STATE OF NEW JERSEY v. PAUL A. FOGLIA

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL A. FOGLIA,

Defendant-Appellant.

_______________________________________________

November 19, 2014

 

Submitted October 7, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-11-0464.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In State v. Foglia, 415 N.J. Super. 106 (App. Div.), certif. denied, 205 N.J. 15 (2010), we were compelled to reverse defendant's conviction for murder and related charges because of widespread admission of irrelevant evidence that should have been excluded pursuant to N.J.R.E. 404(b).1 Defendant was re-tried and again convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree criminal trespass, N.J.S.A. 2C:18-3. After merging the weapons offense into the murder conviction, the judge sentenced defendant to a term of life imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month sentence on the criminal trespass conviction.

Defendant raises the following points on appeal

POINT ONE

THE TRIAL JUDGE'S REFUSAL TO MORE SPECIFICALLY INSTRUCT THE JURY THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE THE BASIS FOR A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER VIOLATED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT TWO

THE TRIAL COURT'S EXCLUSION OF RELEVANT EVIDENCE THAT SUPPORTED THE INFERENCE THAT THE VICTIM WANTED TO INTERFERE WITH DEFENDANT'S PARENTAL RIGHTS DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE.

POINT THREE

THE ADMISSION OF PRIOR BAD-ACTS EVIDENCE AND THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not raised below)

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A LIFE TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTOR DOES NOT SUPPORT SUCH A SENTENCE.

In a pro se supplemental brief, defendant raises the following points

POINT I

PROSECUTOR SOLICITED FALSE TESTIMONY TO THE JURY TO SECURE APPELLANT'S CONVICTION DESPITE DEFENSE ATTORNEY'S OBJECTIONS.

POINT II

APPELLANT CONTENDS THAT DUE TO THE CUMULATIVE ERRORS COMMITTED BY THE TRIAL COURT IN THIS CASE, APPELLANTS RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW, AS GUARANTEE[D] BY THE SIX[TH] AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION WERE VIOLATED.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

I.

Much of the State's evidence at the second trial mirrored that introduced at the first trial. We briefly summarize.

Defendant had a long-standing, tumultuous relationship with the victim's daughter, with whom he had fathered two young children. The victim was sixty-seven years old, with a myriad of health problems. Defendant, on the other hand, was in superb physical condition. The victim supported her daughter, who, with her two children, lived in her mother's home. The victim's relationship with defendant, however, was bitter and fueled by her belief that defendant was not good enough for her daughter and failed to provide for her and the children.

On the night of the murder, following several days of training, defendant was working his first night as a bartender at a nearby bar and restaurant. He had met the victim's daughter earlier in the day, and knew that she would be using her mother's car to drive with the children for dinner at another family member's home several miles away, and that the victim would be home alone that evening. About ninety minutes into his shift, defendant called the victim's daughter. At some point thereafter, defendant left the bar for more than one hour, his departure and return captured by the bar's video surveillance camera. Upon his return, defendant was fired for leaving his post, but he did not leave the premises, choosing instead to order some food. Nearly two hours later, defendant received a call from a neighbor of the victim, whose body had been discovered, and left the bar.

The victim's daughter had arrived home with her children and found her mother's bloodied corpse laying face-down against a piece of furniture. She had suffered a "mosaic fracture" of her skull, caused by significant blunt force trauma, and her body bore other signs of a savage beating. The State introduced forensic proof that defendant's shoes were splattered with the victim's blood. A folding wooden, television tray table, found at the scene atop the victim's body, also had her blood on it.

As it did at the first trial, the State introduced contradictory statements that defendant furnished to law enforcement. Initially, he claimed to have never left the bar or its parking lot on the evening of the murder. However, he subsequently provided a statement in which he admitted killing the victim, and testified at the first trial that, he went to the victim's home in an attempt to smooth the rough waters between them, and the victim attacked him with the tray table. Foglia, supra, 415 N.J. Super. at 114-15. The State read to the jury significant portions of defendant's testimony at the first trial.

Defendant elected not to testify but did call as a witness Shannon Kuralti, the former girlfriend of the victim's son. We discuss her testimony below.

II.

A.

As at the first trial, the essential defense was that defendant was guilty only of passion/provocation manslaughter, not murder. See N.J.S.A. 2C:11-4b(2) ("Criminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation."). Over the State's objection, the judge charged the jury on passion/provocation manslaughter, in general tracking the language of Model Jury Charge (Criminal), "Murder, Passion/provocation and Aggravated/reckless manslaughter," N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) (2014), but also incorporating some language requested by defendant.

