STATE OF NEW JERSEY v. THOMAS J. CAMPBELL, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6480-02T46480-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS J. CAMPBELL, JR.,

Defendant-Appellant.

 

Argued: October 26, 2005 - Decided:

Before Judges Fall, Parker and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Number 00-10-0649.

Patricia Drozd, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Drozd, of counsel and on the brief).

Jafer Aftab, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Mr. Aftab, of counsel and on the brief).

PER CURIAM

Defendant Thomas J. Campbell, Jr. appeals from his convictions on murder, attempted murder, aggravated assault, and weapons charges, and from the sentences imposed. We affirm defendant's convictions. We also affirm the sentence given on the murder conviction and the imposition of consecutive sentences, but vacate the term imposed on the attempted murder conviction in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005), and remand the matter for a new sentencing hearing on that conviction. The following factual and procedural history and analysis informs our conclusions.

Defendant was charged in Gloucester County Indictment Number 00-10-649 with fourth-degree stalking of victim Kim Elizabeth Love, N.J.S.A. 2C:12-10b (count one); third-degree terroristic threats against victim George Samuel Jackson, II, N.J.S.A. 2C:12-3b (count two); third-degree terroristic threats against Love, N.J.S.A. 2C:12-3b (count three); first-degree purposeful and/or knowing murder of Jackson, N.J.S.A. 2C:11-3a(1), a(2) (count four); first-degree capital murder of Jackson, N.J.S.A. 2C:11-3a(1), -3a(2) (count five); first-degree attempted murder of Love, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), -3a(2) (count six); second-degree aggravated assault of Love, N.J.S.A. 2C:12-1b(1) (count seven); third-degree aggravated assault of Love, N.J.S.A. 2C:12-1b(2) (count eight); two counts of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (counts nine and ten); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-3e (count eleven); and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39-5d (count twelve).

On June 21, 2001, the trial court held a hearing and then reserved decision on a defense motion to suppress defendant's statements; denied the defense motion to dismiss the indictment; and granted the defense motion to dismiss a capital murder aggravating factor. On June 26, 2001, the court issued a letter opinion granting in part, and denying in part, the motion to suppress defendant's statements.

On April 25, 2002, the trial court held a hearing and then reserved decision on the defense motion to exclude hearsay statements of victim Love, who had died before trial.

On March 20, 2003, the court granted the State's motion to dismiss count five of the indictment, capital murder.

On March 25, 2003, the trial court denied the defense motion to dismiss count six, the charge of attempted murder of victim Love. The court granted the State's motions to amend counts seven through ten, and to dismiss counts two and three, terroristic threats, and counts eleven and twelve, unlawful possession of a weapon.

The trial took place between March 26 and April 21, 2003. On April 1, 2003, the trial judge conducted a hearing and excluded Love's statements, except those made to the police immediately after the incident. On April 9, 2003, the judge granted the defense motion to dismiss count one, stalking. On April 12, 2003, the jury found defendant guilty of murder, attempted murder, two counts of aggravated assault, and two counts of possession of a weapon, a knife, for an unlawful purpose. On June 13, 2003, the trial judge sentenced defendant to a term of life imprisonment, with thirty years of parole ineligibility on count four, murder, and to a consecutive twenty-year term, with seventeen years of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the attempted murder conviction, count six. The trial court merged all other convictions into the counts for murder and attempted murder, and imposed applicable mandatory fines and penalties.

The evidence adduced by the State at trial, if credited, disclosed the following. Love lived in apartment 1515 at the Forest Creek Apartments in West Deptford. Defendant lived in his mother's house at 102 West 28th Street in Wilmington, Delaware. They had a relationship as girlfriend and boyfriend for approximately a five-year period. In December 1999, Love began a new relationship with Jackson. Concerned that Love might be seeing someone else, defendant left very long messages on Love's answering service, sometimes in a very angry tone. In one message he threatened her, "Kim, if you're out there messing around with someone else, I'm going to F you up."

One day in the middle of December 1999, Love and her second cousin, Cynthia J. Adkins, entered Love's apartment and found defendant sitting inside, near the front door in the dark. Love turned on the light and defendant asked, "What the fuck is going on Kim? Tell me what the fuck's going on?" Love and defendant argued for forty-five minutes, and Love told defendant that their relationship was over. Defendant took items from the refrigerator that he had purchased and threw them into the sink. Love and defendant physically fought, and defendant ripped a charm necklace from Love's neck. Love told Adkins to call the police, and defendant pulled the cord from the phone. Love then told Adkins to leave the apartment with her, and defendant responded that he was going to follow them.

Love tried to persuade defendant to leave her alone and, after more than an hour, asked for her house keys back and for defendant to leave. Defendant threw the keys over Love's shoulder and she retrieved them. Defendant left and walked to his car, which was parked one or two apartment complexes away. Love and Adkins followed defendant to be sure he was leaving. Defendant then entered his vehicle and drove to the building housing Love's apartment, went into the apartment, retrieved his belongings, and then drove away. Later, Adkins helped to get the locks changed on Love's apartment.

Defendant visited Love on January 1, 2000, and on her birthday. Adkins testified that Love seemed surprised and happy from gifts that he gave her; however, Adkins explained that Love wanted out of the relationship and defendant did not.

On January 9, 2000, defendant hoped to see Love at church. Gail Crisdon saw defendant at church, and told him that Love did not come to church because she knew defendant was going to be there. Crisdon invited defendant to lunch and told him to give Love her freedom. Later that day, defendant told Adkins' husband, Royd Adkins (Royd), that he suspected that Love was "messing with someone." Defendant told Royd that if Love was seeing somebody, he would be "pissed" and he "would F somebody up."

Late on January 11, 2000, Love and Jackson were in her apartment. Defendant called Love's home phone number numerous times using his cellular phone; Love did not answer. Defendant left a message requesting that she speak with him.

At 10:52 p.m. on that date, Jackson called the West Deptford Police Department from Love's apartment and complained about a person on the premises. Ten minutes later, Jackson called again, asking if the person had been removed.

Officers Kenneth Gabriele and Michael Pfeiffer arrived outside the apartment and observed defendant knocking on Love's apartment door. Officer Gabriele told defendant that there had been noise complaints. Defendant told Officer Gabriele that his name was "Thomas Love." Officer Gabriele asked for identification, and defendant stated that it was in his car. Officer Gabriele told defendant to keep the noise down, not to knock on the door, and to continue to call on the cellular phone. The officers left and Officer Gabriele called dispatcher James Jones on his police radio to inform him that he had handled the complaint.

At approximately 11:30 p.m. that night, Jackson called his house and told his son Christian Jackson (Christian) that he was on his way home. Christian felt that his father seemed very troubled.

