New Jersey v. Lindsey

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01

A-0256-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNALD LINDSEY,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTIN D. PIERCE,

Defendant-Appellant.

______________________________

August 20, 2015

Submitted April 14, 2015 (A-6303-11) and Telephonically Argued April 24, 2015 (A-0256-12) Decided

Before Judges Ostrer, Hayden and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-09-2451.

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

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant Martin D. Pierce (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).

Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent in A-0256-12 (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the briefs in A-6303-11 and A-0256-12).

PER CURIAM

Defendants Donnald Lindsey and Martin D. Pierce engaged in a shoot-out in a residential neighborhood of Camden. They were not injured, but a four-year-old boy, B.T., was killed in the cross-fire.

Following a joint trial, the jury convicted Lindsey of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), of B.T., as a lesser-included offense of murder, N.J.S.A. 2C:11-3(a) (count one); and convicted Pierce of aggravated manslaughter as charged, N.J.S.A. 2C:11-4(a)(1) (count two). Defendants were convicted of attempted murder of each other, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-1 (counts three as to Lindsey, and four as to Pierce). Defendants were also convicted of various weapons offenses. Lindsey and Pierce were each convicted of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five as to Lindsey and count six as to Pierce); and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count seven as to Lindsey and count eight as to Pierce). Lindsey was convicted of unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count nine). Lindsey received an aggregate term of thirty-three years, and Pierce forty-two years the disparity primarily due to the different verdicts related to B.T.'s homicide.

Among their asserted claims on appeal, one or both defendants assert the court erred in various evidentiary rulings; the court gave incorrect jury instructions, generally raised as plain error; the verdicts regarding B.T. homicide were inconsistent; and the sentences were excessive. Having reviewed defendants' arguments in light of the record and applicable principles of law, we affirm the convictions, but remand for resentencing.

I.

We begin with a review of the testimony, which we will supplement in our discussion of the issues raised.

Several witnesses to the shoot-out testified at trial. Lindsey testified in his own defense; Pierce did not. As to the issues of who provoked whom, and who shot first, the witnesses' accounts varied; generally, the witnesses favored the defendant with whom they had a relationship of some kind. The State's theory was that despite those biases, the witnesses established that both defendants participated in the shoot-out, and one of Lindsey's bullets struck B.T. Pierce's theory of the case evident in counsel's opening statement, cross-examination, and summation was that Pierce did not fire a weapon at all and the witnesses who claimed he did were not credible. Lindsey admitted participating in the shooting, but asserted he acted in self-defense, and there was insufficient proof that his bullet, as opposed to Pierce's, struck B.T.

Accounts that highlighted Lindsey's role were presented by B.T.'s mother, St.T., who is also Pierce's sister; and St.T.'s sister, Sh.T. both State witnesses. St.T. testified that on August 4, 2008, she was outside on the corner of Norris and Sheridan Streets when she saw Lindsey rise from the porch at 1672 Norris Street. St.T. had just watched her son join his cousins to play at the house of another sister, T.T., at 1675 Norris, several doors down and across the street from number 1672. St.T. saw Lindsey reach into a book bag, and start shooting what looked like "a little machine gun," moving the weapon from side to side, "[h]is hand . . . going everywhere."

People ran for cover. B.T. was seen running, too. But he was felled by a single gunshot wound to the head. According to the medical examiner, there was no evidence it was fired from close range. St.T. retrieved her son, who was taken to the hospital, where he was pronounced dead.

St.T. saw Pierce near the children, but she denied he also fired a weapon. She claimed she did not see anyone shooting at Lindsey. She also asserted that she saw Lindsey the day before ride by on his bike, exposing the gun in his book bag, which she perceived as a threat. She testified she called 911, but did not identify herself because there was an active warrant for her arrest, nor did she identify Lindsey by name. She also recalled an incident a few weeks earlier in which Pierce intervened in a dispute between Lindsey and another person, and Lindsey told Pierce to mind his own business.

Sh.T. testified she was on the opposite end of the Norris Street block from where the shooting occurred. She saw Lindsey ride by on his bike, and go to the porch of number 1672 with his book bag. When three men appeared across the street from Lindsey, he began shooting. She testified she could not identify the three men, nor recall if any returned Lindsey's fire. However, in a prior statement, she stated she saw one of the three men fire at Lindsey, and was unsure who shot first.

Versions of the events that clearly favored Lindsey aside from what Lindsey testified to himself were presented by K.W., who was his girlfriend in 2008, and the mother of one of his children; and K.W.'s close friend, L.R. who were called as State's witnesses. K.W.'s testimony varied from two prior statements that were also inconsistent. She testified that Lindsey was at her home at number 1672; then left, saying he'd be right back. She saw Pierce across the street, and he was saying something, and then began shooting. At that point, Lindsey returned to the porch and fired back. K.W. claimed that a month or two before the shooting, Pierce called Lindsey a derogatory name from a window, as she, Lindsey and another person were walking down the street. K.W. persuaded Lindsey to walk on. She testified that on another occasion, Pierce allegedly aimed laser pointers at her house, although she was not present at the time.

