STATE OF NEW JERSEY v. SHENG TEO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4761-06T44761-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHENG TEO,

Defendant-Appellant.

__________________________________

 

Submitted February 9, 2010 - Decided

Before Judges Grall and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 05-02-0159.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert L. Sloan,

Assistant Deputy Public Defender, of

counsel and on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Joie Piderit, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

A jury found defendant Sheng Teo guilty of murder, N.J.S.A. 2C:11-3a(1), second-degree aggravated arson, N.J.S.A. 2C:17-1a, and third-degree theft, N.J.S.A. 2C:20-3. The judge imposed the following terms of incarceration: fifty years for murder, which is subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; eight years for aggravated arson, two without possibility of parole, consecutive to the sentence for murder; and a four-year term for theft, concurrent with counts one and two. Defendant appeals. He claims that error in the jury instruction on a permissive inference of purpose and knowledge relevant to murder requires reversal of his conviction and that his sentence is manifestly excessive. After review of the record in light of the arguments presented, we affirm.

Shortly before midnight on November 11, 2004, Soon Fook Hui returned to his home in South Amboy, which he shared with Nee Nee Tan. Tan's Lexus was not in the driveway, and there was a fire. He put out the fire and called 911. Tan's body was found on the kitchen floor. Her corpse was covered by a sheet. Although there was a telephone cord next to her head, the phone was gone. The knobs on the kitchen stove were turned to the on position but the escaping gas was not ignited.

Tan had bruises and lacerations on her face, scalp, left ear and neck. An autopsy was done, and the cause of death was determined to be strangulation by ligature, consistent with use of a telephone cord. A fingerprint found on the kitchen counter linked defendant to the crime.

Hui knew defendant when they both lived in Singapore. When defendant came to the United States in the 1990s, Hui employed him and, from time to time, gave him money. After defendant was diagnosed with cancer, Hui gave other assistance. About a year before Tan's death, Hui refused defendant's request for a loan.

A week after Tan's death, defendant agreed to be interviewed by the police. He confessed, explaining that he had taken the train to South Amboy to collect on a debt and admitted to killing Tan, turning on the gas, throwing a burning paper into the basement of the house and leaving the home in Tan's car with the telephone from the house.

Defendant provided details. Tan let him into the house, and said she was going to phone her husband. Because he did not want Hui to know he was there, defendant grabbed a metal burner from the stove and struck her in the head three times. She fell to the floor and screamed, and he then kicked her in the head or neck. Because she was still moving, he attempted to choke her with his hands and then used the phone cord to strangle her. He then turned on the gas and tried to light a fire to destroy the evidence. He took the phone with him and left in Tan's car.

At trial, defendant gave a different account; he denied any role in the commission of the crimes and explained that in return for Hui's promise to pay him $100,000 he agreed to give a confession in conformity with a description provided by Hui and his brother.

On the basis of that evidence, the jury found defendant guilty of murder, arson and theft.

Although there was no objection to the jury instruction when it was given, defendant contends that a portion of the jury instruction on a permissive inference relevant to the state of mind required for murder was "unfair and confusing, in violation of defendant's rights to due process of law and a fair trial." We detect no impropriety in the instruction.

After instructing the jury on the State's obligation to prove that defendant "purposely or knowingly caused death or serious bodily injury resulting in death," the judge explained the permissive inference available from evidence of the weapon used and the manner in which death was caused:

A homicide or killing with a deadly weapon, such as a handgun, in itself would permit you to draw an inference that defendant's purpose was to take life or cause serious bodily injury resulting in death.

A deadly weapon is any firearm or other weapon 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.

In your deliberations you may consider the weapon used and the manner and circumstances of the killing, and if you are satisfied beyond a reasonable doubt that the defendant strangled [the victim] with a cord you many draw an inference from the weapon used, that is the cord, and from the manner and circumstances of the killing as to defendant's purpose or knowledge.

In another portion of the charge addressing inferences available from possession of stolen property, the judge explained, in general, the jurors' role in considering evidence and inferences. That portion of the instruction reemphasized the permissive nature of all inferences.

Defendant acknowledges that the permissive inference to which he objects has been approved in State v. Martini, 131 N.J. 176, 271-72 (1993); State v. Thomas, 76 N.J. 344, 357 (1978); State v. Beard, 16 N.J. 50, 61 (1954); State v. Peterson, 10 N.J. 155, 163 (1952); State v. Pierce, 4 N.J. 252, 267 (1950); State v. Maioni, 78 N.J.L. 339, 343-45 (E. & A. 1909). He does not argue that a phone cord used to strangle is not a deadly weapon. Rather, he contends that the cases are distinguishable because his use of the weapon was in dispute and this instruction permitted the jurors to find that he killed purposely or knowingly even if they found that his "use of the weapon was reckless." He submits that "it would not be logical for a jury to infer that defendant intended the victim's death unless it first determined that he purposely used the deadly weapon." The argument does not warrant extensive discussion. R. 2:11-3(e)(2).

