STATE OF NEW JERSEY VS. JOHN R. JORDAN (15-04-0465, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4871-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN R. JORDAN,
Defendant-Appellant.
_______________________
Submitted November 5, 2020 – Decided January 28, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 15-04-0465.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Jaimee Chasmer, Assistant Prosecutor, of
counsel and on the brief; John J. Scaliti, Legal
Assistant, on the brief).
PER CURIAM
Tried by a jury, defendant John Jordan was convicted of the murder of his
wife, Tracey. See N.J.S.A. 2C:11-3(a)(1) and (2). 1 The trial judge sentenced
defendant to life subject to the No Early Release Act's eighty-five percent parole
disqualifier. See N.J.S.A. 2C:43-7.2. He appeals, and we affirm.
On the morning of May 9, 2014, defendant entered his wife's apartment,
where she lived with the parties' two sons. It is unclear how he gained access,
either because she admitted him, or he let himself in with a key she had given
him. The parties, who were married in 2001, had been separated for nearly two
years.
Using both hands, defendant choked Tracey until she lost consciousness.
While she lay immobile on the bed she shared with their sons, he stabbed her
sixteen times with a seven-inch knife, taken from her kitchen, in the area of her
heart. The medical examiner, in addition to describing the manner of death,
testified that Tracey's body bore no defensive wounds.
One of the officers who conducted the welfare check on Tracey said she
was on her back, her hands along her sides, her head surrounded with the
children's stuffed toys on the pillows. The bedroom was neat and orderly, as
1
The jury acquitted defendant on two counts of first-degree kidnapping,
N.J.S.A. 2C:13-1(b)(1).
A-4871-17T1
2
was the rest of the small apartment, showing no signs of a struggle. The blinds
were pulled shut.
The welfare check was initiated by Tracey's family, concerned that she
was not answering her cell phone, and that defendant had taken the children that
morning from school, claiming they had a dental appointment. Tracey's sister
Debra texted defendant at approximately 3:18 p.m. that afternoon when her
mother attempted to pick the children up from school and was told they had
already left. Tracey had never previously forgotten arrangements for a family
member to assist with child care. Defendant told Debra that Tracey was having
trouble with her cell phone and that the children had told him they would be
going out that night with their mother. When Tracey's mother drove to the
apartment and saw that the shades were pulled shut, she called police.
Sometime between May 9 and May 10, 2014, Debra received a three-page
single-spaced letter the State moved into evidence at trial. In the letter,
defendant described Tracey as a faithless wife and poor mother. Among her
weaknesses as a parent, defendant complained that she was not giving the
children the vitamins that he had bought them.
When defendant testified during the trial, he claimed he mailed the letter
after the murder as he drove with the children towards his father's home in South
A-4871-17T1
3
Carolina. A GPS found in Tracey's car, which defendant appropriated to make
the trip, indicated that the day before the killing he had been in the vicinity of
the Lodi post office. On the stand, he denied mailing the letter before the
murder, insisting that during his trip he pulled over to a mailbox near a farmer's
field.
Defendant was arrested at approximately 1:00 a.m. as he and the children
approached his father's home. When interviewed, he explained to the Bergen
County Prosecutor's Office detectives that his wife had been unfaithful, and a
poor mother, and mentioned the letter he had written to Debra. He admitted
killing Tracey and washing his hands afterwards but did not mention any
confrontation, physical or otherwise, between him and the victim.
During the trial, the state moved into evidence text messages extracted
from defendant's cell phone from himself to himself as follows:
6:25 a.m. – Defendant's text to himself
Mom, listen to me very, very carefully. Tracey
is gone. Suffice it to say she has pulled more crap with
me and subjected Nicky and Anthony to way too much.
They would've grown up to be two more self-centered
manipulative horrible people. Just like Gloria. Just like
Tracey. The boys are at [dad's] now or if I didn't make
it there with them, they're in custody somewhere
between NJ and SC. I want the boys to be with you and
Mike or dad and Beth. They said [they] want to live
with you most. Not Gloria, they hate even seeing her.