L.R. generally confirmed K.W.'s account, stating that Pierce was saying, "What's up" in a manner suggesting he wanted to fight. She said Pierce had a bag on his shoulder and assumed a threatening pose. L.R. asserted Pierce pulled out his gun and began shooting. She fled the scene and did not see Lindsey or any other individual shooting.

A fifth witness, R.B., who was not closely affiliated with either defendant and only knew them from the neighborhood, saw the shooting from her home at 1663 Norris Street. She saw Lindsey ride by and go on K.W.'s porch. R.B. claimed Lindsey spoke, saying something like "Psst, hey, yo" and then lift his gun. She could hear shooting as she ran away. Although R.B. did not see Pierce shoot or hold a gun, she heard two different shooting sounds, one faster than the other. R.B. also stated she witnessed a verbal altercation between defendants about two months earlier.

Another witness, A.R., lived with Pierce and two other young men in Magnolia Borough in the summer of 2008. Two or three weeks before making a statement to police on August 9, 2008, A.R. saw Pierce in possession of a nine-millimeter handgun, which was kept in a zip-lock bag in his backpack. Sometime later, A.R. saw the same type of zip-lock bag on top of a heating duct vent. Rather than inspect it himself, he told someone in the house about it, and it was apparently reported to the authorities. Police searched the house that day or the next A.R.'s recollection was uncertain but did not find a gun.

The State also introduced a self-incriminating postcard from Lindsey to T.T.'s boyfriend at 1603 Norris Street. The postcard was copied as a result of a mail cover requested by a prosecutor's office investigator. As read at trial by Wayne Norton, an employee of both the county prosecutor's office and corrections department, the postcard stated

Yo, . . . my nigga, you know I didn't want this shit to happen, my nigga. If I had of known the kids were still out there, I wouldn't have shot back, bro. You know me, I'm really sorry for your loss but it was an accident. I [sic] really was, . . . you know me, bro. You know killing a baby ain't me. Please, bro, I need you [sic] help me out. Donnald.2

Police witnesses provided testimony regarding ballistics, and shell casings. No weapons were seized. However, the State presented testimony that nine millimeter shell casings were found on both sides of the street in the vicinity of the shooting. Nineteen shell casings, which appeared to have been fired from the same weapon, were found on Lindsey's side of the street. Eleven shell casings, which all appeared to have been from a different weapon, were found on Pierce's side of the street. All the shell casings were fired from automatic or semi-automatic weapons.

Testifying in his own defense, Lindsey confirmed K.W.'s account of the verbal taunts from Pierce months before the shooting. Lindsey recalled two other verbal confrontations, one in June or July, and one on the day before the shooting. He asserted that he had previously seen Pierce on the porch of his sister's home with a gun. He said Pierce and "other guys" were looking at him as he drove by and he worried things were "getting serious." He purchased a Tec-9 automatic weapon soon after, which he agreed resembled a "mini-machine gun." He hid it in a grass lot on Carl Miller Boulevard, which bisects Norris Street. He never fired the weapon before the shoot-out.

On the day in question, Lindsey claimed that as he headed toward K.W.'s house, he saw Pierce with a book bag, along with three other men, at a Norris Street intersection. After Lindsey arrived at K.W.'s house, he told her he would be right back, and then left to retrieve his weapon. After returning, Lindsey was aware of the children across the street. Nonetheless, Lindsey asked Pierce and his cohorts what they were looking at, as Pierce had his hand on his book bag and appeared "ready to pull something out." Lindsey testified that he said, "'You going to do something, do it.'"

The other men with Pierce started "grabbing the kids up," as Pierce pulled out a "regular nine," and began shooting. Lindsey stayed behind a wall of the porch. After Pierce stopped shooting, Lindsey came out from behind the wall and returned fire until he emptied a single clip. Lindsey claimed Pierce shot back. Lindsey ran up Norris Street toward Sheridan Street with his bicycle. He testified St.T. "came chasing after me" saying "[y]ou killed my baby."

Lindsey denied St.T.'s testimony that he previously displayed a weapon to her. At one point, Lindsey claimed he only intended to intimidate Pierce, not kill him; but he also admitted he was trying to hit him, he "pointed it [the gun] towards [Pierce]" and was only "[s]ort of" looking where he was shooting. He claimed that as he fired, he did not see anyone but Pierce.

The sole witness for Pierce was C.B., an employee of VisionQuest, which provided educational and other services to youths in group home settings. Pierce lived in a VisionQuest home that C.B. supervised. C.B. testified that throughout the one-and-a-half to two-year period that he had known him, Pierce exhibited no threatening or violent behavior. C.B. did admit that police came to search for a weapon at the home on August 4, 2008, but found nothing.

The court conducted an extensive charge conference. The court elicited counsel's preferences as to instructions. No objections were raised as to the final instructions.

The court charged the jury on the counts pertaining to Lindsey, and then did the same as to Pierce. At the outset of the instructions regarding the charges against Lindsey, the court delivered an instruction on transferred intent. See N.J.S.A. 2C:2-3(d) (stating a defendant is not "relieved of responsibility for causing a result if the only difference between what actually occurred and what was designed, contemplated or risked, is that a different person or property was injured or affected").

The court charged passion/provocation manslaughter as a lesser-included offense of murder of B.T. by Lindsey. The court also charged the lesser-included offenses of aggravated manslaughter, and reckless manslaughter.

