STATE OF NEW JERSEY v. PATRICK M. LATKO

NOT FOR PUBLICATION WITHOUT THE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.

PATRICK M. LATKO,

Defendant-Appellant.

__________________________________

October 12, 2016

Submitted January 26, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-05-01312.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant was convicted of two counts of first-degree murder and sentenced to consecutive life sentences. His convictions arise from the fatal stabbings of Ryan Patterson, who had formed a friendship with defendant's former girlfriend, H.P. (Heather), and Ryan's mother, Diana Patterson.1 The evidence of defendant's guilt was substantial.

Defendant presents the following arguments for our consideration

POINT I

THE TRIAL JUDGE ERRED IN TELLING THE JURORS THEY WERE "NOT GOING TO BE PERMITTED" TO CONSIDER WHETHER OTHER SPECIFIC PEOPLE MAY HAVE COMMITTED THE CRIMES WITH WHICH THE DEFENDANT WAS CHARGED. (NOT RAISED BELOW).

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We are unpersuaded by these arguments and affirm.

I.

At approximately 5:23 a.m. on November 3, 2011, Hammonton Township police officers were dispatched to a home in response to a male caller's report that he and his mother had been stabbed. Upon arrival, the officers observed Diana lying on her back on the kitchen floor. Her face was "heavily bloodied," "her hair was matted with blood" and there was "a pool of blood by her head." Although her eyes remained open, she showed no signs of life. The officers discovered Ryan lying on his back in a bedroom. There was "a large amount of blood on the floor next to his head" and a deep gash in his neck. Ryan was alive, but was "gasping" and "gurgling." Medical personnel were unable to save his life. A cell phone recovered nearby was determined to be defendant's.

The autopsies revealed that both victims had numerous stab wounds on the front, back and sides of their upper torsos, a deep slash wound to their necks, and defensive wounds. The medical examiner concluded they had died from the stab wounds.

Heather dated defendant for approximately five years. He moved into the home she shared with her mother approximately six months after they started dating. Heather ended their relationship in the summer of 2011. She explained he was very jealous, accusing her of being unfaithful "[e]very day, every second," and threatened, "he would hurt the person if he found out who it was." This persisted despite her denials.

Defendant continued to live with Heather in her mother's house after the relationship ended. He acted as if they were still in a relationship, and continued to accuse Heather of cheating. Defendant looked through Heather's computer, social media accounts and cell phone to see if she was dating anybody else. On one occasion, he locked her out of the house and started "dumping [her] bag upside down and going through [her] stuff," including her cell phone. Heather testified that defendant acted "angry and disturbed." She often visited a friend, and worked late or overnight to avoid being around him.

Ryan and defendant had been friends before Ryan and Heather met in the fall of 2010 when they were both students at a trade school. Heather, Ryan and defendant shared an interest in motor sports, attended races and went out to eat together.

On a Saturday at the end of September in 2011, Ryan joined Heather and her coworkers for a "night out" at a bowling alley. Someone took a photograph of Ryan and Heather sitting together and, somehow, defendant learned Heather was out bowling with Ryan. Defendant began texting Heather, asking her to return to the house, apologizing and saying he was "going to kill [him]self" if she did not come back. Heather described defendant as being "really upset and a little distraught" when she told him she was not coming home.

At the end of the evening, Heather went with Ryan to his house, where he lived with his mother, Diana. Defendant continued texting Heather. Defendant was also texting Ryan at that time. Heather was able to see the text message from defendant on Ryan's phone. In the text messages, defendant "got mad at Ryan," accused him of being with Heather and "doing something that [they] weren't supposed to be doing." He told Ryan: "you're a dog, I can't believe you are doing this to me," and "[h]ow could you do this, I thought you were my friend." Due to the nature of defendant's messages, Heather stayed at Ryan's house that entire weekend and stopped responding to defendant's texting.

Heather returned to her house that Monday, accompanied by Ryan. When defendant saw them, he said, "I can't believe you," then returned to his room. Heather retrieved some things from her room, and went to Ryan's house.

When Heather returned to her home that evening, defendant "kept apologizing," pulled out a ring and asked Heather to marry him. Heather refused and explained she did not love him any more. She testified defendant was "taken back" and "really upset" at her response, then "just stormed out."

On October 13, 2011, Heather told defendant to move out of the house. Defendant moved out later that month but continued texting her.

