STATE OF NEW JERSEY v. MARKITA A. NORRIS

NOT FOR PUBLICATION WITHOUT THE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.

MARKITA A. NORRIS, a/k/a MARKITA

ANITA NORRIS, MAKITA A. NORRIS,

Defendant-Appellant.

_______________________________

November 30, 2015

 

Submitted January 13, 2015 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-07-0774.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Defendant Markita Norris is serving an eighty-year aggregate prison term, a sentence imposed after a jury found her guilty of murder, aggravated assault, weapons offenses, and drug offenses. She appeals from the judgment of conviction, contending she is entitled to a new trial for three reasons: the drug charges should have been severed from the homicide, assault, and weapons charges; hearsay contained in her recorded statement to police deprived her of a fair trial; and hearsay statements attributable to the victims deprived her of a fair trial. She also argues her sentence is excessive. For the reasons that follow, we affirm her convictions but remand for resentencing, as the trial court double-counted two aggravating factors when imposing the aggregate eighty-year prison term.

I.

Defendant was arrested on March 28, 2010, and later charged by a Union County grand jury with: first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and 11-3 (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-10 (count nine); and seven other offenses. Three of the seven other offenses were dismissed before trial, and the other four were merged at sentencing. The court determined at a pre-trial suppression hearing that defendant's statements to police were made knowingly and voluntarily and were admissible at trial.

A jury found defendant guilty of all counts that had not been dismissed. At sentencing, the court granted the State's motion for a discretionary extended term on the attempted murder count and, after appropriate mergers, sentenced defendant to: a fifty-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for murder; a thirty-year consecutive prison term, subject to NERA, for attempted murder; and a concurrent five-year prison term for possession with intent to distribute within 1000 feet of school property. The court also imposed fines and penalties.

The State presented the following evidence at trial. The events culminating in defendant's arrest began late one night when the victims attended a fundraiser at the Black United Fund (BUF) in Plainfield with approximately fifteen members of their family.1 The victims were dancing when defendant "bumped shoulders" with decedent and then, according to cousin, "started . . . talking reckless, something crazy." Decedent apologized; defendant, however, continued to yell and was "making it seem bigger than what it [was]." A number of people gathered around the dance floor altercation, including decedent's sisters, whom decedent told "to chill." Shortly after midnight, approximately five to seven minutes after the dance floor incident, the victims and their family members left the fundraiser.

Outside, cousin observed defendant talking on her cell phone and heard her say "she [was] having problems with this crack-head looking MF-er, and to . . . come up here now." Defendant's uncle exited a Honda Civic or Accord parked across the street from the BUF and walked towards the building. He asked defendant who was bothering her and defendant said, "I'm talking about this cat right here," referring to decedent. Defendant's uncle, defendant, decedent and cousin began talking to one another when defendant's uncle punched cousin in the face and the two began to fight. During the fight, cousin attempted to pick up defendant's uncle and "slam him" but was unable to; defendant's uncle then picked up and "slammed" cousin. At some point during the fight cousin began to "feel weak and didn't know why." The fight ended when defendant's uncle told cousin that decedent, who was across the street, did not look well.

Cousin looked across the street and saw defendant kicking decedent in the chest while he was lying on the ground "with his forehead to the ground, his knees on the ground, and his backside in the air," not defending himself.
Cousin ran to assist decedent, "threw [defendant] off of him," rolled decedent over, and saw that decedent's shirt was ripped horizontally across his stomach, he had been stabbed, and he "was gasping for air." Cousin realized he had also been stabbed, twice on the back side of his left arm, and once on his back just beyond his shoulder blade. He testified that just after he pulled defendant off decedent, defendant was "dancing" in the middle of the street. Defendant then entered her uncle's car and they drove away.

The State called five witnesses who saw defendant attack the victims. The first witness saw the victims arguing with defendant and her uncle outside the BUF. She heard defendant say something and saw defendant attempt to swing at decedent, but cousin blocked her swing and told her not to do that. Defendant's uncle then swung on cousin. The witness saw decedent walk across the street. Defendant crossed the street and swung at the decedent's chest. Decedent tried to grab a tree but dropped to the ground. Defendant then ran over to where cousin and defendant's uncle were fighting and swung at cousin 's back. She then returned to where decedent was lying on the ground, kicked him in the head, and tried to kick him in the head a second time but was stopped by two others. Decedent's eyes started "rolling in the back of his head" and people called 911.

