RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2718-12T2

STATE OF NEW JERSEY APPROVED FOR PUBLICATION

February 8, 2016 IN THE INTEREST OF C.F., APPELLATE DIVISION A Juvenile.

__________________________________________________________

Submitted January 12, 2016 – Decided February 8, 2016

Before Judges Fisher, Rothstadt and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-1450-12.

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent C.F. (Frank Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent/cross- appellant State of New Jersey (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

During the afternoon of March 15, 1976, police responded to

a caller concerned about the welfare of L.T., a fifty-seven-

year-old woman who lived alone in Westfield. Police entered

L.T.'s home and found her dead, hog-tied face down on a bed with a broken bottle near her head and a venetian-blind cord wrapped

around her neck. There were no signs of a forced entry or theft.

An autopsy determined that L.T. sustained a stab wound to the

neck and another that pierced her left lung; a vaginal swab

produced evidence of intact spermatozoa. Further investigation

generated no suspects and the case went cold.

But truth, as Francis Bacon said, is the daughter of time.

In March 2010 — thirty-four years after the murder — Detective

Vincent Byron, working on cold cases, submitted DNA gathered

from the 1976 crime scene and the autopsy to a lab for testing;

a match was found in C.F.'s DNA,1 which was already on file.2 In

the ensuing investigation, police learned that, at the time of

the murder, C.F. was a fifteen-year-old high school student

living in a house in Westfield that abutted L.T.'s backyard.3

1 The State's DNA expert testified there was a one in 40,000,000,000,000,000 chance and a one in 450,000,000 chance, respectively, that the DNA found in L.T.'s underwear and the DNA on the vaginal swab obtained during the autopsy belonged to an African-American other than C.F. 2 C.F. was an inmate in New Jersey's prison system from 1981 to 1997. 3 The judge heard testimony that C.F.'s backdoor was approximately thirty yards from L.T.'s backdoor. A friend of L.T.'s testified that L.T. tended to keep the backdoor unlocked, a fact, as the judge observed, to which C.F. may have been privy.

2 A-2718-12T2 Although he was forty-nine years old, C.F. was charged in

April 2012 in a juvenile delinquency complaint, which alleged he

engaged in conduct in 1976 which, if committed by an adult,

would constitute felony murder, N.J.S.A. 2A:113-1.4 C.F.

unsuccessfully moved to dismiss the complaint on due process and

laches grounds. At the conclusion of a four-day bench trial,

during which the State presented fifteen witnesses,5 Judge Robert

A. Kirsch found that C.F. committed felony murder.6

On January 31, 2013, the judge considered the parties'

disagreement about the sentencing laws to be applied. The State

argued the judge was required to apply the law in effect at the

time of the offense, N.J.S.A. 2A:4-61(h), which authorized an

indeterminate life sentence; C.F. sought application of the

current law, in effect when he was tried and sentenced, N.J.S.A.

2A:4A(d)(1)(b), which authorized a maximum of ten years

incarceration. The judge agreed with C.F., for reasons set forth

in a comprehensive written decision, and imposed a ten-year

period of incarceration.

4 By the time of the complaint, a charge of sexual assault would have been time-barred. N.J.S.A. 2A:159-2. 5 C.F. neither testified nor called any experts or other witnesses. 6 The judge filed thorough and well-reasoned written opinions explaining his reasons for denying the motion to dismiss and in finding C.F. guilty.

3 A-2718-12T2 Both C.F. and the State appeal. The State reprises its

argument that C.F. should have been sentenced pursuant to the

law in effect at the time of the offense and, because the judge

applied current law, the term of incarceration imposed was not

legal. C.F. argues, in a single point:

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSION OF A NON-TESTIFYING MEDICAL EXAMINER'S AUTOPSY FINDINGS, THROUGH THE TESTIMONY OF ANOTHER MEDICAL EXAMINER, AS SUCH VIOLATED DEFENDANT'S RIGHTS TO CONFRONT WITNESSES, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).

