SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-105-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BYRON BROOKS,
Defendant-Appellant.
Argued January 22, 1998 - Decided February 24,
1998
Before Judges Shebell, D'Annunzio and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County.
Kevin G. Byrnes, Designated Counsel, argued
the cause for appellant (Ivelisse Torres,
Public Defender, attorney; Michael B. Jones,
Assistant Deputy Public Defender, of counsel
and on the brief).
Marcia H. Geraci, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General, attorney; Ms.
Geraci, of counsel and on the brief).
The opinion of the court was delivered by
COBURN, J.A.D.
Defendant, Byron Brooks, after a trial by jury, was convicted on count one of murder, N.J.S.A. 2C:11-3a(1) and -3a(2); on count four of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d; and on count five of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He
was acquitted on the remaining counts of the indictment, which
charged felony murder and attempted aggravated sexual assault. The
court merged count four into count one, and sentenced the defendant
to prison terms of thirty years without parole on count one and
five years, to be served consecutively, on count five.
The convictions were based on the June 6, 1993, murder of
J.S. The murder occurred in the victim's Trenton apartment, where
she lived with her four-month old child who was left to fend for
himself after the killing. Almost two days passed before the
victim and the child were discovered. The defendant confessed.
Although at trial he claimed that another person committed the
crimes, he does not contend the verdict was against the weight of
the evidence. His appeal is limited to these five unpersuasive
technical arguments:
THE JUDGE ERRED IN ADMITTING DEFENDANT'S STATEMENT WHICH WAS TAKEN IN VIOLATION OF THE BRIGHT-LINE RULE OF STATE V. HARTLEY.
THE JUDGE'S JURY CHARGE ON THE ISSUE OF
DEFENDANT'S STATEMENT TO THE POLICE FAILED TO
PROPERLY GUIDE THE JURY'S EVALUATION OF THE
CONFESSION AND DEFENDANT'S CONVICTIONS MUST BE
REVERSED. (PARTIALLY RAISED BELOW).
A. The Judge's Failure to Specifically
Instruct the Jury on the Issue of
Corroboration Requires Reversal.
B. The Failure to Charge That the Jury
Must Find the Statement Credible
Beyond a Reasonable Doubt Requires
Reversal.
THE JUDGE'S CURATIVE CHARGE REGARDING THE
PROSECUTOR'S OPENING STATEMENT WAS CONFUSING
AND INEFFECTIVE AND DEFENDANT'S CONVICTION
MUST BE REVERSED.
THE JUDGE'S LIMITING INSTRUCTION REGARDING
DRUG USE WAS INADEQUATE, INEFFECTIVE AND
PREJUDICIAL TO THE DEFENDANT AND DEFENDANT'S
CONVICTIONS MUST BE REVERSED.
THE JUDGE'S CHARGE ON PASSION/PROVOCATION
MANSLAUGHTER WAS CONFUSING AND DEFENDANT'S
CONVICTION FOR MURDER MUST BE REVERSED.
(PARTIALLY RAISED BELOW).
On the afternoon of Saturday June 5, 1993, the victim, four of her cousins, and the defendant gathered in the victim's apartment to watch television, talk, and use drugs. By 8:30 p.m., everyone left except the victim and her child. Later that night, the defendant returned and obtained the victim's promise to have sexual relations in return for crack cocaine. She was a cocaine addict. The defendant purchased the cocaine and again returned to the apartment. After he and the victim smoked the cocaine, they began to engage in sexual relations on the couch. However, before he was able to consummate the act, the victim demanded more drugs or money. When he declined, she told him to leave. They began to fight and she scratched him. He became upset and punched her in the face. She ran to the kitchen and grabbed a butcher knife with a wooden handle. He ran after her, and grabbed a steak knife with a black plastic handle. As they faced each other, he stabbed her
in the chest. They fell on an unassembled baby crib that had been
propped up against a wall between the couch and the kitchen,
landing on top of the crib mattress. The defendant "flipped" and
continued stabbing her. He recalled stabbing her at least eight
times. The medical examiner indicated that there were
"innumerable" stab wounds of the neck and chest and "a throat
slashing." After the murder, the defendant wiped blood from his
face and neck with a wash cloth which he later threw away near his
house. He dumped the contents of the victim's purse to create the
illusion of a robbery, got dressed, and fled, leaving the child on
the sofa. It would appear that the murder occurred about 2:45 a.m.
since at that time a neighbor, who resided in the apartment below
that of the victim, heard noises from above which sounded like
furniture being pulled back and forth across the victim's apartment
floor. The noise lasted about twenty minutes.