The State's second witness was also standing outside the BUF. He testified that while cousin was fighting with defendant's uncle, decedent was fighting with defendant. Defendant and decedent were swinging and hitting each other. The witness testified defendant and decedent fought for approximately ten to fifteen minutes. The fight ended when decedent fell to the ground. Defendant walked away and decedent tried to get up, but "stumbled onto a tree and . . . fell back to the ground." Defendant returned and kicked decedent twice, the first time angrily, the second time nonchalantly. Cousin and defendant's uncle stopped fighting, and cousin walked over and attempted to help decedent. After looking over decedent, cousin "like kind of stumbled down." Although the witness saw no one with a knife, he testified that no one other than defendant struck decedent, swung at decedent, or was near decedent when the fighting started.

The State's third witness saw cousin holding decedent, who looked unconscious. Defendant then walked over, punched decedent in the face, and kicked him. The witness told defendant to "stop kicking him, you're going to kill him." Cousin dropped decedent and sat down. The witness asked cousin if he was alright, and he responded, "leave me the 'F' alone," and then "he just fell down." Defendant walked away and opened a car door. The witness did not notice whether defendant entered the car.

The fourth witness testified defendant fought decedent until he fell. The witness also saw defendant run over toward cousin after decedent fell, then return to decedent and stomp and kick him. The witness bent over the decedent, asked him if he was okay, and then saw his eyes rolling in his head. She called 911. When the police arrived, she pointed out the car defendant had entered. The police "backed out and went behind the car."

The final witness, whom the victims referred to as their aunt, saw decedent standing by a tree when defendant "just swung on him, hit him in his stomach. Then they [were] fighting for a minute and then he just fell and the tree came out of the ground." The witness ran over to him and saw that he had a stab wound in his chest where blood was gushing out. The witness also saw defendant kick decedent after he fell to the ground. The witness testified that defendant then went over to cousin and "hit him in the back." Cousin walked to a wall, called to the witness, and said "I think she stabbed me." After defendant kicked decedent, the witness attempted to help him by holding him in her arms. When he moved his hand from the wound, "blood gushed out." He spoke to the witness and said, "why she stab me. Please don't let me die." Decedent repeatedly said he could not breathe. Paramedics arrived and put him in an ambulance. The witness could still see blood "just gushing out of him."

The victims were transported to Robert Wood Johnson Hospital in New Brunswick where cousin was treated for a collapsed lung and released a few days later. While at the hospital, cousin recalled speaking to the police for the first time at approximately five or six a.m. At trial, he was provided with a transcript of his initial statement to police, in which he said defendant's uncle was the only person who "touched" him during the fight. Defendant's uncle "got a couple of body shots in", and when cousin "tried to scoop him that's when the stabbing might have occurred. I tried to grab him and pick him up, so that's when the stabbing occurred." Cousin spoke with police a second time a few hours later and identified defendant from a photo array as the individual who had been attacking the decedent. Cousin testified he told the prosecutor two weeks before the trial began that defendant, not her uncle, had stabbed him.

Decedent died in the ambulance on the way to the hospital. An autopsy revealed the cause of death as multiple stab wounds to the chest, abdomen, and right arm.

Plainfield police officer Candis Grant had responded to the scene before the victims were taken to the hospital. She saw a very large crowd surrounding a man who appeared to be injured. When she attempted to approach the injured man, an individual in the crowd yelled to her and pointed in the direction of defendant's uncle's green Honda. The car was approximately five to ten feet from where the officer stood and was attempting to "navigate through the crowd." Officer Grant returned to her vehicle, activated her lights and sirens, and followed the Honda. During the five minute pursuit, Officer Grant observed a handgun thrown out of the passenger window of the vehicle.