We reject the State's argument and do not reach the merits of

C.F.'s ineffectiveness argument.

I

Turning first to C.F.'s appeal, we initially observe that

the record on appeal does not disclose why counsel failed to

assert an objection, based on the Sixth Amendment's

Confrontation Clause, to testimony about the autopsy findings

that came from a witness who did not perform the autopsy. To

understand the significance of the argument, we observe that

C.F.'s theory at trial was that the proofs did not demonstrate

beyond a reasonable doubt that sex with L.T. was anything but

consensual and that the fatal wounds were made later by another,

4 A-2718-12T2 unidentified person.7 The persuasiveness of C.F.'s theory is

greatly affected — as the trial judge's findings reveal — by

evidence about the lapse of time between the sexual encounter

and L.T.'s murder.

In other words, C.F.'s confrontation argument presents a

very fine point. The so-called "substitute witness" was

permitted to opine about the evidence, including the autopsy

photographs, the victim's clothing and the report prepared by

another medical examiner, and the substitute witness was also

permitted to explain that death was caused by a stab wound to

the chest and asphyxiation by strangulation. Those opinions were

not necessarily in conflict with C.F.'s third-party-guilt theory

and we discern no prejudice to C.F. from the substitute

witness's opinions on those points. The State's witness,

however, also testified the sexual activity occurred between

twenty-four and thirty-six hours prior to the commencement of

the autopsy. Because the autopsy began at or around 11:15 a.m.,

on Tuesday, March 16, 1976, the judge extrapolated that the time

of death was "between, approximately 11:00 p.m., on Sunday,

7 This theory was certainly colorable. An expert called by the State examined eight fingerprints taken from the crime scene. Four lacked sufficient detail to make feasible a comparison of others, and one belonged to L.T.; the remaining three did not match C.F. or anyone else known to police. In addition, DNA that matched neither C.F. nor L.T. was obtained from cigarette butts in an ashtray at the crime scene.

5 A-2718-12T2 March 14 [and] approximately 11:00 a.m., Monday, on March 15,

1976"; the judge noted "the defense did not contest" this and

that evidence regarding L.T.'s activities Sunday morning

supported this assertion.

As the judge thoroughly explained in his well-reasoned

written opinion, to prove felony murder the State was required

to prove beyond a reasonable doubt that "[t]he fatal wounding of

the decedent occurred sometime within the course of the

[predicate offense, i.e., the sexual assault], including its

aftermaths of escape and concealment efforts." By excluding the

possibility that the sexual encounter occurred on Sunday —

because of L.T.'s known activities for a part of Sunday, as well

as testimony from the DNA expert about the "short shelf life of

intact spermatozoa in live persons"8 — the judge concluded that

the sexual event happened at or about the time of death. The

judge also relied on other evidence he found credible —

including evidence demonstrating L.T. was tied up after the rape

but stabbed in the chest before being tied-up — and made the

following findings regarding the sequence of events:

8 In paraphrasing the State's unrebutted expert testimony, the judge observed that "intact sperm in a live person remains visible only within six (6) hours after the sexual event, and no more than twenty-four (24) hours."

6 A-2718-12T2 L.T. was stabbed in the chest, then her clothes were removed,[9] a robe was put on and her panties remained, the sexual event occurred, presumably in the bed, and thereafter she was tied and bound, and ultimately died from the stabbing wounds and asphyxiation. As a result of the sum of the testimony on the timing and sequence of the sexual event and the fatal stabbing and strangulation, the court concludes beyond any reasonable doubt that L.T. was "fatally wounded" during the commission of the rape.

The judge found no logical basis in the defense theory that "a

purported consensual sexual event happened a day or more before

the physical attack and death, and was thus separate and

distinct from it" because

of the testimony regarding the short-lived visibility of intact sperm. . . . [The defense theory] would require L.T. or her assailant, after the stabbing and removal of her blouse, bra and slip, to place back on her the very panties and robe which coincidentally and unluckily contained [C.F.'s] innocently deposited sperm. Such a version strains the bounds of credulity well beyond the point of rupture.