A-4871-17T1
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I don't want them around anyone else. Please please
please promise me you will take them and do the same
incredible job raising them that you did with Mike and
I. Please fight for custody. I doubt anyone will contest
it. Mike can get the money back [from the] bankruptcy
lawyer. We didn't complete the process yet. My car is
parked on Avenue A in Lodi. I had to use the money
you sent me for gas to get to [dad's]. I'm sorry. There
is easily five to eight thousand dollars worth of stuff if
not more in that storage place. Pictures, cookware,
stereo equipment, a lifetime's worth of great clothes,
leather jackets, suits. Don't let it go to auction. You
could easily sell all that stuff. It's worth the airfare to
do it. (Bob's storage in Lodi unit number 39. Dad has
the key to my car and storage.) I love you mom and
part of me still wishes I came out there.
I read a quote that said, "Without enough love or
hope we start losing strength to live." Tracey made me
believe there was hope. She had used me for so long,
right up to the end, lying to me. The reality is she is so
damaged that it began to rub off on the boys. I was in
a position to not let that happen when you [came] out
here but screwed that up. Now I have fallen so far…
I'm not on drugs, I'm not addicted to anything at all. My
mistake was believing in Tracey. When I found out the
truth it was so much worse than I ever expected. There
were more guys than just Ralph and she lied to them all.
She would've ruined the boys. I already started seeing
signs of it in Nicky… that poor little angel. On top of
the psychological damage she screamed at them, cursed
at them, no breakfast, not brushing their teeth, not
giving them their vitamins I brought over.
Anthony started missing too much school
because he got sick. Nicky started failing tests
regularly because she wouldn't study with him. The
constant yelling from her. They started to scream at
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each other. She would leave them with a stranger
overnight so she could sleep around. Anthony told me
he was scared. Nicky started to lie to me and make up
stories. It was bad. Please please please rescue them
from the crap. They've lived through too much of it
already.
Extracted from the victim's phone were exchanges with defendant in
which Tracey asked him to meet her at the boys' school with $2 towards money
the boys needed that day. Defendant deleted the messages he exchanged with
the victim from his own phone. At the time, defendant was unemployed and
lived in his car.
Defendant regularly used a computer at the Lodi public library, copying
material he wished to save to a flash drive. From the flash drive, a Prosecutor's
Office detective located three items admitted into evidence, including a checklist
entitled "This is the end," containing information about traveling to South
Carolina. The information included an approximation of travel hours, the
amount of gas that would be required, the phrase "Leave at 12? Be there at
midnight." The entry continued, "5.5 hours to bridge. [$40] gas. Leave at ?"
Defendant created a "To Do" list which stated "Pack clothes, call for address for
bridge to put in GPS. Write letters to mom, dad, Deb." Defendant composed a
note to his sister-in-law: "Deb. You once told me that 'Tracey will put me in
an early grave.['] You were right."
A-4871-17T1
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Defendant also composed a note to his children. A draft of the letter
defendant mailed to Debra, included in the flash drive, ended with defendant
writing that "Tracey is gone."
Defendant testified he went to the apartment that morning to speak to the
victim because she had asked for money; they argued. He wanted to have a
serious discussion about their marriage, but Tracey would not get off her cell
phone. Defendant said she physically attacked him, kicking him in the groin,
threatening him that he would never see his children again.
Defendant denied any of his writings demonstrated an intent to commit
murder—he characterized them as a means for him to cope with the intense
feelings his marital situation engendered. He explained the reason he did not
tell the officers about the victim's attack, or her kick or knee to the groin, or her
threat to keep the children from him, was an oversight attributable to his
emotional state when interviewed.