After approximately five minutes, police officers overtook the Honda, removed defendant and her uncle, and arrested them. Defendant had $234 in cash and the police found thirty-four bags of cocaine in the backseat of the patrol car where defendant had been sitting.2 Officer Bryan Baber, who arrested defendant, testified that the location of the arrest was within 1000 feet of a school.

Defendant gave two statements to the police, one during the morning of March 28, 2010, the other during the afternoon of March 29, 2010. DVDs of defendant's two statements were authenticated by Detective Kevin Grimmer of the Union County Prosecutor's Office. Redacted versions of the interviews were played for the jury.

During questioning on March 28, 2010, defendant stated that she was "bumped" inside the BUF, but it was "something light" and she did not get into an argument after it happened. Defendant denied her uncle was involved in a fight. Defendant saw a fight outside the BUF but did not see anyone get stabbed. She denied carrying a knife. Defendant noticed that her uncle had blood on his shirt after arriving at the police station and opined that the blood could have been on his clothing because "he could have been fighting or he could have been in the middle trying to break it up."

During questioning on March 29, 2010, after being informed she was charged with murder, defendant claimed her uncle had become involved in a confrontation with six or seven men and three or four women outside the BUF, and "was in the middle, fightin', throwin' blows." Defendant stated someone outside the BUF grabbed her and said: "[j]ust chill. Just relax, just relax." Defendant tried to get her uncle out of the fight. Defendant saw the man she had been arguing with sitting on the curb surrounded by four girls. She admitted she "kicked at" him, but missed. She denied being involved in a fight or stabbing. Defendant stated she saw her uncle throw the gun out of the car, and that had she known there was a gun in the car she would not have entered the vehicle.

Adrien Gardner, a sheriff's officer in the Union County Sheriff's Office Crime Scene Identification Bureau, photographed and swabbed defendant's hands and arms while defendant was at the police station following her arrest. Defendant's hands and arms had no visible signs of blood. Gardner later recovered a knife at the scene. No identifiable fingerprints were found on the knife. Gardner also processed the Honda but found no blood or weapons in the car.

Monica Ghannan, a forensic scientist for the Union County Prosecutor's Office Forensic Laboratory, was qualified as an expert in the field of serology and identification, testing, and comparison of DNA. Ghannan testified that DNA found on the blade of the knife recovered at the scene belonged to cousin and that blood found on defendant's right boot was decedent's. The swab Gardner took from defendant's hands did not disclose human blood. Blood from defendant's uncle's shirt was matched through DNA testing with the DNA of cousin.

The parties stipulated that the gun thrown from the Honda belonged to defendant's uncle and he pled guilty to possessing it. Defendant did not testify. The jury returned the verdict we have previously noted.

II.

Defendant raises the following points

POINT I

THE ADMISSION OF HEARSAY STATEMENTS MADE BY THE POLICE DURING DEFENDANT'S INTERROGATION, THAT OTHER WITNESSES ACCUSED DEFENDANT OF STABBING [THE VICTIMS], THAT THESE WITNESSES WERE WORTHY OF BELIEF, WHILE THE POLICE THOUGHT DEFENDANT WAS LYING, AND INTRODUCED VIA THE READING OF DEFENDANT'S STATEMENTS TO THE JURY, WAS A VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, THE HEARSAY PROHIBITION OF THE EVIDENCE RULES AND STATE v. BANKSTON (not raised below).

POINT II

THE DRUG CHARGES SHOULD HAVE BEEN SEVERED FROM THE INDICTMENT CHARGING DEFENDANT WITH THE MURDER . . . AND THE ATTEMPTED MURDER . . . PURSUANT TO R. 3:15-1(b) and N.J.R.E. 404(b). IMPROPERLY JOINING THESE SEPARATE OFFENSES DEPRIVED DEFENDANT OF HER RIGHT TO DUE PROCESS AND A FAIR TRIAL. SIMILARLY, THE EVIDENCE REGARDING [DEFENDANT'S UNCLE'S] PLEA TO POSSESSION OF THE HANDGUN SHOULD HAVE BEEN OMITTED FROM DEFENDANT'S TRIAL. COUNSEL'S FAILURE TO MOVE FOR SEVERANCE PRIOR TO TRIAL, AND FAILURE TO OBJECT TO THE INTRODUCTION OF THE EVIDENCE REGARDING [THE] GUN, AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE TRIAL COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION, SUA SPONTE, REQUIRES REVERSAL (not raised below).