The court charged reckless manslaughter as a lesser-included offense of aggravated manslaughter of B.T. by Pierce. The court thereafter delivered a transferred intent charge related to the manslaughter charges.

As to each defendant, the court charged the lesser-included offense of attempted passion/provocation manslaughter in conjunction with the charge of attempted murder; and then charged, as additional lesser-included offenses of attempted murder: second-degree attempted aggravated assault with serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree attempted aggravated assault with significant bodily injury, N.J.S.A. 2C:12-1(b)(7); and disorderly persons attempted simple assault, N.J.S.A. 2C:12-1(a)(1). The court also charged justification, namely self-defense as to each defendant. The court charged flight as to each, to be considered "in connection with all of the other evidence . . . for proof of consciousness of guilt."

The court included an instruction regarding mutual combat in connection with the charge of passion/provocation manslaughter of B.T. by Lindsey; but did not refer to mutual combat in its instruction on attempted passion/provocation manslaughter of Lindsey by Pierce, or of Pierce by Lindsey. Counsel did not object. Furthermore, Pierce's counsel expressly stated that she desired an instruction regarding passion/provocation only in conjunction with the lesser-included offenses of the attempted murder charge. Consistent with Pierce's counsel's request, the court also instructed the jury that Pierce denied that he possessed a weapon, and if he did, he used it in self-defense.

During its deliberations, the jury posed numerous questions to the court regarding murder, passion/provocation manslaughter, aggravated manslaughter and other topics, which prompted, without counsels' objection, repeated readbacks of the instructions previously given. The jury also requested and heard readbacks of the testimony of several witnesses, including but not limited to, St.T., R.B., K.W., and Lindsey.

As noted at the outset of our opinion, the jury convicted Lindsey of lesser-included second-degree passion/provocation manslaughter of B.T. (count one); first-degree attempted murder of Pierce (count three); second-degree possession of a weapon for an unlawful purpose (count five); second-degree unlawful possession of a weapon (count seven); and second-degree unlawful possession of an assault firearm (count nine). The jury convicted Pierce of first-degree aggravated manslaughter of B.T. (count two); attempted murder of Lindsey (count four); possession of a weapon for an unlawful purpose (count six); and unlawful possession of a weapon (count eight).

In sentencing Lindsey, the court merged count five into counts one and three; and count seven into count nine. The court found the following aggravating factors: two, N.J.S.A. 2C:44-1(a)(2) ("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 . . . extreme youth"), based on B.T.'s youth; three, N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"), based on defendant's six prior contacts with the criminal justice system, including four juvenile adjudications, one of which was for what would have been robbery if committed by an adult; six, N.J.S.A. 2C:44-1(a)(6) ("extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), which the court gave "some, but not a lot of weight" based on defendant's juvenile record; and nine, N.J.S.A. 2C:44-1(a)(9) ("need for deterring the defendant and others from violating the law"), which the court weighed heavily based on the need to discourage defendant and others from engaging in "violent behavior . . . which presents a serious danger to the public."

The court addressed all of the mitigating factors and found the following applied: three, N.J.S.A. 2C:44-1(b)(3) ("defendant acted under a strong provocation"), inasmuch as the jury found passion/provocation; six, N.J.S.A. 2C:44-1(b)(6) ("defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained"), based on his willingness to pay restitution; and twelve, N.J.S.A. 2C:44-1(b)(12) ("willingness of the defendant to cooperate with law enforcement authorities"), based on defendant's post-arrest statement to police admitting participation and implicating Pierce.

The court found, clearly and convincingly, that the aggravating factors substantially outweighed the mitigating factors. After merger, the court imposed the following sentences: eight years on count one, with a minimum period of parole ineligibility (MPI) of eighty-five percent pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; consecutive to fifteen years on count three, with an eighty-five percent MPI under NERA; consecutive to ten years on count nine, with a ten-year MPI pursuant to N.J.S.A. 2C:43-6(g).

At his sentencing, Pierce, through counsel, continued to deny any culpability or participation in the shooting. In sentencing Pierce, the court merged count six into counts two and four. As with Lindsey, the court found aggravating factors two, based on B.T.'s youth; three, based on defendant's three juvenile adjudications, including one for a probation violation that resulted in incarceration; six, which the court gave "some, but not a lot of weight" in view of defendant's youth at the time the crimes were committed; and nine, for the same reason cited in Lindsey's sentencing.

The court addressed all of the mitigating factors. In particular, the court rejected factor three, pertaining to acting under provocation. The court observed that the jury declined to find attempted passion/provocation manslaughter as a lesser-included offense of attempted murder. The court found only factor six, pertaining to restitution.

The court found, clearly and convincingly, that the aggravating factors substantially outweighed the mitigating factors. After merger, the court sentenced Pierce to twenty years on count two, with an eighty-five percent MPI pursuant to NERA; consecutive to fifteen years on count four, with an eighty-five percent MPI under NERA; consecutive to seven years on count eight, with a three-year MPI pursuant to N.J.S.A. 2C:43-6(c).

