction of the count charging him with second-degree burglary.
He raised this argument unsuccessfully before the trial court three times: first,
through a motion for judgment of acquittal at the close of the State's case -in-
chief; second, with a similar motion for acquittal at the close of all evidence,
and, third, with a post-verdict motion for a new trial.
The trial court soundly rejected each of these motions. Viewing the
record, as the court must, see State v. Reyes, 50 N.J. 454, 459 (1967), in a light
most favorable to the State, there was ample evidence for the jury to find beyond
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a reasonable doubt that defendant committed second-degree burglary in
violation of N.J.S.A. 2C:18-2(b).
A person is guilty of burglary if, with purpose to commit an offense
therein he enters a structure without license or privilege to do so. N.J.S.A.
2C:18-2(a)(1).
Burglary is a crime of the second degree if in the
course of committing the offense, the actor:
(1) Purposely, knowingly or recklessly inflicts,
attempts to inflict or threatens to inflict bodily injury
on anyone; or
(2) Is armed with or displays what appear to be
explosives or a deadly weapon.
[N.J.S.A. 2C:18-2(b).]
The evidence reasonably supported the jury's finding of guilt under this
statute. First, there was Daut's testimony at the plea allocution hearing, which
was described during his cross-examination and read into the record during
redirect. The parties dispute whether Daut actually testified at his plea
allocution that Linnartz was killed after Daut and defendant attempted to break
into his Jeep or whether that fact was merely implied by the inartful questioning
of his then-counsel. Either way, the jury was presented with a scenario that
reasonably could be interpreted as defendant attempting to enter the Jeep using
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the hammer, when he then turned and wielded it against Linnartz.
The fact that such a plausible scenario was inconsistent with Daut's direct
examination testimony at trial did not prevent the jury from adopting it during
deliberations. The trial court appropriately instructed the jury pursuant to Model
Jury Charge (Criminal), "Prior Contradictory Statement of Witnesses (Not
Defendant)" (1994), that
[e]vidence, including a witness's statement or
testimony prior to trial, showing that a prior time a
witness has said something which is inconsistent with
the witness's testimony at the trial may be considered
by you for the purpose of judging the witness's
credibility. It may also be considered by you as
substantive evidence, that is, proof of the truth of what
is stated in the prior inconsistent contradictory
statement.
An instruction under this model charge is warranted in cases such as this one,
where prior inconsistent statements are relied upon as substantive evidence.
State v. Hammond, 338 N.J. Super. 330, 339-40 (App. Div. 2001). Thus, the
jury could have properly relied on Daut's plea allocution testimony in finding
defendant guilty of second-degree burglary.
Moreover, there was sufficient evidence to prove the elements of second-
degree burglary even if the jury disregarded Daut's plea allocution testimony.
During his police interrogations, defendant offered an account of the burglary
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in which he admitted going to the Jeep with his hammer to break the window.
Although he claimed that he abandoned the attempt and left his hammer by the
fence, there were grounds for the jury to disbelieve him. Indeed, Pasquoche and
Daut both testified that defendant never went anywhere without his hammer, and
that he slept with it under his pillow.
The timing of defendant's entry into the Jeep was never established during
the interrogations, but, according to Daut, defendant went to the Jeep
immediately after striking Linnartz with the hammer. The jury could have
reasonably believed that defendant used the hammer to break into the vehicle at
that time. If he did, the hammer could be considered a "deadly weapon" as
contemplated by N.J.S.A. 2C:18-2(b).
A deadly weapon is defined in the Criminal Code as
any firearm or other weapon, device, instrument,
material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used,
is known to be capable of producing death or serious
bodily injury or which in the manner it is fashioned
would lead the victim reasonably to believe it to be
capable of producing death or serious bodily injury.
[N.J.S.A. 2C:11-1(c) (emphasis added).]
The definition can include devices or instruments other than firearms, provided
(1) they are capable of causing death or serious bodily injury, and (2) are used
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or intended to be so used, "or are so fashioned to lead the victim of a crime to
believe they can be so used." State v. Riley, 306 N.J. Super. 141, 147 (App.
Div. 1997).
The jury could have reasonably concluded that defendant had immediate
access to the hammer and intended to use it in a way capable of producing
serious bodily injury. According to Daut's trial testimony, immediately after
striking Linnartz in the head with the hammer defendant ran through the fence
and to the Jeep. Perales, meanwhile, testified that defendant took Linnartz's
eyeglasses, which suggested that defendant thought Linnartz might be able to
get up to follow him.
Viewed in the light most favorable to the State, the evidence showed that
while breaking into the Jeep, defendant was armed with a hammer – which he
had just used to inflict serious bodily injury on Linnartz and which he intended
to so use again if Linnartz tried to stop him from entering the Jeep. Under the
circumstances, the hammer qualified as a "deadly weapon" as defined in
N.J.S.A. 2C:11-1(c).
In a related argument, defendant contends his conviction for second-
degree burglary must be set aside because it allegedly is inconsistent with the
jury's finding that he was not guilty of felony murder. We disagree. It is well -
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established under case law that inconsistent verdicts may be tolerated, so long
as the evidence was sufficient to establish guilt on the counts of an indictment
for which the defendant was convicted. State v. Goodwin, 224 N.J. 102, 116
(2016); State v. Banko, 182 N.J. 44, 53 (2004). Such evidential sufficiency is
present here.