On the morning of Monday June 7, 1993, the building manager
entered the victim's apartment with a pass key so that, as
previously agreed, he could install a new toilet. He discovered
the victim's body and immediately called the police. The
paramedics arrived first and they found the child under the
cushions of the couch. When the police arrived, they found that
there were no signs of forced entry into the apartment.
After speaking with the building manager, the police went to
the home of the victim's mother. Conversation with the mother led
them to contact the victim's brother, F.S., who told them of the
defendant's presence in his sister's apartment on Saturday
afternoon and evening. The police located the defendant at his
home. He agreed to come down to the police station, where,
ultimately, he admitted his complicity and provided the police with
detailed information entirely in accord with the circumstances
revealed at the scene of the murder.
Defendant's first contention is that the trial court erred in admitting into evidence, after a pre-trial hearing, his oral and written confessions. He argues that his confessions were illegally extracted by the police after he had asserted his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), because they did not readminister the Miranda warnings as required by State v. Hartley, 103 N.J. 252 (1986) and State v. Harvey, 121 N.J. 407 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed.2d 268 (1991). In mounting his argument, the defendant ignores State v. Martini, 131 N.J. 176 (1993), which clarified the holding in Harvey and dictates affirmance of the decision of the trial court on this point.
The facts leading up to the confessions are undisputed. The police met the defendant at his home and brought him to the police station with his consent. During the ride, he seemed eager to speak and asked questions about the case. Although he was not yet a suspect, the police read him his Miranda rights and the defendant said he understood them. He made statements indicating his presence at the victim's home on June 5 and the sharing of drugs with the victim and the others. He said he left when the drugs ran
out, went home, got $10 from his mother, bought some crack cocaine,
smoked it, and went to sleep.
Upon arrival at the police station, at around 7:00 p.m., he
was again administered his Miranda rights. He expanded somewhat on
his story, but made no admissions of significance. He was calm,
cooperative and responsive during the interview. When the police
officer noticed fresh scratch marks on the defendant's face and
neck, he asked the defendant to remove his sweat shirt. The
defendant complied, and the officer noted more scratch marks on
defendant's chest and shoulder. The defendant claimed he received
the scratches during a ten-second fight with a drug dealer. The
officer noted a red substance on the sweat shirt.
Around 8:45 p.m., the defendant permitted the police to
photograph his scratch marks and consented to a search of his home.
The search turned up nothing of evidential value. The defendant
gave the police his sweat shirt, and they returned to the police
station. At about 11:30 p.m., the defendant said he was tired and
wanted to go home, but that he would come back to speak further
with the police the next morning at 11:00 a.m. One of the police
officers drove the defendant home.
The next day, June 8, 1993, the police picked defendant up at
his home and brought him to the police station. He was calm. At
about 12:25 p.m., a detective readministered defendant's Miranda
rights. Another detective advised defendant that he was a suspect
in the case. The defendant assured that detective that he fully
understood his rights and wished to continue speaking with the
police. He was polite, cooperative, and responsive to questions,
but he continued to claim that he did not kill the victim. During
this interview the detective pressed the defendant about the blood
on his sweat shirt. The defendant became nervous, his hands and
leg began to shake, he began to sweat heavily, and he moved around
quickly in his chair. Finally, he asked the detective why he did
not just charge him with the murder and "get it over with." The
detective responded that he wanted the defendant to tell him the
truth. The defendant asked if he could "think about it for
awhile." The detective agreed, offered to get the defendant
something to eat or drink, which he declined, and they took a
break.
Approximately twenty minutes later, at about 2:50 p.m., the
detective resumed the questioning. The defendant again assured the
detective that he was willing to waive his rights and continue
talking to him. Since the interview made no progress, the police
decided after a few minutes that another officer, Deputy Chief
Joseph Constance, should conduct the questioning.
Constance showed defendant his executed Miranda rights form,
and the defendant again said he understood his rights and was
willing to waive them and speak with the police. Constance
reminded the defendant that he was the last person to see the
victim alive, that his previous stories contained discrepancies,
and that there was probably a transfer of blood, hairs, and fibers
at the crime scene. Constance then asked the defendant where the
baby was when he left the crime scene. The defendant replied that
the baby was on the couch cushions. Constance asked if the
defendant cared for the welfare of the baby since he had been left
alone for about thirty hours. The defendant then gave the response
upon which he relies for his claim that he asserted his right to
remain silent. As related by Constance, the defendant "said if he
could have a phone call to his mother, he would then tell me the
truth, he would then tell me what occurred."
