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November 7, 2014


Submitted September 9, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-03-0426.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).


Following a jury trial, defendant Alonzo Harrison was convicted of third-degree burglary, N.J.S.A. 2C:18-2, and second-degree aggravated arson, N.J.S.A. 2C:17-1a. After appropriately merging the burglary conviction into the aggravated arson, the judge sentenced defendant to a six-year term of imprisonment.

On appeal, defendant raises the following arguments















We have considered these arguments in light of the record and applicable legal standards. We affirm.


Jury selection commenced on August 7, 2012. After the judge considered at sidebar the requests of several prospective jurors to be excused, defense counsel apparently surveyed the the remaining members of the venire. He told the judge, "I see nobody of color anywhere." The judge stated in response, "[T]his is the panel that we have been given and I don't think there's anything that the Court can do about that particularly under the circumstances, this being the summer and the fact [is] that we do have some[] . . . people of different nationalities." Defense counsel reiterated, "I just want to raise my concern and my client is African-American and we have a jury pool who is not very homogeneous [sic] of the community make-up . . . ."

The next day, after a second venire of jurors was summoned and the judge again considered requests to be excused, the following colloquy occurred

Defense Counsel: I just want to put my objection again on the record that the second jury pool doesn't contain . . . a diverse selection of jurors, that there are no African Americans . . . in this jury pool. Appears to be no Hispanics or anybody who is of Asian descent. . . . The only African American that was in this pool was dismissed for cause due to financial hardship . . .

The Court: Okay. Well, I note your objection. Again, you're not contesting that the jury pool was selected in an improper way. It's just that the fact that there are no minorities that you see on the jury --

Defense Counsel: Right.

The Court: - - that doesn't necessarily mean that there aren't any either just because someone doesn't match the same color. Certainly there still could be some African Americans that are on here. We're not going to go into their ethnic origin.

Defense Counsel: Right.

The Court: And we don't really know that for a fact.

Defense Counsel: Absolutely, you're correct, your Honor.

. . . .

Assistant Prosecutor: [I]n Ocean County the make-up of African Americans is quite low, like in the single digits . . . maybe two to three percent. But I know yesterday the jury pool was very diverse as [it] is today and I think the Judge is correct . . . . [J]ust because you don't see anybody matching exactly doesn't mean that there's no African Americans out there or someone of Asian descent.

Defense Counsel: I just wanted to put that on the record.

[(Emphasis added).]

In Point I, defendant argues that the racial composition of the jury venire resulted in a jury not "drawn from a representative cross-section of the community," in violation of his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection under law. We reject the argument.

In State v. Hightower, 120 N.J. 378, 401 (1990), the Court identified the prima facie elements of a fair cross-section violation under the Sixth Amendment of the United States Constitution. To present such a claim, a defendant must (1) "identify a constitutionally-cognizable group,"1 (2) "show that representation of that group over a period of time has not been 'fair and reasonable,'" and (3) "show that the under-representation was due to systematic exclusion." Ibid. (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579, 587 (1979)).

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution "requires that petit-juror selection be 'free from any taint of discriminatory purpose.'" Hightower, supra, 120 N.J. at 400 (quoting Ramseur, supra, 106 N.J. at 215). To prove an equal protection violation, a defendant must establish (1) that he is a member of a constitutionally cognizable group, (2) "substantial underrepresentation" of that group in jury pools over a significant period of time, and (3) discriminatory purpose. Ramseur, supra, 106 N.J. at 215. Defendant may satisfy the final element "either by the strength of his statistical showing or by demonstrating the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial underrepresentation." Id. at 215-216 (citing Castaneda, supra, 430 U.S. at 494, 97 S. Ct. at 1280, 51 L. Ed. 2d at 510-11).

Defendant's claimed constitutional violations fail because, although defendant is a member of a "constitutionally cognizable" group, there is no proof as to the second or third prongs of the standards set forth either in Hightower or Ramseur. Defendant failed to establish that African Americans were underrepresented in jury venires in Ocean County over time, nor did he establish underrepresentation was the result of systematic exclusion or discriminatory purpose. In fact, trial counsel accepted the judge's characterization of his objection: "[Y]ou're not contesting that the jury pool was selected in an improper way. It's just that the fact that there are no minorities that you see on the jury[.]" Defendant has failed to establish any constitutional violation in the selection of the jury at his trial.