In defining the first element of the crime, whether the provocation was reasonable and adequate, see e.g., State v. Josephs, 174 N.J. 44, 103 (2002) (defining elements), the judge said

In order for the State to carry its burden, it must prove beyond a reasonable doubt that the provocation was not sufficient to arouse the passions of an ordinary person beyond the power of his control.

For example, words alone do not constitute adequate provocation.

On the other hand, a significant physical confrontation might be considered adequate provocation.

If you find as credible defendant's version that [the victim] assaulted him, following . . . a twelve[-]year history of acrimony between them, such an assault may constitute an adequate provocation.

In Point I, defendant argues that the jury instructions "failed to sufficient[ly] explain . . . how" the hostile relationship defendant had with the victim "could be relevant to a passion provocation verdict." This same issue was specifically raised in the first appeal and rejected. Foglia, supra, 415 N.J. Super. at 128-29. Our review of the evidence adduced at this trial compels no different result. The judge's charge was appropriate and provides no basis for reversal.

B.

In Points II and III, defendant argues that the judge's decisions to admit testimony regarding defendant's loss of his job as a mechanic, and to exclude some testimony by Kuralti, singly or collectively prejudiced his right to a fair trial and require reversal.

The victim's daughter testified that defendant told her he was working as a mechanic at Wayne Mazda, and she believed that he was still employed there on the day of the murder. She also testified that her car, a Mazda, needed some repairs, and she asked defendant if the estimate she had obtained was too high. He said it was. She also testified that her mother was going to call other repair shops for estimates, including the dealership where defendant was supposedly employed.

In fact, defendant had not been working at the dealership for several weeks. The State called the service manager who testified that he fired defendant, not because of any misconduct, but because he had limited skills as a mechanic and the dealership's business had slowed. There was no objection to any of this testimony.

While Kuralti was testifying, there was an objection by the prosecutor that resulted in an extended sidebar regarding a statement she had recently provided to law enforcement in which Kuralti remembered an incident at the victim's home. Although the record fails to disclose when this occurred, Kuralti told police that she was at the victim's home when, in defendant's presence, the victim asked defendant's son if his father had sexually abused him. Defendant argued this evidence was relevant to show that the victim intended to deny defendant his parental rights, which in turn supported the passion/provocation manslaughter defense. The judge ruled that Kuralti's testimony should be excluded because it lacked relevancy and was more prejudicial than probative. See N.J.R.E. 401 and 403.

In general, evidentiary decisions of a trial court are reviewed for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). However, when no objection is made to the admission of evidence at trial, the more appropriate standard for review is plain error, State v. Gore, 205 N.J. 363, 382-383 (2011), "that is, whether [the evidence] 'is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Frisby, 174 N.J. 583, 591 (2002) (quoting R. 2:10-2) (citing State v. Macon, 57 N.J. 325, 335 (1971)).

As noted, defendant did not object to the evidence regarding his departure from Wayne Mazda. He now contends this "prior bad act" evidence should have been excluded pursuant to N.J.R.E. 404(b), or, alternatively, the jury should have received a limiting instruction on the use of such evidence. We disagree.

We do not think N.J.R.E. 404(b) had any application to this evidence. The fact that defendant lost his job through no fault of his own did not paint him as a bad person. Instead, the prosecutor contended that the victim and her daughter sought out defendant's advice regarding the repairs because they believed he was employed as a mechanic at the Mazda dealership, and he, in turn, grew concerned that if the car were brought there, his lie would be exposed, just one more reason why he chose to murder the victim on that night, when he knew her daughter was far from home and in possession of the only working vehicle.

Additionally, during the charge conference and without specific reference to this evidence, the prosecutor discussed the possibility of a limiting instruction pursuant to N.J.R.E. 404(b). See e.g., State v. Williams, 190 N.J. 114, 133-34 (2007) (explaining appropriate charge). The judge asked defense counsel if there was any specific evidence to which such a charge applied. He responded in the negative.

While the evidence had marginal relevance, we are convinced that, given the overwhelming evidence of defendant's guilt, the admission of this evidence "could not reasonably have led the jury to reach a conclusion that it otherwise might not have reached." Gore, supra, 205 N.J. at 383.

