State v. D'Amato

• Decision Date: 30 June 1987
• Citation: 528 A.2d 928,218 N.J.Super. 595
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Angelo Paul D'AMATO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 595

218 N.J.Super. 595

528 A.2d 928

STATE of New Jersey, Plaintiff-Respondent, v. Angelo Paul D'AMATO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 6, 1987.

Decided June 30, 1987.

Barbara J. Lieberman, Atlantic City, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Barbara J. Lieberman, designated counsel, and on the brief).

Mary Ellen Halloran, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney; Mary Ellen Halloran, of counsel and on the brief).

Before Judges FURMAN, SHEBELL and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a, and theft, in violation of N.J.S.A. 2C:20-3. Tried to a jury, defendant was convicted of third degree theft. The jury could not reach a verdict on the murder count and a mistrial was declared. At a second trial, defendant was convicted of the murder. The offenses occurred in February, 1981.

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 DEFENDANT'S 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 DEFENDANT'S 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 testified as to defendant's admissions to him which were consistent with the testimony of Arthur Devine, and the totality of the evidence in the case.

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, 360 A.2d 362 (1976); State v. DeMarco, 211 N.J.Super. 421, 511 A.2d 1251 (App.Div.1986). ¹ See also N.J.S.A. 2C:1-9d. Defendant contends that the conviction for third degree theft must be vacated because the indictment was defective in not charging the value of the items stolen, because the trial judge did not have authority to submit the question of value to the jury after it had announced its verdict without specificity as to value, and because the trial judge failed to charge the jury that value must be proven beyond a reasonable doubt.

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 property stolen. A special verdict sheet was given to the jury, see R. 3:19-1, and the jury deliberated about 10 minutes before finding the value to be over $500.

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, 488 A.2d 545 (1985). See also N.J.S.A. 2C:1-13a. At least prior to the adoption of the Code of Criminal Justice, effective September 1, 1979, the value of stolen property constituted an element of a theft offense. See State v. Lopez, 160 N.J.Super. 30, 36-38, 388 A.2d 1273 (App.Div.1978); State v. Inman, 140 N.J.Super. 510, 357 A.2d 6 (App.Div.1976). Theft constitutes a crime of the third degree if the amount taken exceeds $500 but is less than $75,000, a crime of the fourth degree if the amount stolen is at least $200 but does not exceed $500 and a...