After the jury was selected but prior to opening statements, the judge conducted a hearing pursuant to N.J.R.E. 104 to determine the admissibility of three statements defendant made to law enforcement officers on the day of the fire. On appeal, defendant challenges the admission of only one of those statements, thus, we limit our review accordingly to the evidence adduced at the Rule 104 hearing related to that single statement.

On the evening of August 29, 2010, Brick Township police officers, firefighters and emergency personnel responded to a townhouse condominium complex on reports of a fire at one of the units. Patrolman Frank Mauro received information from a juvenile, F.A., who knew defendant and saw him leaving the unit shortly before she observed smoke. Defendant was at the scene when the witness pointed him out to Mauro. Mauro knew defendant and told him to sit on the curb near his patrol car until a detective arrived to speak to him. At some point, however, after defendant tried to walk away twice, Mauro placed him in the back seat of the patrol car and told defendant that he was not free to leave.

Detective William Ruocco arrived at the scene of the fire, and Mauro briefed him about the juvenile witness and defendant. At some point, Ruocco learned there was an active arrest warrant for defendant from Lakewood Township on unrelated charges. Ruocco told police officer Robert Heschle to take defendant into custody; neither he nor Heschle read defendant his Miranda rights.2

Heschle brought defendant to headquarters to process the arrest before placing defendant in a cell. Heschle noticed that defendant was wearing two shirts and, in accordance with departmental policy, ordered him to remove one. Defendant complied, and Heschle noticed a burn mark near the middle of defendant's tee-shirt. Heschle relayed the information to Ruocco, who told the officer to return defendant's other shirt and take the burned tee-shirt into evidence. When Heschle returned and told defendant to change shirts, defendant asked "why," and Heschle responded, "[b]ecause of the burn mark on the shirt." Defendant then stated "[T]he burn mark came from a cigarette. It's not from a fire."

After hearing arguments, the judge determined defendant's statement to Heschle was admissible, reasoning it was "made in a voluntary way, not being the subject of a question being asked by the officer, but rather being volunteered by . . . defendant." The judge concluded that defendant's comment was "not subject to a requirement of a Miranda warning[] and [was] a voluntary statement made in the normal process of an arrest for something not related to this offense."

In Point II, defendant argues that the judge should have suppressed his comment to Heschle because defendant was in custody and had not been provided with Miranda warnings. We again disagree.

As the Court has noted,

[Miranda] imposed safeguards to ensure that an individual would have a meaningful opportunity to exercise his [or her] right against self-incrimination when subject to police interrogation, whether in custody at the stationhouse or any other place where he [or she] is deprived of his freedom of action in any significant way.

[State v. Nyhammer, 197 N.J.383, 400, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009) (citing Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed 2d at 725) (internal quotations omitted).]

The purpose of those safeguards is to "empower a person -- subject to custodial interrogation within a police-dominated atmosphere -- with knowledge of his basic constitutional rights so that he can exercise, according to his free will, the right against self-incrimination or waive that right and answer questions." 406 (emphasis added).

"[T]he Mirandasafeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003)(quoting State v. Ward, 240 N.J. Super.412, 418 (App. Div. 1990)) (emphasis added).

That is to say, the term "interrogation" under Mirandarefers 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.

[Ibid.(quoting Ward, supra, 240 N.J. Super. at 418) (emphasis added).]

Conversely, police officers will not "be held accountable for the unforeseeable results of their words or actions." Ibid. (citation omitted). Therefore, "unexpected incriminating statements made by an in-custody defendant in response to non-investigative questions by the police without prior Mirandawarnings are admissible." 453 (citing State v. Mallozzi, 246 N.J. Super.509, 516 (App. Div.), certif. denied, 126 N.J. 331 (1991)).

Defendant's statement about the origins of the burn on his tee-shirt was not the product of expressed or implied interrogation. As a result, it is of no moment that Mirandawarnings had not been administered to him prior to making the comment.



We consider the points raised regarding the trial itself by first synopsizing some of the relevant evidence at trial.

