State v. D'AMATOState v. D'AMATO
Defendant was indicted for murder, contrary to
On the murder conviction defendant was sentenced to life imprisonment with 25 years of parole ineligibility. On the theft conviction, defendant was sentenced to a consecutive five year term with two and one-half years to be served before parole eligibility. Defendant appeals and contends:
I THE JUDGE ERRED IN PERMITTING THE STATE TO CHANGE THE DATE OF OFFENSE DURING THE TRIAL.
II DEFENDANT‘S THEFT CONVICTION SHOULD BE TREATED AS A DISORDERLY PERSONS OFFENSE BECAUSE THE INDICTMENT MADE NO MENTION OF VALUE, THE TRIAL JUDGE WAS WITHOUT AUTHORITY
TO SUBMIT THE QUESTION OF VALUE TO THE JURORS, AND THE JUDGE FAILED TO CHARGE THAT THE STATE MUST PROVE VALUE BEYOND A REASONABLE DOUBT. III THE TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT REFUSED TO ANSWER THE JURY‘S QUESTION REGARDING THE EFFECT OF A FAILURE TO REACH A UNANIMOUS VERDICT.
IV ADMISSION OF EVIDENCE REGARDING THE NARZIKUL BURGLARY WAS HARMFUL ERROR AND VIOLATED EVID.R. 55.
V THE JUDGE ERRED IN REFUSING TO ALLOW DEFENDANT TO INTRODUCE EVIDENCE OF OTHER CRIMES DEFENSIVELY.
VI IT WAS HARMFUL ERROR TO ADMIT HACKSAWS AND BLADES INTO EVIDENCE WHICH HAD NO SIGNIFICANCE IN THIS CASE; THIS ERROR WAS COMPOUNDED BY THE JUDGE‘S FAILURE TO ISSUE A CAUTIONARY INSTRUCTION TO THE JURY DESPITE HIS AGREEMENT TO DO SO.
VII THE TRIAL COURT IMPROPERLY LIMITED DEFENDANTS CROSS-EXAMINATION OF THE STATE‘S WITNESS ARTHUR DEVINE (harmful error).
A. Defendant was entitled to cross-examine Devine regarding a pending disorderly persons charge.
B. Defendant should have been allowed to question Arthur Devine regarding his training as a Green Beret.
VIII IT WAS HARMFUL ERROR TO ADMIT THE MEDICAL EXAMINER‘S TESTIMONY AS TO WHY SHE BELIEVED THAT THE VICTIM‘S MANNER OF DEATH WAS HOMICIDE.
XI IT WAS HARMFUL ERROR TO DENY DEFENDANT‘S MOTION FOR A MISTRIAL AFTER THE PROSECUTOR INTENTIONALLY ELICITED TESTIMONY FROM A WITNESS CONCERNING POLYGRAPHS.
X DEFENDANT‘S CONVICTION FOR MURDER MUST BE REVERSED BECAUSE OF THE STATE‘S FAILURE TO PROVIDE DISCOVERY REGARDING THE “CRIME STOPPERS” PAYMENT TO DEVINE.
XI THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (partially raised below).
XII THE MISTRIAL ON THE MURDER CHARGE WAS OCCASIONED BY THE EGREGIOUS CONDUCT OF THE PROSECUTOR; THUS THE DEFENSE OF FORMER JEOPARDY APPLIES TO THE SECOND TRIAL OR ANY RETRIAL OF THIS MATTER.
XIII DEFENDANTS MOTION FOR MISTRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT SHOULD HAVE BEEN GRANTED; DEFENDANT‘S CONVICTION FOR MURDER MUST BE REVERSED WITH A BAR AGAINST RETRIAL ON THE BASIS OF FORMER JEOPARDY.
XIV THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS AND IRREGULARITIES AT BOTH TRIALS SERVED TO DEPRIVE DEFENDANT OF A FAIR TRIAL.
XV DEFENDANT‘S SENTENCE IS MANIFESTLY EXCESSIVE.