The trial judge conducted a Rule 104 hearing regarding the admissibility
of defendant's proposed expert testimony. Pertinent to this appeal, the expert
testified that "journaling" was defendant's coping mechanism, not the expression
of a plan. The term was used to include defendant's texts to himself and his
letters. The issue relating to the journaling, defendant argued, was key to refute
A-4871-17T1
7
the State's position that his writings established intent to kill. The expert opined,
contrary to the State's psychologist, that defendant was the victim of a domestic
violence-type emotional abuse relationship. Her testimony was intended to
bolster his defense of passion/provocation. See N.J.S.A. 2C:11-4(b)(2).
Defendant's attorney contended the testimony would serve dual purposes: to
establish the passion/provocation defense and to rebut the State's claim that
defendant planned the murder.
The court denied defendant's application because the expert could not
offer an opinion regarding defendant's writings without potentially confusing or
misleading the jury, particularly as it related to a subject not outside the ken of
the average juror. Defendant would be permitted to explain, however, the
purpose of his letters and texts—that they were not planning tools but an
opportunity for him to express himself, and that the letter to Debra was not
mailed until after the killing.
The court charged passion/provocation but refused defendant's request to
instruct the jury as to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He said
defendant's conduct was clearly intentional, engaged in with the knowledge that
death was the only possible result. The judge relied on the medical examiner's
testimony in making the decision. We detail the judge's findings regarding
A-4871-17T1
8
mitigating and aggravating factors in the section dealing with defendant's
sentence.
Defendant now raises the following points on appeal:
POINT I
THE EXCLUSION OF EXPERT TESTIMONY
REBUTTING THE STATE’S INTERPRETATION OF
DEFENDANT’S WRITINGS, VIOLATED
DEFENDANT’S CONSTITUTIONAL RIGHT TO
PRESENT A COMPLETE DEFENSE.
POINT II
THE EXCLUSION OF A CHARGE ON THE
LESSER-INCLUDED OFFENSE OF AGGRAVATED
MANSLAUGHTER WAS REVERSIBLE ERROR.
POINT III
THE PROSECUTOR COMMITTED MISCONDUCT
WHEN HE SAID DEFENDANT LIED ABOUT THE
FACTS OF THE OFFENSE, AND WHEN HE
ACCUSED DEFENDANT OF LYING ABOUT
WHEN HE MAILED A LETTER AT ISSUE, AND
WHEN HE SUGGESTED THAT HE HAD
EVIDENCE OUTSIDE THE RECORD ABOUT THE
POSTMARK ON THE LETTER. (Not Raised [at
Trial])
POINT IV
THE IMPOSITION OF A LIFE TERM ON THIS 51-
YEAR-OLD DEFENDANT WITH AN
UNBLEMISHED RECORD IS NOT SUPPORTED BY
THE RELEVANT SENTENCING FACTORS AND IS
GROSSLY EXCESSIVE.
A-4871-17T1
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I.
Evidence is relevant if it has "a tendency in reason to prove or disprove
any fact of consequence to the determination of the action." N.J.R.E. 401. It
must have probative value and materiality. State v. Buckley, 216 N.J. 249, 261
(2013). Evidence need not be dispositive or strongly probative, but only tend to
prove the proposition. Ibid. Relevant evidence is admissible unless another rule
or law excludes it. N.J.R.E. 402. As the trial court excluded the expert
testimony on the basis of N.J.R.E. 401 and 403, those are the relevant
considerations.
All relevant evidence is subject to the constraints of N.J.R.E. 403.
N.J.R.E. 403 permits exclusion of the evidence if the "probative value is
substantially outweighed by the risk of . . . [u]ndue prejudice, confusion of
issues, or misleading the jury[.]" Consequentially, if the expert testimony
carries an N.J.R.E. 403 risk that substantially outweighs its probative value, it
may be omitted at the court's discretion. State v. Reeds, 197 N.J. 280, 295
(2009).
