STATE OF NEW JERSEY VS. ARTHUR E. MORGAN, III (12-06-1138, MONMOUTH COUNTY AND STATEWIDE(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1123-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTHUR E. MORGAN, III,
Defendant-Appellant.
___________________________
Submitted January 31, 2017 – Decided March 21, 2017
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
12-06-1138.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the briefs).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
A two-year-old girl was found dead in a stream. The child
had been strapped into a car seat and the car seat had been
weighted down with a tire jack. An autopsy report concluded that
the child had drowned. Just prior to her death, the girl had been
in the care of her father, defendant Arthur E. Morgan, III.
A jury convicted defendant of first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); second-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a); and third-degree interference with
custody of a child, N.J.S.A. 2C:13-4(a)(1). The jury also found
that defendant committed the murder by his own conduct and that
the victim was less than fourteen years old, which is an
aggravating factor under N.J.S.A. 2C:11-3(b)(4)(k).
On the murder conviction, defendant was sentenced to life in
prison without eligibility for parole as required by N.J.S.A.
2C:11-3(b)(4). As part of his murder conviction, defendant was
also sentenced to the prescriptions of the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. On his conviction for interfering
with custody, defendant was sentenced to a consecutive five years
in prison with two and a half years of parole ineligibility. The
conviction for endangering the welfare of a child merged into the
murder conviction.
Defendant appeals his convictions and sentence. We affirm.
2 A-1123-14T2
I.
The facts were established at trial. Defendant had been in
a dating relationship with I.B.1 I.B. described the relationship
as an on-again-off-again relationship that had lasted for over
three years. Defendant and I.B. had been engaged, but I.B. had
recently broken off the engagement. When the relationship was
off, defendant obsessed about I.B. and would contact her
excessively. For example, in the three days before the child's
death, defendant called I.B. over 600 times.
Defendant and I.B. had a daughter, T.M.-G., who had been born
in 2009. I.B. had primary custody of the daughter, and defendant
had the right to parenting time. On November 21, 2011, defendant
had parenting time with his two-year-old daughter beginning at
approximately 2 p.m. He was supposed to return T.M.-G. at 6 p.m.
The daughter, however, was never returned.
Through witness interviews, cell phone records, and store
receipts, the police developed a timeline of defendant's
activities on November 21, 2011. In the morning of that day,
defendant had visited a friend, J.B., and they had smoked marijuana
together. Between 11:30 a.m. and 1:20 p.m., defendant called a
friend in California and the Greyhound Bus Company. At
1
To protect privacy interests, witnesses and the victim will be
identified by initials.
3 A-1123-14T2
approximately 2 p.m., defendant picked up his daughter. As he was
leaving with T.M.-G., defendant yelled obscenities at I.B. At
approximately 4 p.m., defendant called J.B. and asked if he wanted
to buy defendant's car for $300. Shortly thereafter, he visited
McDonald's and then went to Shark River Park. Witnesses saw a
car, matching the description of defendant's car, in the park
between 4:30 p.m. and 6 p.m.
At approximately 6 p.m., defendant went to J.B.'s apartment
without the child. The two men had a drink together and J.B.
described defendant as acting normal. Defendant informed J.B.
that he was going to California and asked J.B. to take him to the
Asbury Park train station, which J.B. did at approximately 7 p.m.
Meanwhile, when T.M.-G. was not returned on time, I.B. called
defendant to find out where he was. I.B. last spoke to defendant
at approximately 6:30 p.m. on November 21, 2011. Defendant assured
I.B. that T.M.-G. was okay, and he was getting gas and would be
late. When defendant did not return with the child by 7 p.m.,
I.B. repeatedly called defendant, but he did not pick up any of
her calls. At approximately 10 p.m., I.B. called the police.
Through surveillance videos, the police were able to track
defendant's movements after he was dropped off at the Asbury Park
train station. From Asbury Park, defendant traveled to the Long
Branch train station and then to Penn Station in Newark. At Penn
4 A-1123-14T2
Station, defendant boarded a Greyhound bus to Richmond, Virginia.
Thereafter, defendant traveled from Virginia to California.
On November 29, 2011, United States Marshals arrested
defendant in San Diego, California. Following his arrest,
defendant was given his Miranda2 warnings, he waived his rights,
and gave a video-recorded statement. During that statement,
defendant admitted that he had taken his daughter to Shark River
Park on November 21, 2011. He also admitted that he had placed
his daughter in a car seat, weighted down the car seat with a car
jack, and placed the child in a stream. Defendant then left his
daughter in the stream. Defendant claimed that the child was
still alive and sitting up when he left.
