Opinion
DOCKET NO. A-6169-10T2
08-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE SCOTT, Defendant-Appellant.
Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Aiello, of counsel and on the brief). Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-05-0432. Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Aiello, of counsel and on the brief). Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief). PER CURIAM
After a six-day trial, a jury found defendant Andre Scott guilty of the first-degree murder of his friend, Roy Davis, as charged in Indictment No. 09-05-0432, N.J.S.A. 2C:11-3(a)(1) & (2). On appeal, Scott alleges the trial judge committed plain error by recharging the jury on the requisite mental state for murder, and by failing to give the cautionary cooperating witness instruction to the jury sua sponte. Scott also alleges ineffective assistance of counsel for failing to request the cooperating witness charge. We reject these contentions and affirm.
I.
The evidence at trial revealed that on the evening of November 2, 2008, Mr. Douglas, Davis, and Scott were at Exit 5 Studios in Burlington City recording an album. After they finished recording their song, all three left the studio to listen to the CD in Douglas's car. An altercation ensued between Scott and Davis, which resulted in Scott fatally stabbing Davis. Douglas and Scott were the only witnesses to the actual stabbing. While their accounts of the events leading up to the stabbing were consistent, their recitation of the facts of the confrontation and stabbing differed.
Douglas testified that he was sitting in his car with the windows down listening to the CD. Based on their body language and raised voices, Douglas observed what looked like an argument between Scott and Davis as they stood outside of the vehicle. Douglas saw Davis shaking a bottle with his right hand, close to Scott's face, while Scott wielded a knife in his left hand. After observing this, Douglas yelled out from the car attempting to verbally defuse the situation. Davis listened to Douglas and "kind of put the bottle down" and looked at Douglas "like he [could not] believe they [were] beefing." Then, while Davis was looking at Douglas, Scott stabbed Davis with his knife approximately five times.
After Scott stabbed Davis, Douglas fled the parking lot. As Douglas began to drive away, he saw through his car's rear view mirror that Davis's body had fallen to the ground. After driving several blocks, he returned to the studio and asked a person inside to call an ambulance. Douglas stayed with Davis until the ambulance arrived, at which time Davis was unconscious but breathing.
After the police arrived, Douglas went to the police station to give a statement. Douglas's account was admittedly untruthful because he did not want to be involved in the situation. In an attempt to keep his story simple, Douglas told the police some people appeared at the parking lot and tried to "jump" them. He took flight and did not know what had happened. During his conversation with police, Douglas learned Davis had died. Because they did not believe his account of events, police charged him with obstruction and released him.
After his release, Douglas went to Scott's home in Philadelphia to inform Scott what he told police. Several days later, after consulting with an attorney regarding his pending charges, Douglas contacted the police to give a second statement in which he related the events as he described at trial. After he provided his second statement, Douglas agreed to direct police to Scott's residence in Philadelphia.
Scott testified to a different version of events. He explained that he and Davis were standing outside of Douglas's car listening to the CD they had just recorded. After hearing the vocal tracks recorded by Douglas and Davis, Davis would not let Douglas play Scott's track. As Scott told Douglas to find and play his track, Davis "slapped [Douglas's] hand away" from the dial. Scott asked Davis what he was doing because Scott was trying to hear his part. At that point, Davis faced Scott in an aggressive manner, backed up, and pulled out a bottle. Scott and Davis continued arguing when Scott asked Davis if Davis really intended to hit him with the bottle.
As Davis continued to wave the bottle in Scott's face, Scott pulled out a pocket knife to get Davis to "back up off [him]." Scott did not intend to use the pocket knife, but Davis came toward him and slapped the knife out of his hand. At that time Scott did not know what to do. As the knife lay on the ground, Scott, unsure if Davis was going to grab the knife, proceeded to "rush for the knife" himself. Davis swung the bottle at Scott, and then Scott "took a jab" at Davis with the knife. Scott did not know where he was aiming the knife; he "just threw the knife out there[,]" unsure whether he had made contact as Davis continued to advance toward him. Davis took another swing with the bottle, making contact with Scott's head. Scott responded by jabbing again with the knife.
