STATE OF NEW JERSEY, Plaintiff–Respondent, v. WILLIE SEABROOKS, JR., a/k/a WILLIE SEABROOKS, II, Defendant–Appellant.
DOCKET NO. A–3622–09T3
-- September 13, 2013
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).Appellant filed a pro se supplemental brief.
On July 15, 2006, defendant left his home in Bushkill, Pennsylvania, purchased a .380 semi-automatic handgun at a Pennsylvania firearms and sporting goods store, and loaded it with bullets. He then drove to the Paterson, New Jersey home of his mother-in-law, Priscilla Boulware (Priscilla),1 where he shot her, his sister-in-law, Vanita Wrice (Vanita), his brother-in-law, Vincent Wrice (Vincent), and a neighbor, David Thomas (David). Following the shooting, defendant went into Priscilla's home, where he held his wife, Tatiwana Boulware–Seabrooks (Tatiwana), and their two sons, W.S. and Z.S.,2 at gunpoint until eventually surrendering to the police.
The jury rejected defendant's claim of self-defense and found him guilty of two counts of first-degree attempted murder of Priscilla and Vanita, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:11–3; three counts of second-degree aggravated assault of Priscilla, Vanita and David, N.J.S.A. 2C:12–1b(1); four counts of fourth-degree aggravated assault of Priscilla, Vanita, Vincent and David, N.J.S.A. 2C:12–1b(4); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a; third-degree aggravated assault of Vincent, N.J.S.A. 2C:12–1b(2); two counts of fourth-degree aggravated assault of David and Tatiwana, N.J.S.A. 2C:12–1b(3); three counts of second-degree endangering the welfare of a child, W.S., Z.S. and N.B., Tatiwana's fifteen-year-old daughter, N.J.S.A. 2C:24–4a; second-degree burglary, N.J.S.A. 2C:18–2; first-degree kidnapping of Tatiwana, N.J.S.A. 2C:13–1b(1) and/or (2); two counts of third-degree criminal restraint of W.S. and Z.S, N.J.S.A. 2C:13–2a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b.3 The trial judge sentenced defendant on the two first-degree attempted murder and first-degree kidnapping convictions to three consecutive fifteen-year terms of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2.
On appeal, defendant's assigned counsel raises the following contentions:
DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ATTEMPTED PASSION/ PROVOCATION MANSLAUGHTER AS A LESSER–INCLUDED OFFENSE OF ATTEMPTED MURDER AND/OR AN ALTERNATIVE VERDICT TO THE OTHER OFFENSES INVOLVING THE POSSESSION OR USE OF THE FIREARM. (Not Raised Below)
ADMISSION OF EVIDENCE THAT DEFENDANT HAD BEEN GUILTY OF FALSE SWEARING WHEN HE NAMED KOHL'S AS HIS EMPLOYER ON THE FIREARMS TRANSACTION RECORD, ALONG WITH THE PROSECUTOR'S USE OF THAT EVIDENCE IN HER SUMMATION, DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. (Partially Raised Below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
In a pro se supplemental brief, defendant raises the following contentions:
THE PROSECUTOR'S CROSS–EXAMINATION OF DEFENDANT AND HER SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
THE PROSECUTOR IMPROPERLY DENIGRATED THE DEFENDANT DURING CROSS–EXAMINATION AND IN HER SUMMATION.
THE PROSECUTOR IMPROPERLY INTERJECTED HER PERSONAL BELIEFS AND IMPROPELY VOUCHED FOR THE STATE'S WITNESSES.
THE PROSECUTOR IMPROPERLY EVOKED SYMPATHY FOR THE STATE'S WITNESS AND ALLEGED ATTEMPTED MURDER, AGGRAVATED ASSAULTS, TERRORISTIC THREATS AND KIDNAPPING VICTIMS.
MIS[S]ATED THE EVIDENCE AND ENGAGED IN IMPROPER SPECULATION.
OTHER ERRORS COMMITTED BY THE PROSECUTOR DURING SUMMATI[ ]ON.