9 The judge drew this conclusion because of evidence that an area rug at the foot of a dresser was blood-stained, "indicating [L.T.] was out of the bed and injured at some point before she was bound, tied, and bedridden. In addition, the bottom of her right foot was caked in blood, with substantial splattering up to the ankle, strongly suggesting that, at some point prior to her found state in the bed, she was standing, with her foot firmly and presumably in her own blood." The judge also noted that a blouse found on the dresser had a "visible hole pierced through it, on its left side, which clearly correlates to the puncture wound visible on L.T.'s upper left chest[,] . . . demonstrat[ing] [she] was wearing this blouse when stabbed, and that it was removed thereafter."

7 A-2718-12T2 There seems little doubt that in accepting the State's theory

that the murder occurred simultaneously with or very close in

time to the rape, the judge relied in part on the "substitute"

witness's testimony.

In this light we examine C.F.'s argument that the

Confrontation Clause barred this substitute witness from opining

on subjects critical to the defense theory of third-party guilt

and that counsel's failure to object was so detrimental that it

warrants a new trial. Placing this assertion in the context of

the ineffectiveness standard, C.F. was required to demonstrate

the failure to object was "so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington,

,

,

(1984); see State v. O'Neil,

(2014).

This argument was not presented to the trial judge in any

fashion and the record does not reveal or suggest counsel's

reason for not objecting to the substitute medical examiner's

testimony. We cannot know, for example, whether there was a

legitimate tactical reason for counsel's silence — that

8 A-2718-12T2 information "lie[s] outside the trial record" — and we,

therefore, cannot reach the merits of C.F.'s ineffectiveness

argument. State v. Preciose,

(1992).

Even assuming the decision to refrain from objecting could

not advance some sound tactical goal favorable to the defense,

we still would not be able to appreciate the impact of the

second Strickland prong in light of the record's limitations. A

full and fair consideration of C.F.'s confrontation arguments

should first be explored by the trial judge, whose careful and

painstaking review of the evidence was thoroughly explained in

his written opinion. Because of his familiarity with the

evidence, the trial judge will be in a far better position to

appreciate whether there was a reasonable probability of a

different outcome once he is presented with a post-conviction

relief petition containing a specific analysis of the testimony

C.F. believes was barred by the Confrontation Clause.10

For these reasons, we do not further consider whether C.F.

was deprived the effective assistance of counsel; that question

10 We emphasize C.F.'s need to be specific in future proceedings because of the uncertain lines the Supreme Court of the United States has drawn in this setting. See State v. Michaels,

(2014) (reviewing the evolution of the Supreme Court's Confrontation Clause jurisprudence from the landmark decision in Crawford v. Washington,

,

,

(2004) to its members' splintered views in Williams v. Illinois,

,

,

(2012)).

9 A-2718-12T2 may be explored by way of a petition for post-conviction relief.

.

II

In its appeal, the State contends that the judge imposed an

illegal sentence by applying the law in effect at the time of

sentencing instead of the law in effect when the offense

occurred. We reject that argument.

When L.T. was murdered in 1976, the Legislature provided,

by way of N.J.S.A. 2A:4-61(h), that "any time an adjudication of

juvenile delinquency is predicated upon an offense which, if

committed by [an adult] would constitute any form of homicide as

defined . . ., then the period of confinement shall be

indeterminate and shall continue until the appropriate paroling

authority determines that such person should be paroled; and,

except that in any case the period of confinement and parole

shall not exceed the maximum provided by law for such offense if

committed by [an adult]," i.e., a maximum of life in prison.11 On

11 In 1976, the law called for every adult convicted of first- degree murder to "suffer death unless the jury shall by its verdict . . . recommend life imprisonment, in which case this and no greater punishment shall be imposed." N.J.S.A. 2A:113-4. In 1986, the imposition of a death sentence on a juvenile was barred by legislation, N.J.S.A. 2C:11-3(g), and later found constitutionally barred, Roper v. Simmons,

,

,

(2005); State v. Bey,

(1988). And see Miller v. Alabama, 567 U.S. (continued)

10 A-2718-12T2 the other hand, C.F. argued — and the trial judge agreed — that

the disposition of this juvenile matter was to be governed by

the sentencing laws in effect at the time of sentencing.