While Scott attempted to retreat, Davis continued to advance. Davis took another swing, causing Scott to fall. While Scott was on the ground, Davis "hunched over [him] like he was about to hit [him]." Scott then pushed up with one hand and jabbed at Davis two times. Once he was able to separate himself from Davis, he told Davis to stop and that he probably needed to get to a hospital. At that point, Douglas drove away from the parking lot. Davis attempted to walk toward where Douglas's car had been parked, turned around with his back facing Scott, and fell. Scott rushed over to Davis and noticed he was breathing heavily. Because Davis would not get up, Scott panicked and drove home to Philadelphia. On his way home, he discarded the knife.
The trial was held before Judge Michael J. Haas. The judge charged the jury on murder, passion/provocation manslaughter, aggravated manslaughter, and reckless manslaughter. He also charged the jury on self-defense. During deliberations, the jury sent a note to Judge Haas asking for clarification on the meaning of "knowingly." After the judge recharged the jury, Scott was unanimously convicted of murder. This appeal followed.
The judge thereafter denied Scott's motion for a new trial on an issue not relevant to this appeal.
On appeal, defendant raises the following claims:
I. WHERE [DEFENDANT] WAS CONVICTED OF MURDER DESPITE A VIABLE CLAIM OF SELF-DEFENSE AND COMPELLING EVIDENCE OF PROVOCATION, THE TRIAL COURT'S FAILURE TO REINSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER AND SELF-DEFENSE WHEN RECHARGING ON MURDER CLEARLY HAD THE CAPACITY TO LEAD THE JURY TO A VERDICT IT OTHERWISE WOULD NOT HAVE REACHED. (Partially Raised Below).
A. The Court's Failure to Recharge Passion/Provocation Manslaughter.
B. The Court's Failure to Recharge Self-Defense.
We affirm.
II. [DEFENDANT] WAS PREJUDICED BY THE ABSENCE OF A COOPERATING WITNESS CHARGE INSTRUCTING THE JURY THAT IT WAS REQUIRED TO GIVE CAREFUL SCRUTINY TO THE TESTIMONY OF [MR.] DOUGLAS -- THE ONLY WITNESS TO THE
INCIDENT -- IN LIGHT OF HIS PENDING CRIMINAL CASE. (Not Raised Below).
II.
In Point I, Scott argues for the first time on appeal that the trial judge erred because the recharge on murder was incomplete and misleading. This contention lacks merit.
When a defendant fails to object to a jury charge at the time it is given, "there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge. Ibid. We will not reverse on that ground unless the asserted error was clearly capable of producing an unjust result. State v. Vallejo, 198 N.J. 122, 139-40 (2009); R. 2:10-2.
In the initial jury charge, the judge explained the four elements that constitute the offense of murder. As to passion/provocation manslaughter, Judge Haas instructed the jury as follows:
Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.
Passion/provocation manslaughter has four factors which distinguish it from
murder. In order for you to find defendant guilty of murder, the State need only prove the absence of any one of these factors beyond a reasonable doubt. The four factors are:
One, there was adequate provocation;
Two, the provocation actually impassioned defendant;
Three, defendant did not have a reasonable time to cool off between the provocation and the act which caused death;
And four, defendant did not actually cool off before committing the act which caused death.
After instructing the jury in detail regarding each of the four factors, Judge Haas continued:
If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation or that the provocation did not actually impassion the defendant or that defendant had a reasonable time to cool off or that defendant actually cooled off, and in addition to proving one of those factors, you determine that the State has proven beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in death, you must find defendant guilty of murder.
If, on the other hand, you determine that the State has not disproved at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State has proven beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in death, then you must
find him guilty of passion/provocation manslaughter.
If, however, the State has failed to prove beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in death, you must find the defendant not guilty of murder and passion/provocation manslaughter and go on to consider whether the defendant should be convicted of the crimes of aggravated manslaughter or reckless manslaughter.
Judge Haas also charged the jury at length regarding self-defense, including the use of deadly and non-deadly force. As to deadly force, he stated:
The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.
Regarding the burden of proof as it related to self-defense, he informed the jury:
Now, the State has the burden to prove to you beyond a reasonable doubt that the defense of self-defense is untrue. This defense only applies if all the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.