Constance advised the defendant that he "certainly would allow
him to call his mother if we then can resolve this matter."
Another detective took the defendant to a room where, in the
presence of that detective, the defendant spoke briefly to his
mother. He said that he had "fucked up again," that he was going
away for a long time and did not want her or his brother visiting
him while he was in prison. After a brief pause, he ended the
conversation by saying, "I love you, too." The call was placed at
3:15 p.m.
The defendant was then brought back to Constance, and after a
few minutes, the defendant gave a detailed oral confession and
agreed to give a formal statement. At 3:45 p.m., Detective
Sergeant Michael Salvatore began the formal interview by saying
this to the defendant:
You have been previously advised of your
constitutional rights and stated that you
understood your rights. You have also stated
that you wish to speak with us at this time in
regard to this investigation. We are now
going to ask you a series of questions. Will
you answer us truthfully and to the best of
your knowledge?
The defendant responded that he would and provided a five page
typewritten statement, which he signed after it was read to him.
In State v. Hartley, supra, the Court held that when the police initiate questioning in a custodial setting after having obtained a waiver of defendant's Miranda rights, and the defendant asserts his right to remain silent, a statement obtained thereafter by further questioning initiated by the police is inadmissible, unless the police had first readministered the Miranda rights. 103 N.J. at 256; State v. Fuller, 118 N.J. 75, 83 (1990). In Hartley, the statement which the Court deemed to be an expression of a desire to end the interview was this: "`I don't believe I want to make a statement at this time.'" Id. at 258.
In State v. Harvey, supra, the defendant, while in custody for several days, had repeatedly expressed his reluctance to speak to the police. After receiving a set of Miranda warnings, he informed the police that "`he would tell [them] about the murder but he first wanted to speak to his father.'" 121 N.J. at 417. Questioning ceased. Approximately three-and-one-half hours later, and shortly after the defendant had been given an opportunity to meet in private with his father, the police resumed the interrogation. The Court said:
But what makes the interruption significant is not its length so much as its nature. The request here was qualitatively different from the one in State v. Bey, 112 N.J. 123, 139, 548 A.2d 887 (1988) (Bey II), in which the defendant "requested permission to lay down and to think about what happened." The Court likened that situation to one in which a
defendant asks for "something to eat or drink,
the use of toilet facilities, [or] the
opportunity to stand and stretch * * *."
Ibid. Defendant's request here was not for a
brief respite to satisfy physical need.
Instead he was asking, after three days in
custody, for the chance to consult with a
close family member.
Defendant's request is similar to the one
in State v. Hartley, supra, 103 N.J. at 258,
511 A.2d 80, in which the defendant told the
police, "I don't believe I want to make a
statement at this time." In both cases the
defendant suggested that he would talk to the
police later. "[A] request to terminate an
interrogation must be honored `however
ambiguous.'" State v. Bey,
112 N.J. 45, 64,
548 A.2d 846 (1988) (Bey I) (quoting State v.
Kennedy,
97 N.J. 278, 288,
478 A.2d 723
(1984)). Certainly the request here was no
more equivocal than the one in Bey I in which,
according to the police, the defendant had
"indicated he did not want to talk * * * about
it * * * ." Ibid. Defendant's conduct during
three days of interrogation and his refusal to
answer questions about the Schnaps murder
likewise indicated that he did not want "to
talk about it."
This case also resembles Law v. State, 21 Md.App. 13, 318 A.2d 859 (1974), in which the police were questioning the wounded defendant as he lay handcuffed to his hospital bed. The defendant told the police that "he didn't want to talk any more until he was further treated." Id. at 36, 318 A. 2d at 872 (emphasis deleted). Despite his request, the police continued to question him. The court held that the defendant's ensuing statement was inadmissible. Although the obvious difference from this case is that here defendant was not wounded, the court's decision in Law rested on the defendant's words, not on the surrounding circumstances. In both this case and Law, the defendants indicated that they would talk, but only after a subsequent condition had been met. In Law the condition was further treatment. Here the condition was a meeting with defendant's father. The implied intent to talk later does not change the fact, as the court found in Law
and as we find here, the defendant sought to
terminate the interrogation.