A. The Drug Charges Should Have Been Severed For Trial.

B. Trial Counsel Was Ineffective in Failing to Make a Pretrial Motion to Sever Counts in the Indictment Into Separate Trials.

C. The Trial Court Erred in Failing to Give A [N.J.R.E. 404(b)] Limiting Instruction Sua Sponte.

POINT III

THE COURT ERRED IN ADMITTING [A WITNESS]'S HEARSAY TESTIMONY THAT [COUSIN] SAID . . . "I THINK SHE STABBED ME," AND [THE] TESTIMONY REGARDING [THE DECEDENT'S] DYING DECLARATION, "WHY SHE STAB ME? PLEASE DON'T LET ME DIE," BECAUSE THESE STATEMENTS WERE BOTH UNRELIABLE WHEN IT BECAME CLEAR THAT [THE WITNESS] WAS NOT CREDIBLE . . ., AND BOTH STATEMENTS WERE UNDULY PREJUDICIAL (partially raised below).

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

Defendant did not raise at trial any of the arguments she makes in her first two points. "Generally, issues not raised [before the trial court], even constitutional issues, will not ordinarily be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Ferraro v. Demetrakis, 167 N.J. Super. 429, 431-32 (App. Div.), certif. denied, 81 N.J. 290 (1979)). On the other hand, "[a]n issue not raised [before the trial court] may be considered by th[is] court if it meets the plain error standard or is otherwise of special significance to the litigant, to the public, or to achieving substantial justice, and the record is sufficiently complete to permit its adjudication." Ibid. Under the plain error rule, an "appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2. To constitute plain error, an error or omission must be "of such a nature as to have been clearly capable of producing an unjust result." Id.

In Point I, defendant argues that it was reversible error for the State to present her recorded statement to the jury without redacting the interrogators' references to other witnesses. During her first statement, a detective told defendant there was "a report that outside you got into an argument, you got into a fight with someone outside." After defendant denied this, the detective stated, "alright and there's a couple of people that said you did. Now I don't know." Later, the detective stated, "you got people saying that you were involved . . . in a fight" and "we need some people to tell us that you [weren't] involved, cause all we got is that people saying that you were. If you [weren't] we need you to give us some names of people that will say that you were not."

During defendant's second statement a detective stated, "[w]e also spoke to witnesses. There [were] . . . a lot of people out there . . . physically they said you were fighting"; and, "[w]e don t believe you because other people said something else." In response to defendant's question regarding the credibility of the police's other witnesses, a detective stated

they're credible. They got no, they have no horse in this race, you understand what I mean, they have no like bias here they are on the sidelines watching a fight and a fight they had no idea was going to occur so why are they going to say that she did it if they don't give a crap about this fight?

Throughout the second interrogation the detectives made references to other witnesses who had implicated defendant in the incident.

Importantly, the prosecutor and defense counsel agreed on what should be redacted from defendant's recorded statements. Before the prosecutor played the statements, the court had a preliminary discussion with counsel, outside the presence of the jury, concerning the recorded statements

[The Court]: I was handed a stipulation and copies of transcripts. My understanding is that the video statement of the defendant is going to be introduced through the testimony of Detective Grimmer in this matter. And as a result, the State has prepared two transcripts relating to each of the DVDs be to be followed along by the members of the [j]ury. They are not being entered for evidence. They are merely being marked so that the [j]ury can follow along and my understanding is that both counsel have agreed to all redactions contained in those statements, as well as have submitted a stipulation for the [c]ourt to read prior to the playing of those - - of that video or both of those videos. Am I correct?

[Defense Counsel]: You are, Judge.

[Prosecutor]: Yes, Judge. There are about 13 redactions between the two statements that both of us have agreed to.

. . . .

[Defense Counsel]: And just so the record is clear, I just wanted to kind of summarize what those redactions were since there wasn't any conversation on the record since both the [p]rosecutor and I agreed to it, specifically with respect to the first statement. It mainly had to do with [defendant] not finishing high school, from prior jail time that she had been in, and as well as some prior involvement and questioning that had taken place with respect to a past incident involving her cousin's murder.

