State v. Loftin
| Decision Date | 08 August 1996 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Donald LOFTIN, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Daniel V. Gautieri and Susan Herman, Assistant Deputies Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney).
Paul H. Heinzel, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General, attorney).
The opinion of the Court was delivered by
A jury convicted defendant, Donald Loftin, of the murder of Gary K. Marsh. At the penalty-phase hearing, a separately empanelled jury returned a death-penalty verdict, and the trial court sentenced defendant to death. Defendant appeals directly
to this Court as of right. See Rule 2:2-1(a)(3). We affirm defendant's conviction for murder and his sentence of death.
On May 5, 1992, Gary Marsh was working the midnight to six-thirty a.m. shift at an Exxon service station located on Alternate Route One in Lawrenceville, New Jersey. Marsh had a key to the office that was located behind the gas pumps, away from the highway. At approximately 4:10 a.m., E. Thomas Citron stopped for gas at the station. He paid for his gas with a fifty-dollar bill.
David Paddock was scheduled to relieve Marsh at 6:30 a.m. Arriving early, at approximately 6:10 a.m., he waited in his parked truck. Paddock observed a customer pull up to the pumps, wait without service, and ultimately leave. Paddock then left his truck to find Marsh.
Approaching the station office, Paddock saw three large planters, a cola machine, a pile of pink slip receipts, and a half-eaten orange. The orange was found on the ground just outside the passenger door of Marsh's car. Paddock further observed the office keys in the door. The door was unlocked, but pulled closed. Marsh lay inside the office, his head in a puddle of blood. Paddock closed down the station and called the Lawrenceville Police. The murder had occurred between Citron's visit at 4:10 a.m. and Paddock finding Marsh at 6:10 a.m.
Marsh lay on his back with his head located three feet from the front doorway that was located in the northeast corner of the office. Officer Maple, one of the first police officers on the scene, observed that a large amount of blood was on the floor next to Marsh's head. His feet were pointed toward the southwest (back) corner of the office. Marsh's arms were at his side and his eyes
were shut. His right eye was black and blue. Although still alive, Marsh was unconscious and struggling for breath.
Marsh's clothing did not appear to have been disturbed. His pockets were not turned out and he still was in possession of some personal items, including three dollar bills, some change, and lottery tickets. A spent brass shell casing was found on the office floor, four to six inches from Marsh's left ear. Further, the cash drawer sat empty on one of the counters and there was also some loose change on the floor. Closer examination of the station office revealed several crucial pieces of evidence. Although no fingerprints of defendant were found anywhere in or around the station, the bullet used to kill Marsh served a similar purpose. The bullet that killed Marsh was found behind a pegboard that hung on the back wall of the office. A few of Marsh's hairs were removed from the area of the bullet hole. Later ballistics testing traced that bullet to a .380 caliber Bryco Model 48 pistol, purchased by defendant from D & S Gun Supplies of Levittown, Pennsylvania, and subsequently discovered by the police in defendant's car under the dashboard.
Additionally, Mr. Peterson, the station owner, determined that approximately ninety dollars had been taken from that evening's revenue. Moreover, although Mr. Citron reported purchasing gas from Marsh with a fifty-dollar bill around 4:00 a.m., there was no fifty-dollar bill in the proceeds or on Marsh's person. Defendant was in possession of a fifty-dollar bill at the time of his arrest. However, the two fingerprints detected on that bill did not belong to Marsh, Loftin, or Citron.
Further examination of the office revealed the absence of a struggle, a significant fact because the office is particularly small and narrow. Without taking account of the furniture in the office, the dimensions of the room are nine feet seven inches by thirteen feet, five inches. The office furniture did, however, consume considerable floor space. As Officer Maple testified, "Nothing appeared to be touched or disturbed or moved or appeared out of place. I mean, it was ... the office was, to me appeared basically
untouched. There was no signs of any struggle or anybody going through or gone through anything there."