A. The judge incorrectly assessed the aggravating factors.
B. Consecutive sentences for murder and theft were improperly imposed.
Our careful review of the record convinces us that defendant‘s attack on the murder conviction may be summarily rejected and that the points he raises with respect to that conviction are so clearly without merit that extended discussion is not warranted. R. 2:11-3(e)(2). Any errors committed during the first trial were mooted as a result of the jury‘s inability to reach a verdict at that trial. As defendant was not convicted of murder at the first trial, he cannot complain of the errors in that matter which relate only to that charge. By the time of retrial, defendant was on notice with respect to the evidence to be presented against him.
While it is true that the State‘s critical witness, Arthur Devine, lied to the jury during the second trial about not having received a reward from Crime Stoppers, it was conceded by defense counsel that the prosecutor did not know of that fact at the time of Devine‘s testimony and that the prosecutor made the true facts known to the court and defense counsel when he received the information. See R. 3:13-3(f). We cannot conclude that the trial judge abused his discretion by permitting the prosecutor to recall Devine to develop that subject, as opposed to permitting the matter to be developed exclusively through a witness subpoenaed by the defense to attack Devine‘s credibility.
We note that the reference to the present assignment of a State‘s witness as a polygraph operator for the prosecutor was not prejudicial because the witness was asked about his participation in the investigation “before you were the polygraph operator,” and there was no reference to any polygraph examination. With respect to an unrelated claim of error, the jury knew, as a result of defendant‘s direct testimony, of his prior manslaughter conviction.
We are satisfied that any errors at the second trial, either alone or in the aggregate, do not warrant a new trial. This is particularly true in light of the testimony of John Weber, who
Defendant argues that a mistrial should have been granted during the first trial and that a “hung jury” resulted because of prosecutorial misconduct and that, as a result of that misconduct, retrial should have been precluded. The jury could not reach a verdict on the murder count during the first trial. As a result, a “hung jury” was declared. When a defendant moves for mistrial which is granted, the double jeopardy clause precludes a second trial only where the conduct of the prosecutor giving rise to the motion was intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Even assuming contrary to our view that there was such conduct by the prosecutor in this case, we reject the contention that this double jeopardy principle applies where the case was presented to the jury and the mistrial was the result of a hung jury. See and compare Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); State v. Rechtschaffer, 70 N.J. 395 (1976); State v. DeMarco, 211 N.J. Super. 421 (App. Div. 1986).1 See also
The theft count of the indictment alleged neither the value of the items stolen nor the degree of offense. The count in its entirety reads:
On or about the 18 day of February 1981, in the City of Ventnor, County of Atlantic aforesaid and within the jurisdiction of this court, the said
ANGELO PAUL D‘AMATO
did unlawfully take certain movable property to wit: U.S. Currency, jewelry and fur coats the property of Keerans E. Carter a/k/a Kerry Carter with the intent to deprive said person of same, contrary to the provisions of N.J.S. 2C:20-3, and against the peace of this State, the government and dignity of the same.
During jury deliberations in the first trial, a guilty verdict was reached on the theft count. However, deliberations on the murder charge continued into the following day. When it appeared that the jury could not reach a verdict on the murder count, the trial court declared a mistrial on that count and thereafter directed the jury to determine the value of the property stolen as the court had neglected in its initial instructions to direct the jury to indicate value in its verdict. In its supplementary instructions, the court advised the jury that it “must find beyond a reasonable doubt that the particular property was stolen property as alleged in the second count of the indictment.” However, the court did not specifically advise the jury that it was necessary for the State to prove the value of the items taken beyond a reasonable doubt. Rather, the court merely instructed the jury that it had to find the value of the
The burden of proving all elements of a criminal offense is upon the State by proof beyond a reasonable doubt. See State v. Ingram, 98 N.J. 489, 496 (1985). See also
We conclude that the trial judge did not err in submitting the question of value to the jury after it had announced its verdict of guilt to the charge of theft. The jury had not been discharged and had continued its deliberations on the other count. As long as the jury had not been discharged, it was not inappropriate for the judge to submit the issue of value to the jury which could continue deliberations on an issue related to its prior deliberations and verdict. Cf. State v. Hardison, 99 N.J. 379, 391 (1985); State v. Fungone, supra, 134 N.J. Super. at 535-536.