After receiving information from Heather, police officers went to defendant's place of employment and asked him to come to the police station to be interviewed. He agreed and did so later that day, accompanied by his mother.

While at defendant's place of employment, the officers observed a four-door Honda with tinted windows. They learned the Honda was registered to William Iannotti and interviewed both Iannotti and his son, William Iannotti, Jr. (William).

Iannotti stated he and defendant had been friends for about three years. He let defendant borrow his Honda on November 1, 2011, two days before the murders. Defendant told Iannotti he needed the car because he wanted to go see Heather. Defendant was supposed to return the car the next day, but he called Iannotti on November 2 and asked to use the car another night because he wanted to see Heather again. Iannotti agreed.

At approximately 6:00 p.m. on the day of the murders, defendant brought the car to Iannotti's house. Iannotti was not home, but his son William was outside and saw defendant drive up to the house. Defendant was driving the Honda by himself but he was followed by another car driven by his mother. When defendant got out of Iannotti's car, he took the floor mats from both the front driver and passenger sides and put them in in his mother's car. Finding this unusual, William asked defendant "why he was taking them" but he "didn't really answer."

William then called his father and told him defendant had dropped off the car and taken the floor mats. Defendant spoke to Iannotti on the telephone for around five to ten minutes. Afterwards, defendant gave the phone and car keys to William, and left with his mother.

Iannotti permitted the officers to look inside the Honda. The floor mats were missing from both front sides of the car. Iannotti testified the car had floor mats when he loaned the car to defendant.

While executing a search warrant at defendant's residence, the investigating officers learned defendant maintained four storage units at a nearby storage facility. Their search of the storage units resulted in the recovery of a sheath for a knife that had "Snap-on" written on one side and a crack on the other. The corresponding knife was not found in any of the units.

At the officers' request, the facility manager at the storage facility produced the activity log and video surveillance from November 3. All entries and exits into the facility itself and individual units were recorded and time stamped. The log revealed defendant was at the storage facility on the morning of the murders, shortly after the police reached the victims' home. Defendant entered the facility at 6:00 a.m., opened a unit at 6:01 a.m., closed the unit at 6:13 a.m., and left at 6:14 a.m. The surveillance video recorded activities that corresponded to the log. An individual entered the gate at 6:00 a.m., opened defendant's unit and entered the unit for a short period of time. He came out wearing different clothes and holding something in his hand, got into a car and left.

On November 6, 2011, a knife was found in the front yard of a home approximately one-half mile from the victims' home. The knife had a black handle, was labeled "Snap-on," and had a red substance on it. The red substance was later determined to be Ryan's blood. At trial, the medical examiner testified that the same knife was likely used for both murders and the size and shape of the knife found was consistent with the victims' stab wounds.

John Headley, the owner of a Snap-On tools franchise, confirmed he sold defendant a knife with a cracked sheath on September 29, 2011. Headley identified the knife and sheath recovered by police as the items he sold to defendant.

At trial, the defense relied upon the argument that the State's evidence was circumstantial. Defendant's mother, Melissa Latko, testified defendant came home at approximately 12:30 a.m. on November 3, 2011 and was asleep in his bed when she left for work at 6:00 a.m. She also testified she saw no sign that he removed the floor mats from Iannotti's car when she picked him up at the Iannotti residence.

The jury convicted defendant of two counts of first degree murder, N.J.S.A. 2C:11-3a(1)(2) (counts one and two); possession of a weapon with the intent to use it unlawfully, N.J.S.A. 2C:39-4d (count three); possession of a knife under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count four); hindering apprehension, N.J.S.A. 2C:29-3b(1) (count five); and three counts of tampering with physical evidence (counts six, seven and eight). The judge imposed two consecutive sentences of life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder counts, a consecutive five-year term on count five and merged the convictions on the remaining counts.

II.

We first consider the argument defendant raises in Point I. A criminal defendant has "[t]he constitutional right to present a defense . . . that someone else committed the crime" and introduce evidence of such third-party guilt "if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Perry, 225 N.J. 222, 233, 238 (2016) (citations omitted). A defendant is not required "to provide evidence that substantially proves the guilt of another, but to provide evidence that creates the possibility of reasonable doubt." State v. Cotto, 182 N.J. 316, 332 (2005); see also State v. Fortin, 178 N.J. 540, 591 (2004). Because "unsupported claims may infect the process . . . a defendant cannot simply seek to introduce evidence of some hostile or indecent event and leave its connection with the case to mere conjecture." Perry, supra, 225 N.J. at 239 (citations omitted).

