SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-646-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER M. CRUMB,
Defendant-Appellant.
_____________________________________________
Argued December 10, 1997- Decided December 24, 1997
Before Judges Shebell, D'Annunzio and Coburn.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County.
Lon Taylor, Assistant Deputy Public Defender,
argued the cause for appellant (Ivelisse Torres,
Public Defender attorney; Mr. Taylor, of
counsel, and on the brief).
Linda K. Danielson, Deputy Attorney General,
argued the cause for respondent (Peter Verniero,
Attorney General, attorney; Ms. Danielson, of
counsel, and on the brief).
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
Defendant was indicted in Atlantic County as follows: count
one, first degree murder (N.J.S.A. 2C:11-3(a)(1) and -3(a)(2));
count two, third degree possession of a weapon, a walking cane,
with a purpose to use it unlawfully against the person of another
(N.J.S.A. 2C:39-4(d)); and count three, assault with ill will,
hatred, or bias (N.J.S.A. 2C:12-1(e)). Count three was severed
by the trial judge, and defendant was tried before a jury from
May 3 to 17, 1995. He was found guilty on both counts. On June
16, 1995, count two, possession of a weapon for an unlawful
purpose, was merged with count one, murder, and defendant was
sentenced to a custodial term of life with a thirty-year parole
ineligibility period.
Defendant appeals, raising the following legal arguments:
POINT I
THE TOTAL OMISSION OF AN INSTRUCTION ON
ACCOMPLICE LIABILITY, INCLUDING THE
OMISSION OF AN EXPLANATION THAT AN
ACCOMPLICE MIGHT HAVE A LESS CULPABLE
MENTAL STATE THAN A PRINCIPAL, VIOLATED
DEFENDANT'S RIGHTS TO DUE PROCESS AND A
FAIR TRIAL. (Not Raised Below).
POINT II
THE GENOCIDAL RACIST MATERIAL SEIZED
FROM DEFENDANT'S BEDROOM FIVE MONTHS
PRIOR TO THE INCIDENT SHOULD HAVE BEEN
EXCLUDED SINCE IT DID NOT FALL WITHIN
ANY EXCEPTION REGARDING EXCLUSION OF
PRIOR BAD-ACTS EVIDENCE AND WAS FAR MORE
PREJUDICIAL THAN PROBATIVE.
POINT III
THE GENOCIDAL ANTI-SEMITIC AND OTHER
HATE MATERIAL SEIZED FROM DEFENDANT'S
BEDROOM FIVE MONTHS PRIOR TO THE
INCIDENT SHOULD HAVE BEEN EXCLUDED SINCE
IT DID NOT FALL WITHIN ANY EXCEPTION
REGARDING EXCLUSION OF PRIOR BAD ACTS
EVIDENCE AND WAS FAR MORE PREJUDICIAL
THAN PROBATIVE.
POINT IV
THE TRIAL COURT'S INSTRUCTION CONCERNING
THE USE OF THE OTHER BAD-ACT EVIDENCE
WAS INADEQUATE AND DENIED DEFENDANT DUE
PROCESS OF LAW AND A FAIR TRIAL. (Not
Raised Below).
POINT V
THE MATERIAL OBTAINED FROM DEFENDANT'S
BEDROOM IN HIS ABSENCE WAS IMPROPERLY
ADMITTED INTO EVIDENCE SINCE IT WAS THE
PRODUCT OF A WARRANTLESS AND
NONCONSENSUAL SEARCH.
POINT VI
THE TRIAL COURT'S INSTRUCTION REGARDING
THE JURY'S OBLIGATION TO ASSESS THE
CREDIBILITY OF "A CERTAIN STATEMENT
ALLEGED TO HAVE BEEN MADE BY THE
DEFENDANT" ERRONEOUSLY OMITTED ANY
REFERENCE TO THE CREDIBILITY OF THE
MULTIPLE WRITTEN STATEMENTS SEIZED BY
POLICE AS WELL AS THE VARIOUS ALLEGED
ADMISSIONS MADE BY DEFENDANT TO FIVE
DIFFERENT PERSONS, THEREBY DEPRIVING
DEFENDANT DUE PROCESS OF LAW AND A FAIR
TRIAL. (Not Raised Below).
POINT VII
THE ACCUMULATION OF ERRORS DENIED
DEFENDANT DUE PROCESS OF LAW AND A FAIR
TRIAL.
During the morning of February 4, 1993, Detectives Michael
Quigley and James A. Frohner of the Egg Harbor Township Police
Department went to the trailer home where the twenty-year-old
defendant lived with his mother and his step-father. Defendant
was not home, but his mother invited the officers in and insisted
that they take a look at his bedroom. The bedroom door was off
of its hinges and the room was in disarray. The officers
observed certain writings in the room. They left and then
returned at about noon to take notes. Quigley eventually left
the trailer and applied for and was granted a search warrant.
Pursuant to the warrant, at approximately 5:00 p.m., Quigley,
Frohner, and others collected various items from the bedroom, and
Frohner took photographs. The evidence seized included writings
and drawings demonstrating defendant's racial and anti-Semitic
beliefs and affiliations. More details concerning the events of
February 4, 1993 will follow.
On July 13, 1993, five months after this evidence was
seized, Roy Dick, an African American man in his seventies, was
brutally beaten in Atlantic City. He died of his injuries on
July 19, 1993, without regaining consciousness. He was a frail
man, about five feet, two inches tall, who spent much of his time
cleaning up the streets and parking lots. He could not walk very
well and was hunched-over, moving only a half an inch at a time.
He used canes and an old broom. He wore hats and old long coats,
even in the summer.
Defendant's friends and acquaintances explained that during
the Summer of 1993, defendant had strong beliefs about various
groups of people. A friend of defendant's since high school
recalled that defendant shaved his head to be a part of the
skinhead faith. The friend said defendant had mixed feelings
about actually being a skinhead, but "he acted the faith," and
expressed strong feelings about black, Jewish, and Puerto Rican
people. Defendant had a tattoo that said "white" on his right
wrist and one that said "power" on his left wrist. He wore black
combat boots with red laces to symbolize neo-Nazi beliefs.
