STATE OF NEW JERSEY v. STEVEN MARUT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1839-04T41839-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN MARUT,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 12, 2006 - Decided December 7, 2006

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 00-05-0500-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On June 8, 2004, a jury found defendant, Steven Marut, guilty of first degree murder, N.J.S.A. 2C:11-3a(1) (count one); second degree aggravated arson, N.J.S.A. 2C:17-1a(2) (count two); and third degree hindering apprehension, N.J.S.A. 2C:29-3b(1) (count three). Defendant was sentenced to life in prison with parole ineligibility for a period of thirty years for the murder conviction; eight years for the aggravated arson, to be served consecutively to the life term on count one; and count three was merged into count two. On appeal, defendant raises the following arguments for our consideration:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURY ON CRIMINAL MISCHIEF.

POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY ON THE BLOOD SPLATTER [BY] PAUL KISH, AS A NET OPINION.

POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT IV: THE DEFENDANT'S SENTENCE MUST BE MODIFIED AS THE COURT WAS IN ERROR IN IMPOSING CONSECUTIVE SENTENCES AND IMPOSING A SENTENCE BEYOND THE PRESUMPTIVE TERM ON COUNT TWO.

We are not persuaded by the arguments in Points I, II and III and therefore affirm the conviction. The State agrees the sentence should be reconsidered in light of State v. Natale, 184 N.J. 458 (2005). We therefore remand for a new sentencing hearing.

Defendant lived with his mother, the victim Marie Marut, in East Windsor in the family residence, a freestanding two-story home with a full basement. Defendant's younger brother, Jeffrey, also lived in the house, along with Jeffrey's girlfriend, Rachel Sykes. On the evening of August 9, 1999, Jeffrey was spending the evening at the home of Sykes' mother, but he briefly returned home to retrieve something and observed defendant watching television alone in the house. Later that evening Marie returned home from working a double shift and went to bed.

In the early morning hours of August 10, 1999, officers from the East Windsor Police Department responded to the home and found it engulfed in flames. The two-story house eventually collapsed into the basement, which is where authorities located the victim's remains. The medical examiner determined the cause of death to be a fracture to the skull resulting from multiple blows to the head prior to the fire. Later that same morning, officers located defendant sleeping in a dumpster approximately one mile from his home. Police observed that defendant was not wearing any shoes and that his pants and shirt were stained with what appeared to be blood. Analysis of the stains on defendant's clothes showed that it was his mother's blood.

At trial, the State's arson expert, Donald Richard Ricigliano, testified that, in his opinion, the fire had two separate points of origin: the victim's bedroom on the second floor and the entrance to the kitchen on the first floor. Ricigliano believed that the burning of the victim's bed created a hole in the first floor ceiling causing it to fall to the first floor and ignite the fire on that floor. This, in turn, led to the total collapse of the structure into the basement.

Additionally, the State presented the expert testimony of Paul Kish, an expert in blood splatter analysis, who testified regarding the blood splatter found on the clothing worn by defendant when police discovered him in the dumpster after the fire. Kish testified that the splatter on defendant's clothes was consistent with that of someone striking another while in close proximity.

Defendant argues on appeal that the judge improperly refused to include in the charge to the jury criminal mischief as a lesser included offense. The court charged third degree arson as a lesser included offense of aggravated arson, but it declined to charge criminal mischief. The court reasoned that there was no rational basis for the jury to acquit defendant of second or third degree arson but to find him guilty of criminal mischief since the house was totally destroyed.

A "court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e. As the Court observed:

The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

[State v. Brent, 137 N.J. 107, 113-14 (1994) (emphasis in original).]

See also State v. Savage, 172 N.J. 374, 396 (2002) reiterating that, "[i]n order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense."

A person is guilty of criminal mischief in the third degree where that person "[p]urposefully or knowingly damages tangible property [valued at $2,000 or more] of another or damages tangible property of another recklessly or negligently in the employment of fire . . . ." N.J.S.A. 2C:17-3a(1). By comparison, a person is guilty of third degree arson "if he purposefully starts a fire or causes an explosion, whether on his own property or another's, [t]hereby recklessly placing a building or structure of another in danger of damage or destruction." N.J.S.A. 2C:17-1(b)(2). The method of the threat, damage or destruction - by fire - is the critical element of arson.

Here, there was evidence from which the jury could conclude that defendant set fires in two separate locations, resulting in the complete destruction of the home, supporting the State's theory that the purpose of the fire was to conceal the murder. The total destruction of the home was not a disputed issue. Under the facts presented, the jury could have concluded that defendant did not set the fires. In that case, he could not have been guilty of arson or criminal mischief, but there was no scenario supported by the evidence under which defendant could have been guilty of criminal mischief but not guilty of arson. Therefore, the record shows no rational basis for the court to charge the jury with third degree criminal mischief. See State v. Figueroa, 237 N.J. Super. 215, 219-20 (App. Div.) (holding that criminal mischief as defined under N.J.S.A. 2C:17-3a(1) is not a lesser included offense of aggravated arson where the defendant ordered a building or structure to be set on fire, because "[p]urposeful or knowing criminal mischief typically involves damage to property without such potential for disaster"), certif. denied, 121 N.J. 643 (1990).