Defendant does not argue that the facts here supported the introduction of evidence to support a defense of third-party guilt and did not request a third-party guilt charge. Defense counsel advised the court he wanted to "comment upon the investigation, whether it's complete, what they did to follow it up, what steps they took after coming into possession of this information." The trial judge allowed him to do so but cautioned counsel he could not argue in summation that "this guy Joe Schmo" committed the murders.

Prior to testimony from Lieutenant Steve Zoyac, the issue whether defense counsel could elicit testimony regarding information Zoyac received regarding two individuals was discussed. Defense counsel stated

Again, my position has always been it's not for the truth of the matter stated; it's to show what the police did once they gained that information, and I certainly don t have problem one with your Honor instructing the jury as such. It's not my plan in my closing to do anything other than the stuff that I have put on the record which is how can you believe that the State has proven its case against [defendant] beyond a reasonable doubt when they didn't even do x, they didn't do y, and they didn't do z.

[Emphasis added.]

Defense counsel then asked Zoyac about two persons he had interviewed, C.J. and C.P., who each had a run-in with Ryan "involving a relationship with a girl." Although Zoyac testified it was concluded neither was involved in the murder, defense counsel was permitted to question him further regarding how far each of them resided from the Patterson residence. When Zoyac was excused, the trial judge gave the following instruction to the jury

All right, ladies and gentlemen of the jury, I have at this time a limiting instruction for you in terms of the testimony you just heard from Lieutenant Zoyac. I have previously ruled in this case that there is insufficient evidence for you to consider, or for even [defense counsel] to argue, that the two individuals you just heard about . . . could have been the one to commit these crimes, either one of them by name. So you are not permitted to when you're deliberating say, gee, it could have been one of them, and [defense counsel] is not going to be permitted to argue that to you. So why did I let it in? [Defense counsel] may in his discretion want to argue to you that the police had information that they did not, as to the possible involvement of someone else, that they did not pursue, and that may be true of the rest of the investigation. You may infer from the investigation that the investigation was not as thorough as it could have been. And had it been, there might be someone else who may have committed this crime. What you can't do is consider that [C.P.] or [C.J.] by name could be that someone else. Okay. Very subtle distinction there and one that if you'd like me to explain further when you're deliberating, feel free to request that. There is a subtle difference here. Hopefully, I made it clear enough to you that you can function with it. Okay.

There was no objection to this instruction. During the charge conference before the final charge to the jury, defense counsel did not request any charge regarding this matter or ask the court to refrain from repeating the substance of the limiting instruction given following Zoyac's testimony. The trial judge gave a similar instruction in the final charge. Again, there was no objection.

Defendant now argues it was plain error for the judge to give this instruction to the jury. He contends "these jurors could make whatever findings they wanted to" and that the error here was that the judge instructed the jury "they were forbidden from returning a perfectly valid verdict, based on facts they may or may not have found (even one he did not agree with)." He argues

[The jurors] could have, technically acquitted [defendant] because they had a reasonable doubt that he committed these murders based on a belief that [Heather] . . . or anyone else mentioned in this trial may have done it, or that they were not sure, beyond a reasonable doubt, who did it. That is their right under our system.

Because there was no objection to the instructions given, this argument is reviewed to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

The defense was simply that the State had presented insufficient evidence to prove defendant was guilty of the murders. Counsel was afforded considerable leeway in exploring the purported inadequacy of the investigation to support that argument. The jury was charged on the State's burden of proof and that it must acquit if the State failed to meet its burden as to any element of the offenses charged. Viewing this alleged error within the context of the formidable evidence establishing defendant's motive and linking him to the crime, we find no reason to conclude that the instruction given constituted an error that was "clearly capable of producing an unjust result." R. 2:10-2.

III.

In challenging his sentence, defendant contends these murders represented a "single period of aberrant behavior" that was inconsistent with his other involvements with the criminal justice system, warranting concurrent, rather than consecutive sentences. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 We use the first names of the victims to avoid confusion and a pseudonym to protect H.P.'s privacy.