The fire occurred in a condominium unit owned by Ms. Fitzmaurice that was across the street from one owned by F.A.'s family. Nine-year old F.A. and Fitzmaurice had a very close relationship, and F.A. frequently walked the Fitzmaurice dog. F.A. knew that Fitzmaurice was in the hospital and was not at home on the night of the fire. From her porch, F.A. saw a green van parked in front of the Fitzmaurice unit and recognized it as belonging to defendant, whom she knew from the neighborhood. Defendant was wearing a white tee-shirt and jeans, and F.A. saw him enter Fitzmaurice's home and exit approximately five minutes later.

A few minutes after that, F.A. saw smoke in the front window of Fitzmaurice's townhouse. She entered the unit in search of her neighbor's dog, noticed the kitchen curtains were ablaze, found the dog, exited and ran home to tell her mother to call 9-1-1.

Officer Mauro entered the Fitzmaurice townhouse when he arrived and observed fire in the kitchen and near the steps leading to the basement. Before the jury, Mauro reiterated the testimony he gave at the Rule 104 hearing regarding his initial contact with F.A. Mauro also testified that after some time had passed and while he was at the scene, F.A. told him that defendant was now back wearing "a different colored shirt [and] different jeans," and she pointed him out to the officer.

Mauro approached defendant and began making "small talk." Defendant stated that he had previously rented a room in the Fitzmaurice townhouse but had left after "[t]he b**** got me arrested." Defendant told Mauro that he had not been at the unit for three-and-a-half weeks. Mauro testified that defendant "became nervous, and . . . started saying, 'You don't think I did this?'" Mauro told defendant to sit on the curb and wait for detectives to arrive, and turned his attention to other duties. Defendant got up on two occasions and began to walk away, prompting Mauro to place him in the police car. The jury also heard from Heschle regarding defendant's explanation for the burn mark on his tee-shirt.

Fitzmaurice testified that she charged defendant $20 per night to sleep in her basement intermittently whenever he needed a place to stay, which was occasioned by fights between him and his girlfriend. In the weeks leading up to Fitzmaurice's hospitalization, defendant fell behind on the rent. Defendant removed most of his possessions from the basement, but Fitzmaurice refused to let him take his television until he paid her the money he owed. Very late one evening, shortly before Fitzmaurice's hospitalization, defendant and his girlfriend came to the townhouse while intoxicated and demanded to be let in to retrieve the television. Defendant left after Fitzmaurice threatened to call police.

David Sanchez, a volunteer firefighter and chief of the Herbertsville Fire Company, was one of the first firefighters on the scene. He observed "multiple points of origin" for the fire, including a flaming ornament suspended from the ceiling and a flaming roll of paper towels. He considered the fire "suspicious."

The State called Detective David Petracca of the arson and fire investigation unit of the Ocean County Prosecutor's Office as an expert. Petracca conducted an investigation the morning after the fire, eventually identifying six "points of origin," all of which were caused by an open flame having been applied to combustible material. Petracca also examined the tee-shirt taken from defendant at the jail. He opined that the burn mark resulted from being "within very close proximity of an open flame" and was not caused by a cigarette.

After the State rested, defendant made a motion for acquittal, see Rule 3:18-1, which the judge denied. Defendant testified that for approximately six years before the fire, he lived in a condominium in the same development with his girlfriend, with whom he had a "very rocky relationship." Fitzmaurice let him sleep in her basement when he fought with his girlfriend. Defendant acknowledged that some of his belongings were in the Fitzmaurice townhouse, but he claimed that he had not been there for several weeks before the fire.

Defendant first learned about the fire while in his condominium with his girlfriend. He heard sirens and, together with their dog, he and his girlfriend ran to the Fitzmaurice unit. Defendant acknowledged that Mauro asked him not to leave and admitted that he got up from the curb at some point, intending to go home and use the bathroom.3 Defendant further testified that he told Heschle the mark on his tee-shirt was caused by a welding tool.

Defendant disputed F.A.'s claim that she had seen him driving a green van on the night of the fire because, while acknowledging owning such a vehicle, he had been unable to drive it for some time before the fire because it needed a costly and time-consuming repair. Defendant testified that he spent the afternoon of August 29 working on a car belonging to his friend, and that another friend then drove him home shortly before he first learned of the fire at the Fitzmaurice unit.

The State elicited on cross-examination that this contradicted a notice of alibi defendant signed, see Rule 3:12-2, in which he claimed his girlfriend drove him home. Defendant testified that the alibi notice was wrong, and that he likely "just signed it" without reading it.