During the Summer of 1993, Tabitha Buntele, then seventeen
years old, lived with her mother in the same trailer park where
defendant resided with his mother and step-father. She was five
feet, four inches tall and weighed about one hundred pounds. At
that time, she and defendant, who was twenty years old, were
friends. Buntele was with defendant on the night of July 12,
1993, and into the morning of July 13, 1993. They decided to go
to the Chelsea Pub in Atlantic City, as defendant used to work
there and knew a lot of people. Sometime after midnight, Buntele
drove the two of them to the Pub in her mother's car, a gray 1987
Reliant K. They parked in the rear of the parking lot near the
bushes. While at the Pub, they drank and played pool. Buntele
estimated she had two or three "nuclear kamikazes." She said
defendant was drinking beer, but she did not remember how many he
had.
The Pub's bartender recalled seeing defendant and a girl at
the bar during the early morning hours, but said that defendant
did not want anything to drink. He estimated that the couple was
in the bar for about fifteen to twenty minutes sometime between
3:30 a.m. and 4:30 a.m.
Buntele recounted that when they left the Pub, they walked a
couple of blocks to the Trop World Hotel Casino because defendant
wanted to talk to one of their mutual friends who worked there.
During the walk, defendant did not appear to be drunk. They
spoke to the friend and agreed to pick him up at a bar and grill,
two blocks from Trop World, when he got off of work at 8:00 a.m.
According to the friend, defendant did not appear to be drunk or
under the influence of alcohol. Buntele and defendant walked
back to the car which was still parked at the Pub.
Buntele recalled that before getting into the car, defendant
said that he needed to urinate and went behind some bushes. She
saw a small, skinny black man wearing a long trench coat near
those bushes, and opined that he was "a bum." She saw defendant
swing his hand at the man "[l]ike he was throwing something," and
tell him "to get lost." Defendant was a foot or two away from
the man, within arm's reach, but she could not tell whether
defendant actually hit the man. The man walked off a couple of
feet through an opening in the bushes and defendant followed.
Buntele was not able to see what the men were doing and could not
hear anything. She did not see or hear anyone else in the area.
About a minute later, defendant came from the bushes and said:
"get in the car. Let's go." Once in the car, he told her, "I
think I just beat somebody up." They left the parking lot and
went to a McDonald's by the bus station. After getting something
to eat at the drive-through window, they drove back to Egg Harbor
Township. During the morning, defendant told Buntele that he
kicked the man once or twice.
During the early morning hours of July 13, 1993, a woman who
lived at 17 South Chelsea Avenue was awakened by the sound of a
lady repeatedly screaming, "no." She looked out the window and
saw a white male getting into the driver's side of a car which
was parked in the parking lot of the Pub. The woman described
the car as light in color and having a box shape. At trial, she
was shown a photograph which she identified as the car she had
seen that morning. She said that a woman was seated in the
passenger's seat. She went back to bed and a few minutes later,
she heard police vehicles. She looked out and saw police
officers and ambulance personnel assisting an individual on the
other side of the fence. On cross-examination, she acknowledged
that she had described the white man as being in his early
thirties and of average build. She explained that she was
looking at the top of his head from her second story window and
she guessed his age because he was not an old person and was at
least of driving age.
Another resident of the second floor of the same rooming
house testified that at 4:34 a.m. on July 13, 1993, he heard
someone say in a loud voice, "come on." The noise was coming
from the direction of the parking lot of the Pub. He looked out
of the window, but did not see anything so he went and sat down.
He then heard a real loud crack like someone was hit with a
stick. He said it was not a regular sound. He went back to the
window, and saw a girl and a guy run and jump into a gray, K car.
From a photograph at trial, he identified the gray car he had
seen that morning. He also said the female got into the
passenger's seat, explaining the male was the last to come out of
the yard and he went around the back and got into the driver's
side. The witness went out onto his fire escape and saw someone
lying down in the yard trying to sit up. He went down and saw it
was Dick. Dick was moaning and his face was "all puffed out"
with blood coming from it.
The witness went to Pacific Avenue where he flagged-down a
police car. The officer followed the witness to the parking lot,
and found Dick injured about the face with a lot of blood coming
out of his mouth and around his nose. There were a couple of
canes and a hat near Dick.
The witness described the two perpetrators as being white
and having blond hair. The female "had something big in her
hair, like a ribbon or something" which was pink. The male was
"pretty tall," about six feet, and "biggish," and the girl was
"kind of short" in comparison with him, about five feet, six
inches. The male was wearing a light-colored or white T-shirt.
On cross-examination, he acknowledged that he had said that the
male appeared to be in his mid-twenties.
At 5:07 a.m., the paramedics transported Dick to Atlantic
City Medical Center. He arrived at the hospital in a comatose
state. He had a collapsed left lung, multiple fractures of the
bones of the mid-face, and fractures of the walls of the
maxillary sinus on either side of the nose, so severe that "they
were almost unrecognizable." The nasal bones and the part of the
nose that extends backwards and lies beneath the brain were also
fractured. There were also fractures of the zygoma bone which
runs along the cheek and of both orbits around the eyes. His
sternum and four ribs were fractured, and he had extensive
hemorrhaging of his right arm indicative of at least three blows.
He was unable to survive these injuries.
Later on the morning of July 13, 1993, Buntele went to
defendant's house to awaken him to go to Atlantic City to pick up
their mutual friend from work. Defendant stopped at the Pub and
walked into the bushes for a couple of seconds. When he came
back into the car, he told Buntele that he found medical
examiner's gloves there.
Defendant's longtime friend recounted that on the day after
the incident, defendant showed him a newspaper account of Dick's
beating and said that the article was about him, as the previous
evening he "beat up some old guy" near the Pub on Chelsea Avenue.
Defendant was "kind of hyper" and somewhat exuberant about the
incident, stating that the man was black and referring to him as
an "old dirty man" and a bum who looked like "a scum." Defendant
said that the man had swatted his cane in defendant's direction,
but had not struck him. Defendant said he hit the man in the
back of the head as the man walked past him and that when the
"old guy" fell down, he "[s]tarted kicking and stomping him." He
said Buntele cheered him on. Two of defendant's friends were
also present during this conversation.