The Court then went on to note the following:
The importance of the police's failure to
reissue Miranda warnings after defendant had
met his father is clearly shown by what
happened when the police finally did give him
the warnings. After defendant had confessed
orally, the authorities gave him new Miranda
warnings before seeking to take a formal
statement. Defendant immediately demanded an
attorney before any statement could be reduced
to writing. It is no stretch to imagine that
defendant would have requested an attorney had
the police given him warnings when they first
interrogated him after he had met with his
father.
The defendant argues that we should focus only upon the words
he spoke when he asked to telephone his mother, without regard to
the surrounding circumstances, in deciding whether he had invoked
his right to remain silent. He claims that like the defendant in
Harvey he indicated that he would talk, "but only after a
subsequent condition had been met." Ibid. In particular, he
points to this statement in Harvey: "Although the obvious
difference from this case is that here defendant was not wounded,
the court's decision in Law rested on the defendant's words, not on
the surrounding circumstances." Id. at 419. Had Harvey been the
final judicial response to this issue, defendant's position might
be viewed as meritorious. However, the discussion in State v.
Martini, supra, provides adequate support for admission of the
confessions in the context of this case.
In Martini, the defendant received formal Miranda warnings on five occasions and on each occasion he signed the waiver forms indicating that he was willing to make a statement. 131 N.J. at 229. However, he had not yet made a statement when he told one of the officers that "`once he was allowed to speak with Therese [Afdahl] * * * he would freely talk with us about the entire matter.'" Id. at 230. The officer further related, "that Martini had stated that he wanted to tell Afdahl `that he was going to cooperate with us and that he was going to tell us what had happened and that he wanted her to be aware of that fact.'" Ibid. Martini also said that he was going to advise Afdahl to tell "`the whole truth' to the officers." Ibid. It would appear that Martini's statements about his desire to speak with Therese Afdahl were no different from that of the defendant in Harvey in the sense that both "indicated that they would talk, but only after a subsequent condition had been met." State v. Harvey, supra, 121 N.J. at 420. However, in Martini the Court clarified Harvey by indicating that not merely the words spoken, but the full context in which they were spoken had to be considered in determining whether there had been an invocation of the right to remain silent: We found that the defendant [in Harvey] had invoked his right to remain silent by asking to speak to his father. We began our analysis by noting that the defendant's request precipitated "a significant break in the interrogation," amounting to approximately three-and-one-half hours. Id. at 418-19, 581 A.2d 483. However, we also declared that "what makes the interruption significant is not its length so much as its nature" because the defendant, "after three days in custody, [asked] for the chance to consult with a close
family member." Id. at 419,
581 A.2d 483. In
addition, we noted that "[d]efendant's conduct
during three days of interrogation and his
refusal to answer questions" were expressions
of his unwillingness to talk with police.
Finally, we found important "what happened
when police finally did give" Harvey a new set
of Miranda warnings after his oral confession.
"Defendant immediately demanded an attorney
before any statement could be reduced to
writing. It is no stretch to imagine that
defendant would have requested an attorney had
the police given him warnings when they first
interrogated him after he had met with his
father." Id. at 420,
581 A.2d 483.
The Martini Court then distinguished Harvey in the following
manner:
Defendant's request to speak to Afdahl
prior to talking to officers is materially
different from the request made in Harvey in
several respects. Prior to his request,
defendant did not show a continued reluctance
to talk to police. To the contrary, Martini
signed forms indicating that he waived his
right to remain silent. Defendant did not
state, "`I don't believe I want to make a
statement at this time[,]'" Hartley supra,
103 N.J. at 258,
511 A.2d 80, nor did he
"`indicate [that] he did not want to talk
about it * * * .'" State v. Bey,
112 N.J. 45,
548 A.2d 846 (1988) (Bey I). Instead, he
voluntarily told Trahey and Petersen that if
he could speak to Afdahl, he would tell them
about his "complete involvement" in the
kidnapping and murder of Flax.
The circumstances in Martini parallel those involving the defendant in this case. There was no significant break in the interrogation, he had never expressed an unwillingness to talk with the police, he had signed the waiver form, and he voluntarily told the officer that if he could speak with his mother he would tell
them the whole story. He did not indicate he wanted his mother's
advice, and indeed, during his short telephone conversation with
her he merely advised her that he was in trouble and that he loved
her.
We recognize that Martini also took into account the nature of
the defendant's relationship to the person with whom he wished to
speak. The Court said:
Moreover, although defendant argues that
his relationship with Afdahl was that of two
close family members, we find her status as a
participant in the then-alleged crimes to be
more significant. This is not a situation in
which a defendant created a lengthy gap in an
interrogation to seek advice from someone
outside of the relevant criminal activity.