Defendant stated that he had left his daughter in the stream
because he could not bear the thought that he would not be able
to see her due to conflicts with I.B. In that regard, he stated
that thinking about what the child would go through "completely
made [him] crazy." He also explained that he wanted to make the
final decision for his daughter and he was at peace because his
daughter was in Heaven.
The car seat with the lifeless child had been removed from a
depth of approximately twenty inches of water. At that location,
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5 A-1123-14T2
the stream was approximately twenty-five feet wide and the seat
was directly in the center of the stream. The seat had been on
its right side with the child's left arm and leg facing skyward.
To try to determine how the car seat had come to that
location, the prosecutor's office conducted three re-enactment
scenarios. During the re-enactments, they used a car seat matching
the one in which the child had been found. They then placed a
sandbag weighing thirty-nine pounds in the seat, which was the
weight of the child at the time of her death. Finally, they
weighed the seat down with a car jack.
In the first scenario, an officer waded from the bank into
the stream up to approximately eight inches of water and placed
the car seat in the water. The car seat did not move. In the
second scenario, the officer waded further into the stream to a
higher elevation of water and dropped the car seat into the stream.
The car seat rocked, but remained upright and thereafter did not
move. In the third scenario, the police dropped the car seat from
the center of the bridge, the seat landed on its back in the water
and immediately sank without moving thereafter.
Following defendant's interview, on December 1, 2011, a San
Diego sheriff's detective informed defendant that he was being
extradited to New Jersey. Defendant responded, "I know that New
6 A-1123-14T2
Jersey doesn't have a death penalty so what am I looking at when
I get back there, what sentence?"
As part of their investigation, the police also identified a
witness, C.T., with whom defendant had lived between July and
October 2011. C.T. explained that she had allowed defendant to
live rent free with her. She also stated that in July 2011,
defendant had told her that "he would rather see his daughter dead
than be with [I.B.]" C.T. also informed the police that she had
lent defendant a car jack. At trial, defendant stipulated that
the car jack lent by C.T. had been found attached to the child's
car seat.
Prior to trial, defendant made a series of motions. He filed
a motion for change of venue contending that there was presumptive
prejudice against him because of media coverage of the child's
death. The trial court denied that motion without prejudice to
renewal during jury selection. Defendant also filed a motion to
bar the prosecutor's re-enactment scenarios concerning how the car
seat came to be located in the river. The trial court barred the
State from introducing the videotape of the re-enactment
scenarios, but allowed a detective to testify as to the various
scenarios performed and their results.
7 A-1123-14T2
Defendant also moved to suppress the statements he had given,
including his statement to the San Diego sheriff's detective.
After conducting a hearing, the trial court denied that motion.
At trial, the State introduced testimony from more than twenty
witnesses. Among those witnesses, the jury heard from C.T. and
the San Diego detective. The jury also heard redacted portions
of defendant's recorded statement.
A medical examiner also testified concerning an autopsy
conducted on T.M.-G. following her death. The medical examiner
testified that the child had been healthy prior to her death and
that there was no evidence of prior injury or abuse. The examiner
opined that the child had died as a result of drowning and
concluded that the child's death was a homicide.
After hearing the evidence, a jury convicted defendant of
murder, endangering the welfare of a child, and interfering with
the custody of a child. As already noted, defendant was then
sentenced to life imprisonment without the possibility of parole.
Defendant now appeals his convictions and sentence.
II.
On appeal, defendant makes six arguments, which he
articulates as follows:
POINT I – BECAUSE THE TRIAL COURT'S CHARGE TO
THE JURY WAS FLAWED THE CONVICTIONS MUST BE
8 A-1123-14T2
REVERSED AND THE MATTER REMANDED FOR A NEW
TRIAL
A. The trial court erred when it ignored the
requirements of Delibero and refused to
charge the jury with the Defense's
proposed modified charge on "evidence of
mental disease or defect["]
B. The trial court erred when it refused to
charge the jury with passion/provocation
manslaughter
C. The trial court failed to charge the jury
on voluntary intoxication (not raised
below)
POINT II – THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S REQUEST TO EXCUSE JUROR NUMBER
[SIX] ONCE IT WAS DISCLOSED THAT JUROR NUMBER
[SIX'S] DAUGHTER WAS FRIENDS WITH ONE OF THE
WITNESSES
POINT III – THE TRIAL COURT ERRED WHEN IT
ALLOWED [C.T.] TO TESTIFY REGARDING
DEFENDANT'S STATEMENT THAT HIS DAUGHTER WOULD
BE BETTER OFF DEAD
POINT IV – THE TRIAL COURT ERRED WHEN IT
ADMITTED DEFENDANT'S STATEMENT TO [THE
SHERIFF'S DETECTIVE] INTO EVIDENCE
POINT V – THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT A CHANGE OF VENUE
POINT VI – THE SENTENCE WAS EXCESSIVE
Having reviewed the record and law, we find no merit in any of
defendant's arguments. We will address each argument in turn.