THE DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO THE VERDICT SHEET (U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I., PARAS. 1, 10).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGEMENT OF ACQUITTAL REGARDING THE CHARGE OF ATTEMPT[ED] MURDER, KIDNAPPING, TERRORISTIC THREATS, WEAPONS, AND AGGRAVATED ASSAULT IN [COUNTS] 1, 2, 2A, 3, 4, 14, 15, 17, 18, 19, 24, 25, 26, 28, 29, 30, 32, 33, AND 34, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE LESSER INCLUD[ED] OFFENSE OF [THE] ABOVE CHARGES; THE OVERCHARGE ON THE ABOVE CHARGES [ ] RESULTED IN A [COMPROMISED] VERDICT WHICH MUST BE REVERSED; THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT AND NEW JERSEY STATE CONSTITUTION[ ] WAS VIOLATED. THESE ISSUES WERE REJECTED BY [THE TRIAL JUDGE].
THE COURT ERRED IN DENYING THE MOTION FOR JUDGEMENT OF ACQUITTAL AS TO COUNT [S] 9 AND 13 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.[,] AMEND. XIV; N.J. CONST. (1947)[) ].
THE CONVICTION ON COUNT[S] 9 AND 13 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AS IT IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.[,] AMEND. XIV; N.J. CONST. (1947)[) ].
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGEMENT OF ACQUITTAL AS TO COUNT[S] 12, 16, AND 20 (AGGRAVATED ASSAULT POINTING A FIREARM) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION [ (]U.S. CONST.[,] AMEND. XIV; [N.J.] CONST. (1947)[) ].
THE CONVICTION ON COUNT[S] 9 AND 13 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) AND (AGGRAVATED ASSAULT POINTING A FIREARM) COUNT[S] 12, 16, AND 20 IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.[,] AMEND. XIV; N.J. CONST. (1947)[) ] MANDATING A REVERSAL OF THE CONVICTION.
THE DEFENDANT'S ATTEMPTED MURDER, AGGRAVATED ASSAULT AND WEAPON CHARGE [ ] CONVICTIONS MUST BE REVERSED. IN THE INTEREST OF JUSTICE AND BECAUSE THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT DID NOT ACT IN SELF–DEFENSE [,] DEFENDANT'S ATTEMPT[ED] MURDERS, AGGRAVATED ASSAULTS, AND WEAPON CHARGE [ ] CONVICTIONS ARE CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION. PLAIN ERROR HAS DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST.[,] AMEND[S]. VI, XIV; N.J. CONST. [ (1947),] ART. I, PARAS. 1, 10).
THE DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO THE VERDICT SHEET. (U.S. CONST.[,] AMENDS. VI, XIV; N.J. CONST. [ (]1947 [) ], ART. I, PARAS. 1, 10). SEE POINT XIII, SUBPOINT I OF XIII.
THE JURY INSTRUCTIONS WERE MANIFESTLY ERRONEOUS IN FOUR DIFFERENT WAYS. THE COURT ERRED IN REJECTING DEFENDANT'S REQUEST REGARDING THE JURY'S SECOND AND THIRD REQUEST FOR RE–INSTRUCTIONS, DEPRIV[ING] DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST [.,] AMENDS. VI, XIV; N.J. CONST. (1947), ART. I[,] PARAS. 1, 10). SEE POINT XIII, SUBPOINT I OF XIII.
THE COURT ERRED BY NOT ALLOWING THE TESTIMONY OF THE STATE'S EXPERTS [P.D.] AND [R.R.], CLINICAL PSYCHIATRIST [I], AND [A.K.] FORENSIC CENTER[,] CONCERNING THEIR OPINIONS[,] DEPRIV[ING] DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [N]EW JERSEY STATE CONSTITUTION. (U.S. CONST.[,] AMEND. XIV; N.J. CONST. [ (1947)) ].