While we fail to understand how the evidence in this case would permit a finding of "reckless" use of the phone cord by the person who caused Tan's death, we are convinced that the instruction did not suggest the jurors could infer defendant's guilt of murder if they found his "use of the [phone cord] was reckless." The jury was directed that they could draw an inference as to purpose or knowledge if they were "satisfied that the defendant strangled [the victim] with a cord." That phrase, given the ordinary meanings of the active voice of the verb strangled, can only be understood to mean that the inference was available upon proof of a course of action undertaken with a specific goal strangling the victim with a cord. Reading this instruction as a whole and as the jurors would understand it, State v. Savage, 172 N.J. 374, 387 (2002), we have no doubt that this conviction does not rest on an inference from recklessness in handling the phone cord. Accordingly, we find no error and affirm defendant's conviction.

We turn to consider defendant's claim that his sentence is manifestly excessive. In addition to evidence presented at trial, the judge considered the pre-sentence report, which indicated that defendant had no prior convictions or arrests and supported himself as a "professional gambler."

"[A]dherence to the Code's sentencing scheme triggers limited appellate review. Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]' . . . 'an appellate court may not substitute its judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (citations omitted). "When conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court] . . . , they need fear no second-guessing." State v. Roth, 95 N.J. 334, 365 (1984); accord Cassady, supra, 198 N.J. at 181.

"The reviewing court is expected to assess the aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record." State v. Bieniek, 200 N.J. 601, 608 (2010) (quotations omitted). An appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989).

The judge's findings with respect to the aggravating factors are supported by the record. Recounting the evidence of defendant's repeated attempts to kill Mr. Hui's wife before achieving that goal, the judge found an aggravating factor based upon the depraved manner in which the crime was committed. N.J.S.A. 2C:44-1a(1). The judge deemed the risk that defendant would commit another crime to be an aggravating factor; the judge based that finding upon evidence of defendant's livelihood and his homicidal response when the victim attempted to call her husband against his wishes. N.J.S.A. 2C:44-1a(3). Focusing on defendant's efforts in planning a crime of revenge against Hui that led to the murder of Tan, the judge found a need to deter defendant and others, N.J.S.A. 2C:44-1a(9), and the judge found that defendant was in possession of a stolen motor vehicle while in flight from the scene of the crime, N.J.S.A. 2C:44-1a(13), a fact which was found by the jury.

The judge found no mitigating factors. Relying upon the explanation of the homicide that defendant gave to the police when questioned, the judge rejected mitigating factors that apply when crimes are the result of circumstances not likely to reoccur and when the defendant has cooperated with law enforcement. In the judge's view, defendant's crimes were a product of resort to violence to redress a grievance, which was not a circumstance unlikely to recur, and his cooperation with the police was motivated by his desire to help himself not to help law enforcement. The judge also considered the mitigation available to one who "has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1b(7), but he concluded that it was not established because defendant had moved to this country when he was an adult and supported himself through his activity as a "professional gambler."

While we may well have reached a different conclusion about the significance of the limited evidence the judge deemed relevant to defeat the mitigating factor provided in N.J.S.A. 2C:44-1b(7), the evidence supporting that factor is not sufficiently compelling to permit us to conclude the judge "failed to find [a] mitigating factor[] that clearly w[as] supported by the record." Bieniek, supra, 200 N.J. at 608. Accordingly, we decline to remand for reconsideration without reliance on the unsupported assumption that defendant's professional gambling activities were indicative of a life that was less than "law-abiding." See ibid.

On appeal defendant argues that his health condition was a "hardship" relevant to mitigation of his sentence. N.J.S.A. 2C:44-1b(11). At the time of sentencing, however, defendant's attorney advised: "it is very difficult to know exactly what his medical or health condition is at this point in time." Given the uncertainty about the defendant's cancer prognosis, we cannot conclude that "hardship" relevant to the duration of defendant's sentence was clearly supported by the record. Bieniek, supra, 200 N.J. at 608.

Relevant to imposition of a consecutive sentence for arson, the judge addressed the factors specified 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). He relied on the fact that this property crime was distinct from the murder and had an additional victim, the surviving owner of the home. See id. at 644.

Given the standards governing our review and the judge's articulation of factual findings relevant to the aggravating and mitigating factors and the imposition of consecutive sentences, we see no principled basis for concluding that this sentence is shocking to the judicial conscience. Accordingly, we have no reason to intervene.

Affirmed.

 

This instruction is fully consistent with the model jury charge:

A homicide or a killing with a deadly weapon, such as (describe the deadly weapon used) in itself would permit you to draw an inference that the defendant's purpose was to take life or cause serious bodily injury resulting in death. A deadly weapon is any firearm or other weapon, device, instrument, material or substance, 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. In your deliberations you may consider the weapon used and the manner and circumstances of the killing, and if you are satisfied beyond a reasonable doubt that the defendant (shot) (stabbed) and killed (insert victim's name) with a (gun) (knife) you may draw an inference from the weapon used, that is the (gun) (knife), and from the manner and circumstances of the killing, as to the defendant's purpose or knowledge.

[Model Jury Charge (Criminal) "Murder" (2004) (footnotes omitted).]

(continued)

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A-4761-06T4

March 10, 2010