Love and Jackson left her apartment, and a confrontation with defendant occurred outside, resulting in Love receiving two stab wounds in her right arm, two in her right side, one in her right clavicle, four in her back, two in the back of her neck, and two in the back of her head. Both of Love's lungs were punctured. Jackson received eleven stab wounds to the chest, skull, and abdomen. Love went to neighboring apartment doors, banged on them asking for help, and neighbors called 911.

Nobody opened their door in response to Love's pleas for help, whereupon she returned to her car and also called 911, requesting an ambulance. Shortly thereafter, Sergeant Craig Mangano and Officer Anthony Scirrotto of the West Deptford Police Department arrived in their patrol cars. Sergeant Mangano approached Love and asked what happened; Love stated that she and her boyfriend had been attacked. Sergeant Mangano asked her where her boyfriend was, and she pointed toward Jackson, who was on the ground. Officer Scirrotto went to the aid of Jackson.

Sergeant Mangano saw slits in Love's clothing and asked her if she had been stabbed. She replied in the affirmative, and complained of pain. Sergeant Mangano asked who had assaulted her, and she replied that it was defendant. He asked her to spell the name, and she replied, "Campbell, like the soup." She then gave Sergeant Mangano a description of defendant and an explanation of what had happened. He asked her why defendant did it, and she replied, "He caught me with another friend and he did this to me." Love told Sergeant Mangano that defendant lived in Wilmington and drove a white Nissan.

Officer Scirrotto asked Jackson who did this, and Jackson pointed between the 1500 and 1600 apartment buildings and said that he ran away. Officer Scirrotto observed some stab wounds on Jackson and profuse bleeding. Officer Scirrotto reported Jackson's grave condition to Sergeant Mangano.

Police officers searched the area, but did not find defendant nor recover any weapon. Emergency medical personnel transported Jackson to Underwood Memorial Hospital. At 12:31 a.m. Dr. Wayne Tomaska, the emergency room physician, pronounced Jackson dead.

Gloucester County Medical Examiner Gerald Feigin performed an autopsy on Jackson. All of Jackson's injuries occurred immediately prior to his death. Medical Examiner Feigin concluded that Jackson had physically struggled before death, and he had been stabbed eleven times. Wounds on Jackson's body measured three inches deep and three quarters of an inch wide, indicating that a knife with similar dimensions had been used to inflict the wounds.

Emergency personnel transported Love to Cooper Hospital. Trauma surgeon Raja Salem treated Love, inserted two chest tubes and used a ventilator to reinflate Love's collapsed lungs. Dr. Salem repaired a laceration to Love's liver and diaphragm and sutured thirteen lacerations to the back of her neck, right arm, right clavicle, right flank, back, and back of the scalp. Love recuperated in the hospital for eight days and was then released. She died on May 21, 2001, from cancer that was unrelated to the attack.

On January 12, 2000, defendant turned himself in to the Wilmington Police Department at 10:25 a.m. New Jersey law enforcement personnel were notified and arrived. William W. Donovan, Jr., a detective for the Gloucester County Prosecutor's office, and Dennis Morina, a detective for the West Deptford Police Department, entered an interview room where defendant was seated at a table. Detective Donovan asked defendant how he was doing, and defendant replied that he wanted a lawyer and it was self-defense.

Detective Donovan stepped outside while Detective Morina began to fill out an arrest report. Outside the interview room, Detective Donovan asked Detective Sergeant Brown of the Wilmington Police Department to search for defendant's car at his residence. Detective Donovan reentered the interview room, and defendant, having overheard the conversation between Detectives Donovan and Brown, told Detective Donovan that his car was at a Gulf service station on Route 202.

Detective Morina asked defendant questions to process the arrest report, and defendant told him that he was "having his boys go get his car." Detective Morina so informed Detective Donovan, and Detective Donovan stepped out of the room and passed that information on to Detective Brown to expedite the search for defendant's vehicle.

The Delaware police prepared search warrants for defendant's person, car, and residence. At 2:50 p.m., Detectives Donovan and Morina served defendant with the criminal complaint. Defendant read it, became upset, and asked why he was charged if it was self-defense. Detective Donovan told defendant that since defendant had asked for an attorney, they could not speak with him. Defendant stated, "I'll talk to you guys if it's self defense." Detective Donovan again stated that he could not speak to defendant without a signed Miranda waiver form. Defendant responded that he would still like to have a lawyer but he had nothing to hide. Detective Donovan answered back: "[Y]es you do, clothes and a knife." Defendant then replied that it was Jackson's knife, and stated that he was wearing the same clothes but had washed them.

Detectives Donovan and Morina examined defendant's body and found no sign of injury. Also, pursuant to the search warrant, Detective Donovan secured defendant's saliva, hair, and fingernail clippings. While clipping his own nails, defendant stated that it was difficult to cut the nails on his left hand because he is left-handed.

DNA testing of items seized from defendant's person, car, residence, clothes, and the scene of the crime revealed no forensic evidence linking defendant to the crimes.

Defendant did not testify at trial. Donzella Lum, defendant's sister, testified that at 8:00 a.m. on the morning after the attack, she saw defendant and he appeared remorseful. She drove with defendant when he turned himself in to the Wilmington Police. Kathleen Norton, an investigator, testified that when she met defendant on February 18, 2000, she observed a scar on the knuckle of his right index finger but on March 7, 2003, it was considerably healed. Defendant presented numerous character witnesses who testified that defendant had a reputation for peacefulness and that he was law-abiding. On rebuttal, the State presented witnesses who stated that Jackson had a reputation for peacefulness.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN NOT SUPPRESSING ALL OF DEFENDANT'S STATEMENTS AND THE EVIDENCE FOUND AS A RESULT OF A SEARCH IN VIOLATION OF DELAWARE AND NEW JERSEY LAW AND THE SAFEGUARDS PROMULGATED BY MIRANDA V. ARIZONA AND THE FOURTEENTH AMENDMENT.

POINT II

THE DEFENDANT WAS PREJUDICED DUE TO PROSECUTORIAL MISCONDUCT BECAUSE THE STATE'S OPENING AND SUMMATION WERE REPLETE WITH PREJUDICIAL AND IMPROPER REMARKS THAT TAINTED THE JURY'S EVALUATION.

POINT III

THE ADMISSION OF CERTAIN AUTOPSY AND OTHER PHOTOGRAPHS ADMITTED INTO EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL DUE TO THEIR INFLAMMATORY NATURE.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT ONE OF THE INDICTMENT: STALKING.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT SIX OF THE INDICTMENT: ATTEMPTED MURDER.

POINT VI

THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENTS GIVEN BY KIM LOVE TO POLICE OFFICERS IN VIOLATION OF [N.J.R.E.] 803(c)(2).

POINT VII

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE REMAINING COUNTS OF THE INDICTMENT.