Defendant testified that he thought police arrested him at the scene because he was "know[n]" to the police, and he thought there was a motor vehicle warrant for his arrest, or that his girlfriend, who regularly reported him to police, had "said something." Defendant admitted saying "[t]hat b**** got me arrested" as he entered the police car, but claimed it was in reference to his girlfriend.

After the defense rested, the judge charged the jury and later accepted its guilty verdicts as to both counts of the indictment.


Although there was no challenge by defendant to F.A.'s competency as a witness, the judge questioned her before she was sworn.

Judge: [D]o you know what an oath is?

F.A.: No.

Judge: Taking an oath?

F.A.: I don't know what that is.

Judge: Okay. So if my clerk were to give you an oath, which is that you are going to place your hand on the Bible and say that you are swearing that you will tell the truth, do you understand that concept?

F.A.: Yes.

Judge: All right. I'll allow it.

F.A. was subsequently sworn.

In Point III, defendant argues that his conviction must be reversed because the judge abused his discretion by permitting F.A., eleven years old at the time of trial, to testify. We again disagree.

N.J.R.E. 601 provides in pertinent part that "[e]very person is competent to be a witness unless . . . the proposed witness is incapable of understanding the duty of a witness to tell the truth." The rule reflects "'the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at trial.'" State v. G.C., 188 N.J. 118, 133 (2006) (quoting State v. Briley, 53 N.J. 498, 506 (1969)).

N.J.R.E. 603 provides that "[b]efore testifying a witness shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by law." "[A]ll prospective witnesses -- including infants -- must be sworn or affirmed prior to the giving of testimony." G.C., supra, 188 N.J. at 131 (citing State in the Interest of R.R., 79 N.J. 97, 108 (1979)). "So long as the witness understands the duty to tell the truth, [N.J.R.E.] 603's requirements are met." Id. at 134.

In this case, F.A. clearly and unequivocally told the judge that she understood her obligation "to tell the truth." While she might have been unfamiliar with the term "oath," she obviously understood what it meant, and ultimately took the oath without any objection from defendant.


During a charge conference held on the record, defense counsel objected to the judge providing a flight charge. He argued that any attempt by defendant to leave the scene after Mauro told him to stay was insufficient to infer flight. The judge disagreed and essentially provided the jury with Model Jury Charge (Criminal), "Flight" (2010), specifically that portion in which the jury is told to consider defendant's explanation for his departure or attempt to depart.

In Point IV, defendant argues that his conviction must be reversed because the evidence did not support the flight charge. We again must disagree.

"Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J.410, 418 (1993). "Mere departure . . . does not imply guilt. Flight requires departure from a crime scene under circumstances that imply consciousness of guilt." State v. Long, 119 N.J. 439, 499 (1990) (internal citations omitted).

To find flight, the jury must conclude there was both departure and "'the motive which would turn the departure into flight.'" State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (quoting State v. Wilson, 57 N.J. 39, 49 (1970)). "If a defendant offers an explanation for the departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Mann, supra, 132 421. Whether there is sufficient evidence in the record to support a flight charge is left to the sound discretion of the trial judge. Long, supra, 119 N.J. at 499.

Here, Mauro's testimony provided a solid basis from which the jury could infer that defendant's two attempts to depart the scene were probative of his guilt. They occurred after defendant told Mauro that he used to live in the unit but not since "the b****" got him arrested." Mauro testified that defendant was nervous and asked if police thought he had anything to do with the fire. After being told to remain until detectives could question him, defendant attempted to leave twice before they arrived. He left by walking in a direction opposite his own condominium unit.

To be sure, defendant offered an explanation for his conduct. He claimed that he was not referring to Fitzmaurice when he used the derogatory term, and that he needed to use the bathroom so he was walking back to his unit. The instructions told the jury of defendant's explanation, and how the jurors should consider that, as well as all the other evidence in the case, to decide if defendant actually attempted to flee because he feared apprehension for the arson. The judge did not mistakenly exercise his discretion by providing the jury with these instructions.


In Point V, defendant argues that the prosecutor elicited inflammatory testimony on direct examination of Fitzmaurice's daughter, namely that one of her mother's cats died in the fire. He also argues that the prosecutor's cross-examination regarding his prior drug conviction was improper and prejudicial. Defendant further claims the prosecutor urged the jury to consider a motive for defendant's actions that was unsupported by the evidence. Defendant argues we should reverse his conviction for this alleged misconduct by the prosecutor. We reject the contention.

To warrant reversal, "'the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J.394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." State v. Smith, 212 N.J.365, 407 (2012), cert. denied, ____ U.S.____, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

We generally agree with defendant that the testimony regarding the dead cat was not relevant. But, it was fleeting, there was no objection, and under the circumstances, it did not amount to plain error, i.e., error that was "clearly capable of producing an unjust result." R. 2:10-2.

There was no error in the prosecutor's cross-examination of defendant about his prior drug conviction, since it was admissible under N.J.R.E. 609, and defendant was fully aware of that before he choose to testify. However, defendant claims that the evidence should have been "sanitized" because the State alleged one of defendant's motives was to steal Fitzmaurice's pain medications.

In State v. Brunson, 132 N.J.377, 391 (1993), the Court required that when a testifying defendant has been convicted of a crime that is "the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." In State v. Hamilton, 193 N.J. 255, 269 (2008), the Court made clear that trial judges may exercise their discretion and sanitize a prior conviction, even if dissimilar to the crime for which a defendant was now being tried, if to do otherwise would be unduly prejudicial to the defendant.

Here, there was never any request made to sanitize the prior conviction, even though the prosecutor laid out the State's contentions regarding motive early on. Defendant never objected at trial when evidence of his prior conviction was adduced on cross-examination. Most importantly, the judge clearly instructed the jury on the limited purpose for which the evidence was admitted, and there was no risk that the jury would conclude that defendant's prior conviction demonstrated his propensity for using illegal drugs.

As noted, the State's contention was that defendant set fire to Fitzmaurice's home as the result of a seething and increasing anger over being asked to leave without the return of his belongings. The State also demonstrated that Fitzmaurice, who suffered from several physical maladies, needed prescription painkillers for her daily living, and she kept the medicine in her kitchen in open display. Fitzmaurice was shown photos of her house after the fire in which the drug containers were empty and strewn about, not the way she left them when she went into the hospital.

During cross-examination, defendant denied being in the home at all for three to four weeks before the fire. When confronted directly by the prosecutor, he denied knowing about the pain medications or entering the home to take Fitzmaurice's medications either out of spite or for his own use. Nevertheless, during her summation, the prosecutor asserted that part of defendant's reason for entering the Fitzmaurice townhouse was to steal her medication. Defendant now argues there was insufficient evidence to support the State's contention.

However, there was no objection to the introduction of this evidence at trial. In fact, defense counsel in summation made light of the claim that defendant set the fire to steal Fitzmaurice's medications. There was no objection to the prosecutor's comments during her summation. Under the circumstances, we conclude admission of the evidence, and the prosecutor's argument regarding same, did not amount to plain error.


Lastly, defendant argues that there was insufficient evidence to convict him of aggravated arson, which requires proof beyond a reasonable doubt that defendant acted with a "purpose [to] destroy[] a building or structure of another." N.J.S.A. 2C:17-1a(2). Defendant claims that, since the entire second floor, basement and even parts of the first floor of the Fitzmaurice home were not damaged, the State's proofs were insufficient. We are not persuaded by the argument.

To be convicted of aggravated arson, the State needed to prove beyond a reasonable doubt that defendant purposely set the fire and did so with the purpose to destroy the unit. See Cannel, New Jersey Criminal Code Annotated, comment 2.1 on N.J.S.A. 2C:17-1 (2014-15); N.J.S.A. 2C:17-1a(2). Pursuant to N.J.S.A. 2C:2-2b(1),

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances [8] if he is aware of the existence of such circumstances or he believes or hopes that they exist.

[(Emphasis added).]

The undisputed expert testimony was that there were six points of origin in the Fitzmaurice unit, each set by an open flame being applied to some combustible material. The jury could certainly infer that defendant's purpose was to cause the fire and destroy the townhouse, even though he was unsuccessful.


1 A constitutionally cognizable group is one "capable of being singled out for discriminatory treatment." State v. Ramseur, 106 N.J. 123, 215 (1987) (citing Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498, 510 (1977)). African-Americans "unquestionably" belong to a "constitutionally cognizable group." Id. at 217.

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

3 Mauro testified that defendant walked in the opposite direction from the townhouse he shared with his girlfriend.

4 In light of our discussion, defendant's final point that the cumulative errors denied him a fair trial lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).