State v. O'Donnell

• Decision Date: 25 October 1989
• Citation: 564 A.2d 1202,117 N.J. 210
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Charles O'DONNELL, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 210

117 N.J. 210

564 A.2d 1202

STATE of New Jersey, Plaintiff-Appellant, v. Charles O'DONNELL, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 12, 1989.

Decided Oct. 25, 1989.

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-appellant (Peter N. Perretti, Jr., Atty. Gen. of New Jersey, attorney; Mildred Vallerini Spiller, Deputy Atty. Gen., of counsel and on the brief).

Robert T. Norton, for defendant-respondent (Norton, DeRose, Hamilton & Kress, Westfield, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

Following defendant's conviction for official misconduct, the trial court sentenced him to a six-year custodial term. In an unreported opinion, the Appellate Division sustained the conviction, but reversed the sentence and remanded the matter for resentencing. We granted the State's motion for leave to appeal, and now reinstate the sentence originally imposed by the trial court.

I.

The facts surrounding the sordid incident underlying this case may be summarized as follows. On August 31, 1984, defendant, Charles O'Donnell, a police officer of the City of Elizabeth, arrested Kevin Burns. Because Burns resisted the arrest, defendant and his partner, Officer Kelly, subdued him. Three other police officers arrived to provide "back-up" support and to control a gathering crowd. Instead of taking Burns to a holding cell at police headquarters, Kelly and O'Donnell took him to the police garage. According to Burns, defendant said the officers intended to beat him because he had robbed elderly residents of Elizabeth, including the relative of another police officer, Joseph Overberger. Defendant did not testify, and Kelly did not recall defendant making that statement.

At the garage, Burns's hands and ankles were handcuffed. Defendant and Kelly then placed Burns's hands on a hydraulic lift, which Kelly raised until Burns was lifted off his feet. While Burns was suspended, defendant hit him in the legs with a nightstick. Additionally, defendant punched the victim so hard that the stone fell from defendant's Marine Corps ring. Officer Overberger arrived and also punched Burns. After the beating, Burns was taken to Elizabeth General Hospital because of an arm injury he suffered before his arrest.

None of the police officers involved in the beating reported the incident. The matter came to light when an assistant prosecutor was preparing for the trial of Burns on several robbery charges. Aware of Burns's allegations that he had been beaten, the prosecutor interviewed defendant, who initially said that he had used his nightstick because Burns had resisted arrest. After being assured that his comments would be "off the record," O'Donnell told the prosecutor about the beating: "We took him back to the garage and beat him. We took care of him. We laid into him with our nightsticks. We called Overberger down and 'he got licks in, too.' " Defendant related the details of the beating and asserted that the police officers had beaten the victim "for the old people that Burns had gotten." He explained why the officers had beaten Burns between the neck and legs: "We only did that because when I had first gotten on the force I had opened up some guy's head and I had gotten some shit for that, besides it hurts more to hit them in the legs and it doesn't leave marks."

Defendant told the prosecutor not to worry about the incident because no one was present but the victim and police officers. Furthermore, defendant stated that if he were questioned, he would swear that he never hit Burns.

Together with two other police officers, defendant was indicted for official misconduct, contrary to N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6, as well as aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) and N.J.S.A. 2C:2-6. Officer Kelly turned State's witness and testified under a grant of immunity. N.J.S.A. 2A:81-17.3. The other officers were acquitted of all charges, and defendant was acquitted of aggravated assault. The jury was unable to agree on the charge of official misconduct against defendant, but on retrial defendant was found guilty of that charge.