Detective Carl Rando of the Atlantic City Police Department
received a phone call from Buntele's boyfriend at approximately
2:00 a.m. on July 16, 1993. As a result of that call, he and
Detective Gasparo drove to the trailer park where defendant lived
in Egg Harbor Township at approximately 3:30 a.m. They observed
a gray 1987 Reliant K car there and noted the license plate
number. They next saw three people getting into the K car, a
female and two males. Two of these people fit the descriptions
given, so the detectives followed the vehicle and eventually
stopped it. The three were transported in separate cars to an
office of the Atlantic County Prosecutor for questioning.
On July 16, 1993, Sergeants Anthony Porcelli and Raymond
Bolis, of the homicide unit of the prosecutor's office, met with
defendant who was incarcerated. Bolis advised defendant of his
MirandaSee footnote 1 rights, and at 9:53 a.m., defendant signed a Miranda
form, waiving his rights and agreeing to speak to the officers.
Initially, defendant denied he had any altercation with an older
man in Atlantic City. However, at approximately 10:30 a.m., he
told the officers that he left the Chelsea Pub and walked to the
rear of the property through a fence to relieve himself, when an
older man came up to him and swung a cane at him. He noted that
he was not hit by the cane. Defendant admitted he struck the man
in the head and face area with his fist at least two times,
causing the man to fall to the ground. Defendant said that he
was with a female, but that she was sitting in the car and had
nothing to do with the assault.
At 11:30 a.m., in a taped statement, defendant said he had
initially denied there was any altercation because he was afraid
of going to jail. He continued that at 10:00 p.m. on July 12,
1993, Buntele picked him up in her mother's car at the 1400 Bar
in Egg Harbor Township and they went to the Chelsea Pub, arriving
at 10:30 p.m. Defendant said he had two or three beers in the
1400 Bar and about three beers in the Pub.
According to defendant, they left the Pub and walked to Trop
World to talk to a friend who worked there. After about ten
minutes, they returned to the Pub parking lot. Defendant went to
urinate out by the back fence. He went through a cut in the
fence into the rear yard of a green house. He said a dark-skinned older man approached him and swung a cane. Defendant
grabbed the cane and hit the man in the face. Defendant
"possibly" hit the man again. The man fell down and did not get
up. Defendant then got in the car and told Buntele that he had
"hit somebody" and they had to leave. Buntele drove them to the
Trump Plaza parking garage, and they went for a walk on the
boardwalk for about a half-hour, before going to McDonald's.
Defendant told the officers that he went back to the area of
the Pub at 8:00 a.m. because he wanted to see if "the guy was
alright." The man was gone and defendant "thought he left."
Defendant said he did not mean to do it and did not want to hurt
the man. Detective Bolis testified that Dick was found in the
very spot where defendant admitted that he had hit an older man.
Defendant was held at the County Jail in Mays Landing, where
Arthur Thomas, an African American prison inmate, claimed to have
spoken to defendant on July 16 or 17, 1993. Defendant allegedly
told Thomas he was a skinhead and did not like blacks, Puerto
Ricans, Hispanics, and Jews. Defendant told Thomas he went into
the bushes to urinate, and an old man had raised his cane to him.
As a result, he kicked and beat the old man, who he referred to
as scum. Then, the girl he was with went through the man's
pockets. Defendant said he did not "leave the guy for dead" like
the newspapers were saying. Thomas claimed defendant said his
parents were going to pay off Buntele to testify on defendant's
behalf and that he was going to "play like" he was "crazy" to get
away with the crime. Thomas allegedly witnessed defendant
demonstrating to another inmate how he had stomped, punched, and
kicked the old man. Thomas lent defendant his white shoe laces
so he did not have to go to court wearing his red shoe strings
which symbolized Nazism.
Thomas also indicated that in June 1993, before the attack
on Dick, Thomas and defendant were housed together in the same
jail for a couple of days. According to Thomas, defendant, who
had a shaved head at the time, put Nazi signs on the walls and on
his desk. Thomas had an extensive criminal record and
acknowledged that the assistant prosecutor had written a letter
to the Parole Board advising that Thomas had been cooperating in
defendant's case.
After Dick's death, on July 19, 1993, defendant was charged
with murder. The next day, Detective Burke went to the Atlantic
County Justice Facility to advise defendant. Defendant then told
Burke he "may have hit the guy more than twice." Burke advised
defendant of his constitutional rights. Defendant said he was
willing to waive his rights and speak to Burke and then told
Burke that Buntele was not involved and that she stayed near the
car. Defendant also said he did not take anything from the
victim.
A girlfriend of the defendant testified that he called her
from jail twice and on the second occasion, told her he had
kicked a black bum in the head when he and Buntele had gone to
Atlantic City looking for black bums to beat up. She further
stated that before receiving these calls, she saw Buntele in
Absecon, and Buntele bragged that she was involved in the assault
and "did most of it," and was the one kicking Dick in the head.
According to Buntele, she and defendant had been no more
than friends up until the point that they were brought to the
prosecutor's office on July 16, 1993. After that, they became
boyfriend and girlfriend. This was defendant's idea, and they
wrote letters to each other almost every day and spoke on the
telephone. She also visited defendant in jail, and by October
1993, they were planning to get married, and she began using the
surname Crumb. Defendant did not want her to testify as a
State's witness and suggested she say she was drunk or high when
she gave the statement on July 16, 1993. He also suggested they
claim they left the Pub at 2:30 a.m. She broke their engagement
because defendant became possessive, calling her constantly at
home and at work, insisting that she visit him all of the time,
and not allowing her to talk to her friends.
Defendant did not testify, but several character witnesses
testified that he was not violent. Defendant's friend of four
years said he observed defendant in the company of a black friend
quite often and that defendant had several Jewish friends. The
witness acknowledged that defendant would occasionally tell
Jewish jokes, but he never said any racial slurs, and he never
heard defendant use "the N word." He was aware that defendant
was interested in Adolph Hitler and neo-Nazism, and admitted he
had seen him with a shaved head wearing black boots with red
laces, and knew the significance of such attire.
Defendant first contends that the judge's failure to give a
jury instruction on accomplice liability on count one, murder,
violated defendant's rights to due process and a fair trial. He
asserts the trial judge should have instructed the jury that an
accomplice might have a less culpable mental state than a
principal. Defendant's appellate counsel refers to Buntele's
possible involvement in the attack and suggests that defendant
may have been attempting to protect Buntele by denying to the
police that she had any involvement in the incident. Therefore,
defendant's counsel argues that it was the judge's obligation to
give such a charge, sua sponte, even if it was inconsistent with
the defense theory and was not requested. Defendant cites State
v. Powell,
84 N.J. 305, 318-19 (1980) and State v. Ramseur,
106 N.J. 123, 270 n.62 (1987).
We recognize that in a murder case, the judge has an
obligation to charge the applicable law to the jury even when not
requested. State v. Powell, supra, 84 N.J. at 318. Here,
however, an accomplice liability charge was not required.
N.J.S.A. 2C:2-6 provides in pertinent part:
c. A person is an accomplice of another
person in the commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense;
he
(a) Solicits such other person to commit
it;
(b) Aids or agrees or attempts to aid
such other person in planning or committing
it[.]
Where a defendant is charged as an accomplice, the trial judge
must instruct the jury that to find defendant guilty of a crime
under a theory of accomplice liability, it must find that he or
she "shared in the intent which is the crime's basic element, and
at least indirectly participated in the commission of the
criminal act." State v. Fair,
45 N.J. 77, 95 (1965).
Furthermore, the charge must equally relate those principles to
the degrees of the offense involved. State v. Weeks,
107 N.J. 396, 405 (1987). In other words, when an alleged accomplice is
charged with a different degree offense than the principal or
when lesser included offenses are submitted to the jury, the
trial judge has a duty to "carefully impart[ ] to the jury the
distinctions between the specific intent required for the grades
of the offense." Id. at 410.
Needless to say, the obligation to provide the jury with
instructions regarding accomplice liability arises only in
situations where the evidence will support a conviction based on
the theory that a defendant acted as an accomplice. State v.
Bielkiewicz,
267 N.J. Super. 520, 527 (App. Div. 1993). In this
case, the prosecution's theory was that defendant alone attacked
Dick. That is clear from the prosecutor's opening and closing
statements and the State's admission into evidence of defendant's
statement in which he maintained that Buntele was sitting in the
car and had nothing to do with the assault. Furthermore, the
indictment charged defendant with purposely or knowingly
inflicting serious bodily injury to Dick resulting in his death.
It did not charge that defendant was an accomplice.
The defense theory was that someone other than defendant and
Buntele committed the murder. Defense counsel cross-examined the
bartender regarding his telling the police that he had seen
another couple in the Pub that night. Defense counsel emphasized
this point in summation and pointed out the inconsistencies
between how the neighbors who had seen the couple in the parking
lot described the man and woman and how defendant and Buntele
claimed to dress and look that night. Defendant's attorney
argued that the person who defendant admittedly hit once or twice
was not Dick.
Neither the State's version of what occurred nor the
defense's version of what occurred warranted a Bielkiewicz
charge. Under the State's theory, defendant was culpable as a
principal, and under the defense's theory, defendant was not
involved in the murder of Dick. Nonetheless, defendant suggests
that a Bielkiewicz charge was required for the scenario which was
"indicated" by the record that Buntele was the principal and
defendant was an accomplice. We reject this contention. Even if
Buntele was involved in the attack, once defendant was identified
as a participant in the beating of Dick, there was no evidence
from which the jury could have differentiated between his
culpability and that of Buntele. State v. Rue,
296 N.J. Super. 108, 116 (App. Div. 1996), certif. denied,
148 N.J. 463 (1997).
Moreover, as the State points out, defendant was not prejudiced
because the jury was given the opportunity under the jury
instruction to assess his precise culpability and find him guilty
of murder, passion/provocation manslaughter, aggravated
manslaughter, reckless manslaughter, aggravated assault, or
simple assault.
Defendant argues that an accomplice liability charge was
necessary particularly in light of the prosecutor's alleged
misstatement of the law in her summation:
So if you have a distraction in your mind
about Tabitha Buntele's responsibility for
any of this, put it aside. She's not on
trial. And even if she had done something,
that doesn't take any responsibility away
from him, nothing.
[Emphasis added.]
Defendant asserts that in the emphasized portion of that quote,
the prosecutor misstated a key element of accomplice liability.
We disagree. The prosecutor did not suggest that an accomplice
is guilty of the same degree offense as the principal. Rather,
the prosecutor suggested that if Buntele was an accomplice,
defendant would be no less responsible for his acts as the
principal actor.
In light of defendant's failure to request such a charge at
trial, any error must be disregarded by this court unless it was
clearly capable of producing an unjust result. R. 2:10-2; State
v. Cofield,
127 N.J. 328, 341 (1992). Here, the omission of an
accomplice liability charge was not error at all, let alone plain
error capable of producing an unjust result. There was no
rational basis for an accomplice liability charge. Such a charge
would have prejudiced defendant and also tended to detract from
his theory of defense.
Defendant next contends that at trial, the judge erred in refusing to exclude from evidence the genocidal racist material seized from defendant's bedroom five months before the attack on Dick. Earlier, the judge had, on May 5 and 12, 1994, conducted a hearing on defendant's motion to suppress items seized as a result of the search with a warrant of defendant's bedroom on February 4, 1993. The judge determined that the racist and anti-Semitic material seized from defendant's bedroom should be excluded because it was inflammatory and the risk of undue prejudice substantially outweighed the material's probative value as to defendant's motive.
The State filed an interlocutory appeal, and we concluded that the trial court had abused its discretion. State v. Crumb, 277 N.J. Super. 311, 316 (App. Div. 1994). We held that the
probative value of written material expressing defendant's hatred
of blacks was not outweighed by danger of unfair prejudice, and
that the admissibility of the remaining anti-Semitic materials
should be determined at trial. Id. at 319-20.
Defendant's mother, Sharon Crumb, testified at the May 1994
hearing that in February 1993, she lived with her husband and
defendant at the Karl Le Trailer Park. According to his mother,
defendant's bedroom was apparently ten feet by eight feet or ten
feet, and contained a couch, two bureaus, a night table, a
mirror, and a closet. Kalin, who is Sharon's sister and
defendant's aunt, lived in the same trailer park and stored
clothes in the closet in defendant's room.
The trailer home was in Sharon's and her husband's names.
Defendant's mother claimed he paid rent to her according to an
arrangement wherein defendant would babysit for Kalin's children
for $30 or $40 per week and defendant or Kalin would give her
half of that money. She said defendant was responsible for
cleaning his own room, and that in the Summer of 1992, she and
defendant had a fight because she had entered his bedroom and
cleaned it without his permission. As a result, she was not
allowed access to his bedroom without first asking his
permission. She explained that the hinges at the top of the door
were bending off so her husband removed the door.
The mother testified that Detectives Quigley and Frohner of
the Egg Harbor Township Police Department came to her trailer on
February 4, 1993. She had known Quigley for two or three years,
had dealt with him about three or four times, and had previously
called him for help because she was concerned about the people
defendant was "hanging out" with.
On February 4, 1993, Quigley and Frohner advised the mother
that they wanted to ask her son a few questions. She told them
that he was not home, but invited them in. The officers asked
what defendant had been up to, and she responded, "I don't know,
go look, go look at his room." She said the officers did not ask
to look at the room. The room was a mess, and she wanted them to
see that defendant "wasn't in his right mind at the time." He
had previously written "go to hell" on the mirror which she
washed off. She was concerned because defendant's friends were
involved in satanic activities. She wanted Quigley to know that
defendant needed help and that she was not making up that
defendant was involved in satanic activities. On a previous
occasion, she had explained to Quigley and others that defendant
and his friends had an altar at a slaughterhouse where they
congregated, but they did not believe her.
The mother said the officers went right into defendant's
bedroom, and after they had been in there for ten minutes, she
looked in and saw them going through defendant's drawers, looking
at papers. She said Quigley had his hand in the night table
drawer and the other officer was looking in a bureau drawer. She
said she went into the living room and cried because she did not
think that the officers had a right to do what they were doing.
She did not ask the officers to stop because she was afraid and
intimidated, and did not know that she could. She was not
presented with a consent to search form nor did the officers tell
her that she had a right to refuse to let them search.
She asserted that when the detectives had been in
defendant's room for a half-hour, Quigley came out and asked if
defendant had given her permission to go into his bedroom or to
open his night table drawer. She told him no, but said she went
in anyway. Quigley said he had found some papers about Jews and
that he needed to make a phone call to see if he could take them.
He then left the trailer to make the call, and the other officer
remained in defendant's bedroom. Quigley returned five or ten
minutes later and told her he would be back with a search
warrant. He went into defendant's bedroom where he and the other
officer remained for another forty minutes. At approximately
11:30 a.m., they left, saying they would be coming back with a
search warrant. After they left, she opened the drawer to
defendant's night table and saw three papers neatly piled. She
took the papers and drove to Kalin's trailer. However, the two
returned to the mother's and put the papers back in the drawer.
Frohner returned at about 3:00 p.m. and took pictures of the
bedroom. He sat with the mother and her sister until the search
warrant arrived after 5:00 p.m. The officers then seized items
from defendant's bedroom.
On cross-examination, the mother was shown pictures which
depicted what her son's room looked like on February 4, 1993.
She acknowledged that there were "[m]aybe some papers on the
floor" and that writings on the wall included, "ACS" [Atlantic
City Skinheads], "white power," and a satanic drawing of a person
with a sickle, and swastikas.
Quigley testified that he had known defendant since he was
fourteen or fifteen years old, and that defendant's mother had
contacted him for help and advice in dealing with defendant. He
testified that on the morning of February 4, 1993, he and Frohner
went to the trailer to investigate allegations of two victims who
had identified defendant as the perpetrator in two separate
sexual assaults. The second victim had reported the assault to
police on February 1, 1993. Quigley went to the trailer to
discuss the allegations with defendant, not to search.
According to Quigley, defendant's mother answered the door
and said that her son was not home and had not come home the
night before. She said she was very concerned, as she feared he
was getting more deeply involved in the skinhead movement and
satanism. In the living room were twenty-five to fifty copies of
a pamphlet which listed the names and addresses of different
affiliations of the KKK and white power groups. The mother gave
Quigley a copy. She wanted Quigley "to take a look at" her son's
bedroom so he could see what defendant had done to his room in
the five years that they had lived in the trailer home. It was
her idea that the officers go into the bedroom and he had asked
if she had free access to defendant's room, if defendant paid
rent, and whether the door was locked. She replied that she did
have access, and complained that defendant did not pay rent
because he did not work, and he did not clean his room. Before
entering the room, Quigley said: "[y]ou know, Mrs. Crumb, before
we go in the room, I want to advise you we are investigating
Chris for two aggravated sexual assaults." She replied that she
understood that and told the officers to "go in the room if you
like." Quigley was satisfied that she had authority to let them
go into the room.
The room was a mess with clothes and papers all over the
place. Quigley said they did not go in the drawers to either the
night stand or the dressers. There were papers on top of the
bureau, on the couch, and on the floor. Quigley saw on the couch
a drawing of a female, with her legs spread, which said,
"Kristine Kapinski," and "[p]lease do not rape me." Kapinski was
the victim of the first sexual assault. Frohner found another
paper which appeared to portray a planned burglary of Weed's
Texaco station on Black Horse Pike in McKey City. A third
document on the couch referenced an abandoned building known as
the slaughterhouse which had been set on fire.
Quigley believed that these three papers were evidence of
crimes. At about 12:00 noon, he left and drove to a pay phone to
call his supervisor, while Frohner remained at the trailer. The
captain advised Quigley not to remove anything from the bedroom
but to write down anything that was of evidential value. Quigley
returned to the trailer home to take notes of the three items
they had seen. Although he believed that he had cause to search
the room based on the three documents found in plain view, he
thought it would be best to obtain a search warrant. He
acknowledged he did not tell the mother she had the right to
refuse to allow the officers to look in the room. He said he was
in the room for only five minutes before he left to make the call
and five minutes after he made the call. He then left to get a
search warrant. Frohner left with him, but went back to the
trailer in case defendant returned. Quigley did not take
anything with him, but listed the three documents seen in the
bedroom in his affidavit for the search warrant, which was issued
at 5:15 p.m. Quigley returned to the trailer with the warrant
and confiscated the three documents and other items which were
evidence of the sexual assault cases. Defendant was charged with
the crimes later that night.
Frohner's testimony at the suppression hearing regarding
what occurred on February 4, 1993, was consistent with Quigley's.
Frohner stated that when Quigley went for the search warrant, he
waited for a few hours with both women and he watched television
and read a book. Eventually he received a call on his cellular
telephone informing him that a judge had issued a warrant. At
that point, Frohner went back into the bedroom and took
photographs. Quigley and two other men from the Prosecutor's
Office arrived and a search was conducted of the bedroom. Nine
items were seized: (1) assorted hand bills; (2) a black ring
binder; (3) assorted papers from the night stand; (4) a box
cutter from the night stand; (5) a pillow case; (6) assorted
papers from the clothes hamper; (7) assorted papers from the top
of the dresser; (8) a paperback book entitled, Satan Wants You,
and assorted papers from the closet; and (9) two letters from the
door.
Following the testimony, defense counsel conceded that the
search warrant was sufficient on its face. However, counsel
argued that the information in the warrant was based on an
illegal search because there was no consent, as defendant's
mother did not have the legal capability to consent to a search
of her adult son's bedroom.
The judge in an oral decision found that when the officers
initially went into the room, it was at the insistence of
defendant's mother and that they saw in plain view three papers
which appeared to be evidence of crimes. Based on these
findings, the judge denied defendant's motion to suppress the
evidence. However, he ruled that the evidence seized from
defendant's bedroom, such as the writings and drawings which
suggested defendant's racist and anti-Semitic beliefs and
affiliations, would not be admissible in the State's case in
chief because it was inflammatory and the risk of undue prejudice
substantially outweighed the material's probative value regarding
defendant's motive. Since the material would be admissible in
prosecuting the bias crime, the court severed the third count for
a separate trial.
We granted leave to the State to appeal from that pre-trial
order and, in a decision published on November 22, 1994, reversed
that part of the order excluding the written material. State v.
Crumb, supra, 277 N.J. Super. at 322. We affirmed that part of
the order severing the third count. Id. at 321.
In our opinion, we called for some caution as to the
admissibility of the material. Ibid. We recognized that the
record developed at trial could differ substantially from the
record developed on the suppression motion, and therefore, ruled
that the trial judge "must be sensitive to any significant
differences between the record on this appeal and what occurs at
trial and the impact of those differences on issues of relevance
and undue prejudice, even with regard to the material calling for
the deaths of blacks." Ibid.
As to the written material that did not specifically mention
black people, we concluded that the trial judge should not have
excluded it in a pre-trial ruling and instead should have awaited
its offer during the context of the trial. Id. at 320. Although
this evidence did not expressly refer to black people, we
indicated it had probative value because it showed defendant's
commitment to theories of racial superiority, and "tend[ed] to
reinforce and give context to defendant's expressions of
hostility toward blacks." Ibid. If offered in the State's case,
the trial judge would have to evaluate its probative value and
the risk of undue prejudice pursuant to N.J.R.E. 403. Id. at
320-21.
At trial, the judge, over defense counsel's objections,
allowed into evidence photographs of defendant's bedroom taken by
Frohner. One depicted writings on the wall, stating "ACS,"
"white power," "under siege," and "fade to black," and a swastika
and a symbol of a round circle with an X or a T through it.
Another showed various papers strewn about the room and soda
bottles and dirty glasses. Also admitted was a writing of a
circle with a star in it attached to a door which was off of the
hinges, as well as posters of Motley Crue, Megadeth, and
Metallica.
Quigley testified about several items removed from
defendant's bedroom, which defendant had confirmed at an
interview at police headquarters were materials he had written.
Toward the beginning of Quigley's testimony about defendant's
writings, the judge interjected and instructed the jury that it
must not convict defendant because of his beliefs and that it
should consider this material only as evidence of defendant's
state of mind at the time of the incident.
Several items were then entered into evidence: 1) A black
loose leaf notebook with a drawing on the cover of an individual
resembling Adolph Hitler with a circle and a star and a snake
with the words along the side, "Adolph Hitler was definitely
ahead of his time. Long live the Skin Heads, CJ, CJ;" 2) A page
of a spiral notebook on which was written "American Skin Heads"
and "Neo-Nazi," with a picture of a swastika and someone saying,
"get him" with an arrow pointing to the person and the words
"white power" and an emblem of a Celtic cross in a circle in
which was the phrase "kill them fucking niggers," and underneath
the symbol was written "Kill them dead. Kill 'em all. White
Power;" 3) A blow-up of a writing, stating "Nazi pretty boys," a
swastika, and then "American Skin Heads," and then below that was
a circle with a cross with the words, "kill them fucking
niggers," and "white power" and a page containing writings about
tattoos including "right hand white with banner," and "left hand
power with banner;" 4) A drawing of a circle and cross and the
words, "kill 'em, kill 'em dead. Kill 'em all," and "white
power."
After these four items had been admitted, defense counsel
objected to the admission of a blow-up of a writing saying "SS"
at the top and "Sig Heil" in the middle. Below the writing was a
drawing of a dark-skinned individual saying "can't we just get
along," and a second individual saying, "die nigger scum," and
below the picture it said, "Rodney King beating." The judge
remarked that the evidence was getting cumulative, but admitted
it. A blow-up of another page was also admitted. On the top of
it was written "great ideas" and then the initials "FOMA," with
the words underneath each corresponding letter: "death for
free," "[t]hey owe," and "minority." (Emphasis added.) It was
unclear what was written underneath the "A." Also on that page
was written, "MFA," for "Minority Free America," and descriptions
of clothing including black combat boots with red laces.
At that juncture, the judge indicated that he would not
permit anymore evidence of this type "unless it really says or
shows something substantially different than what you have
already shown there." The jury was excused and the prosecutor
made a proffer outside of the presence of the jury. The judge
refused to admit several items offered, but did agree to admit a
page from the notebook stating, "Adolph Hitler," "I totally agree
on all of his thoughts," and "his attitude toward the minorities
and views was [sic] about the same. I would have done it if I
had the power."