The judge's exercise of discretion was reasonable. The expert's testimony
and opinion were based on interviews and evaluation of defendant. Other than
defendant's statements, there was no indicia that Tracey emotionally abused him.
A-4871-17T1
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There was no corroboration, scientific standard testing, or any objective proof
that lifted the opinion above a net opinion. See Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 373 (2011) (stating that the net opinion rule prevents
the admission of expert testimony "lack[ing] an appropriate factual foundation
and fail[ing] to establish the existence of any standard about which the ex pert
testified.").
Although not entirely clear on appeal, as it was not entirely clear before
the trial judge, defendant seemed to be proffering the witness not so much to
support the passion/provocation defense, but to refute any claim that his writings
were an expression of his intent to kill his wife. Defendant argued before the
judge, as he does now on appeal, that writing things down is, for some, a
"substitute for action."
But an expert should not express an opinion on matters that fall within the
ken of the average juror, see State v. Torres, 183 N.J. 554, 568 (2005), nor
should they opine about a defendant's guilt, see State v. Trinidad, 241 N.J. 425,
444 (2020). We agree with the trial judge that the average juror could indeed
conclude that writing things down—in cell phone texts or emails or letters—was
defendant's way of coping with strong emotions for which there was no other
outlet. There is no question that defendant said so from the stand , and the State
A-4871-17T1
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did not object to him doing so. There was no basis, however, for admission of
the psychologist's testimony that this was merely an adaptive mechanism. It is
an opinion on a subject readily within the ken of the average juror . It had the
potential to usurp the jury's obligation to determine whether defendant's writings
were an expression of his intent or plan to kill his wife or merely expressions of
his strong emotions.
Just as a police officer is not permitted to opine that a series of
observations mean a drug transaction has taken place, because that is the
ultimate factual question left for the jury, this psychologist was properly
excluded from opining that defendant's writings were not his planning
documents, but merely an expression of strong feelings. See State v. Sowell,
213 N.J. 89, 102 ("It is not appropriate to summarize straightforward but
disputed evidence in the form of a hypothetical and then elicit expert opinion
about what happened. That approach . . . can usurp the jury's sole responsibility
to find the facts."). And her testimony was unnecessary, given his, to proffer
that they only provided an emotional safety valve.
Similarly, defendant's position that his wife was emotionally abusive
towards him, which would have been bolstered by the psychologist, was one he
was permitted to make in the absence of expert testimony. Defendant was not
A-4871-17T1
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raising the claim of diminished capacity, battered spouse syndrome, or any other
actual legal defense. He instead suggested that he was a battered spouse because
of Tracey's emotional control, which if corroborated by an expert, had the
potential to mislead the jury.
Defendant clearly wished to introduce the psychologist's testimony to
refute the reading of the letters and texts as expressions of a plan as opposed to
expressions of feelings. On that score, an "expert" opinion was inappropriate as
a net opinion and not necessary because defendant testified as to their purpose.
The jury was free to decide if it believed the writings established
premeditation—or not, based solely on his testimony. We therefore find no error
in the judge's exercise of discretion in barring the evidence pursuant to N.J.R.E.
403.
II.
Challenges to jury instructions raise issues of law reviewed de novo. State
v. O'Carroll, 385 N.J. Super. 211, 225 (2006). Appellate courts apply "the
rational-basis test . . . to review the trial court's failure to provide a jury
instruction when defendant requested it." State v. Carrero, 229 N.J. 118, 127-
28 (2017).
A-4871-17T1
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A jury instruction defining a lesser-included offense should be given if
there is a rational basis on which the jury can convict. N.J.S.A. 2C:1-8(e); State
v. Fowler, 239 N.J. 171, 187 (2019). A rational basis exists where "evidence
[presents] adequate reason for the jury to acquit the defendant on the greater
charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 119 (1994).
"However, sheer speculation does not constitute a rational basis." Id. at 118.