With respect to the consecutive sentences of both defendants, the court addressed factors set forth in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). With respect to Pierce, the court specifically rejected the argument that because the State proceeded on a theory of transferred intent, the attempted murder, aggravated manslaughter, and unlawful possession of a weapon convictions should be sentenced concurrently. The court concluded, with respect to both defendants, their crimes were separate offenses with different elements and different victims. The court did not expressly address the basis for imposing consecutive sentences for the weapons convictions remaining after merger.

II.

Pierce raises the following points on appeal

POINT I

THE COURT PROVIDED AN ERRONEOUS JURY INSTRUCTION ON CAUSATION BECAUSE THE CONCEPT OF TRANSFERRED INTENT DID NOT APPLY TO THE AGGRAVATED-MANSLAUGHTER CHARGE, AND THE COURT ERRED IN FAILING TO TAILOR THE CAUSATION CHARGE TO THE UNIQUE FACTS OF THE CASE. BUT IF TRANSFERRED INTENT APPLIED TO PIERCE, IT WAS FUNDAMENTALLY UNFAIR TO NOT GIVE JURORS THE OPPORTUNITY TO CONVICT HIM OF THE CRIME THAT WAS CONSISTENT WITH HIS APPARENT INTENT PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below).

POINT II

THE JUDGE ERRED IN FAILING TO CHARGE MUTUAL COMBAT IN CONJUNCTION WITH ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below).

POINT III

THE COURT ERRED IN CHARGING "FLIGHT" BASED ON PIERCE'S DEPARTURE FROM THE CRIME SCENE WHILE LINDSEY CONTINUED TO SHOOT AT HIM. THE FLIGHT INSTRUCTION WAS FLAWED BECAUSE IT WAS NOT TAILORED TO THE FACTS AND THE JUDGE FAILED TO EXPLAIN THE SEEMINGLY CONTRADICTORY REQUIREMENTS OF THE SELF-DEFENSE AND FLIGHT CHARGES. (Partially Raised Below).

A. The Judge Erred in Deciding to Provide a Flight Instruction.

B. The Judge's Flight Charge Was Flawed.

C. Conclusion.

POINT IV

BECAUSE PIERCE NEITHER SHOT THOMPSON NOR INTENDED TO DO SO, HIS SENTENCE FOR AGGRAVATED MANSLAUGHTER IS EXCESSIVE AND SHOULD RUN CONCURRENT WITH HIS SENTENCES FOR ATTEMPTED MURDER AND POSSESSION OF A GUN WITHOUT A PERMIT.

A. Pierce's Sentences Should Be Concurrent With One Another.

B. The Judge Imposed an Excessive Sentence Because She Made Errors in Weighing the Aggravating and Mitigating Factors.

Lindsey's points on appeal are the following

POINT I

THE SEARCH AND SEIZURE OF DEFENDANT'S MAIL PURSUANT TO A JAIL MAIL COVER VIOLATED THE DEFENDANT'S FEDERAL AND STATE RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE.

POINT II

THE GRANTING OF THE STATE'S IN LIMINE MOTION TO PRESENT N.J.R.E. 404(B) EVIDENCE WAS ERROR WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

IT WAS ERROR FOR THE TRIAL COURT TO DENY THE DEFENDANT'S MOTION FOR A MISTRIAL BASED UPON THE PROSECUTOR'S ELICITATION OF TESTIMONY RULED INADMISSIBLE BY THE COURT.

POINT IV

THE JURY INSTRUCTIONS WERE INCOMPLETE, CONFUSING AND ERRONEOUS AND MANDATE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not raised below).

POINT V

GIVEN THE STATE'S THEORY OF TRANSFERRED INTENT, THE VERDICT FOR ATTEMPTED MURDER WAS INCONSISTENT WITH THAT OF PASSION/ PROVOCATIONMANSLAUGHTER. (Not raised below).

POINT VI

THE RESTITUTION ORDER ENTERED BY THE COURT WITHOUT CONSIDERATION OF DEFENDANT'S ABILITY TO PAY MUST BE VACATED. (Not raised below).

POINT VII

THE CONSECUTIVE SENTENCES IMPOSED UPON MR. LINDSEY WHICH TOTALED 33 YEARS WITH 29 YEARS WITHOUT PAROLE WAS EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (Not raised below).

POINT VIII

THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).

III.

A.

We begin by addressing Lindsey's claim that copying his postcard to T.T.'s boyfriend violated his rights under the Fourth Amendment; and Article 1, paragraph 7 of the New Jersey Constitution. The trial judge held the postcard was admissible because Lindsey lacked a reasonable expectation of privacy under the circumstances. We agree.

The mail cover was placed on August 5, 2008, the day Lindsey was arrested, at the request of prosecutor's office homicide investigator Eric Wren. At a preliminary hearing, Wren testified that he sought the mail cover to monitor possible acts of witness intimidation. He was prompted by the fact that all the witnesses and suspects, as well as the victim, were from the same area of Norris Street.

Norton, who received the call to do the mail cover at the county jail, explained mail covers were justified to interdict information that "can possibly contain criminal activity or contraband or . . . does a detriment to the facility." Regarding the jail's mail procedure, Norton explained that a sender of mail must hand his outgoing mail to a "tier officer," who hands it to a floor sergeant. The mail is then placed in a bin for that particular floor, and eventually taken to the mail room where it is mixed with mail from the other floors. At that point, if there is a mail cover for outgoing mail from an inmate on that floor, the mailroom officer searches the floor's mail bin for mail from that inmate and segregates it for Norton's review. Adherence to that procedure led to the discovery of Lindsey's postcard to T.T.'s boyfriend.