POINT VIII

THE TRIAL COURT ERRED IN IMPOSING A TERM IN EXCESS OF THE STATUTORY PRESUMPTIVE TERM.

I.

Defendant argues that the trial court erred in not suppressing all of the statements he made on January 12, 2000, and the evidence found as a result of the search. Defendant maintains that his statements and the evidence obtained as a result of his custodial interrogation were elicited without informing him of his rights under Miranda.

After conclusion of the suppression hearing, the motion judge issued a detailed letter opinion dated June 26, 2001, addressing the statements made by defendant to law enforcement officers, and the search warrant that was issued permitting officers to search defendant, his home in Wilmington, and his car. The judge reviewed applicable precedent, relying on the foreseeability test set forth in Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308-09 (1980), that if the police can reasonably foresee that an incriminating response may result from statements that they make in the presence of a suspect in custody, their conduct amounts to custodial interrogation that must be preceded by Miranda warnings and a waiver of rights.

The motion judge concluded that Detectives Donovan and Morina were credible, and employed no deception or coercion. The judge found that after Detective Donovan greeted defendant, defendant blurted out that he wanted a lawyer and it had been self-defense. The judge ruled that this statement was not in response to investigative police conduct likely to elicit an incriminating response, and was thereby admissible.

The judge also found that Detective Donovan's request to a Wilmington Police Officer to search for defendant's car had not been stated with the intent that it be overheard by defendant, but had been solely directed at the officer. The judge concluded it was not foreseeable that the comment would elicit a response by defendant. The record reflects that Detective Donovan scrupulously refrained from initiating an interrogation of defendant. Defendant's statements about the location of the car, and that his boys were picking it up, were not the product of interrogation and were thereby admissible.

Additionally, service of the criminal complaints on defendant by Detectives Donovan and Morina did not constitute interrogation and defendant's statements, that he would talk to "you guys," and that it was self-defense, were made shortly thereafter and were volunteered. However, Detective Donovan's questioning defendant as to hiding clothes and a knife constituted the initiation of interrogation, which required Miranda warnings, and the motion judge properly suppressed defendant's statements made in response to that questioning.

The motion judge also ruled that defendant's "spontaneous statement," made much later while he was clipping his fingernails that he was left-handed was admissible because it also had not been the product of police interrogation.

The judge also rejected defendant's argument that the search warrant that had been issued by the Delaware judge was vague and overbroad.

In reviewing the results of a suppression hearing, we must defer to the credibility determinations of the trial judge. State v. Locurto, 157 N.J. 463, 474 (1999). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997).

Miranda warnings are required "when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning[.]" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.) The requirement that interrogators warn a suspect is necessary because of the pressure inherent in an "incommunicado interrogation of individuals in a police-dominated atmosphere[.]" Ibid. (quoting Miranda, supra, 384 U.S. at 445, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707).

In order to violate a defendant's constitutional rights against self-incrimination, a defendant's incriminating statements must have been "the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003) (quoting Innis, supra, 446 U.S. at 303, 100 S. Ct. at 1690, 64 L. Ed. 2d at 309).

In State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990), we quoted from Innis, supra, 446 U.S. at 300-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 307-08 (footnotes omitted), where the Supreme Court explained:

It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Defendant argues that the detectives continually made comments directly to him or which he could hear that were designed to elicit a response. However, the record of the suppression hearing, coupled with the credibility findings by the motion judge, do not support that contention. The record here reflects that Detective Donovan did not start a "process . . . clearly designed to entangle the defendant in the criminal event." Ward, supra, 240 N.J. Super. at 418.

Defendant correctly recites the standard in Delaware, relying on Whalen v. State, 434 A.2d 1346, 1351 (Del. 1980), cert. denied, 455 U.S. 910, 102 S. Ct. 1258, 71 L. Ed. 2d 449 (1982), that the burden of proof is on the State to demonstrate beyond a reasonable doubt that a defendant has waived his or her rights. This is consistent with New Jersey law where the Court in State v. Florez, 134 N.J. 570, 591 (1994) (quoting State v. Gerald, 113 N.J. 40, 118 (1988)), explained that "[i]n New Jersey . . . we have long adhered to the view that as a matter of state law, the waiver [of one's right to remain silent] must be proven beyond a reasonable doubt." Here, the detectives did not question defendant and did not elicit those responses from defendant that the court ultimately found admissible.

Defendant further claims that he asserted his right to counsel at least four times and the detectives ignored him. However, the record demonstrates that Detective Donovan told defendant that the police could not speak with him because he had asked for an attorney. Therefore, we conclude that the motion judge did not err in his rulings on the admissibility of defendant's statements made while at the police station.

II.

Defendant next contends that the prosecutor's conduct in his opening and closing arguments constituted prosecutorial misconduct prejudicing his right to a fair trial, warranting reversal of the convictions. We disagree.

In State v. Daniels, 182 N.J. 80, 96-97 (2004), the Court explained the standards applicable to prosecutors in criminal matters, as follows:

Prosecutors are expected to assert vigorously the State's case and are given considerable leeway in delivering their summations. E.g., State v. Smith, 167 N.J. 158, 177 (2001). However, a prosecutor's overarching obligation always remains "not to obtain convictions, but to see that justice is done." Ibid. (quoting State v. Frost, 158 N.J. 76, 82 (1999)). To fulfill that bipartite duty, "a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Ibid.

Not every improper prosecutorial statement will warrant a new trial. Rather, a reviewing court may reverse only if the prosecutor's comments were "so egregious that [they] deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The court's inquiry should consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J. at 182.

Prosecutorial misconduct requires reversal of a conviction where it is "'clear[ly] and unmistakeabl[y]' improper, and the improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case." State v. Williams, 113 N.J. 393, 452 (1988) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

Defendant asserts that the following comments by the prosecutor in his opening statement concerning the victims' injuries were improper and prejudicial:

He [defendant] attacked these two innocent people right outside Kim's apartment and he plunged that knife into George's body and into Kim's body. And not just once, he was very angry.

That knife penetrated George's body not one time, not two times, not three times, not four times. You'll hear from medical personnel that he suffered approximately 11 stab wounds. Two very serious stab wounds to the front of his body. What those stab wounds did, as you might imagine, is it compromised the integrity of his body. It made holes in his blood vessels. And what that caused is bleeding, a lot of bleeding, the blood started coming out of George.

* * * *

And he injured Kim by penetrating her skin with that knife. Not once, not twice, not three times, not four times, not five, six, seven, eight, nine; approximately fourteen to seventeen times . . . . And these were not wounds to her front, she had a wound over here, but basically they were all around her back and shoulder area and at the base of her neck. And some of George's stab wounds were to his head.