N.J.S.A. 2A:4A-44(d)(1)(b) — enacted in 1982 to become effective

December 31, 1983, L. 1982, c. 77, § 25, and still in effect —

declares the court shall commit a juvenile found to have

committed felony murder to a term "not to exceed . . . 10

years."

The State argued in the trial court — and argues now — that

the judge should have looked back and applied a law the

Legislature has since discarded because, as a general matter,

"[c]riminal legislation is presumed to have prospective effect,"

and because the Legislature, by way of its "savings statute,"

has prohibited the retroactive application of a statutory

(continued) __, __,

,

(2012) (holding the Eighth Amendment bars imposition of a mandatory life without parole sentence on offenders under the age of eighteen at the time of their offenses); see also Montgomery v. Louisiana, No. 14-280,

(Jan. 25, 2016) (holding Miller's substantive rule of constitutional law applies retroactively). Consequently, the maximum sentence for a juvenile prior to the enactment of N.J.S.A. 2A:4A-44(d)(1), was a life sentence.

11 A-2718-12T2 amendment reducing a criminal penalty12 unless otherwise

declared; this savings statute declares:

No offense committed, and no liability, penalty or forfeiture, either civil or criminal, incurred, previous to the time of the repeal or alteration of any act or part of any act, . . . shall be discharged, released or affected by the repeal or alteration of the statute under which such offense, liability, penalty or forfeiture was incurred, unless it is expressly declared in the act by which such repeal or alteration is effectuated, that an offense, liability, penalty or forfeiture already committed or incurred shall be thereby discharged, released or affected.

[N.J.S.A. 1:1-15.]

On its surface, this savings statute does not clearly reveal

"the precise circumstances that trigger" its application. State

v. Chambers,

(App. Div. 2005).13

Instead, the statute lumps together multiple concepts which do

not occur simultaneously.

That is, the savings statute was designed to prevent a new

law — absent an express declaration when the new law is enacted

12 The ex post facto clauses in both the federal and state constitutions, U.S. Const. art. I, § 10; N.J. Const. art. IV, § 7, ¶ 3, prohibit application of a new law authorizing a more severe penalty for a prior offense. See State v. Witt,

(2015). 13 Congress and most state legislatures have enacted similar provisions but courts have not applied them uniformly. Id. at 373.

12 A-2718-12T2 — from "discharg[ing], releas[ing] or affect[ing]" the

application of an existing law, but it contains different

triggering events for different occurrences. N.J.S.A. 1:1-15. By

the statute's own terms, "offense[s]" are "committed" and

"penalt[ies]" are "incurred." Ibid. Consequently, we look to the

date an offense was committed in determining whether a new law,

which discharges, releases or affects an offense, should be

applied to that offense, but we look to the date a penalty was

incurred to determine whether a new law should discharge,

release or affect the penalty for the offense.

For example, in considering how the statute applies to an

"offense," a subsequent change in the law defining felony murder

would not govern this case absent a legislative declaration to

that effect; in that circumstance, the argument in favor of

applying the new law would actually seek its retroactive

application. But a legislative change in the "penalty" for

committing an offense — even if the offense was committed prior

to the change — would not be hampered by the savings statute

because, in that instance, the new law would be given

prospective application; in that circumstance, we would look to

the part of the savings statute that applies to "penalties," not

"offenses," and observe that the statute declares no penalty

"incurred . . . shall be . . . affected by the repeal or

13 A-2718-12T2 alteration of the statute under which such . . . penalty . . .

was incurred." N.J.S.A. 1:1-15 (emphasis added). In reading the

statute this way, as we believe we must, the new sentencing law

cannot be said to have been applied retroactively here because

the new law, N.J.S.A. 2A:4A-44, was enacted before C.F. incurred

a penalty. Accord State v. Parks,

(2007).14

To be sure, a large gulf in time passed between the

offense's commission and a penalty's incurrence; C.F.