Balancing the aggravating and mitigating factors, the trial court sentenced defendant to six-years' imprisonment without any parole ineligibility. The court found that defendant, who was a decorated Viet Nam veteran, had an exceptional record as a public servant. The only other mitigating factor was the potential hardship defendant would face in prison. N.J.S.A. 2C:44-1b(7) and -(11). Because of O'Donnell's boastful attitude about the beating administered to Burns, the court specifically rejected arguments that defendant was unlikely to commit another offense. N.J.S.A. 2C:44-1b(9). The court then found a number of aggravating factors: the cruelty of the assault, N.J.S.A. 2C:44-1a(1); the victim's vulnerability, N.J.S.A. 2C:44-1a(2); the likelihood that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); and the need to deter similar police misconduct, N.J.S.A. 2C:44-1a(9).

In vacating the sentence, the Appellate Division found that the trial court improperly considered certain aggravating factors and failed to consider some mitigating factors. With respect to the aggravating factors, the Appellate Division ruled that the sentencing judge erred by concluding that there was risk that defendant would commit another offense. N.J.S.A 2C:44-1a(3). The Appellate Division also found as a matter of law that the intentional nature of the offense did not support a finding that the crime was committed in a cruel manner. N.J.S.A. 2C:44-1a(1). Finally, the court found that by handcuffing the victim and suspending him from the hydraulic lift, defendant had not rendered him vulnerable or incapable of resistance within the meaning of N.J.S.A. 2C:44-1a(2). Concerning the mitigating factors, the Appellate Division stated that the trial court erred by failing to consider that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8), and that the defendant was unlikely to commit another offense, N.J.S.A. 2C:44-1b(9). The State's appeal asserts that the Appellate Division incorrectly interpreted the meaning of the relevant aggravating factors and that the court exceeded its power of review by substituting its judgment for that of the trial court.

II.

This case requires us to revisit the relative roles of trial and appellate courts in the sensitive area of sentencing. We begin with a review of familiar principles pertaining to those roles. In general, a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence. State v. Kruse, 105 N.J. 354, 359-60, 521 A.2d 836 (1987); State v. Roth, 95 N.J. 334, 359-60, 471 A.2d 370 (1984). The role of the appellate court is different. It does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. State v. Jarbath, 114 N.J. 394, 400-01, 555 A.2d 559 (1989); Roth, supra, 95 N.J. at 364-65, 471 A.2d 370. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. Roth, supra, 95 N.J. at 365, 471 A.2d 370. With those precepts in mind, we turn to the sentence before us.

The trial court found that defendant was likely to commit another offense, N.J.S.A. 2C:44-1a(3), stating:

[F]rom your attitude in telling the Assistant Prosecutor what you had done to Kevin Burns, being proud, almost boastful of what had happened to him, I cannot say that you would not commit a similar offense taking the law into your own hands and you felt justified, although, of course, you will no longer be able to do that as a police officer.

The Appellate Division rejected the trial court's finding:

[W]e see no basis in the evidence to support the judge's finding that there is a risk that O'Donnell would commit another crime. In fact, just the opposite is true. Given O'Donnell's age, unblemished record and what he has suffered as a result of this single, inexplicable wrongdoing, it seems highly unlikely that he is a risk for future criminal behavior.

We disagree.

The fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. Roth, supra, 95 N.J. at 365-66, 471 A.2d 370. From the evidence adduced before it, the trial court found that defendant was "almost boastful of what had happened to him," suggesting not only defendant's lack of remorse, but also some pride in the beating he had inflicted on Burns. Furthermore, Officer Kelly testified that defendant was agitated by Burns's use of profanity during his arrest and transportation to the police garage, and that defendant verbally abused Burns during the beating. From this, the trial court could have found that defendant felt justified in beating Burns and that defendant failed to appreciate that no one, particularly a police officer, should take the law into his own hands. Consequently, the court could have concluded that defendant was likely to commit another offense. That finding logically precluded a finding of the mitigating factor that it was unlikely that defendant would commit such an offense. N.J.S.A. 2C:44-1b(9). Although defendant is no longer on the police force, that fact alone should not prevent a finding that he might commit another assault.

Concerning the manner of the commission of the crime, the Appellate Division correctly ruled that when...