With respect to the second statement, most of redaction had to do with things that [defendant's uncle] had said, that Detective Grimmer was relaying to [defendant], as well as some gang references and/or past possession of a knife.

So again, just to summarize so the record is clear, there - - those were things that were agreed upon between the State and myself as to be redacted and that is what is reflected in the marked copies that are now before the court.

In addition, in accordance with the stipulation and the request of the parties, the court instructed the jury about the redactions before permitting the prosecutor to play the recorded statements. The court said

There are portions of the statement that both parties agree are not relevant to this trial. Those portions have been redacted from both the transcript and the video. On the transcript, the redacted portions are blacked out. On the video, the redacted portions are deleted. You will see the video skip ahead to the next relevant portions. Both parties agree that the DVD has not been tampered with in any way. Rather, the deleted portions reflect areas of the statement that both parties agreed were not relevant for this trial.

Defense counsel reviewed defendant's recorded statements and made decisions about which portions of the statement should be redacted. Defense counsel did not assert that defendant and the State disagreed about any content that should be redacted, nor did defense counsel ask the court to rule on any such disputes. Thus, it appears defendant made an informed decision about what to redact and what not to redact. Defendant consented to playing the redacted version of her statements, thus precluding her from raising this as a ground for reversal. See State v. Smith, 262 N.J. Super. 487, 516-17 (App. Div.), certif. denied, 134 N.J. 476 (1993).

Moreover, we fail to discern how the unredacted hearsay was clearly capable of producing an unjust result. The State produced five witnesses whose testimony established, directly or circumstantially, that defendant fought with decedent, stabbed him, and also stabbed cousin. The jury could have inferred they were the witnesses referenced during defendant's interrogation. Although none of the witnesses saw defendant wield a knife, and though their testimony was inconsistent about the details of the fighting, their testimony established defendant struck both victims and that blood gushed from the decedent's chest almost immediately after defendant struck him. Defendant's contention the jury might have believed that other non-testifying witnesses also inculpated her is speculation.

Defendant next contends her trial counsel was ineffective for failing to file a pre-trial motion to sever the CDS count. She claims she was unduly prejudiced by the trial of that count with the other charges. Defendant also argues that the State's evidence that her uncle threw a gun from the car was unduly prejudicial.

We question the soundness of the proposition that a juror might find a defendant guilty of stabbing two people because defendant possesses a quantity of CDS. The validity or invalidity of the proposition notwithstanding, "[t]he decision whether to sever an indictment rests in the sound discretion of the trial court. An appellate court will defer to the trial court's decision, absent an abuse of discretion." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (internal citations omitted). Because defendant did not request a severance, we are unable to evaluate either the parties' arguments or the court's exercise of discretion in disposing of such arguments. Stated differently, we decline to address the issue because the record is not "sufficiently complete to permit its adjudication." Walker, supra, 385 N.J. Super. at 410. Moreover, "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant's argument concerning her uncle's plea has no merit. Although his possession and discarding of the handgun appear to have no relevance to the charges against defendant, the court read the parties' stipulation

that the item thrown from the Honda, as Officer Grant pursued it, was a loaded handgun. The handgun was possessed by [defendant's uncle] and not the defendant. [Defendant's uncle] pled guilty to throwing the gun out of the vehicle and to eluding the police officers when they attempted to pull over his vehicle.

In view of that stipulation, we fail to discern any prejudice to defendant. Defendant's remaining arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

III.

Defendant challenges her sentence as excessive. She does not dispute that she was a persistent offender subject to an extended term on the attempted murder count, nor does she dispute the court's finding of three aggravating factors enumerated in N.J.S.A. 2C:44-1(a): the risk of reoffending, (a)(3); the extent of her prior criminal record, (a)(6); and the need for deterrence, (a)(9). Rather, defendant argues the court erred by imposing "two lengthy consecutive terms of imprisonment"; and that in determining the appropriate sentence the trial court "double-counted" aggravating factors (a)(1), the nature and circumstances of the offense and whether it was committed in an especially heinous, cruel or depraved manner, and (a)(2), "[t]he gravity and seriousness of harm inflicted on the victim, including whether . . . the defendant knew . . . that the victim of the offense was . . . substantially incapable of exercising normal physical or mental power of resistance."