Our review of the record discloses that defendant's trial counsel did not directly object to these comments made by the prosecutor. When defense counsel does not object to comments, the court must review any alleged errors under the plain error standard of review. Daniels, supra, 182 N.J. at 95; State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, the court disregards an error unless it is "clearly capable of producing an unjust result." R. 2:10-2. The Court in Macon, supra, 57 N.J. at 336 explained that the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached."

However, trial counsel did set forth on the record a concern about how, during the prosecutor's opening statement, juror #3 had reacted physically to the prosecutor's description of the injuries the victims received. The following trial day, defense counsel asked the judge to voir dire the juror on whether she could continue to be fair and impartial in light of the way she reacted to the opening statement. The judge refused to question the juror, stating:

I myself did not observe the reaction, although it was mentioned to me later on. All the jurors were -- were questioned, they all went over the questionnaire, they were all made aware of the fact that there would be graphic injuries, they knew it was a -- an assault by stabbing.

The fact that a juror reacted, I don't think in and of itself, implies that the juror is going to decide the matter based upon any bias, prejudice or certainly any preconceived idea. If the jury reacts to the testimony that they hear, well, that's what they're there to do. They're there to evaluate, react and express opinions once they hear all of the evidence. They all indicated that they could be fair and impartial, they all took the oath indicating that they would evaluate the case without bias and prejudice or sympathy.

They'll be instructed at the end of the trial again. I'm not going to highlight that particular situation or require that they sit passively. I mean, short of any outburst that becomes intrusive into the proceedings, and I did not perceive that as I indicated as I watched it; the opening statements.

I'm going to deny the application at this point.

Defendant asserts that this juror could not have remained uninfluenced in her ability to hear and view the evidence objectively. Defendant speculates that the juror could not remain objective; however, the trial judge did not observe any outburst and found no basis to remove the juror.

Although asking the judge to question that juror, trial counsel did not object to the prosecutor's opening. After analyzing the record in the light of the arguments advanced by the parties, we conclude that the conduct of the prosecutor on opening was neither egregious nor repetitive. See State v. Papasavvas, 163 N.J. 565, 625-26 (discussing the aggregate effect of the prosecutor's misconduct on the defendant's ability to receive a fair trial), opinion corrected, 164 N.J. 553 (2000). Moreover, the judge adequately instructed the jury about the need to hear and consider all the evidence and to not decide the case based on sympathy. It is presumed that a jury follows a judge's instructions. State v. Winter, 96 N.J. 640, 648-49 (1984); State v. Manley, 54 N.J. 259, 270 (1969).

During closing, defendant claims that the prosecutor improperly told the jury that defendants have the duty to retreat before the issue of passion and provocation can be applicable. The prosecutor stated:

Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant with the purpose of causing death or serious bodily harm to another person provoked or incited the use of force against himself in the same encounter, then the defense is not available to him.

I would submit that the only aggressor in this case was the defendant. Here's a critical part of the charge. "If you find that the defendant knew that he could avoid the necessity of using deadly force by retreating, provided that the defendant knew he could do so with complete safety, then the defense is not available to him."

You're not allowed to be a macho guy. Even if you found, and I submit that there's no reason to find, but even if you found that somehow George had introduced this knife into this situation, once the defendant gets the knife and is in possession of it, the law demands that you be a coward. You must run away.

Defense counsel asked for a curative charge to focus the jury's attention on this erroneous statement of the law. The trial judge stated that he would add language dealing with the duty to retreat to the charge itself.

After the prosecutor's summation, defense counsel requested a sidebar conference. The transcript reflects that the first comment by defense counsel was inaudible, but the State concedes that defense counsel objected to the prosecutor's comment that there was a duty to retreat in considering passion/provocation manslaughter. The trial judge stated that he would consult with counsel as to the jury instructions for retreat and passion/provocation manslaughter to remedy any possible prejudice. Then, an "unidentified attorney" stated: "[Inaudible] passion provocation if you make it clear there was no duty to (inaudible)." The judge then stated, "Where that might fit in to that charge and (inaudible) bring them back at quarter after," apparently referring to before trial the next morning.

The next transcript indicates that the sidebar discussion was not recorded "due to poor recording of sidebar microphone." In any event, the trial judge charged the jury on that issue, as follows:

The issue of retreat is part of the law of self-defense and it applies as I previously charged you. The issue of retreat does not apply to passion provocation manslaughter. One does not have a duty to retreat before a finding of passion provocation manslaughter.

Defendant concedes that this instruction was proper.

However, defendant argues that since members of the jury were considering passion/provocation manslaughter as an alternative to murder, the prosecutor's improper and incorrect statements during summation might have affected the outcome of the trial. We disagree.

Counsel and the trial judge considered the issue, continued to discuss it the following day, and crafted a cure to remedy any possible prejudice. The judge gave clear instructions to the jury that statements made by the attorneys were not to be considered as evidence, and the judge gave the proper instructions to the jury as to passion/provocation manslaughter. We conclude that the incorrect comments here did not constitute reversible error. See State v. Ramseur, 106 N.J. 123, 319-23 (1987) (holding that inappropriate statements by the prosecutor, when viewed in the context of clear and correct instructions from the trial court, did not deprive defendant of a fair trial).

III.

Defendant also argues that the trial judge erred in admitting certain photographs into evidence. We disagree.

Trial counsel objected to the admission of a number of autopsy photographs, stating that he agreed many of the proffered photographs were admissible, but objected to all the photographs depicting the injuries as being inflammatory.

The trial judge reviewed all photographs offered by the State and excluded twenty-five of them as "duplicative or otherwise prejudicial." The judge also stated:

[W]ith respect to Kim Love, the larger photo, S-114P, it shows the general wounding of Ms. Love, an overall view. I've taken great pains to ensure that the smaller close-up photos are not of the glory of [sic] inflammatory variety. They're close-ups; they have, in most cases, a ruler or some other measuring device next to them showing a, what I perceive to be a better perspective of the size of the wounds. It's indicia of the type of wounds they were, i.e., the knife wounds, as opposed to some other kind of wound. I think to the extent that they're joined up to the larger photo, it would put those wounds into perspective. I don't think it's unduly prejudicial.

* * * *

The pictures of Kim's scalp with respect to the injuries after they had been shaved, I don't think, again, rises to the level of prejudice. It merely shows the injury as it existed when the photographs were taken shortly after they were sutured.

I can't imagine how we could have done it any other way.

The judge repeated his conclusion that he did not find prejudicial the smaller photographs that were close-ups of the wounds depicted in a larger photograph.

Regarding photographs of Jackson, the judge stated:

With respect to the autopsy pictures of Mr. Jackson, again, I'm going to great lengths to ensure that the photos depict only the wounds. I know there was a comparison to the diagrams. The diagrams are introduced -- they were not introduced, but what we used this morning were actually partial -- a diagram of partial wounds, only the wounds that were treated on an emergency basis. They do not depict all the wounds, because, as it was clearly stated by the witnesses, they did not treat all of the wounds.