9 A-1123-14T2
A. The Jury Instructions
Defendant contends that the jury instructions were defective
because they did not include (1) a modified diminished capacity
instruction, (2) a passion/provocation manslaughter charge, and
(3) an intoxicated defense charge.
Correct and appropriate jury charges are essential to a fair
trial. Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002).
Moreover, a trial judge has the duty to ensure that the jury
receives accurate instructions on the law as it pertains to the
facts and issues in each case, "irrespective of the particular
language suggested by either party." State v. Baum, 224 N.J. 147,
159 (2016).
"Jury charges 'must outline the function of the jury, set
forth the issues, correctly state the applicable law in
understandable language, and plainly spell out how the jury should
apply the legal principles to the facts as it may find them
. . . .'" Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v.
Portadin, 163 N.J. 677, 688 (2000)). Accordingly, "[an] alleged
error is viewed in the totality of the entire charge, not in
isolation." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.
2010) (quoting State v. Nero, 195 N.J. 397, 407 (2008)), certif.
denied, 205 N.J. 81 (2011).
10 A-1123-14T2
Generally, "an appellate court will not disturb a jury's
verdict based on a trial court's instructional error 'where the
charge, considered as a whole, adequately conveys the law and is
unlikely to confuse or mislead the jury, even though part of the
charge, standing alone, might be incorrect.'" Wade v. Kessler
Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143
N.J. 235, 254 (1996)). The focus is whether the instructions are
capable of producing an unjust result or prejudicing substantial
rights. Fisch v. Bellshot, 135 N.J. 374, 392 (1994).
Clearly erroneous instructions are "poor candidates for
rehabilitation under the harmless error philosophy." State v.
Loftin, 146 N.J. 295, 412 (1996) (quoting State v. Simon, 79 N.J.
191, 206 (1979)). Nevertheless, "[c]ourts uphold even erroneous
jury instructions when those instructions are incapable of
producing an unjust result or prejudicing substantial rights."
Fisch, supra, 135 N.J. at 392.
1. Diminished Capacity/State-of-Mind Instruction
Defense counsel asked the court to include a modified version
of the "Evidence of Mental Disease or Defect" jury instruction.
Although defense counsel acknowledged that he would not be
presenting testimony regarding mental disease or defect, and that
neither a diminished capacity nor an insanity defense applied in
11 A-1123-14T2
this case, he nevertheless asked for a modified "state-of-mind"
charge.
In making that argument, defense counsel cited and relied on
the decision in State v. Delibero, 149 N.J. 90 (1997). The
defendant in Delibero was charged with robbery and he introduced
evidence of his diminished capacity and insanity. Id. at 94-95.
That evidence included testimony from two psychiatric experts,
both of whom testified that the defendant was suffering from a
mental illness at the time of the offense. Ibid. There, the
Court held that when a defendant presents evidence of insanity or
diminished mental capacity, the jury should be instructed to
consider such evidence in determining whether the State had proven
beyond a reasonable doubt that defendant possessed the requisite
mental state to be convicted of the offense charged. Id. at 106-
07.
Here, the trial court rejected defendant's requested "state-
of-mind" charge for three reasons. First, the court reasoned that
given defendant's concession that he would not submit a mental
defense to the jury, the charge would be confusing and misleading.
Second, the court pointed out that the model charge on murder
sufficiently and correctly addressed the state-of-mind and
reasonable doubt issues. Finally, the court distinguished the
facts in this case from the facts in Delibero. Id. at 93-95. The
12 A-1123-14T2
trial court then gave instructions that tracked the model charges
for murder, including an instruction on the requisite state of
mind and that the State had the burden to prove the requisite
purpose or knowledge beyond a reasonable doubt.