Afdahl was a major participant in the
kidnapping and murder about which defendant
was to be questioned. She was not an outside
advisor but a likely co-defendant, potential
informant, and possible alibi witness. In
their two-to-three-minute conversation
overheard by Officer Trahey, Afdahl did not
consult with defendant. Indeed, defendant
argues that he met with Afdahl not to seek
advice but to inform her of his impending
confession.
The Court concluded by saying:
Defendant's request to speak with Afdahl did not amount to an invocation of his right to remain silent. The record does not indicate that defendant, as the defendants in Hartley or Harvey, was unwilling to make a statement before talking with Afdahl, and wished her advice. Rather, he merely wished to inform Afdahl of the decision he had already made to give a statement to law-enforcement officers. Nor is there anything in the records, such as a demand for an attorney by defendant before his statement was transcribed, to suggest that "defendant would have requested an attorney had the police
given him warnings when they first
interrogated him after he had met with"
Afdahl. Harvey, supra, 121 N.J. at 420,
581 A.2d 483. We conclude, therefore, that
defendant's statements and the fruits thereof,
including his consents to the searches
conducted by police, were properly obtained
and admitted into evidence.
The defendant contends that since he asked to speak to his
mother, rather than a possible co-defendant, Martini requires that
we find he invoked his right to remain silent. We conclude,
however, that the nature of the relationship is only one factor to
be considered in deciding whether there was an invocation of
rights. In this case, every indicia points to a continued
willingness on the part of the defendant to cooperate with the
police investigation. He never deviated from that course. He did
not indicate that he wanted to consult with his mother, or get her
advice in any respect. During the brief telephone conversation, he
asked her no questions. He merely reported his situation,
explained that he was going to jail for a long time, and that he
loved her. Therefore, we are satisfied, based upon our independent
review of the record, see State v. Contursi,
44 N.J. 422, 428 n.2
(1965), that the defendant's oral and written confessions were
properly admitted into evidence.
Defendant's next point concerns the trial court's charge to the jury on the principles governing its consideration of the defendant's confessions. He argues that there were two errors: (1) failure to instruct that the jury should consider the presence or
absence of corroboration; and (2) failure to instruct that the
confessions should not be considered unless proven to be credible
beyond a reasonable doubt. Neither contention was advanced during
the trial. Consequently, the plain error rule applies. R. 2:10-2.
In State v. Lucas,
30 N.J. 37 (1959), the Court held that a
defendant's request for a corroboration charge should be honored,
but it also held that the failure to include the charge was not
plain error. Id. at 62-63. In making that point, the Court
emphasized the "entire thrust of the defense, aside from insanity,
was to establish that the facts recited in the confession were
untrue." Id. at 63. It then noted that in such a context, the
charge was adequate because it advised the jury to decide whether
the confession was made by the defendant and whether it was
credible in light of all the evidence. The Court said, "The jury,
in weighing the confession, and assaying its truth, must have
considered the state of the independent corroborative proofs." Id.
at 63. In the almost identical circumstances presented by this
case, we reach the same conclusion as did the Lucas court. In
State v. Ordog,
45 N.J. 347, 364 (1965), cert. denied,
384 U.S. 1022,
86 S. Ct. 1942,
16 L. Ed.2d 1025 (1966), the Court followed
Lucas on this point of law, and it did so again in State v. Di
Frisco,
118 N.J. 253, 274 (1990), and in State v. Roach,
146 N.J. 208, 229, cert. denied, U.S. ,
117 S. Ct. 540,
136 L.
Ed.2d 424 (1996).
The second contention, that a jury must be told not to
consider a confession unless proven beyond a reasonable doubt, is
without legal support. Although State v. Bowman, 165 N.J. Super.
531 (App. Div 1979), contains a dictum which might be read as
suggesting support for defendant's position, id. at 537, the case
clearly holds that once the judge admits the confession, the jury's
duty is limited to deciding whether it is credible. Under our law,
it is only the elements of an offense which must be established
beyond a reasonable doubt. State v. Brown,
80 N.J. 587, 592
(1979).