So to the extent that there are going to be other diagrams, I don't think that's duplicative. I don't think that that takes the place of the photographs. The diagrams are just that, the indications and schematics of the locations. The photographs are much better evidence with respect to showing the jury exactly what the wounds were. So to that extent, I do not find them duplicative . . . .

The judge summarized his findings as follows:

So with respect to both of those issues, with respect to both sets of photographs, I'm satisfied that I've ensured that the jury would not be shocked or frankly, disgusted by seeing these photographs. I've ensured that they are as illustrative of the facts that the State wishes to bring out, while I'm not subjecting the defense to undue prejudice or inflammatory notions by the jury. I've specifically left out the bloody shirt and anything that could be possibly or remotely connected to it, to ensure that that does not occur.

So I'm satisfied with the photos which I have reviewed and placed on the record are, in fact, admissible.

A trial judge's decision to admit photographs is entitled to deference and should be reversed only on a finding that the admission was an abuse of discretion that resulted in a manifest denial of justice. State v. Moore, 113 N.J. 239, 295 (1988). In State v. Conklin, 54 N.J. 540, 545 (1969), the Court found that the trial judge had properly admitted photographs that indicated the actual condition of the bodies when found, the entrance points of gunshot wounds, and the nature and extent of the injuries inflicted. Admission of photographs having some probative value, even when cumulative and somewhat inflammatory, rests with the discretion of the trial judge, "whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture." Ibid. (quoting State v. Smith, 32 N.J. 501, 525 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961)). As in Conklin, here, the photographs were relevant.

Relying on State v. Morton, 155 N.J. 383, 455-56 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and State v. Cooper, 151 N.J. 326, 394 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000), the State correctly notes that it was required to present the testimony of the medical examiner and admit necessary autopsy photographs to prove its case beyond a reasonable doubt. "The presence of blood and gruesome details are not ipso facto grounds for exclusion." State v. Di Frisco, 137 N.J. 434, 500 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Although some of the pictures admitted might be considered gruesome, and many were admitted, defendant has not demonstrated that their admission constituted an abuse of discretion that resulted in a manifest denial of justice. See State v. McDougald, 120 N.J. 523, 583 (1990) (holding that trial judge properly considered the size and context of photographs and did not admit all of them into evidence); State v. Micheliche, 220 N.J. Super. 532, 545 (App. Div.) (holding that although pictures were "ghastly," they were properly received into evidence after a careful selection process during which the trial judge excluded others which were also proffered by the State), certif. denied, 109 N.J. 40 (1987). Here, the judge admitted some photographs and excluded others. We find no misapplication of discretion by the trial judge in performing that gatekeeper function.

Defendant also asserts that admission of a picture of the deceased victim Jackson that had been taken at Christmastime with his family members was unduly prejudicial and constituted error. On the stand, Jackson's son, Christian, momentarily expressed emotion upon viewing the photograph and identified the picture from Christmas 1999.

Defendant claims that the State offered the photograph to prove that Jackson owned the jacket depicted in the photograph, and that it had Jackson's DNA on it. Although the record reveals that defense counsel made that assertion, the prosecutor replied that he wanted to use the picture to show what Jackson used to look like, stating: "It also proves what George looked like before he was on the autopsy table. It's the only picture that I have of him and it's with his three sons." The judge then responded, "I think I'm going to allow the picture," without further explanation.

Defendant states that this was a non-issue, because trial counsel had stated that he would stipulate to that fact. The transcript contains indiscernible comments, and it is not clear if defendant's trial counsel actually objected to the picture. However, the State correctly argues that the fact that defendant offered to stipulate that the jacket belonged to Jackson does not render the photograph inadmissible. The State is free to reject an offer of stipulation and proceed with the evidence of its choice. State v. Kelly, 97 N.J. 178, 203 n.11 (1984); State v. Laws, 50 N.J. 159, 183-84 (1967), reargued, 51 N.J. 494, cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). We are not persuaded that the admission of this picture of Jackson constituted an abuse of the discretion vested in the trial judge, or otherwise resulted in a manifest denial of justice.

The judge also admitted a booking picture of defendant from the Wilmington police, but required the State to delete an identification card in the picture that would have made it obvious that it was a booking photograph. Defendant argues that the altered photograph leaves no doubt that something in his hands had been blacked out. The State sought admission of the photograph to show that defendant had not sustained any injuries. In objecting to its admission, defense counsel stated:

And there are two other photographs, Your Honor . . . . [O]ne is a photograph of my client in what I would call street clothes, and I don't object to that. The other is a photograph of my client, apparently at the time he was lodged at a Delaware jail and it shows him standing next to one of those height charts that they have and holding up a sign that says his name and a number and some other data. It's obviously a booking photo. I would object to this one. I know that Your Honor in early discussions referenced cropping out the things that would make it a booking photo. I'm not sure that it would be natural-appearing to have Mr. Campbell standing there holding his hands up, holding nothing in it.

I understand that the State offers it for the purpose of rebutting any argument that the defense might make that Mr. Campbell had an injury to his hands, because his face is essentially shown in the other picture, in fact, more clearly. And my statement to that is that, Your Honor, that this picture is not clear enough that one could tell whether there was an injury to his hand or not from looking at it. So I think that it's [sic] potential for prejudice outweighs its probative value . . . .

On that issue, the trial judge ruled, as follows:

First, with respect to the photos of Mr. Campbell, I think the photo of him in street clothes is certainly probative of his condition when he was arrested, in an effort for the State to prove that he had no marks on his face. And I don't think that it's otherwise prejudicial.

The photograph with respect to the defendant while he was at Gander Hill Prison -- if, in fact, it's cropped where, to the point where the vital statistics and the height sign are removed, I think that's probative of an indication that he had no wounds to his hands. The picture is -- I think it's not as clear as it otherwise might be, and certainly that's fodder for cross-examination. But I think that the State has the right to offer the photo if that's the only photo it has.

Six days later, counsel and the judge again discussed that picture in its redacted form. The prosecutor stated that he wanted to deal with photographs they had talked about the previous week, and stated: "I have the original, the one that was worked on and I have another version on it. I don't know what counsel's feeling is on it. It's about the best we can do I think at this point." The following colloquy then took place concerning redacted pictures and the original:

[DEFENSE COUNSEL]: Your Honor, my position is and I'm just taking the most redacted one for Mr. Campbell and sort of turn the whole of the newspaper that said Yankees won.

THE COURT: That's good.

[DEFENSE COUNSEL]: I mean that would be the one that I would select but I would object to all of them because the picture was taken, I'm not sure when. Do you know when it was taken?

[PROSECUTOR]: January 12th. It has the date on there.