We discern no error in the trial court's jury instruction as
it related to state of mind. Here, there was no evidence that
defendant suffered from a mental disease or defect affecting his
ability to act with the requisite purpose or knowledge. Defendant
offered no expert to support such a position. Instead, defendant
contends that evidence related to his mental defects included (1)
statements he made to the police during his interview, (2)
references that he suffered from sleep deprivation, (3) his
obsessive phone calls, and (4) a reference to an attempted suicide
in June 2011.
As the trial court correctly found, none of that evidence
rose to the level of establishing insanity or a diminished
capacity. See Id. at 92 ("Diminished capacity describes a disease
or defect of mind that may negate the mental state that is an
element of the offense charged."). Indeed, as already pointed
out, defense counsel did not request a diminished capacity
instruction. Instead, he requested a sui generis "state-of-mind"
instruction that he crafted. We agree with the trial court that
13 A-1123-14T2
giving such an instruction in the context of this case would have
been potentially confusing and misleading.
Finally, we note, that defense counsel was permitted to make
arguments about defendant's state of mind as it related to the
charges against him. Thus, there is also no showing of an unjust
result or prejudice to any of defendant's rights.
2. Passion/Provocation
Defendant also argues that the trial court erred in not
instructing the jury on the passion/provocation defense to murder.
We disagree.
Passion/provocation manslaughter is a murder committed in the
heat of passion in response to provocation. N.J.S.A. 2C:11-
4(b)(2). Passion/provocation has 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 before the slaying." State v. Galicia, 210
N.J. 364, 379-80 (2012) (quoting State v. Josephs, 174 N.J. 44,
103 (2002)). The first two elements are "objective[,]" and if
those elements are supported by the evidence, passion/provocation
manslaughter should be charged and the remaining two subjective
elements should be left to the jury to consider. Josephs, supra,
174 N.J. at 103.
14 A-1123-14T2
Here, defendant argues that he killed his two-year-old
daughter in the heat of passion resulting from reasonable
provocation by the child's mother. The trial court denied
defendant's request for such an instruction, holding that
provocation will not mitigate the murder of an innocent bystander.
The trial court also reasoned that the words of the mother, spoken
over the phone to defendant, were not sufficient to constitute
adequate provocation. Finally, the trial court found that there
was no rational basis for a jury to determine that defendant's
response of murdering the child was proportionate to any words
allegedly spoken by the mother.
We agree with the trial court on all three grounds. We have
previously held that "the killing of innocent bystanders does not
qualify as a homicide incited by provocation." State v. Lewis,
223 N.J. Super. 145, 151 (App. Div.), certif. denied, 111 N.J. 584
(1988). That holding in Lewis applied and controlled here.
Defendant's argument that the Supreme Court may someday disagree
with our holding in Lewis is not persuasive. Indeed, the facts
here only underscore that passion/provocation does not apply to
the killing of an innocent child.
Moreover, the facts presented in this trial did not constitute
adequate provocation. Furthermore, there was no evidence
indicating that defendant had an inadequate cooling off period
15 A-1123-14T2
between the alleged provocation and slaying. Defendant had his
daughter in his care for several hours before he put her in the
stream. During that time, he made phone calls to a friend, as
well as to the child's mother. The record here is simply devoid
of any evidence of either a proportional provocation or an
inadequate time to cool off.
3. Voluntary Intoxication
Defendant never requested an intoxication instruction at
trial. Now, however, he contends that because there was some
evidence that he had smoked marijuana and purchased liquor, the
trial judge should have sua sponte instructed the jury on voluntary
intoxication. We discern no plain error and, thus, we conclude
that there was no error capable of producing an unjust result.
Here, while there was some evidence that defendant smoked
marijuana earlier in the day, there was no evidence that he was
under the influence when he killed his child. Consequently,
because the evidence did not "'clearly indicate' the
appropriateness of [an intoxication] charge[,]" the trial judge
did not err by not giving such a charge. State v. R.T., 411 N.J.
Super. 35, 48 (App. Div. 2009) (quoting State v. Savage, 172 N.J.
374, 397 (2002)), certif. denied, 205 N.J. 493 (2011).