The defendant contends that a curative jury instruction regarding a remark made by the prosecutor in his opening statement was confusing, ineffective, and prejudiced defendant's right to a fair trial. The prosecutor said:
You will, also, find during this case that evidence from the scene, evidence from the autopsy of [J.S.], Mr. Brooks' clothes, were all examined for hair and fiber matches. As far as hairs were concerned, you will find out during this case that there are no matches to Mr. Brooks. As far as fibers are concerned, you will find that there are no matches to Mr. Brooks, except for one small cotton fiber found on the victim, which is consistent with the black -- excuse me with the black shirt that Mr. Brooks turned over to the police from 14 Jarvis Place.
This remark was made despite the prosecutor's previous representation that the forensic scientist's testimony was being offered not to prove anything with respect to the cotton fiber but, rather, to merely show that the State had been diligent in its investigation. The defendant objected to the statement and a
hearing ensued pursuant to N.J.R.E. 104. The trial court decided
that the evidence would not come before a jury. Defendant's motion
for a mistrial was denied and there is no complaint respecting that
decision. During the charge at the conclusion of the case, the
trial court addressed the jury on the subject of the fiber evidence
in the following manner:
With regard to this particular issue, one
matter comes to mind that I will touch upon
right now. During the course of the state's
opening, there was a comment by the prosecutor
. . . with regard to fibers, and he indicated
that there were no matches to Mr. Brooks
except for one small cotton fiber found on the
victim which was consistent with a black shirt
that Mr. Brooks turned over to the police as a
result of a consent search of his home at 14
Jarvis Place. And then there was testimony
during the trial itself, particularly from
someone who is qualified as an expert, Mr.
Low-Beir, [sic] and the essence of his
testimony was that the fiber, the cotton fiber
found on the victim was not inconsistent with
the cotton black tee shirt found at 14 Jarvis
Place.
Now, with regard to that, I will instruct
you that you should draw no conclusions from
that. That testimony did not support a
proposition from which you can draw any
conclusions. In this case, there is no
probative value with regard to that. And I
bring up this point only because it relates to
a comment made to you during opening,
something counsel believed would occur in some
way during the course of the trial, and I
focus on that for purposes of highlighting the
instruction I have just given you, and also to
tell you to disregard any comments of this
nature with regard to a fiber, in regard to
that shirt. It simply has no probative value
in this particular case.
There was no objection to the trial court's erroneous
statement indicating the forensic expert had testified that the
fiber found on the body of the victim was not inconsistent with the
defendant's shirt. That testimony had only come out in the Rule
104 hearing, to which the jury was not privy. The defendant
mentions this error in his brief. However, as the State points
out, the forensic expert did testify before the jury, and in his
testimony he said that testing failed to reveal the presence at the
scene of any fibers which come from defendant's clothing.
Furthermore, the trial court charged that its recollection of the
evidence was not "binding" on the jury, that it was the jury's
recollection of the evidence which "count[ed]," and that the jury
was the "sole judge[] of the facts." In this context, we are
satisfied that the trial court did not commit plain error by its
inadvertently erroneous remark. R. 2:10-2.
The trial court's charge, considered as a whole, clearly and
firmly directed the jury to disregard any comments respecting the
fiber. Thus, any prejudice created by the prosecutor's comment was
effectively cured. See State v. Winter,
96 N.J. 640, 647 (1984);
State v. Zapata,
297 N.J. Super. 160, 176 (App. Div. 1997).
As a matter of plain error, defendant contends the trial court erred in its limiting charge on the defendant's drug use. At the conclusion of the case, the trial court instructed the jury in these words:
I mentioned in the preliminaries of this case that there would be some evidence coming
before you with regard to drug purchases or
drug use, and I gave you an instruction at
that time. I would like to revisit that area
for a moment. With regard to that evidence,
should you accept it, in your deliberations,
you must not infer that the defendant was in
any way under the influence of drugs at any
time relevant to the facts and circumstances
involved in this case. You must not draw the
conclusion or infer or find that the
defendants [sic] was under the influence of
drugs at any time relevant to the facts and
circumstances of this case. Also, with regard
to the use of drugs, I would again remind you
that this evidence was allowed to come before
you by the Court for certain purposes, and
certain purposes only. If believed and
accepted by you, this evidence may be
considered by you for the limited purpose of
allowing you to better understand the
surrounding facts and circumstances of this
case including such things as motive,
opportunity, intent as they may enter into
your thinking and analysis, but for no other
purpose. And I specifically pointed out to
you that you should not conclude in any way
from this evidence, if you accept it, that the
defendant is a bad character, for instance,
and therefore, one who is likely to commit an
offense. It has limited applicability to this
case, as I have indicated to you, and I so
charge you once again with regard to that
evidence, provided, of course, that you accept
that evidence.