TRIAL COUNSEL REFUSED TO RAISE A SELF–DEFENSE CLAIM BEFORE TRIAL. FAILURE TO ADEQUATELY PREPARE AND EXERCISE NORMAL CUSTOMARY SKILLS IN ESTABLISHING DEFENDANT'S INNOCENCE, AND THE LACK OF ADEQUATE CLIENT CONSULTATION. COUNSEL'S NEGLIGENCE RESULTED IN GROSS IGNORANCE OF DEFENDANT['S] SPECIFIC INSTRUCTION FOR DEFENSE TACTICS, SO UNDERMINED THE PROPER FUNCTION OF THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED ON AS HAVING PRODUCED A JUST RESULT; IN VIOLATION OF DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL WITH EFFECTIVE REPRESENTATION. (U.S. CONST.[,] AMEND[S]. V, VI, XIV; [N.J.] CONST. [ (]1947[) ], ART. I, PARAS. 1, 10).
COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE WHY[ ] ALL OF THE STATE'S “KEY WITNESSES ” WERE INTERVIEWED AT THE SAME TIME.
COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE FOR FAILING TO MOTION THE COURT FOR POSTPONEMENT OR MISTRIAL, SO HE COULD PROPERLY INVESTIGATE AND PREPARE FOR TRIAL.
COUNSEL FAILED TO REQUEST [A] 104 HEARING AFTER NO CONTACT ORDER WAS VIOLATED. VIOLATION OF DEFENDANT'S RIGHT TO A FUNDAMENTAL[LY] FAIR TRIAL WITH EFFECTIVE REPRESENTATION. DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT VIOLATION, AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
COUNSEL DID NOT SUBPOENA THE DEFENDANT'S WITNESSES EVEN THOUGH HE DID NO INVESTIGATION HIMSELF IN THE CASE.
COUNSEL FURTHER PROVED TO BE INEFFECTIVE WHEN HE FAILED TO PRESENT WITNESSES TO REFUTE CRUCIAL TESTIMONY WHICH PROVE[D] TO BE VERY DETRIMENT[AL] TO DEFENDANT'S DEFENSE. COUNSEL REFUSED TO HIRE AN INVESTIGATOR AT [THE] START OF [THE] RETAINER WHEN THERE WAS SUFFICIENT EVIDENCE THAT THERE WERE MANY MORE WITNESSES TO [THE] INCIDENT. THERE WERE FAMILIES (SEVERAL) SITTING ON THEIR PORCHES THAT WITNESSED THE ENTIRE ALTERCATION. THIS IS IN VIOLATION OF DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL WITH EFFECTIVE REPRESENTATION. (U.S. CONST.[,] AMEND[S]. V, VI, XIV; N.J. CONST. (1947) [,] ART. I, PARAS. 1, 10).
COUNSEL FAILED TO CALL WITNESSES [L.W.] AND [A.G.] TO TESTIFY AT TRIAL AND DID NOT INTERVIEW THESE WITNESSES WHEN COUNSEL WAS WELL AWARE THAT DEFENDANT CAME TO [N.J.] TO MEET BOTH FRIENDS.
COUNSEL FAILED TO PREPARE A DEFENSE BASED ON DEFENDANT'S MENTAL STATUS. THE SIXTH AMENDMENT GUARANTEES A CRIMINAL DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL IN HIS DEFENSE. COUNSEL'S FAILURE TO DEFEND DEFENDANT'S MENTAL STATUS FROM THE INCEPTION OF TRIAL VIOLATES DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL WITH EFFECTIVE REPRESENTATION, BY REFUSING TO OBTAIN [AN] EXPERT. (U.S. CONST. [,] AMENDS. V, VI, XIV; N.J. CONST. [ (]1947[) ], ART. I, PARAS. 1, 10).
COUNSEL FAILED TO OBJECT TO “SLEEPING JURORS ” DURING TRIAL. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND STATE CONSTITUTION[AL] RIGHT TO A FAIR TRIAL.
TRIAL JUDGE “MISCONDUCT ” AND “CONFLICT OF INTEREST ” DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO [A] FAIR TRIAL, FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND STATE CONSTITUTION[AL] RIGHT TO [A] FAIR TRIAL[;] PREJUDICE[D] DEFENDANT['S] UNITED STATES CONSTITUTION[AL] RIGHTS. (U.S. CONST.[,] AMENDS. VI, XIV; N.J. CONST. [ (]1947)[) ].