Establishing a rational basis requires a court to "view the evidence in the
light most favorable to the defendant." Carrero, 229 N.J. at 128. "A defendant
is entitled to a lesser-included offense instruction rationally supported by the
evidence, even if the instruction is inconsistent with the defense theory." Ibid.
It is reversible error not to charge a proper lesser included offense. State v.
Tucker, 265 N.J. Super. 296, 329 (1993).
N.J.S.A. 2C:11-4(a)(1) defines aggravated manslaughter as "recklessly
caus[ing] death under circumstances manifesting extreme indifference to human
life." There are two categories of manslaughter. N.J.S.A. 2C:11-4(b). The first
is reckless manslaughter that occurs when a homicide is "committed recklessly."
N.J.S.A. 2C:11-4(b)(1). The second is passion/provocation manslaughter, or
"[a] homicide which would otherwise be murder under [N.J.S.A.] 2C:11-3 . . .
A-4871-17T1
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committed in the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2).
Passion/provocation manslaughter assumes a defendant's intent to kill the
victim. State v. Robinson, 136 N.J. 476, 486 (1994). A defendant who commits
aggravated or reckless manslaughter did not intend to kill, but acted with
recklessness. State v. O'Neil, 219 N.J. 598, 612 (2014).
Defendant argued that there was a rational basis for the jury to find that
while acting recklessly, he accidentally killed the victim while strangling her,
inflicting stab wounds postmortem. The facts here parallel those in State v.
Tucker, in which the failure to charge the jury with aggravated manslaughter
was not error. 265 N.J. Super. 296 (1993).
In Tucker, the defendant asphyxiated and stabbed the victim. There was
evidence that, while both were a cause of death, the stabbing took place after the
asphyxiation. Id. at 331. The notion that the stab wounds, which the defendant
contended were the only intentional conduct, were inflicted after death, was
mere speculation. Id. at 331. The evidence demonstrated the acts were
"essentially contemporaneous or, at the very least, related parts of a continuous
course of conduct." Ibid.A-4871-17T1
15
Defendant's argument is almost identical to the one rejected in Tucker.2
Defendant's testimony at trial described the events as follows:
I grabbed her right around the throat with both my hands and
we fell back on the bed. And I don't remember anything. I
don't remember. The next thing I remember I'm standing above
her with this kitchen knife in my hands and I'm looking at her.
I said what the [f**k]. I dropped the knife.
The medical examiner's testimony, however, clearly contradicts
defendant's contention. Defendant first choked the victim to the point of
unconsciousness, then stabbed her while she was still alive. The absence of
defensive wounds or signs of a struggle also refute his claim that the two
wrestled before they fell onto the bed and that he remembered nothing after
choking her. Defendant speculates that the jury could have found his conduct
was a choking, followed by stabbing post-mortem. Such a verdict would not
have conformed to the proofs.
The ferocity with which defendant stabbed the victim, and the fact the stab
wounds were all located around the heart area make this an intentional killing .
The record did not support the proposition that defendant was acting recklessly,
2
Defendant argues that in Tucker there was no medical examiner evidence
supporting the defendant's theory, but that is an incorrect reading of the case.
See Tucker, 265 N.J. Super. at 331 ("We recognize that asphyxiation was one of
the causes of death and that there was some evidence that the stabbing took place
sometime thereafter.").
A-4871-17T1
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that he accidentally killed Tracey while strangling her, inflicting the stab
wounds post-mortem. The medical examiner's testimony was uncontradicted.
When the stab wounds were inflicted, the victim was alive. Thus, the court did
not err in refusing to give the aggravated manslaughter charge. Such an
instruction was not supported by the evidence.
III.
Defendant made no objection to the prosecutor's comments in closing.
Nonetheless, there can be no doubt that the prosecutor crossed a line in
characterizing defendant's testimony as lies.
Prosecutorial misconduct warrants reversal only if the misconduct was
clear and unmistakable and it "substantially prejudiced defendant's fundamental
right to have a jury fairly evaluate the merits of his defense." State v.