However, the failure of the indictment to allege a third degree theft or theft of over $500 in value is of considerable concern.
In State v. Catlow, 206 N.J. Super. 186 (App.Div. 1985), certif. den. 103 N.J. 465 (1986) and 103 N.J. 466 (1986), defendant was charged with robbery in violation of
An indictment must serve as notice to the accused of the charge against him and must apprise him sufficiently so that he may prepare an adequate defense. State v. Wein, 80 N.J. 491, 497 (1979). In our view an accused reading the indictment in question would not be put on notice that he was charged with more than a second-degree crime. The State takes the position that under State v. Talley, 94 N.J. 385 (1983) and Bibby v. Tard, 741 F.2d 26 (3d Cir.1984) there can be no challenge because the defendant should have been aware of the victim‘s assertions that a knife was used in the incident as her grand jury testimony was available through discovery and therefore there was no unfair surprise.
The State‘s position overlooks the basic issue of whether or not defendant‘s State constitutional right to indictment or presentment was violated. We conclude that the indictment is inadequate. In the absence of the inclusion of either facts or statutory language constituting a first-degree robbery, there can be no determination by a reviewing court as to whether or not the grand jury, although hearing sufficient evidence to constitute a first-degree robbery, accepted or rejected such evidence. The indictment in question does not demonstrate a grand jury determination that it was satisfied that a first-degree crime had occurred.
We consider determination of the degree of a crime to be an essential element of the grand jury function. Failure of an indictment to demonstrate this
function has been carried out, not unlike the failure to include a necessary element of an offense, constitutes a denial of defendant‘s rights. Cf. State v. Gibbs, 134 N.J.L. 366, 370 (Sup.Ct. 1946). The State‘s reference to the distinction between first and second-degree robbery as being merely one of grading is to our view unrealistic in light of the importance of such distinction to a defendant. This distinction may be of far greater consequence to an accused than the obtaining of an acquittal on a crime of a lesser degree. See State v. Federico, 198 N.J. Super. 120, 128-129 (App.Div. 1984). [206 N.J. Super. at 194-195].
See also State v. Federico, 103 N.J. 169 (1986) (holding that the State had the burden of proving the factor which elevates kidnapping from second degree to first degree).
We recognize that, unlike the crimes of kidnapping and robbery where the grading provisions are embodied in the same section of the Code as the elements of the offense, the grading provisions of theft offenses are embodied in a different section than the elements. See
Under our State constitution, there is a right of indictment by grand jury,
We nevertheless affirm the third degree theft conviction in this case. While a lesser included, non-indictable offense may be presented to the jury at the trial of an indictment, there is no rule authorizing joinder of a non-indictable with an indictable for trial. Cf. State v. Dively, 92 N.J. 573, 589-590 (1983); State v. Lopez, supra.3 Moreover, there is no right of indictment or trial by jury for an offense embodying a maximum sentence of six months or less. See
Defendant addressed no motion or objection to the failure of the grand jury to allege any value or degree of offense. The indictment specified that “U.S. Currency, jewelry and fur coats” belonging to the murder victim were taken by
Defendant raised no objection to the indictment, charge or instructions on the ground that no third-degree crime was alleged. Under these circumstances we reject the belated attack on the sufficiency of the indictment as embodying a third-degree crime. See, e.g., United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); State v. Schmidt, 213 N.J. Super. 576 (App.Div. 1986), certif. granted 107 N.J. 635 (1987).4
Although the trial judge made certain fact-finding which he employed to find more than one aggravating factor and although the judge did not specifically address reasons for imposing a maximum sentence and consecutive sentence for the theft, we find no reason to disturb the sentences imposed. See, e.g., State v. Roth, 95 N.J. 334 (1984); State v. Porter, 210 N.J. Super. 383, 396-397 (App.Div. 1986), certif. den. 105 N.J. 556 (1986) and 105 N.J. 557 (1986). Defendant‘s record included a prior conviction for manslaughter, the aggravating factors substantially outweighed the mitigating, and the theft was of property taken after the victim had been killed and dismembered.
Affirmed.