OTHER ERRORS COMMITTED BY [THE] TRIAL JUDGE WERE [:] A [FAST–PACED] CRIMINAL TRIAL PROCESS WITH DISREGARD TO FAIRNESS AND EFFECTIVENESS, ABUSE OF DISCRETION, [AND] DENYING MOTION FOR MISTRIAL.
TRIAL JUDGE'S TYRANNY OF COUNSEL DURING HEARINGS AND DURING COURT PROCEEDINGS CAUSED COUNSEL TO BE TIRED AND DOWNTRODDEN. “FARCES AND MOCKERY” OF DEFENDANT PRODUCED PREJUDICIAL ACTIONS THROUGHOUT TRIAL. SHORT–CUT PROCEDURAL RULES OF PROFESSIONAL CONDUCT (JUDICIAL) WERE NOT EXHIBIT[ED]. CANON 1, 3, 5 VIOLATIONS.
PROSECUTORIAL MISCONDUCT AND BRADY VIOLATIONS, VIOLATE[D] AND DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL, AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT, AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL. SEE POINT I AND SUBPOINTS.
THE PROSECUTOR [KNOWINGLY PRESENTED] FALSE TESTIMONY FROM FIVE [ ] STATE WITNESSES AS WELL AS HER FAILURE TO CORRECT THEIR TESTIMONIES AFTER IT WAS ELICITED. PROSECUTOR PARTICIPATED IN FALSE AND [PERJURED] TESTIMONIES THROUGH DESIGN. DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO [A] FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE. TRIAL TESTIMONIES SUPPORTED DEFENDANT'S CLAIM OF SELF–DEFENSE (I.E HONEST AND REASONABLE BELIEF) WHERE PROSECUTOR['S] TACTICS CIRCUMVENTED THE GRAND JURY IN TERMS OF DEVELOPING, PRESENTING FACTS WHICH WOULD HAVE ESTABLISHED THAT SEVERAL OF THE VICTIMS WERE “ARMED” AT THE SCENE OF THE CRIME THUS[,] CUMULATIVELY [,] VIOLATING DEFENDANT'S FOURTEENTH AMENDMENT, DUE PROCESS AND SIXTH AMENDMENT RIGHTS TO A FAIR TRIAL.
THE KIDNAPPING CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT RETREATED IN[TO] THE HOUSE TO PREVENT ADDITIONAL ATTACKS FROM SEVERAL MEN WITH “BASEBALL BATS AND TWO–BY–FOUR CLUBS.”
THE COURT VIOLATED DEFENDANT'S RIGHTS BY DEPRIVING DEFENDANT OF THE RIGHT TO A SPEEDY AND PUBLIC TRIAL AND BY THE RIGHT TO AN IMPARTIAL JURY, EXCESSIVE BAIL SHALL NOT BE ACQUIRED, NOR EXCESSIVE FINES [IMPOSED] AND DEFENDANT'S EIGHTH AMENDMENT AND SIXTH AMENDMENT RIGHTS VIOLATION. [ (](U.S. CONST. [ ][,] AMENDS. VI, VIII[) ].
The trial of this case centered on why defendant committed the acts for which he was criminally charged. The State theorized that defendant acted out of rage towards Tatiwana's family because Vanita and Vincent took W.S. to Florida over defendant's repeated objections or, alternatively, because of a dispute over financial matters. Defendant claimed that he acted in self-defense after Vincent and other men attacked him, and Priscilla and Vanita were unintended victims who were standing close to Vincent at the time.
There is no dispute that on the day of the shooting, defendant was upset because Vanita and Vincent had taken W.S. to Florida without defendant's permission and defendant did not know his children's whereabouts. There also is no dispute that after defendant arrived at Priscilla's home, he had a heated argument with her, Vanita, Vincent and Tatiwana outside the home. After the argument, defendant entered his car, drove around the block and then returned and ordered W.S. and Z.S. to come with him. Priscilla told W.S. to go inside the house and Vanita said to defendant, “he don't have to go if he don't want to.” Defendant accused Priscilla and Vanita of disrespecting him and said, “I'm going to show you some disrespect.” He then drove away with Z.S. and went to a store, where he purchased some snacks and a toy gun for Z.S.