16 A-1123-14T2
B. The Trial Court's Refusal to Excuse Juror Number Six
At the beginning of the fourth day of testimony, juror number
six informed the trial judge that he had learned that a State's
witness who testified the day before was a classmate of his
daughter. The trial court appropriately questioned the juror in
the presence of counsel. The juror explained that he had just
learned that the witness had gone to school with his daughter and
his daughter had informed him of that fact the night before. The
juror also disclosed that when the witness actually testified, he
did not recognize him, but he acknowledged that the witness had
visited his house in the past. The juror then informed the court
that the connection of the witness to his daughter would in no way
affect his ability to be fair and impartial.
Following this questioning, defense counsel requested the
judge to excuse juror number six. Counsel could only explain that
defendant was not "comfortable now with this juror." The trial
court properly found that there was no cause to dismiss juror
number six. The trial court also noted that the witness' testimony
was similar to another witness' testimony and really did not
address a disputed issue.
Defendant now argues that had he known this information during
jury selection, he would have exercised a peremptory challenge.
Thus, his rights were adversely affected when the trial court
17 A-1123-14T2
refused to excuse juror number six. We disagree. Once trial
begins, jurors may be dismissed only for "good cause." R. 1:8-
2(d)(1). If a jury discloses information after he or she has been
sworn which, if revealed during selection, would have drawn a
peremptory challenge, there may be grounds for objection. See
State v. Jackson, 43 N.J. 148, 162 (1964).
Here, in contrast, juror number six did not fail to disclose
known information during the selection process. Instead, juror
number six only became aware that one of the witnesses was a
classmate of his daughter the night after the witness testified.
Thus, the juror did not give incorrect or misleading information,
nor did he fail to disclose information during jury selection.
Moreover, there is no showing of any prejudice to defendant.
Under questioning by the trial judge, the juror assured the court
and counsel that the connection between his daughter and the
witness would have no influence on his ability to be fair and
impartial. There is nothing in the record to question that
assurance.
C. Defendant's Statements to C.T.
Defendant challenges the trial court's admission of C.T.'s
testimony that defendant told her that "he would rather see his
daughter dead than be with her mother." Defendant contends that
the prejudicial effect of that testimony outweighed its probative
18 A-1123-14T2
value and the testimony should have been excluded under N.J.R.E.
403. Defendant also contends that the trial court's instruction
to the jury concerning C.T.'s testimony was defective because it
failed to mold the instruction to the facts.
We review a trial court's evidentiary rulings for abuse of
discretion. State v. Nantambu, 221 N.J. 390, 402 (2015).
Accordingly, a trial court's evidentiary rulings will not be
overturned unless a manifest injustice has occurred. State v.
J.D., 211 N.J. 344, 354 (2012). "To the extent [a] defendant's
argument . . . raises a question of law, . . . our review is de
novo and plenary." Ibid.
N.J.R.E. 403 provides that "relevant evidence may be excluded
if its probative value is substantially outweighed by the risk of
(a) undue prejudice, confusion of issues, or misleading the jury."
"The mere possibility that evidence could be prejudicial does not
justify its exclusion" under N.J.R.E. 403. State v. Brockington,
439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State v. Long,
173 N.J. 138, 164 (2002)). Instead, for evidence to be excluded
under N.J.R.E. 403, the probative value must be "so significantly
outweighed by its inherently inflammatory potential as to have a
probable capacity to divert the minds of the jurors from a
reasonable and fair evaluation of the issues in the case." State
19 A-1123-14T2
v. Wakefield, 190 N.J. 397, 429 (2007) (quoting State v. Koskovich,
168 N.J. 448, 486 (2001)).
Here, the trial court conducted a Rule 104 hearing before
allowing C.T. to testify. The judge found that the statement was
a statement by a party opponent and was admissible hearsay under
N.J.R.E. 803(b). The judge also found that the statement had
probative value to the disputed issue concerning defendant's
purpose and motive for killing his daughter. Finally, the judge
found that probative value was not substantially outweighed by any
potential prejudice.
We discern no abuse of discretion in the trial court's ruling
allowing C.T. to testify. Defendant's statements to C.T. went
directly to the disputed issue of defendant's motive and planning
of the murder. That the statement was made four months prior to
the murder was a fact that the jury could consider in weighing the
value of the testimony, but it does not support the exclusion of
the testimony.
After C.T. testified, the court instructed the jury on the
appropriate use of defendant's statement. In that regard, the
court's instructions followed the model charge concerning
statements of defendant. Defendant now argues that the charge was
imbalanced because it focused the jury on defendant's intent
20 A-1123-14T2
without instructions about considering evidence that negated
defendant's intent.