The governing legal principles are well-settled. "One seeking to invoke the protection of the Fourth Amendment must establish that a reasonable or legitimate expectation of privacy was invaded by government action." State v. Marshall, 123 N.J. 1, 66 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The test has an objective element, under both the State and federal constitutions. See Hudson v. Palmer, 468 U.S. 517, 525-27, 104 S. Ct. 3194, 3199-3201, 82 L. Ed. 2d 393, 402-04 (1984) (discussing expectation of privacy test under Fourth Amendment in terms of whether "any subjective expectation of privacy" is objectively legitimate); State v. Hempele, 120 N.J. 182, 199-200 (1990) (applying a single-pronged objective test as to "the reasonableness of an expectation of privacy").

The United States Supreme Court has broadly stated "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson, supra, 468 U.S. at 526, 104 S. Ct. at 3200, 82 L. Ed. 2d at 402-03; see also Bell v. Wolfish, 441 U.S. 520, 557, 99 S. Ct. 1861, 1883, 60 L. Ed. 2d 447, 480 (1979) (stating that, "[a]ssuming, arguendo, that a pretrial detainee retains . . . a diminished expectation of privacy after commitment to a custodial facility," room-search rule grounded in the security needs of institution passed constitutional muster). The Supreme Court concluded that determining the reasonableness of an expectation of privacy "entails a balancing of interests," and, in the prison setting, the penal institution's interest in maintaining security outweighs the prisoner's privacy interests in his cell. Hudson, supra, 468 U.S. at 527-28, 104 S. Ct. at 3200-01, 82 L. Ed. 2d at 403-04.

Other courts have questioned whether Hudson applies with equal force to pre-trial detainees, or to searches and seizures that are not motivated by institutional security concerns. See e.g., United States v. Cohen, 796 F.2d 20 (2d Cir.) (holding that search of pretrial detainee's cell at the behest of the prosecutor for the purpose of finding incriminating evidence was unconstitutional), cert. denied, 479 U.S. 854, 107 S. Ct. 189, 93 L. Ed. 2d 122 (1986).

Our Court has recognized that "'[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.'" In re Rules Adoption Regarding Inmate Mail to Attys., 120 N.J. 137, 146-47 (1990) (quoting Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 64, 75 (1987)); see also State v. Jackson, 335 N.J. Super. 227, 232 (App. Div. 2000) ("Inmates do not shed all of their constitutional rights at the prison gate."), certif. denied, 167 N.J. 630 (2001). Nonetheless, the special needs of the institution have been held to justify intrusions that would not be permitted outside the institution. Hamilton v. N.J. Dep't of Corrs., 366 N.J. Super. 284, 291-92 (App. Div. 2004) (rejecting challenge to taking of a urine sample of a convicted inmate, without a warrant, based on an anonymous tip).

Our Court has recognized that outgoing mail may contain "dangerous material" such as "escape plans, plans relating to ongoing criminal activity and threats of blackmail or extortion." In re Rules, supra, 120 N.J. at 152. Nonetheless, in a case involving a claimed violation of the First Amendment, as opposed to the Fourth Amendment, the Court held that a regulation authorizing routine inspection of outgoing mail to public officials violated inmates' rights. Id. at 154.

Our trial courts have addressed prisoners' claims that mail seizures violated their Fourth Amendment and New Jersey constitutional rights; however, they have taken divergent approaches. Compare State v. Jackson, 321 N.J. Super. 365, 379-80 (Law Div. 1999) (following Cohen reasoning in suppressing letters, seized without warrant, believed to be evidence of conspiracy between defendant and third-party to develop false alibi), with State v. Young, 435 N.J. Super. 434, 441-43 (Law Div. 2013) (denying motion to suppress letters pertaining to witness tampering, seized through warrantless mail cover based on defendant's gang membership).

We recognize the mail cover in this case was not motivated by institutional security concerns. Nonetheless, it was designed to detect the commission of future crimes, as opposed to the gathering of evidence of past events. See N.J.A.C. 10A:31-19.6(b) (stating that sealed outgoing correspondence of inmates in adult county correctional facilities may be opened if "there is evidence to suspect that there is contraband or disapproved content enclosed or that a criminal activity is involved"); N.J.A.C. 10A:31-19.4(a)(4) (defining "disapproved content" to include "information concerning activities within or outside the adult county correctional facility which would be subject to criminal prosecution").

However, we need not, in this case, chart the limits of a jailer's authority to engage in warrantless mail covers of a pre-trial detainee's outgoing mail. Defendant did not make his inculpatory statements in a letter in a sealed envelope. He knowingly wrote his message on a postcard, where it was viewable by the multiple parties who handled it before it was even placed into the custody of the United States Postal Service. "It is well settled that '[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.'" Marshall, supra, 123 N.J. at 67 (quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)); see also State v. Evers, 175 N.J. 355, 369 (2003).