After approximately thirty minutes, defendant drove back to Priscilla's home to retrieve W.S., whom he thought was being held against his will. When defendant arrived, he saw Vincent standing in front of the next-door neighbor's house along with David, Henry Thomas (Thomas) and Letcher Poindexter (Poindexter). Priscilla, Vanita and W.S. were standing outside of Priscilla's house and Vanita told W.S. to go inside. Defendant again accused Vanita of disrespecting him and said “it's going to get real sad around here.”
Defendant drove away with Z.S. and went to a friend's house. He decided to return to Priscilla's house to retrieve W.S. Expecting that he may encounter trouble, he changed from his “flip-flops” to sneakers and socks “for footing.” He drove back to Priscilla's house, drove around the block, returned and parked next door. He saw Priscilla, Vanita, N.B., Tonya Forman (Forman), Vincent, David, Thomas, Poindexter and Elieen Taylor standing outside. Taylor asked defendant to move his car, so he parked it across the street.
At this point, defendant's version of what happened differed significantly from that of eyewitnesses who testified that defendant sat in his car for a few minutes and then exited holding the handgun in one hand and Z.S. in the other hand. Priscilla saw defendant approaching her with the gun and began to “run for [her] life” but stumbled. Defendant pursued her and shot her in her lower back. Defendant pointed the gun at N.B., who was trying to help Priscilla, and shot in N.B.'s direction. Vanita saw what was happening and yelled to Vincent that defendant had a gun. Defendant came up to her and said, “you see this gun?” and then from “inches away,” shot her in the right hand, left arm and elbow. Seeing defendant shoot his wife, Vincent grabbed “a long piece of wood” and headed towards defendant. David grabbed a two-by-four piece of wood and went to assist Vincent. Defendant fired three shots in their direction, grazing Vincent and striking David on a finger. Thomas grabbed a baseball bat, but retreated after he heard more gunshots. Defendant also pointed the gun in Forman's direction as she ran away.
Defendant then took Z.S. into Priscilla's home, where Tatiwana and W.S. were located. The police arrived shortly thereafter and saw defendant on the second-floor balcony holding a gun to Tatiwana's head. Defendant yelled to the officers, “I have the gas on, I'm going to blow the building.” Defendant also told the officers to get away from the front door or he was “going to shoot.” A SWAT team arrived and defendant surrendered after several hours.
According to defendant, before he exited his car after returning to Priscilla's home the second time, he became suspicious because “things didn't look too right.” He placed the loaded gun in his waistband in the middle of his back and exited the car with Z.S. Vincent then struck him on his left arm and head with a two-by-four piece of wood, leaving him dazed and bleeding from both his arm and nose. Defendant claimed that he suffered a gash in his left forearm that left a “big scar,” which he showed to the jury. After defendant fired a warning shot at Vincent, Poindexter hit defendant in the leg with a baseball bat. While dazed and falling backwards, defendant fired two more warning shots, headed toward Priscilla's house, and fired two more warning shots in the direction of Vincent, David, Thomas and Poindexter, who were “converging towards him.” Defendant insisted he did not intend to shoot Priscilla and Vanita.
Defendant presented no evidence that he suffered any injuries on the day of the shooting. Documents from the Passaic County Sheriff's Office, which defendant signed six days after the shooting, indicated that he had no injuries, scars or markings.
Defendant contends for the first time on appeal in Point I of assigned counsel's brief that the trial judge should have sua sponte instructed the jury on attempted passion/provocation manslaughter, a lesser-included offense of attempted murder. We disagree.
Where neither the defendant nor the State requests a charge of a lesser-included offense, “ ‘a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.’ ” State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). However, charging a lesser-included offense should not “cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings.” State v. Garron, 177 N.J. 147, 181 (2003).