Our review of a trial court's sentencing determination is deferential. State v. Fuentes, 217 N.J. 57, 70 (2014).

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-54 (1984)).]

When a court has followed the sentencing guidelines, and its 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. Roth, supra, 95 N.J. 334, 363 (1984).

An appellate court may, however, remand for resentencing if the trial court misapplies the criteria for imposing consecutive sentences, State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), fails to provide a qualitative analysis of aggravating and mitigating factors, State v. Kruse, 105 N.J. 354, 363 (1987), or considers an aggravating factor inapplicable to a particular defendant or offense. State v. Pineda, 119 N.J. 621, 628 (1990).

We first address defendant's challenge to the court imposing consecutive sentences. The New Jersey Code of Criminal Justice provides in N.J.S.A. 2C:44-5(a), "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." To provide trial courts with guidance in determining whether to impose concurrent or consecutive sentences, the Supreme Court has established the following criteria

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Yarbough, supra, 100 N.J. at 643-44.]3

Applying the Yarbough criteria, the court explained

Certain of those factors are there can be no free crimes in the system for which punishment shall fit the crime. In this case, there were distinct crimes. There were two victims in this case, there were two separate acts in this case.

. . . .

Some of the reasons that the [c]ourt looks at are the crimes and their objectives; were they predominantly independent of each other? Yes, they were. There were two separate victims in this case that were - - were gone after specifically. Did the crimes involve separate acts of violence? Yes, there are two victims and each victim needs to be treated separately.

So this [c]ourt is of the opinion that there were separate acts of violence, two separate victims and under the case law, to not treat them individually would be to diminish the harm to one versus the other and the gravity of one to the other.

. . . .

The factors set forth in [Yarbough], as well as - - as well as the relevant case law support the imposition of consecutive sentences for defendant underling the convictions on Counts 1 and 2. At the outset, the Court notes that two victims were seriously injured as a result of defendant's actions, with death resulting to one victim. There is ample support in the case law for the notion that separate victims warrant consecutive sentences for an individual defendant's conduct towards each victim.

. . . .

The [c]ourt further notes that Counts 1 and 2 involved separate and distinct acts of violence. Specifically, the defendant took deliberate steps to stab each individual during the course of the incident. This constitutes separate acts of violence towards each individual victim.

For the foregoing reasons, the [c]ourt finds that consecutive sentences for Counts 1 and 2 are appropriate for the murder . . . and the attempted murder. . ., respectively.

The trial court's finding that defendant committed two separate, violent offenses is unassailable. Similarly, the trial court adhered to the Supreme Court's directive, "there can be no free crimes in a system for which the punishment shall fit the crime." Arguably, the crimes were neither predominantly independent of each other they were committed during the same melee nor committed at separate times they were committed during the same brawl. But even were we to accept the countervailing considerations of Yarbough factors (3)(a) and (c), concluding they outweighed factors (1) and (3)(b) would be nothing short of second-guessing the trial court, which we decline to do. See State v. Bieniek, 200 N.J. 601, 608 (2010). We turn to defendant's challenge to the trial court's finding aggravating factors N.J.S.A. 2C:44-1(a)(1) and (2). A trial court's finding of any aggravating or mitigating factor must be supported by "competent, reasonably credible evidence." Roth, supra, 95 N.J. at 363 (citations omitted). Once the trial court has determined the applicable aggravating and mitigating factors, the court must "qualitatively assess[] and assign[] appropriate weight in a case-specific balancing process." Fuentes, supra, 217 N.J. at 72-73.

Having balanced the relevant factors, the sentencing court does not set the term of incarceration in accordance with an "inflexible rule." Instead, one "reasonable" approach for sentencing judges is to use the middle of the sentencing range as a logical starting point for the balancing process. So, for example, if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. Moreover, reasons suggest that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.