Turning to the exclusion of Kuralti's proffered testimony, as noted, the judge determined it was not relevant to the defense, and its prejudicial impact outweighed any probative value. Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Our Rules of Evidence "broadly admit 'all' relevant evidence, unless the evidence is otherwise excluded." State v. Burr, 195 N.J. 119, 126 (2008). Relevant evidence nevertheless may be excluded "if its probative value is substantially outweighed by the risk of undue prejudice [or] confusion of issues . . . ." N.J.R.E. 403(a).

In order for relevant evidence to be excluded, it must be found that the evidence's probative value is "so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence."

[State v. Loftin, 146 N.J. 295, 358 (1996) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).]

We accept arguendo defendant's contention that the evidence was relevant to demonstrate the intensity of the victim's desire that he have as little contact as possible with his children. We also accept arguendo that the prejudice to the State was insubstantial, since, it was aware of Kuralti's statements to law enforcement, and she was available to be cross-examined about her failure to have reported the alleged conversation in the past. However, when considering the effect of a discretionary ruling excluding certain evidence proffered by the defense, an appellate court will reverse only if it concludes that the excluded evidence "is critical to the defense, as where there was no other available evidence to demonstrate particular defense issues." State v. Scherzer, 301 N.J. Super. 363, 414, (App. Div.), certif. denied, 151 N.J. 466 (1997).

Here, the entire theme of both the prosecution and the defense was the tense relationship that existed between the victim and defendant. The State contended defendant killed the victim precisely because she disliked him and tried to turn her daughter and his children against him. Defendant asserted that his confrontation with the victim on the night of the homicide needed to be assessed through the prism of twelve years of maltreatment, verbal abuse and ridicule.

The jury fully understood these contentions and the legal issues involved, and Kuralti's testimony was simply not critical to defendant's ability to fairly present his defense. Even if the testimony was wrongly excluded, the error was harmless beyond a reasonable doubt. State v. Sterling, 215 N.J. 65, 101-02 (2012).2

III.

In imposing sentence, the judge found that aggravating factors one, two, three, nine and twelve applied. See N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense . . . including whether or not it was committed in an especially heinous, cruel, or depraved manner."); 2C:44-1(a)(2) ("The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, . . . or was for any other reason substantially incapable of exercising normal physical or mental power of resistance."); 2C:44-1a(3) (the risk of re-offense); 2C:44-1(a)(9) (the need to deter defendant and others); 2C:44-1(a)(12) ("The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled."). The judge considered as a mitigating factor defendant's expressed remorse. He imposed a life sentence on the murder conviction.

Defendant argues that the judge "double counted" factors one and two, and failed to adequately explain why both applied under the facts of the case. Defendant further argues the judge failed to consider the "'real time'" consequences of the sentence in light of NERA.

It is well-recognized that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors "'were based upon competent credible evidence in the record.'" Id. at 127 (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Id. at 127 (quoting Bieniek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).

The Court recently noted that "[w]hen applying [factor one], the sentencing court reviews the severity of the defendant's crime, the single most important factor in the sentencing process, assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public." State v. Fuentes, 217 N.J. 57, 74 (2014) (internal quotation marks omitted). "[A] sentencing court may justify the application of aggravating factor one . . . by reference to the extraordinary brutality involved in an offense." Id. at 75. "A sentencing court may consider aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior." Ibid. (alteration in original) (internal quotation marks omitted). Here, the judgment of conviction contained detailed findings regarding the heinous nature of defendant's assault on the victim so as to fully support the judge's conclusion that aggravating factor one applied.

Aggravating factor two "is normally considered jointly with the nature of the offense under [aggravating factor one]." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-1 (2015). In State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001), we recognized that "the brutal circumstances surrounding the victim's suffering," fully justified the finding of aggravating factor two.

Here, the judge specifically referenced the victim's physical infirmities, not just her age. He noted that defendant was aware of those limitations, and that she was essentially helpless. Defendant, on the other hand, was in superb physical condition, much younger, stronger and taller. Contrary to defendant's arguments, the judge's findings are amply supported by the record, and he carefully considered the totality of the circumstances in making his determinations regarding each aggravating sentencing factor.

Defendant's argument regarding the judge's failure to consider the real time consequences of NERA lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.


1 N.J.R.E. 404(b) provides that generally,

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

2 The arguments raised in defendant's pro se brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).