Defendant next contends that the testimony of Kish, the blood splatter expert, represents a net opinion and thereby constitutes impermissible testimony. An expert's opinion must give the "why and wherefore of his or her opinion" and must not be a mere conclusion. State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Here, the court made the initial determination that the testimony would assist the jury in resolving a fact in issue, the identity of the killer, as required by N.J.R.E. 702. The expert detailed how he arrived at his conclusions, based upon his examination of the blood on defendant's clothes, various qualities of human blood, such as surface tensions and drying time, the transfer mechanism of blood, and the difference between transfer stains and blood splatter stains. The expert's personal examination of the evidence and his conclusions, based upon such examination, elevated his testimony above that of mere net opinion. Therefore, the court properly exercised its discretion in allowing the expert testimony.

We need deal only briefly with defendant's claims that the expert's use of photographs of his bloodstained clothing was unfairly prejudicial under N.J.R.E. 403. As the court noted, the photographs were only of "dull colored stains on fabric" and were the only crime scene photos utilized by the expert. The stains, while prejudicial in the sense that they were incriminating, were not unfairly so. As a result, we find no abuse of discretion in allowing the use of the photographs.

Similarly, we see no merit in defendant's argument that the court erred in failing to suppress evidence retrieved from the rubble of the home. Defendant argues that the police improperly relied on the apparent authority of defendant's brother, Louis Marut, to consent to the search of the rubble, because there was no indication that Louis had been appointed a representative of the estate, was a named beneficiary or trustee, or held legal title to the estate. No such formal designation was required. Apparent authority, implied by control or by other indicia of authority, such as a relationship to the property or to its owner from which the right to consent may be inferred, will suffice.

It is a well-settled proposition in New Jersey that consent is an exception to the search warrant requirement and that such consent may be obtained "from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993). In this case, Louis Marut was at the site of the home regularly from the first day, assisting with removal of debris and overseeing work on the site, even utilizing equipment from his own landscaping business to assist. Additionally, he was the family member working with police and dealing with insurance matters. During this same period, the other siblings did not undertake similar responsibilities. Based on this, the record supports the court's conclusion that it was reasonable for the police to believe that Louis had the authority to consent to a search of the area.

Finally, defendant argues that the court committed reversible error when it sentenced him to a prison term beyond the then-presumptive term of seven years for a second degree crime under N.J.S.A. 2C:44-1f(c) and imposed a consecutive sentence.

In State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014 (1986), our Supreme Court expanded upon N.J.S.A. 2C:44-5 and promulgated certain factors that a court must consider before imposing consecutive sentences. Further, appellate review of the imposition of consecutive sentences must consider the reasons that the trial court gives, and in the absence of express reasons, should remand. State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div.), certif. denied, 146 N.J. 569 (1996). Here the court found:

the commission of the aggravated arson was committed after the murder, based upon the testimony. The No Early Release Act does not apply under those facts because death or serious bodily injury did not result, but it took a series of independent acts which followed the murder to begin that fire at two separate locations in the house which destroyed the entire home. The Court finds under those circumstances that it should be sentenced separately, otherwise it would be a free crime so to speak.

We find that this reasoning satisfies the guidelines as set out in Yarbough and that the record amply supports such conclusions. Here, the arson was not the cause of death. Defendant started the fires separate and apart from the murder of the victim, in an obvious attempt to conceal the true cause of death. In other words, the record supports the State's theory that two separate motives drove defendant to commit these acts, one to kill the mother, and the other to hide his crime. The arson also constituted a separate act of violence that posed potential and actual harm to police officers, fire officials, and neighbors in addition to depriving his brothers and sisters of the family home. For these reasons, the imposition of a consecutive term does not constitute an abuse of discretion.

However, "a sentence above a presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466. Here, the court relied on aggravating factors (2) (gravity and seriousness of harm inflicted), (3) (risk of reoffense), and (9) (need for deterrence) under N.J.S.A. 2C:44-1a, none of which were found by a jury or based upon a prior conviction. Based on these factors, the court then sentenced defendant to a term of eight years, which is beyond the seven-year presumptive term established in N.J.S.A. 2C:44-1f(c). As a result, we remand the case for resentencing on count two consistent with the holding of Natale, supra, 184 N.J. at 458. See also State v. Thomas, 188 N.J. 137, 152-53 (2006).

Affirmed in part, remanded for resentencing of count two consistent with Natale.

 

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A-1839-04T4

December 7, 2006