We discern no error in the trial court's instructions in this
case. Moreover, defense counsel did not object to the instructions
when they were given and we discern no plain error in the
instructions. State v. Funderburg, 225 N.J. 66, 79 (2016).
D. Defendant's Statement to the San Diego Detective
Next, defendant contends that the trial court erred in
allowing the San Diego detective to testify concerning the
statement defendant made to the detective. During his extradition,
defendant asked the San Diego detective: "I know that New Jersey
doesn't have a death penalty, so what am I looking at when I get
back there, what sentence?" Before trial, the court conducted a
hearing and found that the statement was admissible and denied
defendant's motion to suppress. Defendant did not challenge the
statement under N.J.R.E. 403 at the trial, but he now argues that
the statement's probative value is substantially outweighed by its
prejudicial effect and, therefore, it should have been precluded
under N.J.R.E. 403.
Defendant's statement to the detective about his potential
sentence had probative value in that it tended to show he knew
what he had done and that what he had done was wrong. We discern
no error in the trial court's admission of that statement.
21 A-1123-14T2
Moreover, we discern no plain error because the admission of that
statement was not "clearly capable of producing an unjust result."
R. 2:10-2; State v. Green, 447 N.J. Super. 317, 325 (App. Div.
2016).
E. The Motion for Change of Venue
Defendant also contends that the trial court erred when it
denied his motion to change venue. Before trial, defendant filed
a motion to change venue based on the presumptive prejudice against
him because of media coverage of the child's death. The trial
court denied the motion without prejudice, permitting defendant
to renew the motion during jury selection. Defendant, however,
never renewed his motion to change venue.
We review a trial court's decision on a motion to change
venue under an abuse of discretion standard. State v. Nelson, 173
N.J. 417, 476-77 (2002). The trial court has discretion in
determining whether a change of venue is "necessary to overcome
the realistic likelihood of prejudice from pretrial publicity."
State v. Biegenwald, 106 N.J. 13, 33 (1987) (quoting State v.
Williams, 93 N.J. 39, 67-68 n. 13) (1983)). Here, we discern no
abuse of discretion. The trial court afforded defendant an
opportunity to renew the motion during jury selection. Defendant
never took that opportunity.
22 A-1123-14T2
Further, there is no evidence in the record that suggests the
jury selection process was tainted by media publicity. Each
potential juror was asked whether he or she had any knowledge of
the case prior to the trial. Some answered "yes," but explained
that their recollection of the event was vague and limited. The
trial court also asked each prospective juror whether he or she
could decide the case based solely on what will be presented during
trial. Each selected juror answered affirmatively.
F. The Sentence
Finally, defendant argues that the trial judge erred in
imposing consecutive sentences for his convictions of murder and
interfering with the custody of a child. In that regard, defendant
contends that the sentencing judge failed to conduct an adequate
analysis of the Yarbough factors. State v. Yarbough, 100 N.J. 627
(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.
2d 308 (1986). We reject this contention.
Appellate review of sentencing decisions is deferential and
governed by an abuse of discretion standard. State v. Blackmon,
202 N.J. 283, 297 (2010). "The reviewing court must not substitute
its judgment for that of the sentencing court." State v. Fuentes,
217 N.J. 57, 70 (2014). An appellate court must affirm a sentence
unless:
23 A-1123-14T2
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, supra, 217 N.J. at 70 (alteration
in original) (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).]
Whether a sentence violates sentencing guidelines is a question
of law that we review de novo. State v. Robinson, 217 N.J. 594,
603-04 (2014).
In Yarbough, the Court set forth the factors to be considered
when deciding whether to impose consecutive or concurrent
sentences. Yarbough, supra, 100 N.J. at 643-44. The Yarbough
factors essentially focus upon "the nature and number of offenses
for which the defendant is being sentenced, whether the offenses
occurred at different times or places, and whether they involve
numerous or separate victims." State v. Carey, 168 N.J. 413, 423
(1989). The "no free crimes" guideline set forth in Yarbough
"tilts in the direction of consecutive sentences because the Code
focuses on the crime, not the criminal." Ibid.
Considering these criteria, the trial court properly imposed
consecutive sentences because the court found that the
interference with custody conviction was a separate crime from the
24 A-1123-14T2
murder conviction. We discern no abuse of discretion in the
imposition of a consecutive sentence in this matter.
Affirmed.
25 A-1123-14T2