The evidence of drug use came from the defendant's own
statements and the entire story was permeated with the role played
by drugs throughout the evening, including the fact that the murder
began as a drugs-for-sex deal. Thus, the defendant's drug use was
part of the res gestae of the crime, and, consequently, a limiting
instruction was unnecessary. State v. Martini, supra, 131 N.J. at
242.
Assuming an instruction was required on this point, it might
be argued that the charge was erroneous to the extent that it
failed to indicate "the specific purposes for which the other-crime
evidence could be considered." State v. G.S.,
145 N.J. 460, 472
(1996). Generally, more is required than the "`incantation of the
illustrative exceptions contained in the Rule.'" Ibid. (citation
omitted).
Since defendant did not object below, we must consider whether
plain error occurred. Plain error is reversible if it is "clearly
capable of producing an unjust result." R. 2:10-2. The question
is whether the possibility of injustice is "sufficient to raise a
reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached." State v. Macon,
57 N.J. 325,
336 (1971).
State v. G.S., supra, holds that the facts must be carefully
considered in deciding whether "prejudice has resulted from the
failure to give a sufficiently limiting instruction governing the
use of other-crime evidence." 145 N.J. at 473. Where the evidence
of guilt is strong and there have been "strong, repeated
admonitions not to use the other-crime evidence to establish a
criminal predisposition," id. at 476, it is appropriate to
disregard the error. Ibid. Here, the trial court did strongly
admonish the jury not to infer from defendant's drug use that
defendant had a "bad character" or was more "likely to commit an
offense." The court also instructed that apart from understanding
such matters as motive, opportunity, intent, and the circumstances
of the case, the jury was to consider the evidence for "no other
purpose."
The defendant's reliance on State v. Bragg,
295 N.J. Super. 459 (App. Div. 1996), in which we recognized an inadequate other-crime charge to be plain error, is misplaced. The case involved
charges of kidnapping and aggravated assault. The case is clearly
distinguishable. First, that case dealt with other-crime evidence
which substantially preceded the crimes for which defendant was
being tried; and the evidence was not in any sense part of the res
gestae. Second, the evidence of guilt was minimal. Third, the
trial court had failed to charge the jury not to use the other-crime evidence for improper purposes. Fourth, the "other-crime
evidence of prior assaults posed a substantial risk that the jury
would find defendant was criminally disposed, particularly since it
learned of the defendant's assault upon the victim's mother and was
never told that evidence was irrelevant." Id. at 469.
None of the circumstances of Bragg are present in the instant
case. The defendant here fully confessed to his guilt, and the
evidence at the scene of the crime corroborated his admissions, as
did the fresh scratches on his body, and the blood on his sweat
shirt. We are entirely satisfied that the charge did not prejudice
the defendant in any respect.
Defendant's last point relates to the trial court's charge on passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), in relation to murder, and to the related portion of the verdict form provided to the jury.
In the context of a murder case involving the possibility of
passion/provocation manslaughter, murder has three elements: that
defendant acted purposely or knowingly, that he caused death, and
that he did not act in the heat of passion upon a reasonable
provocation. The State has the burden of proving each element
beyond a reasonable doubt.
The defendant contends that the charge in this case created
confusion on the third element. He does not deny that the charge
expressly stated that the State had the burden of proving the
absence of passion/provocation beyond a reasonable doubt; however,
he points to the following language, which also appears in the
current model jury charge, Murder, Passion/Provocation and
Aggravated/Reckless Manslaughter, Revised 11/6/95, as being
inconsistent with that proposition, and argues that it shifts the
burden to defendant:
First, you must determine whether the
provocation was adequate. Whether the
provocation is adequate essentially amounts to
whether loss of self control is a reasonable
reaction to the circumstances. The
provocation must be sufficient to arouse the
passion of an ordinary person beyond the power
of his control. For example, words alone do
not constitute adequate provocation. On the
other hand, a threat with a gun or a knife or
a significant physical confrontation might be
considered adequate provocation. Second, you
must determine whether the defendant actually
was impassioned, that is, whether he actually
lost his self control. Third, you must
determine whether the defendant had a
reasonable time to cool off; in other words,
you must determine whether the time between
the provoking event or events, or the acts
which caused death, was inadequate for the
return of a reasonable person's self control.
Fourth, you must determine whether the
defendant actually did not cool off before
committing the acts which caused death, that
is, whether he was still impassioned at the
time.