Timmendequas, 161 N.J. 515, 575 (1999). When determining whether
prosecutorial misconduct denied the defendant a fair trial, we look to "(1)
whether defense counsel made timely and proper objections to the improper
remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the
court ordered the remarks stricken from the record and instructed the jury to
disregard them." State v. Daniels, 182 N.J. 80, 96-97 (2004) (quoting State v.
Smith, 167 N.J. 158, 182 (2001)).
A-4871-17T1
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"Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999). The
level of prejudice is determined by "consider[ing] the tenor of the trial and the
responsiveness of counsel and the court to the improprieties when they
occurred." Timmendequas, 161 N.J. at 575.
A prosecutor may not express their personal opinion about the defendant's
truthfulness. State v. Marshall, 123 N.J. 1, 156 (1991). This conduct is improper
because it might lead the jury to adopt the prosecutor's opinion without
independent deliberation, and in reliance upon the suspicion the opinion is based
on evidence not entered at trial. State v. Jenkins, 299 N.J. Super. 61, 70 (1997).
If a prosecutor expresses an opinion on a defendant's truthfulness, the
prejudice is not harmless if the opinion was expressed repetitively. Id. at 71.
Even if expressed only once, if there is no evidence to support the assertion that
the defendant lied, it may be found to be prejudicial. State v. Rivera, 437 N.J.
Super. 434, 463 (2014); see also Daniels, 182 N.J. at 98 (holding general
accusations, "despite no specific evidentiary basis[,]" of testimony tailoring
based on trial proceedings are improper); State v. Blakney, 189 N.J. 88, 97
(2006) (holding "inadequate jury instructions combined with the prosecutorial
A-4871-17T1
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excesses in summation, when cast against the less than overwhelming evidence
supporting a murder conviction, cannot be viewed as harmless.").
A prosecutor may not call the defendant a "liar" or employ any derogatory
epithets against the defendant. State v. Pennington, 119 N.J. 547, 577 (1990).
"[D]erogatory name-calling will not be condoned." State v. Williams, 113 N.J.
393, 456 (1988). Over the course of the prosecutor's summation, the prosecutor
said on seven occasions that defendant lied, used the word "lied," "lie," or "lies"
in reference to defendant nineteen times, and called defendant a "liar":
He closed those blinds. Deception, lies, one after the
other. Proof of plan and purpose equals murder . . . .
....
This was an ambush. She had no way out. No way out.
And at the minimum of the lies he tells the only half
truth we get is that he does admit he strangled her with
both hands . . . .
....
The other thing we know is that there were lies to
Debbie. Very, very many lies to Debbie. We know that
at 3:18 the text messages with Debbie begin. She tried
calling him but he didn't pick up the phone. So she
texted him. I guess it's easier to lie over text than by
voice "Everyone's really worried so please call me or in
fifteen minutes we're calling the cops."
Now what does he do after that? He texts lie after
lie after lie. Dropped them off to the dentist. Who
A-4871-17T1
19
knows, maybe they're seeing a movie. Her phone died
when she was texting me. Say they had plans with
mommy to see a movie on Friday night, going out.
And the pieces de resistance, she's probably
having the kids lie to me, knowing full well he's the liar,
he's the one with the kids in that car and he's the one
who just killed her and left her in the bed that she shares
with them. . . . Lie, after lie, after lie.
....
He lied and we're going to get to how he lied up there
soon, but he lied to Debbie over and over and over
again, knowing full well Tracey was indeed gone . . . .
....
Again maybe one thing he doesn't lie about. He
certainly puts a lot of thought into everything he does
....
This whole story, this lie about being kneed in the
groin, about Tracey threatening to take the kids, come
on. The evidence doesn't show that. The evidence
doesn't show struggle. The evidence shows ambush.