"committed" his offense in 1976 but did not "incur" a penalty

until 2013. No matter how striking or unusual that circumstance

may seem, it does not call for a different application of the

savings statute than warranted by its express language. Put into

the present context, had the Legislature redefined what it meant

to "commit" felony murder after 1976, the savings statute would

bar application of the new law. Our focus, however, is not on

the elements of the offense but on the penalty to be imposed.

C.F. did not incur a "penalty" until well after 1983, when the

current juvenile sentencing laws took effect; the savings

statute simply has no impact on the application of those new

14 In Chambers, we considered the application of an amendment to the drunk driving statutes that, like here, called for a less severe penalty than before. Id. at 367. We held that the defendant was not entitled to the benefit of the new law not because it was enacted after the offense but because, unlike here, it was enacted after defendant was sentenced in municipal court. Id. at 372.

14 A-2718-12T2 laws to him in 2013 because, in this sense, the new law is being

applied prospectively, not retroactively.15

This same conclusion must be drawn when considering that

punishment for criminal offenses is based not only on the need

to confine an offender for the protection of society, but also

to deter future criminal conduct and to rehabilitate the

offender. These concerns are not necessarily served by imposing

a penalty society no longer deems proper. In this sense, it has

been recognized that an "ameliorative" statute "may be applied

retroactively." In re Smigelski,

(1959); see

also Gibbons v. Gibbons,

(1981). In similar

circumstances, Judge Stanley Fuld recognized, in speaking for

New York's highest court, that a refusal to apply a newer,

ameliorative law serves only a vengeful purpose that does no

honor to an enlightened society:

A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet

15 State v. Parolin,

(2002) is not inconsistent with our holding. Without reference to N.J.S.A. 1:1-15, the Court held that a version of the No Early Release Act enacted after the crime was inapplicable. There, however, as was the circumstance in Chambers, the new version of NERA was enacted not only after the offense but, more importantly, after that defendant was sentenced. It is in that context that the Court invoked "the presumption," upon which the State chiefly relies, "that criminal legislation is to have prospective effect."

.

15 A-2718-12T2 the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.

[People v. Oliver,

(N.Y. 1956).]

We agree that this presumption in favor of application of a

subsequent ameliorative statute warrants our affirmance of Judge

Kirsch's decision to apply the sentencing laws in effect at the

time he incarcerated C.F., and not the harsher law on the books

when the murder was committed.16

16 Our criminal code, in fact, embodies this concept, declaring that in any case "pending on or initiated after" the code's effective date, "[t]he court, with the consent of the defendant, may impose sentence" under the new code's provisions. N.J.S.A. 2C:1-1(c)(2). There apparently is no corollary to this statute in our juvenile laws, but the Supreme Court has recognized the application of a broader notion of fundamental fairness in similar circumstances that would further support the conclusion we reach. See

(applying the Legislature's abolishment of the death penalty for juvenile offenders, without reference to N.J.S.A. 1:1-15, even though the offense occurred before the legislative action because, among other things, "sound public policy and fundamental fairness dictate that defendant not be singled out to be the only juvenile ever executed or even eligible for execution under our current death penalty law"); State v. Biegenwald,

(1987) (holding N.J.S.A. 2C:1-1(c) "signifies generally a legislative intention to give the benefit of new laws, when (continued)

16 A-2718-12T2 Affirmed in all respects but with the understanding that

C.F. may pursue his ineffectiveness argument by way of post-

conviction relief petition.

(continued) possible, and where just, to those who are charged under old laws").

17 A-2718-12T2