Depending on the facts adduced at trial, charges of attempted passion/provocation manslaughter may be considered lesser-included offenses of attempted murder. “Passion/provocation manslaughter has four elements: ‘(1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying.’ ” State v. Galicia, 210 N.J. 364, 379–80 (2012) (quoting State v. Josephs, 174 N.J. 44, 103 (2002)). “The first two elements are ‘objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury.’ ” Ibid. (quoting Josephs, supra, 174 N.J. at 103).
To justify a finding of adequate provocation, “the provocation must be ‘sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.’ ” State v. Mauricio, 117 N.J. 402, 412 (1990) (quoting State v. King, 37 N.J. 285, 301–02 (1962)). Generally, “words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter.” State v. Chrisantos, 102 N.J. 265, 274 (1986).
The evidence in this case indicated that defendant engaged in two heated arguments with his wife and/or in-laws before the shooting. These arguments do not constitute adequate provocation to reduce attempted murder to manslaughter. The evidence also indicates that defendant had two opportunities cool off between the arguments and the shooting. It is clear from the evidence that there was no factual basis whatsoever for finding the first two elements of attempted passion/provocation manslaughter. Accordingly, the trial judge was not required to sua sponte instruct the jury on the lesser-included offense of attempted passion/provocation manslaughter.
Alternatively, defendant argues for the first time that the judge should have sua sponte charged mutual combat. “ ‘[M]utual combat’ can in certain circumstances give rise to passion/provocation mitigation. However, the combat “must have been waged on equal terms and no unfair advantage taken of the deceased[.]” Galicia, supra, 210 N.J. at 380 (quoting Chrisantos, 102 N.J. at 274). Mutual combat requires the parties to have a mutual intent to fight and to enter into the fight willingly. State v. Pasterick, 285 N.J.Super. 607, 617 (App.Div.1995).
Here, defendant testified that he only fired his gun in self-defense after he was attacked. Even if the jury accepted his account, it could not have found adequate provocation in the course of mutual fight because use of force disproportionate to the provocation does not justify a mutual combat charge. See Crisantos, supra, 102 N.J. at 274–75; State v. Docaj, 407 N.J.Super. 352, 368 (App.Div.), certif. denied, 200 N.J. 370 (2009). Shooting a gun approximately eight times, as defendant did here, was not a proportionate response to allegedly being hit with a piece of wood. Accordingly, the trial judge was not required to sua sponte instruct the jury on mutual combat.
Defendant testified on direct examination that he was suspended from his job at Kohl's after Tatiwana's brother reported that defendant had used his Kohl's corporate e-mail for personal purposes. On his gun application, defendant stated that Kohl's was his employer. On cross-examination, the prosecutor questioned defendant, without objection, about whether that statement was false.
Again without objection, the prosecutor asked defendant about a question on the application which, besides attesting to the truthfulness of defendant's answers, stated that lying “subjects me to a felony.” Defendant responded that “if it was a felony the state police haven't charged me with anything.” The prosecutor retorted, “[t]hat could still happen though, right?” Defense counsel then objected, stating that the prosecutor was “now getting into legal questions on statute of limitations.” The trial judge sustained the objection not on that basis but because the exchange was becoming “argumentative.” In summation, the prosecutor mentioned this evidence without objection.
Defendant contends for the first time in Point II of assigned counsel's brief that admission of evidence of false swearing and the prosecutor's use of that evidence in summation violated N.J.R.E. 404(b), and thus, deprived him of a fair trial. The State counters that it did not rely on this evidence to show defendant's criminal disposition, but rather, to show that defendant gave false answers on the gun application in order to facilitate his purchase of the gun he used to commit the crimes.
Because defendant did not raise this contention before the trial judge, we review it under the plain error standard of review. R. 2:10–2; State v. Torres, 183 N.J. 554, 564 (2005); State v. Macon, 57 N.J. 325, 336 (1971). To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, “one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” Macon, supra, 57 N.J. at 336.
There is no doubt that evidence of defendant's purchase of the gun before his trip to New Jersey was properly admitted as intrinsic evidence pertinent to the crime and not excludable pursuant to N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 177–78 (2011). Uncharged misconduct is also considered intrinsic evidence not subject to a N.J.R.E. 404(b) analysis as a “prior” bad act if it either directly proves the charged offense or is contemporaneous with the crimes and facilitates their commission. Id. at 171–72.
The false answers defendant gave on the gun application were contemporaneous with and directly facilitated his purchase of the gun he used against the victims. Hence, his false statements facilitated the commission of the crimes. The evidence was, therefore, admissible intrinsic evidence and need not be analyzed under N.J.R.E. 404(b). Id. at 177–80. Accordingly, there was no error, let alone plain error, in the admission of evidence of defendant's false statements on the gun application.
Defendant contends in Point III of assigned counsel's brief that his sentence was excessive. He argues that the judge double-counted evidence in finding and applying aggravating factors N.J.S.A. 2C:44–1a(2), “[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[,]” and N.J.S.A. 2C:44–1a(12), “[t]he defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled[.]” Defendant also takes issue with the judge's finding and application of aggravating factors N.J.S.A. 2C:44–1a(3), “[t]he risk that the defendant will commit another offense[;]” and N.J.S.A. 2C:44–1a(9), “[t]he need for deterring the defendant and others from violating the law.” Defendant further argues that it was error to impose three consecutive sentences.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) “require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]” (2) “require that the factfinder apply correct legal principles in exercising its discretion[;]” and (3) “modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience.” State v. Roth, 95 N.J. 334, 363–64 (1984).
Further, in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 465 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed 2d 308 (1986), our Supreme Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The Court noted that it is “senseless” to give a criminal free crimes. Id. at 639. Instead, a sentencing court should consider the factual content of the crimes, including whether or not: “the crimes and their objectives were predominantly independent of each other; the crimes involved separate acts of violence or threats of violence; the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; any of the crimes involved multiple victims; and the convictions for which the sentences were imposed were numerous.” Id. at 643–44. These five factors are to be applied qualitatively, rather than quantitatively. State v. Carey, 168 N.J. 413, 421 (2001). A consecutive sentence can be imposed even if a majority of the Yarbough factors support concurrent sentences. Id. at 427–28. The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 471, 485 (1993); State v. Miller, 108 N.J. 112, 121 (1987).
We are satisfied that the record supports aggravating factors two and twelve based on the gravity of the harm defendant inflicted on Priscilla, a sixty-year-old woman whom he shot in the back while she attempted to flee. The record also supports aggravating factors three and nine based on defendant's lack of remorse, denial of any responsibility for what had occurred, failure to appreciate the gravity of his crimes, and multiple violations of a no victim contact order entered after defendant's arrest. See State v. O'Donnell, 117 N.J. 210, 216 (1989) (indicating that the lack of remorse and protestation of innocence indicated a need to deter).
The record also supports the consecutive sentences. As for attempted murder, the record confirms that Priscilla and Vanita were not random victims; rather, defendant independently pursued and shot them. The shootings were separate acts of violence that involved multiple victims. The kidnapping of Tatiwana was a crime independent of the crimes against Priscilla and Vanita, and the acts of violence and threats of violence against her were separate from those committed against the other two victims. When all of the sentencing factors are viewed, either qualitatively or quantitatively, the judge's decision to impose consecutive sentences was proper.
We decline to address defendant's contention in Point XII of his pro se supplemental brief that trial counsel rendered ineffective assistance. “ ‘Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.’ ” State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). “However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal.” Ibid. The record in this case was not sufficiently developed that we may consider defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to post-conviction relief proceedings where the necessary factual record can be established. Id. at 316.
We have considered defendant's remaining contentions in his pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(2).
1. FN1. We use first names to identify the adult victims. We mean no disrespect in so doing. We use initials to identify the children victims in order to protect their identities.
2. FN2. W.S. was eight years old at the time and Z.S. was four years old.
3. FN3. The jury found defendant not guilty of five counts of first-degree attempted murder of N.B., Vincent, Tatiwana, W.S. and Z.S; two counts of second-degree aggravated assault of N.B. and Tonya Forman; three counts of second-degree possession of a weapon for an unlawful purpose; and three counts of terroristic threats relating to Tatiwana, W.S. and Z.S.