[DEFENSE COUNSEL]: Oh, okay.

THE COURT: The date is on the original.

[DEFENSE COUNSEL]: It's not very clear. It doesn't really show what -- I presume it's being offered for the issue of cuts and scratches. We have the other picture in that shows there was [sic] no cuts on his face in a much --

THE COURT: Okay.

[DEFENSE COUNSEL]: -- much more reasonable way. All this adds to it, Your Honor, are hands that are now in this awkward position holding something that's been whited out and you really can't tell from looking at it. So it doesn't really prove the point to the jury it just shows I'm holding something up and for that reason I think its potential for prejudice outweighs its probative value. But if Your Honor allows one, this would --

THE COURT: Okay. That's the one we'll use because it's as clear as we're going to get it. To the extent that it's not absolutely clear, that's what cross-examination is about. So I'll allow that one . . . .

The judge then allowed the redacted photograph into evidence, but not the original.

We are also not persuaded by defendant that the trial judge misapplied his discretion in admitting this redacted photograph. See State v. Branch, 301 N.J. Super. 307, 327-28 (App. Div. 1997) (holding that the rulings of a trial judge on the admission of photographs will not be reversed in the absence of a palpable abuse of the court's discretion), rev'd in part on other grounds, 155 N.J. 317 (1998). Defendant's physical condition depicted in that photograph demonstrated that he was free from any injury shortly after the attack, and was thereby probative under N.J.R.E. 403 on the issue of whether defendant had acted in self-defense, as he had asserted.

In addition, the judge gave a limiting instruction that the jury should not consider a photograph taken by any governmental agency to mean that defendant was connected to criminal activity. Although the picture may have appeared somewhat odd, it is speculative to presume that the jury knew it was a booking photograph.

IV.

Defendant asserts that the trial judge erred in initially denying the defense motion to dismiss count one, stalking. We disagree. N.J.S.A. 2C:12-10(b) provides:

A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.

In N.J.S.A. 2C:12-10(a), the statute sets forth the following definitions:

(1) "Course of conduct" means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.

(2) "Repeatedly" means on two or more occasions.

(3) "Immediate family" means a spouse, parent, child, sibling or any other person who regularly resides in the household or who within the prior six months regularly resided in the household.

To secure an indictment before the grand jury, the State must set forth a prima facie case, or probable cause, of an offense. Helmy v. City of Jersey City, 178 N.J. 183, 191 (2003) (noting that a grand jury indictment is prima facie evidence of probable cause to prosecute). Probable cause has been described by the Court as a "well grounded" suspicion that a crime has been or is being committed. State v. Waltz, 61 N.J. 83, 87 (1972) (citing State v. Burnett, 42 N.J. 377, 387 (1964)).

Here, defense counsel moved pre-trial to dismiss the stalking count, arguing that defendant's telephone calls were insufficient to establish probable cause to believe that he had stalked Love. Counsel asserted that the phone calls were not threatening, and that Love had stated that defendant had never threatened her. In opposition, the prosecutor quoted specific phone messages that defendant had left for Love, and defendant's statements and actions while outside Love's door right before the incident. The motion judge denied the application, stating: "I'm satisfied that it was described to the grand jury, by way of the conduct of the defendant, through the telephone calls. It may well satisfy the requirements of the stalking statute, [N.J.S.A.] 2C:12-10."

Defendant's argument lacks merit. The evidence presented to the grand jury demonstrated that defendant threatened Love that no man would get between them. Despite Love's decision not to see defendant anymore and her ongoing relationship with Jackson, defendant traveled from Delaware to her apartment and waited for her. Two days later, he returned to Love's apartment and repeatedly knocked on her door while Love and Jackson were inside. The prosecutor claimed that this physical conduct, combined with the oral threats, constituted sufficient probable cause to believe that defendant stalked Love. We agree. Although that evidence may not have been sufficient to sustain a conviction once all the State's evidence on that charge was adduced, it was sufficient to establish a prima facie case of stalking, particularly at that stage of the proceedings.

Defendant also contends that after the dismissal, the jury could have believed a number of reasons for removal of the count, including that defendant might have pled guilty to it.

Although defendant contends that allowing the count before the jury and then dismissing it at the end of the State's case was unnecessary and prejudicial, the jury never deliberated on the count of stalking. It would have been premature to dismiss the stalking claim when originally proposed by defendant in light of presentation of a prima facie case because there could have been testimony presented on that count. We conclude that the judge did not err in waiting until after presentation of the State's evidence on that charge to consider the dismissal application.

After dismissal of the stalking charge, defense counsel asked the trial judge to instruct the jury during his charge that the stalking count had been dismissed because of insufficient evidence. The judge stated that he would discuss that during the charge conference. At that conference, the trial judge addressed the stalking charge, stating: "I did not intend to inform them specifically of my dismissal of that charge. I'm simply going to read to them the charges that exist at this state of the proceedings and leave it at that."

We find no error. There was no basis to assume that the jury speculated that the absence of a charge meant that defendant had pled guilty to it. The judge instructed the jury that speculation should play no part in its deliberations, that defendant was presumed innocent, and that the State had the burden of proving defendant's guilt beyond a reasonable doubt. In addition, the judge charged the jury that it was to consider each count of the indictment separately. As we have noted, it is presumed that the jury followed those instructions. Winter, supra, 96 N.J. at 648-49; Manley, supra, 54 N.J. at 270.

V.

Defendant also asserts that the trial judge erred in denying the defense motion to dismiss count six, attempted murder. Again, we disagree. N.J.S.A. 2C:5-1 provides in part:

a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be[.]

Prior to trial, defense counsel moved to dismiss count six of the indictment, arguing that because the indictment listed both purposeful and knowing attempt to kill Love, this conflicted with the instruction to the grand jury that all that was required was knowing conduct. Defendant claims it is impossible to know whether the grand jury made a finding that he had acted purposely, particularly in light of the fact that the sixth count references the statutory provision that refers to the act of causing death, or serious bodily injury resulting in death, knowingly.

Defendant explains on appeal, as counsel did on the motion, that in the statement Love made to Sergeant Mangano on the evening of the incident, she claimed that defendant had assaulted her, but she was unsure whether she had been stabbed or hit. Defendant contends, by relying only on trial counsel's recitation of Love's statement, that Love stated that defendant made no attempt to stop her from getting help, and made no attempt to further the assault and actually kill her, if that indeed was the intention. Thus, argues defendant, the grand jury could have found either purposeful conduct or knowing conduct.

After reading the motion briefs, hearing argument, reviewing the grand jury transcripts, and analyzing statements by defendant and Love, the trial judge denied the motion. The judge ruled that the indictment was not palpably defective and deficient because the grand jurors could easily have determined that defendant's action was purposeful. With permission by the court, the prosecutor amended the charges to that count to eliminate the "knowing" definition from the indictment. The judge ruled that there was sufficient time to rectify the problem, so he denied the defense motion.

Defendant argues, relying generally on State v. Rhett, 127 N.J. 3 (1992), that where attempted murder is charged, the defendant's purpose must have been to kill the victim. In Rhett, the Court reversed an attempted murder conviction because it was based on an erroneous charge to the jury regarding the mens rea required for conviction. Id. at 5. The trial court had instructed the jury that "a person 'acting purposely or acting knowingly' who 'purposely engaged in the conduct which would constitute the crime' is guilty of an attempt." Id. at 7. The Court held that such an instruction would allow a jury to find guilty of attempted murder a defendant who had acted "knowingly" rather than "purposely," relying on N.J.S.A. 2C:2-2b(1) and (2), and that that instruction was thereby in "conflict[ ] with the statutory definition of 'attempt.'" Rhett, supra, 127 N.J. at 7.

The State submits that any error in the grand jury proceeding was rectified before trial, arguing that the petit jury was properly instructed. We agree. Defendant does not dispute that the judge provided the correct instructions to the jury on the charge of attempted murder. The State correctly claims, relying on United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941, 89 L. Ed. 2d 50, 56 (1986), and State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000), that the finding beyond a reasonable doubt eclipses the grand jury's finding of probable cause and precludes defendant's claim.

In Mechanik, supra, 475 U.S. at 70, 106 S. Ct. at 941-2, 89 L. Ed. 2d at 56 (footnote omitted), the Court stated:

The error . . . in these cases had the theoretical potential to affect the grand jury's determination whether to indict these particular defendants for the offenses with which they were charged. But the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

Accordingly, we find no merit to defendant's claim that the judge erred in denying the defense motion to dismiss count six, attempted murder.

VI.

Defendant also contends the trial judge erred in admitting Love's hearsay statements to Sergeant Mangano. We disagree.

The trial judge ruled that Love's statements were admissible under the "excited utterance" exception to the hearsay rule. N.J.R.E. 803(c)(2) provides:

(c) Statements not dependent on declarant's availability. Whether or not the declarant is available as a witness:

* * * *

(2) EXCITED UTTERANCE. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

In State v. Lazarchick, 314 N.J. Super. 500, 522 (App. Div.), certif. denied, 157 N.J. 546 (1998), we stated that when ruling on the admissibility of a statement under N.J.R.E. 803(c)(2), the judge must determine whether the declarant had the opportunity for deliberation, reflection, or misrepresentation before he or she made the statement, or whether the statement was truly spontaneous and made solely under the stress of excitement. In Lieberman v. Saley, 94 N.J. Super. 156 (App. Div. 1967), we explained:

In determining whether a proffered statement is admissible under the "excited utterance" or "spontaneous declaration" exception to the hearsay evidence rule, the court must decide the preliminary question of whether the declarant had any opportunity for deliberation or reflection, or whether the utterance was a spontaneous one. The matters for the court to consider are the element of time, the circumstances of the accident, the mental and physical condition of the declarant, the shock produced, the nature of the utterance (whether against the interest of the declarant or not, or made in response to questions or involuntary), and any other material facts in the surrounding circumstances. These matters are all to be weighed in determining the basic question, namely whether the utterance was spontaneous and unreflective, and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.

[Id. at 161 (citations omitted).]

Defendant asserts that the statement Sergeant Mangano took on the evening of January 11, 2000, does not satisfy this test. Defendant acknowledges, however, that giving the statement in response to questioning does not by itself mean the statement must be excluded; rather, it is a factor to be considered. Defendant emphasizes that Sergeant Mangano questioned Love for a lengthy period of time, and it is not clear exactly how long this was, or what her state of mind was.

At trial, defense counsel argued that Love's statements were not excited utterances because she had time to fabricate her responses. In reply, the prosecutor noted that Love had suffered multiple stab wounds and her boyfriend Jackson had been mortally wounded; therefore, the prosecutor persuasively argued that Love was still under the stress of the event when Sergeant Mangano spoke with her, and she did not have time to fabricate her responses.

In issuing his ruling, the trial judge relied on State v. Conigliaro, 356 N.J. Super. 54 (App. Div. 2002), reciting the standard to be applied for considering admission of excited utterances. There, we examined the circumstances of the event, the time from the event to the utterance, the mental and physical condition of the declarant, the nature of the utterance, and whether it was voluntary or in response to questioning. Id. at 63-64 (relying on Lazarchick, supra, 314 N.J. Super. at 522).

Applying that criteria, the trial judge determined that the circumstances of the event were extreme, such that ten minutes later when help arrived Love was still under the stress of the event. She had multiple stab wounds and suffered from intense pain, but according to Sergeant Mangano was mentally coherent. The nature of the utterances were direct and without elaboration, indicative of the absence of fabrication, as if she was providing "name, rank, and serial number." The judge ruled that the statements to Sergeant Mangano were admissible under the excited utterance exception to the hearsay rule.

In Branch, supra, 182 N.J. at 361, the Court stated:

[C]ourts have determined that a spontaneous declaration will be admissible, even if not "concomitant or coincident with the exciting stimulus," provided that "in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval." Cestero [v. Ferrara,] supra, 57 N.J. [497,] 502 [(1971)].

The Court further explained:

A more expansive approach to the admissibility of such hearsay is tempered, however, when either the declarant testifies or is unavailable. When the declarant testifies, the defendant has the opportunity to cross-examine the declarant; when the declarant is unavailable, the rule of necessity provides a justification for the admission of such evidence.

[Id. at 362.]

Defendant does not contest that the first two elements of the excited utterance rule were satisfied; he only claims that Love had the opportunity to deliberate or fabricate. Although in State v. Cotto, 182 N.J. 316, 329 (2005), the Court concluded that witnesses who gave statements had an "opportunity to deliberate or fabricate" when they gave their formal statements at the police station approximately thirty to forty-five minutes after a robbery, here there was not a similar cooling-off period.

In State v. Long, 173 N.J. 138, 159-60 (2002), the Court stated:

[E]ven a somewhat lengthy delay will not always prevent a statement from being admissible under Rule 803(c)(2). Rather, the Rule focuses on whether nervous excitement was generated, whether there was a reasonable proximity in time between the event and the declarant's subsequent description of it, and whether there was a lack of opportunity to deliberate or fabricate the circumstances. State v. Lyle, supra, 73 N.J. [403,] 413 [(1977)].

Here, the trial judge's conclusion that Love did not have time to deliberate or fabricate and, having been stabbed numerous times, was still under the exciting stimulus of the incident, is fully supported by the record. Accordingly, we find no error in admission of her statements to Sergeant Mangano.

VII.

Defendant further argues that the judge erred in denying the defense motion to dismiss the remaining counts of the indictment at the conclusion of the State's case. That argument is without merit.

Rule 3:18-1 provides:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right.

In considering a motion for judgment of acquittal, the trial judge must determine "whether, viewing the State's evidence in its entirety . . ., and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). In review of the trial judge's ruling, appellate courts apply the same standard. State v. Moffa, 42 N.J. 258, 263 (1964).

On count four, murder of Jackson, defendant claims that the only evidence linking him to the charge was the testimony of Sergeant Mangano, who recounted what Love told him when he arrived on the scene. Defendant contends that saying one was assaulted does not establish the intent of purposely or knowingly killing.

The trial judge held that the law does not require that any witnesses testify that defendant stated his exact purpose. Instead,

sufficient inferences can arise from the nature of the acts and the surrounding circumstances, such as the weapon used, the location, number and nature of the wounds inflicted, and all that was done or said by the defendant preceding, connected with and immediately succeeding the events leading to the death of the victim . . . .

The judge stated he was satisfied that there were sufficient facts on the record for a jury to infer that defendant was the assailant and that his actions were purposeful and knowing; accordingly, he denied the motion to dismiss count four.

N.J.S.A. 2C:11-3(a)(1) and (a)(2) provide that a criminal homicide is murder when the actor purposely or knowingly causes death or serious bodily injury resulting in death. Here, the judge determined that the circumstances prior to, during, and after the stabbing all indicated beyond a reasonable doubt that defendant was guilty of purposeful or knowing murder. We agree that the circumstances surrounding this incident adequately demonstrates that a jury could find, beyond a reasonable doubt, that defendant murdered Jackson.

Regarding count seven, aggravated assault of Love, defendant argues that the State did not present a prima facie case establishing the necessary elements. In considering that argument, the trial judge stated that the same comments he made about count four applied to count seven. The judge was "satisfied that there has been sufficient testimony by not only Kim Love, but the attendant circumstances to allow the State to overcome this application." We agree. The number and intensity of the stab wounds were sufficient to establish purposeful or knowing actions causing serious bodily injury to Love.

Count ten charged possession of a knife with the purpose to use it unlawfully against Love. Defendant claims that the State failed to carry its burden to demonstrate that defendant had possessed a knife or, if he did, that he had the requisite intent to use it unlawfully against Love. This contention is clearly without merit. Although there was indeed no testimony at trial that Love ever specifically told Sergeant Mangano that a knife had been used in the assault against her by defendant, Sergeant Mangano testified that when he saw slits in Love's clothing, and when he asked her if she had been stabbed, she replied in the affirmative, and complained of pain. Sergeant Mangano then asked who had assaulted her, and she replied that it was defendant. The trial judge stated as to count ten:

Given the nature of the wounds, the area of the wounds -- most of Ms. Love's stab wounds were in the back. She indicated that she was, in fact, assaulted. Without defining that assault further, I think a jury could easily infer that she was assaulted with a knife. Given the attendant facts and

circumstances, I'm going to deny that application.

There was also ample evidence of defendant's guilt on the attempted murder and murder charges to withstand defendant's application entry of a judgment of acquittal. In State v. Sharp, 283 N.J. Super. 296, 300 (App. Div.), certif. denied, 142 N.J. 158 (1995), we held that when the defendant aimed a gun at the mid-chest area of two officers and fired, such actions would justify a finding that the defendant acted with the purpose to kill both of the officers. Here, the number of stab wounds and the placement of those wounds indicate a purpose to kill both Jackson and Love.

VIII.

Lastly, defendant contends the trial judge erred in imposing a term in excess of the statutory presumptive term. In his supplemental brief defendant asserts, for the first time, that New Jersey's sentencing part of the Criminal Code is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

On August 2, 2005, the Court issued the companion cases of State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005).

In Natale, supra, the Court struck down the Code's system of presumptive term sentencing. Id. at 466, 487. Under the Code, the maximum sentence that a trial judge may impose based on a jury verdict alone is the statutory presumptive term. Id. at 466. Therefore, the Court directed that "without reference to presumptive terms, judges will sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors." Ibid.

In Abdullah, supra, 184 N.J. at 499, the Court concluded that the powers given to a judge by the Code to sentence a defendant to a period of life imprisonment for murder, to a period of parole disqualification pursuant to N.J.S.A. 2C:43-6(b), and to consecutive sentences for multiple convictions do not run counter to the Sixth Amendment. The Court explained that because the crime of murder has no presumptive term, New Jersey's sentencing scheme for murder is not unconstitutional. Id. at 508. Here, the factors identified by the trial judge in sentencing defendant on the murder conviction are supported by the record, and we discern no basis to disturb or alter the sentence imposed on that conviction.

Defendant also argues that the court erred in imposing consecutive sentences. However, there is no presumption in favor of concurrent sentences; therefore, defendant was on notice that based on the jury's findings his convictions for murder and attempted murder exposed him to a sentence exceeding life imprisonment. See Adbullah, supra, 184 N.J. at 514. The Court explained that "consecutive sentences do not invoke the same concerns that troubled the Supreme Court in Apprendi [v. New Jersey, 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 453-55 (2000)], Blakely, [supra, at 302-03, S.Ct. at 2537, 159 L. Ed. 2d at 413], and [United States v. ]Booker, [___ U.S. ___, ___, 125 S. Ct. 738, 749, 160 L. Ed. 2d 621, 642-43 (2005)]." Ibid. (footnote omitted). We are satisfied that the trial judge properly followed, analyzed, and applied the criteria in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) in determining that the sentences for the murder and attempted murder convictions should be served consecutively.

However, because the trial judge imposed a term in excess of the presumptive term on the attempted murder conviction, we must remand the matter to the Law Division for resentencing on that conviction. In Natale, supra, the Court set forth the following procedure:

As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a

sentence greater than the one already imposed.

[184 N.J. at 495-96.]

Accordingly, the term imposed on the attempted murder conviction is vacated, and the matter is remanded for resentencing on that conviction.

In summary, the convictions are affirmed, as is the sentence imposed on the murder conviction, and the determination that consecutive sentences were warranted. The term imposed on the attempted murder conviction is vacated, and the matter is remanded for resentencing consistent with this opinion. We do not retain jurisdiction.

 

A Delaware Superior Court Judge issued a search warrant.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

This latter statement by defendant was suppressed as being the product of interrogation.

This assertion by defendant is simply contrary to the testimony of Sergeant Mangano at trial. Sergeant Mangano stated, after referring to his report, that he had observed slits in Love's clothing and asked her if she had been stabbed. Love replied in the affirmative, and she complained of pain. Sergeant Mangano also asked Love who had assaulted her, and she replied that it was defendant.

(continued)

(continued)

56

A-6480-02T4

December 20, 2005