In Marshall, supra, the Court held that there was no reasonable expectation of privacy in a message "To be opened in the event of my death" written on the outside of an envelope and left in a motel's "open mail depository," an open box on the counter of the motel's front desk. 123 N.J. at 65, 67. The Court cited authority holding that there is no Fourth Amendment claim to the names and addresses on the outside of an envelope. Id. at 67. The Court extended the principle to include substantive content placed on the outside of an envelope.3 Ibid.

Applying those principles, we conclude defendant did not possess a reasonable or justifiable expectation of privacy in the message he placed on a postcard that he handed to a corrections officer. We therefore affirm the trial court's order granting the State's motion in limine, to offer the postcard into evidence.

B.

Pierce asserts the trial court delivered erroneous and incomplete instructions pertaining to the charge of aggravated manslaughter of B.T. by Pierce, and attempted murder of Lindsey by Pierce. In particular, Pierce argues the court should have charged passion/provocation manslaughter, in addition to the aggravated manslaughter charge. He also argues the court should have instructed the jury as to mutual combat, because "Lindsey could not have been engaged in 'mutual combat' unless Pierce also engaged in such combat." Pierce presents these claims as plain error, as his counsel expressly stated she did not seek a passion/provocation instruction; in general, she actively participated in the development of the jury instructions; and voiced no objection to them.

The Code defines passion/provocation manslaughter as follows: "Criminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). It is a second-degree offense. N.J.S.A. 2C:11-4(c). Passion/ provocation manslaughter is a lesser-included offense of murder, as it "contains all the elements of murder except that the presence of reasonable provocation, coupled with defendant's impassioned actions, establish a lesser culpability." State v. Robinson, 136 N.J. 476, 482 (1994) (citing N.J.S.A. 2C:1-8(d)(3)).

Pierce focuses on the perceived unfairness in the jury's verdicts on the homicide charges. Lindsey was indicted on a first-degree charge of murder of B.T., punishable by no less than thirty years, and as much as life imprisonment, N.J.S.A. 2C:11-3(b); the jury received an instruction regarding the lesser-included second-degree offense of passion/provocation manslaughter; and the jury found Lindsey guilty of that lesser-included charge.

By contrast, Pierce was indicted on the first-degree charge of aggravated manslaughter of B.T. punishable by ten to thirty years, N.J.S.A. 2C:11-4(c); the jury did not receive a passion/provocation instruction as to B.T.'s homicide by Pierce; and the jury found Pierce guilty as charged without proceeding to the lesser-included second-degree charge of reckless manslaughter. Pierce assumes without any basis in a jury interrogatory that the jury concluded that the two men engaged in mutual combat, as a predicate for finding passion/provocation manslaughter by Lindsey. He argues that if the jury so concluded, it should have been given an opportunity to likewise find that Pierce committed second-degree passion/provocation manslaughter, as opposed to first-degree aggravated manslaughter.

Pierce's argument is predicated on speculation about the jury's rationale for its verdict. More importantly, the court's instructions regarding lesser-included offenses of the homicide charges were dictated by the charges in the indictment and controlling law. Pierce was charged in the indictment with non-purposeful aggravated manslaughter of B.T., as opposed to purposeful murder. Consequently, as our Court has recently confirmed, the lesser-included offense of passion/provocation manslaughter was unavailable to him. "[T]he unavailability of passion/provocation mitigation in manslaughter cases did not reflect a legislative oversight." State v. Galicia, 210 N.J. 364, 380 (2012). The Court held that under "the plain language of N.J.S.A. 2C:11-4(b)(2) . . . only murder [and not aggravated manslaughter] can be downgraded to voluntary manslaughter by virtue of a finding of passion/provocation." Ibid.

Pierce also argues that the court erred in instructing the jury as to transferred intent. This also is presented as plain error, as Pierce's counsel voiced no objection to it. After the instructions regarding aggravated manslaughter and lesser-included reckless manslaughter of B.T., the court instructed the jury as to general principles of causation. Following the second causation instruction, the court instructed the jury regarding transferred intent.4 Pierce argues "a crime involving knowing-and-purposeful intent against one victim cannot legally transfer to a crime involving a reckless or negligent mental state against an unintended victim."

Pierce misconstrues the charge on aggravated and lesser-included reckless manslaughter. It does not suggest that the jury "transfer" the purposeful state of mind which is an element of the attempted murder of Lindsey to the aggravated manslaughter. Aggravated manslaughter is a lesser-included offense of murder. State v. Rivera, 205 N.J. 472, 489 n.8 (2011). The charge instructed the jury that if Pierce acted recklessly under circumstances manifesting extreme indifference to human life, it mattered not that, as the judge stated, drawing directly from N.J.S.A. 2C:2-3(d), the "difference between what occurred and what was . . . risked, is that a different person was injured or affected." The court also correctly instructed the jury as to causation, drawn from N.J.S.A. 2C:2-3(c), including that the result "must also not be too remote, too accidental" or "too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his offense." While the court omitted a summary of the facts pertinent to causation, the court did so with counsel's explicit consent.

Pierce argues that the court "never instructed the jurors that the fact of who fired first was critical to resolving the issue of but-for causation." Pierce further asserts "it was Lindsey who fired the fatal shot." Although the State asserted that theory as well, no forensic witness reached that conclusion; the jury made no such explicit finding; and as Lindsey's counsel argued in summation, it was at least possible to conclude that Pierce's bullet struck B.T., based in part on the directions Pierce and B.T. were moving as Pierce fired. In any event, the jury did not need to determine whose bullet struck the child as a predicate to its verdict.

We are also unpersuaded by Pierce's argument that the court was obliged, sua sponte, to charge mutual combat in the context of the attempted murder charges. Pierce suggests that had mutual combat been included in the attempted murder charge, the jury would have found Pierce guilty of the lesser-included offense of attempted passion/provocation manslaughter of Lindsey, as opposed to attempted murder. As noted, the court's only mention of mutual combat was in the context of the instruction on passion/provocation manslaughter of B.T. by Lindsey; and not in the context of the instruction on attempted passion/provocation manslaughter of Pierce by Lindsey, or Lindsey by Pierce. The omission was not plain error.

"[T]he common law rule [provides] that 'mutual combat' can in certain circumstances give rise to passion/provocation mitigation." Galicia, supra, 210 N.J. at 380. However, a mutual combat instruction was not essential, as it simply captures a specific type of passion/provocation, which the court broadly described in terms of its four elements: "(1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; [and] (4) a defendant who did not cool off . . . ." Id. at 379 (internal quotation marks and citation omitted). Moreover, mutual combat would be inconsistent with the theory of Pierce's defense, which was that he did not possess a weapon at all, and if he did, he acted in self-defense in the face of Lindsey's aggression.

C.

Defendants' remaining challenges to their convictions lack sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We briefly address the following points.

1.

Pierce argues the court erred in instructing the jury regarding flight, over his counsel's objection.5 He argues he left the scene because he was "retreating from gunfire." We disagree.

An accused's flight is admissible as evidence of consciousness of guilt, but mere departure, alone, does not imply guilt. State v. Long, 119 N.J. 439, 499 (1990).

The propriety of admitting the evidence and delivering the instruction

depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

[State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2001) (quoting State v. Mann, 132 N.J. 410, 420 (1993)) (emphasis deleted).]

The decision whether to charge flight is left to the court's discretion. Long, supra, 119 N.J. at 499.

We are satisfied that there was sufficient evidence to support the court's exercise of discretion. K.W. testified she saw Pierce shooting toward her house, and then move toward the corner and away from the scene notwithstanding that his nephew was felled by a bullet. R.B. also saw him in the street before the shooting, but she did not see him there afterwards. A jury could reasonably conclude that Pierce was not merely departing, but fleeing; he did so because he was conscious of his guilt, in particular, a crime charged; and that consciousness of guilt was evidential of his actual guilt.

2.

Lindsey asserts the court erred in allowing evidence of defendants' earlier confrontations in order to suggest an explanation for the crimes charged, specifically a motive and planning or preparation. To the extent the admission of such evidence was contested, the court properly applied the factors under State v. Cofield, 127 N.J. 328, 338 (1992). In particular, any prejudice did not outweigh the probative value of such evidence in explaining the motivation for the shootout between the two men.

Nor do we find it was plain error for the court not to issue an "other crimes or wrongs instruction" immediately after admission of such evidence. Defense counsel did not request the instruction, perhaps as a strategic matter, to avoid emphasizing the evidence. The "better practice" is to deliver limiting instructions both when the evidence is admitted, and in the final jury charge. State v. Blakney, 189 N.J. 88, 93 (2006). However, the court's appropriate instruction at the end of trial was sufficient to avoid plain error. See State v. Baker, 400 N.J. Super. 28, 47 (App. Div. 2008) ("[I]f the final charge is 'accurate, clear and comprehensive,' we have concluded any delay, even if two weeks have elapsed between the introduction of the evidence and the final instruction, is not plain error.") (quoting State v. Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165 N.J. 138 (2000)), aff'd o.b., 198 N.J. 189 (2009).

We also reject Lindsey's argument that the court erred in denying his motion for a mistrial after a fleeting statement by St.T. that Lindsey "was abusing his girlfriend." The court had precluded any reference to Lindsey as a "wife beater." Literally speaking, St.T. did not violate the court's directive. Nonetheless, the court appropriately recognized and addressed the prejudicial nature of the remark, by directing the jury to ignore it. We presume the jury was capable of following the court's instruction. State v. Burris, 145 N.J. 509, 531 (1996). We discern no abuse in the court's discretionary decision, to deny the motion for the exceptional remedy of a mistrial. See State v. LaBrutto, 114 N.J. 187, 207 (1989).

Furthermore, we discern no basis to vacate Lindsey's conviction of attempted murder of Pierce, which required a finding of purposeful conduct, on the grounds that it was inconsistent with his conviction of passion/provocation manslaughter of B.T., which did not include purposefulness as an element, but was grounded in a theory of transferred intent directed toward Pierce. Inconsistent verdicts are permissible so long as there is sufficient evidence in the record to sustain the conviction, as there was here. See State v. Banko, 182 N.J. 44, 46 (2004); State v. Muhammad, 182 N.J. 551, 574 (2005).