The evidence shows no defensive wounds. The
evidence shows that Tracey was helpless and she was
never going to be able to fight back. The evidence
shows he planned this down to a "T" . . . .
....
We talked about the school, and how he lied about
where he was taking them. We talked about the lies to
Debbie that impinged upon the investigation. We
talked about the text . . . .
A-4871-17T1
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[(emphasis added).]
Defendant's credibility was a key issue on the question of the
classification of the homicide. The dispute was not whether he killed his wife,
but whether he did so purposefully or knowingly, or whether the conduct could
be mitigated to manslaughter committed under reasonable provocation. The
prosecutor's characterizations were improper, even if woven into his recitation
of the facts developed at trial.
We conclude, however, that the comments did not affect the outcome. The
letters and text messages defendant sent to himself and family detailed his intent
and plan. If the communications had been mere expressions of his emotional
interior life, they would not have been drafted and redrafted so as to lay the
blame for the situation on the victim's head. Ordinary journaling does not
include sending those entries to others—presumably they are kept private to the
author. The victim had no defensive wounds, and the murder scene was neat
and orderly. There were no signs of any struggle.
These well-established circumstances contradicted defendant's testimony
that Tracey attacked him physically, kicked him in the groin, and then threatened
he would never see the children again. In addition, the jury was presented with
the disparity between defendant's statements to police and his trial testimony.
A-4871-17T1
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There was overwhelming support in the record for the position that defendant
was not being truthful. The improper comments thus cannot be characterized as
having been so prejudicial as to require that we set aside the verdict.
IV.
Defendant has no prior criminal history. In sentencing defendant, the
judge correctly merged third-degree possession of a weapon for unlawful
purpose, a knife, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of
a weapon, a knife, N.J.S.A. 2C:39-5(d), into the murder count. He found
aggravating factors one, two, three, and nine, and in mitigation, only factor
seven. See N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9) and N.J.S.A. 2C:44-1(b)(7).
The minimum sentence for murder is thirty years. N.J.S.A. 2C:11-3(b)(1).
The judge concluded that the cold-blooded nature of the killing,
defendant's detailed planning and execution, and his explanation for his conduct,
at odds with the scene, demonstrated defendant was at risk to commit further
criminal acts. We agree.
The court's rejection of mitigating factors eight and nine were supported
by the record. Defendant's response to his wife's purported disloyalty occurred
after the parties had been separated for a significant amount of time. The record
supports the court's determination that defendant was at risk of reoffense, as
A-4871-17T1
22
defendant chose to kill his wife as opposed to resolving the parties' dispute s
within the safe structure of the family court.
The judge anchored aggravating factor one to the impact defendant's
conduct would have on the children. See State v. Lawless, 214 N.J. 594, 609-
10 (2013) (noting that factor one is measured by the "impact on . . . the overall
circumstances surrounding the criminal event" to determine the "gravity of
defendant's conduct."). Furthermore, defendant's manner of killing his wife
does appear to be particularly heinous in that first he rendered her unconscious
by choking her, then stabbed her.
The disparity in size between the victim and defendant contributed to
aggravating factor two. She was not only slight of build, while at the time of
the murder defendant weighed between 200 and 220 pounds, but by first choking
her, defendant made her incapable of physical resistance, thus implicating
aggravating factor two.
Defendant is at risk of reoffense. He provided an unconvincing rationale
for the killing, his response to her alleged unfaithfulness during the marriage,
while failing to hold himself accountable.
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The court found aggravating factor nine and gave it great weight. There
are many whose family disputes can be resolved without violence through the
courts—and it is important to deter them.
Trial judges have broad discretion over sentencing so long as they
appropriately identify aggravating and mitigating factors, express the competent
credible evidence upon which they rely, and properly balance the factors. See
State v. Case, 220 N.J. 49, 65 (2014). The sentence the judge imposed was a
reasoned exercise of discretion, well within the bounds of the statutory scheme.
Affirmed.
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