We are inclined to agree with the contention that the phrase
"you must determine" in this charge, and in the model jury charge,
is unfortunate. The defendant correctly points out that although
the jury must understand the elements of passion/provocation
manslaughter, it does not have to determine if they were present.
Quite the contrary, the jury must only determine whether the State
has proved beyond a reasonable doubt the absence of one or more
elements of that crime. State v. Grunow,
102 N.J. 133, 145 (1986);
State v. Helsop,
135 N.J. 318, 322 (1994). However, jury
instructions must not be viewed in isolation, but must be read as
a whole. State v. Helsop, supra, 135 N.J. at 324; State v.
Wilbely,
63 N.J. 420, 422 (1973). And in this case the trial court
repeatedly stressed that the State had the burden of proving beyond
a reasonable doubt the absence of the elements of
passion/provocation manslaughter. There was no objection to this
aspect of the charge, and we are satisfied that the jury fully
understood the obligation placed on the State by the law. Thus,
even assuming this was error, it clearly was not plain error. R.
2:10-2.
The verdict form, in pertinent part, reads this way:
1. How do you find as to Count 1 of the
Indictment charging that the
defendant, Byron Brooks, did
purposely or knowingly cause the
death or serious bodily injury
resulting in the death, of [J.S.],
between June 5, 1993 and June 7,
1993?
_________ __________
NOT GUILTY GUILTY
a) If not guilty go to
question number 3.
b) If guilty go to question
number 2.
2. Did the State prove, beyond a
reasonable doubt, that the
defendant, Byron Brooks, did not act
in the heat of passion resulting
from reasonable provocation?
(The State must disprove one of the
following factors, beyond a
reasonable doubt:
1. There was adequate
provocation;
2. The provocation actually
impassioned the
defendant;
3. The defendant did not
have a reasonable time to
cool off between the
provocation and the act
which caused death; and
4. The defendant did not
actually cool off before
committing the act which
caused death.)
The State didn't The State disproved
disprove any of the one or more of the
factors factors
The defendant contends the form has three errors: (1) it requires the jury to convict of murder before considering passion/provocation manslaughter; (2) the itemizing of the elements
of passion/provocation manslaughter suggests a "heightened level of
consideration should be given to the question of
passion/provocation manslaughter"; and (3) "as to the latter two
elements of passion/provocation manslaughter, the question is
phrased as a double negative, that is that: `the state need only
disprove . . . the defendant did not have a reasonable time to cool
off . . . .'" It is suggested that the "double negative
construction is necessarily somewhat confusing and in this context
. . . has the capacity to distort the verdict."
With respect to the first point, we note that the trial court
repeatedly emphasized in its charge that in order to convict the
defendant of murder the jury had to find the State had proven
beyond a reasonable doubt the absence of at least one element of
passion/provocation manslaughter. Thus, the court did not fall
into the error of instructing the jury to first decide if the
defendant was guilty of murder and to consider passion/provocation
manslaughter only if it found the defendant not guilty of murder.
See State v. Coyle,
119 N.J. 194, 222 (1990). Although we do not
endorse the use of this particular verdict form, requiring, as it
does, findings of fact rather than general verdicts of guilty or
not guilty, see State v. Diaz,
144 N.J. 628, 643-45 (1996); State
v. Simon,
79 N.J. 191, 199-208 (1979); State v. M.L.,
253 N.J.
Super. 13, 26-28 (App. Div. 1991), certif. denied,
127 N.J. 560
(1992); State v. McAllister,
211 N.J. Super. 355, 362-64 (App. Div.
1986), we do not perceive that the questions had the kind of
coercive effect which concerned the courts in the above cited
cases. All the trial court did here, in essence, was to break the
charge of murder into its components parts. The charge clearly
indicated that questions 1 and 2 had to be answered for there to be
a verdict of guilty of murder and that the defendant would only be
guilty of murder if the State disproved one of the elements of
passion/provocation manslaughter.
As to the second point, we are unconvinced that placing a
number before each element of passion/provocation manslaughter
could have prejudiced the defendant simply because the first two
elements of murder, as set forth in question 1, were not listed
numerically.
The defendant does not explain why or how the use of the
double negative could have confused the jury; nor is an alternative
charge proposed. In the context of the entire charge, we believe
the jury must have clearly understood the elements of
passion/provocation manslaughter and the State's burden to prove
beyond a reasonable doubt the absence of at least one or more of
those elements.
Affirmed.