The judge also admitted an August 31, 1992, entry in
defendant's notebook stating, "I am going to be a Skin Head
really soon," and a portion of a letter stating:
I'm still with Atlantic City Skin Heads. I
went to the extreme, shaved my head and got
my Dr. Martin boots, my black bomber jacket,
more tatoos [sic]. Got a few skulls on my
lower left arm, a Celtic cross on my upper
left arm, on my upper right arm I got a
Viking grim reaper, stillman, and then
inverted cross and white power across my
wrist.
The judge admitted the words to a song, entitled "Hatred Inside,"
by Megadeth which defendant wrote in a notebook:
Welcome to this F'd up world where you will
live and die. There are no ways to change
the hatred that I feel inside. They're
trying to kill us one by one and we're doing
nothing to stop them. You should listen to
what I say before you become a victim.
[W]e should join together in unity and help
to destroy them all. United we stand,
divided we fall. They run the streets and
our lands like it is their own, robbing our
men and raping our women and stealing from
our homes.
. . . .
Then they deserve to die, all of them, for
being on this earth. They should have killed
all of them at their f'g birth.
Defendant argues that we are not bound by our earlier
decision in Crumb, supra, since the law of the case doctrine is
discretionary and not irrevocably binding. In any event, we find
no reason to disagree with that earlier decision. This court has
already decided, in a well-reasoned published opinion, that the
subject material was admissible.
We will assume for purposes of our discussion that both
N.J.R.E. 404(b) and N.J.R.E. 403 are implicated in determining
the admissibility of the evidence objected to. The material
seized from defendant's bedroom, which was admittedly written by
him, may arguably be considered "[e]vidence of other crimes,
wrongs, or acts" within the meaning of N.J.R.E. 404(b).
Although defendant's writings are constitutionally protected free
expressions of his racial beliefs and are not themselves
unlawful, they nonetheless may be interpreted by a jury to
constitute other wrongs or acts. Although evidence excluded
under N.J.R.E. 404(b) is often referred to as "other crime
evidence," the rule also excludes evidence of other wrongs and
acts which may not necessarily be unlawful. Richard J. Biunno,
Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (1997-1998); See State v. Kittrell,
279 N.J. Super. 225, 237-38 (App.
Div.), certif. granted,
142 N.J. 573 (1995) (considering
admissibility of evidence under N.J.R.E. 404(b) that suspect
arrested on CDS charges had a beeper on his possession).
In the recent case of State v. Nance,
148 N.J. 376 (1997),
our Supreme Court held that evidence of prior jealous episodes by
the defendant toward his former girlfriend was admissible to show
his motive in shooting her male friend. Id. at 382-84, 386.
Similarly, here, evidence of defendant's prior writings
demonstrating his racial hatred was admissible to show his motive
in beating Dick.
Of course, even if the material seized from defendant's
bedroom regarding his racist beliefs was admissible under
N.J.R.E. 404(b) to prove motive, the trial judge may in his
discretion exclude it under N.J.R.E. 403, if its probative value
is outweighed by its prejudicial impact. A four-part test is
used for determining when extrinsic evidence of other crimes or
wrongs is admissible:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[State v. Cofield, supra, 127 N.J. at 338.]
Determinations of the admissibility of "other crimes,
wrongs, or acts" evidence are left to the discretion of the trial
court. State v. Marrero,
148 N.J. 469, 483 (1997); State v.
Nance, supra, 148 N.J. at 387. The trial judge's decision in
this regard is entitled to deference and is to be reviewed under
"an abuse of discretion standard." Ibid.
Under the first prong of the Cofield test, evidence of
defendant's racist writings was relevant to the material issue of
defendant's motive in attacking Dick. The State charged
defendant with "purposely or knowingly" causing Dick's death. As
noted in State v. Crumb, supra, the written material regarding
defendant's hatred of and death wish for black people showed
defendant's motive and state of mind. 277 N.J. Super. at 317-18.
Defendant's state of mind was a relevant issue because "[w]ithout
it, a jury would not know the context of Roy Dick's death and
might be resistant to the idea that a young man purposely would
inflict deadly harm on an elderly stranger without any apparent
reason such as theft or substantial provocation." Id. at 318.
Defendant argues on appeal that the prior bad acts evidence
about his hatred of blacks was "global in nature" and "far
removed" from any specific motive at the time of the attack.
Defendant argues that the motive evidence must have a more
specific link to the particular crime. State v. Nance, supra,
148 N.J. at 382-84 (prior jealous episodes by the defendant
toward former girlfriend admissible to show motive in shooting
her male friend); State v. Baldwin,
47 N.J. 379, 391, cert.
denied,
385 U.S. 980,
87 S. Ct. 527,
17 L. Ed.2d 442 (1966)
(evidence that the victim was going to testify against the
defendant in a robbery trial admissible to show motive in killing
the victim).
That the link in those cases may have been more specific
does not mean it was erroneous here to admit the evidence to show
motive. In Crumb, supra, we cited United States v. Mills, 704 F.
2d 1553, 1558-59 (11th Cir. 1983), cert. denied,
467 U.S. 1243,
104 S. Ct. 3517,
82 L. Ed.2d 825 (1984), wherein the court held
that membership in an Aryan Brotherhood prison gang and letters
defendant wrote describing the brotherhood's activities were
admissible to show that he killed a fellow inmate as retribution
for a wrong perpetrated on a brotherhood member in another
prison. 277 N.J. Super. at 319-20. The defendant had tried to
exclude the evidence under F.R.E. 404(b) as evidence of other
crimes, wrongs or acts and under F.R.E. 403 as unduly
prejudicial. 277 N.J. Super. at 319-20 (citing United States v.
Mills,
704 F.2d 1553, 1558-59 (11th Cir. 1983), cert. denied,
467 U.S. 1243,
104 S. Ct. 3517,
82 L. Ed.2d 825 (1984)). The Court
of Appeals disagreed and ruled that the letter "`pertained to a
chain of events forming the context, nature and set-up of the
crime,' and that the evidence was necessary `[t]o make the crime
comprehensible to a jury.'" Id. at 320 (quoting Mills, supra,
704 F.
2d at 1559).
We find that the same rationale applies here, as defendant's
written materials supplied a motive for an otherwise
incomprehensible crime. The motive was at first baffling since
robbery was ruled out because Dick had over $100 in his
possession when he arrived at the hospital. The other crimes
evidence was necessary for the proof of motive. State v.
Marrero, supra, 148 N.J. at 482 (citing State v. Stevens,
115 N.J. 289, 301 (1989)).
In Crumb, supra, we recognized that at the time of the
interlocutory appeal, we could not consider all of the
circumstances that occurred at trial and their impact on the
issues of relevance and prejudice. 277 N.J. Super. at 321.
Defendant argues that the actual trial was far more replete with
evidence of defendant's hatred of blacks than the limited pre
trial record. However, on interlocutory appeal, we noted the
extensive evidence of defendant's writings, which included such
phrases, as "Die Nigger Scum," and "White is Right," "Kill them
Fucking Niggers," and "White Power." Id. at 315-16. Nothing
admitted at trial was any more inflammatory even considering the
alleged cumulative nature of the evidence. We anticipated
testimony of the nature admitted at trial from the witnesses as
to defendant's racist views. We specifically stated that the
written material corroborated "the anticipated testimony of
Frolich and Thomas regarding defendant's race-related statements
to them." Id. at 319.
Finally, still in regard to the first prong, defendant
asserts that our earlier decision centered on the unrealized
speculation that the written material would be relevant to the
issue of self-defense. However, our decision that the written
material should be admissible was not centered on the self-defense theory.
We provided three other reasons for the relevance of this
evidence: (1) the written material provided "compellingly
powerful evidence of a motive which helps to explain an otherwise
inexplicable act of random violence"; (2) noting that defendant
may be entitled to a jury instruction regarding lesser included
offenses such as aggravated and reckless manslaughter, we stated
that the written material had substantial probative value to the
State in establishing that defendant acted with the necessary
culpability, "extreme indifference to human life," that
distinguishes those two types of manslaughter; and (3) the
written material belied the suggestion that defendant had a
concern for the victim's well-being as he implied by having told
police that he returned to the scene in the morning. Id. at 317-18. Regarding self-defense, we simply added that the material
tended to cast doubt on defendant's self-serving statement that
Dick initiated the confrontation by swinging his cane at
defendant. Id. at 317. The material was relevant to defendant's
credibility on the issue of the need to defend himself and to
meet any claim of imperfect self-defense. Id. at 318.
As to the second prong, defendant argues that the material
seized from his bedroom was neither similar in kind nor close in
time to the incident. Again, defendant argues that the evidence
showed only general hatred toward black people and others without
a specific link to the incident. Defendant argues that this
court in Crumb mistakenly relied on State v. Carter,
91 N.J. 86
(1982), where there was evidence that the defendants had a
relationship with the murdered black man's family which could
cause them to retaliate by randomly killing others. Crumb,
supra, 277 N.J. Super. at 319. Defendant further argues that
defendant's writings were not similar to the incident. We find
no merit to any of these arguments and have discussed them
previously. R. 2:11-3(e)(2).
As defendant concedes that the third prong of the Cofield
test has been satisfied, we need not comment. The fourth prong
of the Cofield test was sufficiently discussed in State v. Crumb,
supra, 277 N.J. Super. at 319. We recognized that the material
was potentially inflammatory, but concluded that defendant's race
hatred as expressed in that material was central to the case.
Ibid. We remain persuaded that the probative value of the
material expressing defendant's death wish for black people was
not outweighed by the risk of undue prejudice. Id. at 320.
Although the State had several additional documents, the judge
limited the admission of the evidence. Moreover, the judge gave
a limiting instruction at the time that the evidence was being
admitted and in his final charge to the jury. Thus, any undue
prejudice was reduced significantly. N.J.R.E. 105; State v.
Nance, supra, 148 N.J. at 386-87. We conclude that the trial
judge did not abuse his discretion in admitting into evidence the
racist material seized from defendant's bedroom. State v.
Marrero, supra, 148 N.J. at 483-84.
Defendant further maintains that the trial court erred in refusing to exclude from evidence the genocidal anti-Semitic and other hate material seized from defendant's bedroom. He argues
that this evidence did not fall within any exception to the rule
of exclusion of prior bad acts evidence and was far more
prejudicial than probative. At trial, defense counsel also
objected to the admission of evidence of any Nazi-type items.
The judge overruled this objection and allowed in evidence a
drawing of Adolph Hitler with the words, "Adolph Hitler was
definitely ahead of his time, long live the Skin Heads"; various
writings referring to the skinhead organization and neo-Nazism; a
picture of a swastika; a writing in a notebook stating, "Adolph
Hitler," "I totally agree on all of his thoughts," and "his
attitude toward the minorities and views was [sic] about the
same. I would have done it if I had the power."
As previously stated in Crumb, supra, defendant's hatred of
Jewish people was relevant and probative of defendant's motive
for the random killing of Dick. 277 N.J. Super. at 320. We
explained the connection:
Although this material does not mention black
people, it does have probative value in
establishing defendant's commitment as a
"skinhead" to racial confrontation and his
adherence to theories of racial supremacy.
Thus, it tends to reinforce and give context
to defendant's expressions of hostility
toward blacks, and would rebut any expressed
or implied suggestion that the written
material referring to blacks was an isolated
aberration.
[Ibid.]
This anti-Semitic material, like the racist material, was
relevant to the issue of defendant's state of mind regarding
hatred of certain groups of people. Thus, it also tended to show
the reason for an otherwise inexplicable act.
Defendant further contends that the non-racist genocidal
material was not close in time or similar in kind to the
incident, arguing "some" of this material "may" have been written
almost one year prior to the incident. However, there is no
evidence to demonstrate that these writings were written a year
before the incident. These writings were discovered in
defendant's possession only five months before the incident and
do not appear to have been remote in light of defendant's
continuing conduct and attire.
Defendant also argues that the anti-Semitic writings and
drawings, blown up t