[Id. at 73 (internal citations and quotation marks omitted).]

The first aggravating factor looks to: "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). The term "cruel" as used in the statute requires that the defendant must have inflicted pain or suffering gratuitously, as an end in itself. See State v. O'Donnell, 117 N.J. 210, 217-18 (1989). When pain or injury occurs merely as a means of committing a crime, aggravating factor 2C:44-1(a)(1) is not established. When evaluating this factor, a court "must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Fuentes, supra, 217 N.J. at 74-75.

The second aggravating factor, requires courts to consider

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

[N.J.S.A. 2C:44-1(a)(2).]

This aggravating factor "focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." State v. Lawless, 214 N.J. 594, 611 (2013). Although "sentencing courts frequently apply both aggravating factors one and two, each requires a distinct analysis of the offense for which the court sentences the defendant." Id. at 600. Here, in support of aggravating factors one and two, the court stated

Now, just so I don't double up, I'll talk about the aggravating and mitigating factors at this point. The [c]ourt finds the following in reference to the aggravating and mitigating factors. Aggravating factors [n]umbers 1 and 2, the nature and circumstances and the gravity and seriousness of the harm. These both factors need to be, typically, read together.

In this matter, supporting those factors, by the facts on this case, the [c]ourt finds the cruel manner in the attack as this person attacked two individuals, both separately, two separate victims with a knife, one of which she was having a dispute, and then when finishing with one, turned her attentions to the other, stabbing one from the back.

Next, the excessive force. There were multiple stab wounds involved in this case.

Next supporting factor, the brutal and senseless nature. The victims were attacked in this matter after a fund raiser dance. This was at a place in Plainfield called the BUF. It was there for a youth sports night. This whole incident appeared to occur due to a bump on the dance floor, it spilled over to the streets outside, after people were leaving. Brutal and senseless.

Overall, the nature of this case is horrific, the acts depraved, and the dancing over the victim uncalled for, showing this [c]ourt a lack of remorse, and in a review of the papers, the [c]ourt believes demonstrates lack of remorse in this case.

There are several problems with the trial court's finding of factors one and two. First, the trial court's opinion does not include for each factor "a distinct analysis of the offense for which the court sentences the defendant." Lawless, supra, 214 N.J. at 600.

Second, the trial court referred to the "cruel" manner of the attack on the victims without any discussion or finding as to whether defendant inflicted pain or suffering gratuitously, as an end in itself, rather than merely as a means of committing the crimes. O'Donnell, supra, 117 N.J. at 217-18. If the trial court intended to make this distinction, it did not explain the facts upon which it relied.

Third, the trial court's emphasis on two crimes and two attacks was central to its determination to impose consecutive sentences under Yarbough. Thus, it appears the court considered the same factors in sentencing defendant to consecutive sentences and in sentencing defendant to upward ranges of the consecutive sentences.

We have other concerns as well. For example, the court cites the use of "excessive force," but does not explain how the force used in this case is different from any other first-degree murder or first-degree aggravated assault committed with a knife. In fact, it appears the excessive force multiple stab wounds caused decedent's death, thereby subjecting defendant to a sentence for murder. And though the court found the attacks to be brutal and senseless, the question is whether there is something about what occurred here that is more brutal and senseless than any other first-degree murder or first-degree aggravated assault.

In short, it appears from this record that the court double-counted aggravating factors one and two. Accordingly, we vacate defendant's sentence and remand for resentencing. In view of this disposition, we need not address whether the eighty-year aggregate sentence of the twenty-one-year-old defendant in effect, a sentence to life imprisonment without any likelihood of parole shocks the judicial conscience.

Affirmed in part, reversed in part and remanded for resentencing. We do not retain jurisdiction.

1 We refer to the victim who died as "decedent" and to the victim who survived, who was the decedent's cousin, as "cousin."

2 Detective William Mannix of the Union County Prosecutor's Office was qualified as an expert in the field of "packaging, using, and distribution of narcotics" and opined that the thirty-four bags of cocaine were possessed by a "dealer."

3 In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses," thereby eliminating the sixth Yarbough criterion. See L. 1993, c. 223, 1.