Marsh never regained consciousness and died approximately nine and one half hours after he was discovered bleeding in the Exxon station. The next day, Mercer County's Chief Medical Examiner, Dr. Raafat Ahmad, conducted an autopsy and concluded that the cause of death was a gunshot wound to the head and that the manner of death was homicide. The entry wound was located in the left temporal region, with the bullet grazing the top of the left ear on entry. The bullet penetrated Marsh's skull, passed directly through both hemispheres of his brain, and exited on the opposite side at the right temporoparietal area, slightly above the right temple. Dr. Ahmad opined that the bullet's slight upward path through the skull was possibly caused by the tilting of the head on impact. The bullet caused fracturing lines to run from the top to the base of the skull on both sides. The doctor testified that Marsh's right eye was black and blue as a result of the bullet causing fractures inside the skull and the blood seeping into the eye area.
Dr. Ahmad observed that Marsh had no external injuries, cuts, or bruises. There were no "defense wounds" on the hands or arms that would have been indicative of a struggle.
Because the police had been unable to find Marsh's wallet, Detective Burns notified each of Marsh's credit card companies that a murder and robbery had taken place. Burns requested that the Lawrenceville Police should be contacted if anyone attempted to use the cards.
Defendant was arrested four days after the murder, on May 9, 1992, when he attempted to purchase a family computer from a Sears store in Pennsylvania with a Sears charge card belonging to Marsh. After selecting a computer system, defendant agreed to open a "Sears Plus" account in order to help finance the purchase.
Defendant handed the Sears sales representative, Mr. Cassidy, the driver's license and Sears charge card belonging to Marsh.
Mr. Cassidy called the central credit office and spoke with John Metzler. Cassidy provided some general information to Metzler and then Metzler spoke directly to defendant, who identified himself as Gary Marsh and provided Metzler with relevant factual information, including Gary Marsh's name, social security card number, age, address, and the fact that he was employed by Exxon.
Metzler discovered the message from the Lawrenceville Police as soon as he accessed Marsh's account. Metzler thereupon instructed Cassidy to stall defendant because this was a potential case of credit fraud. Mr. Metzler then called the Lawrenceville Police and thereafter the Middletown Police, as well as store security. Store security videotaped the events leading up to and including the arrest of defendant for receiving stolen property, fraudulent use of a credit card, and theft by deception. The videotape of the arrest was played to the jury at the guilt and penalty phases of the trial.
A search of defendant's person was conducted at Sears, whereupon the police recovered his bi-fold wallet from his left breast pocket. The wallet did not belong to Marsh, but when Officer Burnett searched the plastic insert of the wallet at the Middletown Township police station, he found four of Marsh's cards: two credit cards, a social security card, and a health insurance card.
Also found in the wallet were both Mr. Loftin's and Mr. Marsh's driver's licenses; some identification and health plan cards in Mr. Loftin's name; various cards belonging to Mr. Marsh including credit cards, a bank card, and a vehicle registration card; a gun permit in Mr. Loftin's name from the State of Washington; a receipt [from D & S Gun Supplies of Levittown, Pennsylvania] for the purchase of a [.380 caliber Bryco Model 48 pistol and the receipt indicating that Loftin paid in full for the gun,] and a fifty-dollar bill. The items that belonged to Marsh and defendant were mixed in together, and the date and eye color on Marsh's driver's
license had been altered so as to conform to defendant's appearance. None of the items in the wallet indicated that Marsh had worked at Exxon.
At the time of the offense, defendant, who was twenty-six years old, was residing with his wife Dorothy and two young children, in Bristol, Pennsylvania. The police obtained and executed a search warrant of defendant's home and car. At his home they found a box in a closet that contained 500 rounds for a .380 caliber weapon, and a smaller box that contained twenty-six (of its original fifty) bullets. Various items for making one's own ammunition were also found and confiscated, including smokeless powder, reloading dies, a reloading scale, a powder measurer, and a turret press. The ammunition that was confiscated from Loftin's home was compatible with the murder weapon. An application form for a gun club was seized from the living room closet. The police also confiscated several articles of clothing from defendant's home. Neither blood nor gunshot residue was detected on any of Loftin's possessions.
In defendant's car, the police found the murder weapon, a .380 caliber gun equipped with a safety that required ten and one half pounds of weight in order to fire the gun....
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...the killing was defendant's intent to avoid apprehension for the commission of the underlying felony. Ibid.; State v. Loftin, 146 N.J. 295, 377, 680 A.2d 677 (1996). Because direct evidence of a defendant's intent to avoid apprehension is rarely available, the State may establish a defendan......
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