Lindsey now challenges the sufficiency of the court's findings before imposing joint and several liability to make restitution of $6875, to reimburse the Victims of Crime Compensation Office for burial and relocation expenses it paid on behalf of St.T. We have held that a restitution hearing was unnecessary where a defendant did not question his ability to pay and there was sufficient evidence in the record of his ability to pay, including counsel's concessions and evidence in the presentence report. See State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994). Although the court did not make detailed findings regarding the ability to pay, see N.J.S.A. 2C:44-2(c)(2), the court noted it must conduct "an inquiry as to the ability to pay."

The court invited a response from defense counsel, who stated that Lindsey "does hope to work while he's in prison," "[t]here can be restitution paid . . . to a very minor degree through working," and defendant would "attempt[] to contribute to the restitution." Implicit in the court's imposition of the restitution order was a finding, consistent with counsel's affirmative representations, that defendant would have the ability to pay what amounts to little over $4.50 a week during his minimum period of incarceration, assuming he was solely responsible for the obligation.

D.

Both defendants challenge the court's imposition of consecutive sentences for the attempted murder of each other, the respective convictions for the homicide of B.T., and the respective weapons offenses. They argue their sentences are excessive.

We are unpersuaded by the argument presented by both defendants that the court erred in applying aggravating factor two based on B.T.'s youth because the State proceeded on a theory of transferred intent and there was no specific intent to harm a child. The evidence at trial demonstrated that both defendants were aware of the presence of children before they engaged in the shootout. Nor is the court's application of factor two, double-counting with an element of the offense. Extreme youth may be considered an aggravating factor, even where age is an element of an offense, unlike in this case. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). In all other respects, we are satisfied that the court properly applied the aggravating and mitigating factors.

In determining whether to impose a consecutive or concurrent sentence, a judge must be mindful of the following

(1) [T]here can be no free crimes in a system for which the punishment shall fit the crime;

. . . .

 
(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[.]

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

A court must also state its reasons, and avoid double-counting of aggravating factors. Ibid.

The presence of two victims in the case of each defendant B.T. and the opposing shooter provides strong support for the imposition of consecutive sentences for the attempted murder and respective manslaughter convictions. See State v. Molina, 168 N.J. 436, 442 (2001) (stating "the multiple-victims factor [under the Yarbough sentencing guidelines] is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms") (internal quotation marks and citation omitted).

Pierce misplaces reliance on State v. King, 215 N.J. Super. 504 (App. Div. 1987), in which we reversed imposition of consecutive sentences for two counts of attempted murder following a bank robbery. In King, the same gunshots fired at two pursuing police officers formed the basis of both convictions. Id. at 522. However, we found consecutive attempted murder sentences particularly inappropriate inasmuch as the aggregate State sentence was to be served consecutively to a thirty-year federal bank robbery sentence. Ibid. In this case, there is no underlying federal sentence. Moreover, B.T. was not a target; he was an innocent bystander to the shoot-out between Pierce and Lindsey. Under the circumstances, Yarbough does not compel concurrent sentences for these distinct crimes, with distinct victims.

Nonetheless, we are constrained to remand for a separate statement of reasons for the court's decision to impose a consecutive sentence for defendants' respective weapons convictions. The court did not expressly address this aspect of its sentence; nor were consecutive terms in this respect so clearly compelled that a remand is unnecessary, as it was in Molina, supra. See State v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999) (reversing imposition of consecutive sentences of life with thirty-year MPI for murder and unlawful possession of weapon, because the ultimate objectives of the possession of a weapon statute and homicide statute were the same, to protect the public from being injured or killed), certif. denied, 164 N.J. 189 (2000).

Affirmed, but remanded for resentencing.

1 These appeals, originally calendared "back-to-back," are consolidated only for the purpose of this opinion.

2 A copy of the postcard is not in the record. Lindsey also read the postcard to the jury. However, in his reading, he added the words, "but Martin [Pierce] did" before the period of the first sentence.

3 We need not address whether we would reach the same result if a postcard were deposited directly with the Postal Service, as opposed to a detainee's jailer. See Hempele, supra, 120 N.J. at 205-06 (discussing that a person may have an expectation of privacy shielding an item from inspection by police, notwithstanding its exposure to other third parties). Here, as in Marshall, the message was not concealed from the view of others.

4 The court's complete charge on causation and transferred intent consisted of the following

The doctrine of transferred intent provides that a defendant shall not be relieved of responsibility for causing a result if the only difference between what actually occurred and what was designed, contemplated, or risked is that a different person was injured or effected [sic].

Thus, if the State has proven beyond a reasonable doubt that defendant Martin Pierce's conduct caused the death of [B.T.] and the actual result of the death of [B.T.] involved the same kind of injury or harm as the probable result of Martin Pierce's conduct, you must find defendant Martin Pierce guilty of the aggravated manslaughter of [B.T.] under the doctrine of transferred intent. All matters related to Martin Pierce's culpability of legal responsibility in relation to the probable result of his conduct are transferred to the victim [B.T.].

However, if the State has not proven beyond a reasonable doubt that defendant Martin Pierce recklessly, under circumstances manifesting extreme indifference to human life caused the death of [B.T.] and the actual result of Martin Pierce's conduct was not the same type of injury or harm as the probable result of his conduct, then the doctrine of transferred intent does not apply and you must find defendant . . . not guilty as to the aggravated manslaughter of [B.T.].

5 The court also instructed the jury as to Lindsey's flight, which Lindsey does not challenge on appeal.