Further, Judge Haas reiterated:
[I]f you find the State has failed to prove beyond a reasonable doubt that the defendant acted with purpose or knowledge which are essential elements of murder and passion/provocation manslaughter, you must go on to consider whether the State has proven beyond a reasonable doubt the elements for . . . aggravated . . . and reckless manslaughter.At the end of jury instructions, Judge Haas provided the jury with a written copy of instructions to refer to during deliberations.
During deliberations, the jury sent a note to Judge Haas, asking:
Does "knowingly" . . . mean that the act was done knowing that death was an eventual definite result[?] Or does it mean that the defendant knew that his acts could possibly result in death[?] . . . Example, a reasonable person knows that using a knife on someone could cause death, . . . however, in a particular circumstance the individual may not act knowing that the injury will definitely result in death. . . . [D]oes he need to . . . "know" that bodily injury . . . "could" lead to death or . . . "would definitely" . . . lead to death.Judge Haas informed both sides of the jury's question and suggested rereading for the jury a portion of the charge discussing the elements of murder, including the definition of purposely and knowingly. In response, defense counsel expressed his hesitation, stating:
Well, Judge, I'm not sure. I mean it would seem that they're asking knowingly, if you just read from [page] 31 to 32, one of the elements that the State must prove beyond a reasonable doubt is the defendant acted purposely or knowingly. A person acts purposely when it's the person's conscious object to cause death or serious bodily injury. A person acts knowingly when the person is aware that it is practically certain, because that's exactly what they're asking here.
Judge Haas disagreed to the extent he believed the jury was also asking about the injury, responding:
I think they're also asking in this when they're talking about the injury, they say the individual might not know, in a particular circumstance the individual may not act knowing that the injury will definitely result in death. And there is that language that's at the bottom of page 34 where it talks about the conscious object to cause serious bodily injury that then resulted in [the victim's] death and . . . I think that gives them some additional information. And I think . . . I should instruct them again on that. And if I'm doing that I think I should give them that whole charge again just so that they don't pick something out at random or give more emphasis to it. So if I give that whole portion of the charge I think it's probably better.As a result, Judge Haas concluded it was appropriate to reinstruct the jury regarding the conscious object to cause serious bodily injury, which resulted in the victim's death. He recharged the jury in relevant part:
In order for you to find defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt:
One, that defendant caused . . . Davis['s] . . . death or serious bodily injury that then resulted in . . . Davis'[s] death;
And two, that defendant did so purposely or knowingly;
And three, that defendant did not act in the heat of passion resulting from a reasonable provocation.
He continued to reread the portion of the charge defining purposely and knowingly, as well as explaining serious bodily injury. He concluded the recharge, stating:
[F]or a defendant to be guilty of murder, all jurors must agree that defendant either knowingly or purposely caused the death of . . . Davis . . . or knowingly or purposely caused serious bodily injury resulting in the death of . . . Davis.
That's going to conclude my remarks on your question. I want to remind you again, that there [are] four issues that we're asking you to look at: murder, passion/provocation manslaughter, aggravated manslaughter, reckless manslaughter, so the fact that I talked about murder I did so because it was in the context of talking to you about purposely or knowingly.
While conceding Judge Haas's initial jury charge was correct, Scott now contends the judge committed plain error because he failed to redefine passion/provocation, and did not reiterate that the absence of passion/provocation was an element the State was required to prove beyond a reasonable doubt. Consequently, Scott argues, the recharge "suggested that murder had only two elements, (1) a knowing or purposeful mental state and (2) causation," and as a result, the recharge "left the jury with the unmistakable impression that Scott was guilty of murder once those two elements were proven."
"Appropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002) (citing State v. Collier, 90 N.J. 117, 122 (1982)). The trial court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). The judge has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004).
Upon request for clarification from the jury, "the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984); see also Savage, supra, 172 N.J. at 394. A clear and accurate answer "ordinarily requires explanation beyond rereading the original charge." Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2014); see also Patton v. Amblo, 314 N.J. Super. 1, 9-10 (App. Div. 1998). However, minor inaccuracies in the judge's response will be disregarded unless they "have the capacity to mislead the jury" or are "clearly capable of leading the jury to an unjust result." Velazquez v. Jiminez, 336 N.J. Super. 10, 39-40 (App. Div. 2000), aff'd, 172 N.J. 240 (2002).