E.
We reject defendant's argument that the trial court was required to exclude
the trial testimony of Dr. Falzon, the medical examiner who succeeded Dr.
Phillip in this case.
The trial court reasonably found that Dr. Falzon's independent findings
were sufficiently based upon his own personal knowledge. See State v. Bass,
224 N.J. 285, 318-19 (2016) (recognizing a qualified forensic pathologist may
testify as an expert when serving as an independent reviewer of an autopsy
performed by a different coroner). Dr. Falzon had access to reports, notes,
photos, radiographs, and laboratory tests sufficient to enable him to reach his
own independent opinions about manner of the victim's death.
We also concur with the trial court that Dr. Falzon's testimony was not
inadmissible "net opinion." The expert sufficiently expressed the "whys and
wherefores" underlying his conclusions, in compliance with case law. See, e.g.,
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Townsend v. Pierre, 221 N.J. 36, 55 (2015); Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 410 (2014). For example, Dr. Falzon explained the body's
state of decomposition, the appearance of the skull, how the brow ridge
deformed the impact impression, the results of blood testing, why the level of
morphine in the abdominal blood was artificially high, and how the broken rib
lacerated the liver. He supported this testimony with autopsy photographs,
clinical notes, and laboratory testing. This is the sort of evidence u pon which
experts in the field of forensic pathology typically rely.
Dr. Falzon did not speculate and did not express an opinion personal to
himself. When questioned on cross-examination, he was able to articulate the
grounds for his conclusions. His testimony was clearly not excludable net
opinion.
Lastly, we reject defendant's claim that he is entitled to a new trial because
Dr. Falzon did not explicitly couch his opinions as being rendered within a
"reasonable degree of medical certainty." Defendant did not interpose any
objection to the omission of this phraseology in the expert's testimony.
Moreover, the "reasonable degree" language is not "talismanic" or "magical
words" that must be uttered by every expert. Eckert v. Rumsey Park Assocs.,
294 N.J. Super. 46, 51 (App. Div. 1996). Here, Dr. Falzon expressed reasonable
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confidence in his conclusions, and his omission of the stock phrase was harmless
under the circumstances.
F.
Defendant contends his aggregate sixty-eight-year sentence is excessive.
In particular, he complains that the trial court found aggravating factor one,
N.J.S.A. 2C:44-1(a)(1), applicable. He also challenges the imposition of a
consecutive sentence on the burglary count. These arguments are unavailing.
Aggravating factor one was reasonably found in this case because the
killing of the victim – who was bludgeoned and then left dying behind a factory
building in the dark of night – was "especially heinous, cruel, or depraved."
N.J.S.A. 2C:44-1(a)(1). The other aggravating factors identified by the court
were also appropriate, particularly given defendant's extensive prior criminal
record. Moreover, the consecutive sentence imposed for the burglary offense
was justified under State v. Yarbough, 100 N.J. 627 (1985).
We are satisfied that defendant's sentence, while lengthy, does not "shock
our conscience" or represent a manifest abuse of the trial court's discretion.
State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Roth, 95 N.J. 334, 364-65
(1984). We will not disturb it.
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G.
Finally, we remand solely to correct the monetary assessment imposed on
defendant. At sentencing, the trial court initially imposed the following fines
on the second-degree burglary charge: a $50 VCCB (Victims of Crime
Compensation Board) Assessment; $75 for the Safe Neighborhood Services
Fund; and $30 for the Law Enforcement Officers Training and Equipment Fund.
In response to a question from the prosecution, the court changed the VCCB
assessment to $100. On November 16, 2017, the court filed a judgment of
conviction which reflected the sentencing proceedings, except that it imposed a
$50 VCCB assessment on the second-degree burglary charge, the colloquy at
sentencing notwithstanding.
The court's imposition of a $100 VCCB fine for the second-degree
burglary charge is consistent with N.J.S.A. 2C:43-3.1, which states "any person
convicted of a crime of violence . . . shall be assessed at least $100.00."
(emphasis added). While "crime of violence" is not a well-defined term under
New Jersey law, see, e.g., Cannel, New Jersey Criminal Code Annotated,
comment 3 on N.J.S.A. 2C:43-3.1 (2018), second-degree burglary requires a
threat of physical harm to person or property or the use of a deadly weapon.
N.J.S.A. 2C:18-2(b). Moreover, the underlying facts justifying the conviction,
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as discussed infra, can clearly support the imposition of the increased penalty
for a crime of violence.
Regardless, "[i]n the event of a discrepancy between the court's oral
pronouncement of sentence and the sentence described in the judgment of
conviction, the sentencing transcript controls and a corrective judgment is to be
entered." State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016).
Accordingly, the matter is remanded so that the court can either conform the
judgment of conviction to the oral pronouncement of sentence or otherwise
clarify the amount of assessment that is being imposed.
H.
The balance of defendant's remaining points, including his claim of
cumulative error, lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2).
Affirmed in part and remanded in part to correct the sentence.
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