"An appropriate judicial response requires the judge to read the question with care to determine precisely what help is needed." State v. Parsons, 27 0 N.J. Super. 213, 221 (App. Div. 1994). However, there is no requirement that the judge reread the entire charge when the jury had requested specific definitions. State v. McClain, 248 N.J. Super. 409, 421 (App. Div.), certif. denied, 126 N.J. 341 (1991). The "failure of the jury to ask for further clarification or indicate confusion demonstrates that the response was satisfactory." Ibid.
Here, the jury specifically asked for clarification of the mental state "knowingly" in relation to bodily injury and death. Although during the recharge Judge Haas did not reiterate that the requisite mental state for passion/provocation manslaughter was purposely or knowingly, the jury's question did not suggest any confusion regarding passion/provocation manslaughter or any of its four elements. Their confusion appeared to be limited to the mental state knowingly, and the judge made it abundantly clear during the initial instructions that, like murder, passion/provocation manslaughter also required knowing or purposeful conduct.
Reviewing the charges in their entirety, we are satisfied there was no error, let alone plain error, in the recharge. Because the judge is not required to reread the entire charge in response to a specific question, Judge Haas was not obligated to redefine passion/provocation. See ibid. The jury's failure to request further clarification on passion/provocation demonstrates Judge Haas's response was satisfactory. Further, the jury had in its possession a copy of the written instructions read during the original charge, which contained the definition of passion/provocation, and to which it could refer.
Scott also argues the judge committed plain error during the recharge on knowing or purposeful murder because he failed to remind the jury that the State had the burden of disproving self-defense beyond a reasonable doubt, thereby producing an unjust result. We also reject this contention for the same reason we stated above. The jury did not express any confusion with respect to self-defense necessitating further comment by the judge. We conclude here too, that Judge Haas's initial instructions fully set forth the applicable law and legal standards on self-defense for the jury to follow. Therefore, Judge Haas did not commit plain error by not providing further instruction on self-defense.
III.
For the first time on appeal, defendant argues Judge Haas committed plain error by failing to sua sponte read the model jury charge on testimony of a cooperating witness. As defendant argues, his "guilt or innocence hinged largely on the credibility of Douglas'[s] testimony."
Generally, a defendant has a right, upon request, to a specific cautionary instruction that a witness's testimony must "be carefully scrutinized and assessed in the context of his specific interest in the proceeding." State v. Begyn, 34 N.J. 35, 54 (1961). However, the charge carries "risks for the defendant because phrasing is difficult to avoid conveying to the jury an impression that the court is suggesting his guilt solely because the witnesses have admitted theirs and implicated him." Id. at 55. Therefore, the Court has held it is "[c]ertainly . . . not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested." State v. Artis, 57 N.J. 24, 33 (1970); see also State v. Gardner, 51 N.J. 444, 461 (1968) ("[T]he judge need not give such a charge unless requested."). The comment to the Model Jury Charge further advises that this charge should not be given except upon the request of defense counsel. Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006), n.1.
Here, defendant did not request a cooperating witness instruction regarding Douglas's testimony; therefore, the judge did not commit plain error by failing to so instruct the jury. Further, defendant extensively cross-examined Douglas about his interest in the case and the assistance he obtained from the prosecutor for his pending charges in exchange for his cooperation. See State v. Landano, 271 N.J. Super. 1, 40 (App. Div.) ("In an unbroken line of decisions, our courts have held that the pendency of charges or an investigation relating to a prosecution witness is an appropriate topic for cross-examination."), certif. denied, 137 N.J. 164 (1994). In addition, Judge Haas instructed the jury both before trial and during the jury charge with respect to the jury's role in assessing witness credibility. Specifically, he stated in determining credibility the jury may consider "[t]he witness' interest in the outcome of the case, if any . . . [and] the possible bias, if any, in favor of one side or the other." Thus, we conclude Judge Haas's failure to give a cooperating witness charge when none was requested did not constitute plain error.
IV.
Scott also contends he should have an opportunity to demonstrate that his trial attorney was ineffective in failing to request a cooperating witness charge based on Douglas's testimony. The record contains no evidence on that issue. We conclude that Scott's argument must be raised in a petition for post-conviction relief (PCR). See State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We affirm Scott's conviction without prejudice to his right to file a PCR petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION