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State v. Smith

Decided: April 25, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT LEE SMITH, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Union County.

Gaulkin, Deighan and Stern. The opinion of the court was delivered by Stern, J.s.c., temporarily assigned.

Stern

Defendant was convicted of felony murder as a result of the death of a man who suffered a heart attack when his car was involved in an accident with one driven by defendant fleeing from the scene of an armed robbery. We hold that the proofs could justify a conviction for felony murder, but that the charge in this case was insufficient on the subject of causation. Therefore, a new trial must be ordered on the felony murder count. We affirm the other convictions.

I

Defendant was indicted for felony murder contrary to N.J.S.A. 2C:11-3a(3) (count one); attempted kidnapping, contrary to N.J.S.A. 2C:5-1; 2C:13-1b(1) (count two); armed robbery, contrary to N.J.S.A. 2C:15-1a(2) (count three); possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3b (count four); possession of a handgun for unlawful purpose (against Colleen Reilly), contrary to N.J.S.A. 2C:39-4a (count five); possession of a handgun for unlawful purpose (against Julia McCarthy), contrary to N.J.S.A. 2C:39-4a (count six) and possession of a

handgun without a permit, contrary to N.J.S.A. 2C:39-5b (count seven). Following trial by jury defendant was convicted on all counts. The court merged the convictions on counts five and six into the conviction for armed robbery and imposed the following sentences:

Count one: 30 years with no parole eligibility;

Count two: 10 years, with five years parole ineligibility, consecutive;

Count three: extended term of 30 years, 15 years parole ineligibility, consecutive;

Count four: 5 years with 2 1/2 years parole ineligibility, consecutive;

Count seven: 5 years with 2 1/2 years parole ineligibility, consecutive.

Defendant was also ordered to pay $125 to the VCCB. He appeals and advances the following contentions:

POINT I THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT ON COUNT ONE BECAUSE IT (A) FAILED TO PROVE THAT THE ACCIDENT CAUSED THE FATAL HEART ATTACK OR THAT DEFENDANT CAUSED THE ACCIDENT AND (B) FAILED TO PROVE EITHER CULPABILITY OR FORESEEABILITY WITH RESPECT TO THE FATAL RESULT (U.S. CONST., AMEND XIV: N.J. CONST., ART. I, PAR. 1.[sic]

POINT II THE JUDGE, BY REFUSING TO PROVIDE THE JURORS WITH THE STATUTORY DEFINITION OF CAUSATION OR TO INSTRUCT THEM THAT A FINDING OF CAUSATION REQUIRED A FINDING THAT DEFENDANT'S FAULT PRECIPITATED THE ACCIDENT, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW (U.S. CONST. AMEND XIV: N.J. CONST ART I, PAR 1)

POINT III THE JUDGE, BY PRECLUDING DEFENSE COUNSEL FROM ASKING BOTH MEDICAL EXPERTS WHETHER THEY HELD THEIR OPINIONS BEYOND A REASONABLE DOUBT, ABUSED HIS DISCRETION AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND CONFRONTATION OF WITNESSES (U.S. CONST., AMEND, XIV, VI, N.J. CONST., ART. I, PAR. 1, 10.)

POINT IV THE STATE'S FAILURE TO ALLEGE OR PROVE THAT DEFENDANT INTENDED TO CONFINE THE ALLEGED KIDNAPPING VICTIM FOR A "SUBSTANTIAL PERIOD," AND THE JUDGE'S FAILURE TO DEFINE THE TERM IN HIS CHARGE, VIOLATED DEFENDANT'S RIGHT TO INDICTMENT BY GRAND JURY AND TO DUE PROCESS OF LAW (U.S. CONSTI. AMEND V, XIV; N.J. CONST. ART I, PAR. 1, 8).

POINT V THE JUDGE, BY REFUSING TO ASK VOIR DIRE QUESTIONS ON PREJUDICE RELATED TO AUTOMOBILE ACCIDENTS, ABUSED HIS DISCRETION AND VIOLATED DEFENDANT'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY (U.S. CONST AMEND VI, XIV; N.J. CONST. ART I, PAR. 9, 10).

POINT VI THE JUDGE, BY REFUSING TO MERGE DEFENDANT'S CONVICTIONS OF ROBBERY AND GUN POSSESSION INTO OTHER COUNTS, SUBJECTED DEFENDANT TO DOUBLE JEOPARDY (U.S. CONST AMEND V, XIV, N.J. CONST. ART I, PAR. 11).

POINT VII DEFENDANT'S AGGREGATE SENTENCE OF EIGHTY YEARS' IMPRISONMENT WITH AN AGGREGATE FIFTY-FIVE YEAR MANDATORY MINIMUM WAS MANIFESTLY EXCESSIVE BECAUSE THE JUDGE FAILED TO CONSIDER DEFENDANT'S GRAVE PSYCHIATRIC HISTORY.

II

On October 25, 1982 at approximately 10:00 a.m. Julia McCarthy was working at the courtesy desk at the Mayfair Foodtown in Union when she was confronted by defendant at the end of the counter pointing a handgun at her. Defendant instructed her to fill a bag with money and said "Give me five minutes' as he left the store. When he disappeared around the corner, McCarthy ran to the back and informed Gary Tresch, the store manager, that she had been robbed. Tresch ran out of the store in pursuit of defendant. He saw a brown car being driven away and noted that the license plate was 205-SBT. As the car turned Tresch saw a sawed-off shotgun in defendant's hand. A customer of the store, Frank Hanck, observed defendant get into the car and Tresch chasing the car. He testified that the car was going fast as it exited the parking lot.

A few minutes later, Edwin L. Mackie was by the window of his store, in Union, when he heard a "loud thunderous' noise outside. He ran outside in time to see a brown car driving away, which did not stop at the stop sign at the end of the street. Mackie also saw a man, later identified as Kelton Barnes, emerging from a damaged vehicle. Barnes told Mackie that the other car had come "barreling out of the side street,' hit him, and continued on. Mackie took Barnes into his office to call the police. However, Mackie had to place the call because Barnes' "hands were shaking' so badly that he was "unable to dial.'

When Union Township Police Officer Powell responded, he found Barnes walking back and forth outside his car in the heavy rain. Barnes seemed very nervous and upset, but the only observable injury was a laceration on his hand. At first Barnes said that he was all right, but as he sat with Powell in the patrol car for a credentials check, he began shaking and said that he didn't feel well. Barnes then slumped over in the seat. Powell performed cardiopulmonary resuscitation techniques until a medical unit arrived, but Barnes was declared dead on arrival at the hospital at 10:57 a.m.

Meanwhile, around 10 a.m. Colleen Reilly was driving down Morris Avenue in Union when she was hit from behind by a brown car which "kept on going.' She followed the car until it pulled over across the street from the Union police station. She saw defendant duck down in the driver's seat at the same time she saw a police car near the station. When Reilly and defendant got out of their cars she asked him if he had insurance. When he admitted that he did not, she said that she was going to call the police. He asked her to wait a minute and returned to his car. Thereafter defendant exited his car carrying a duffle bag and tried to enter the passenger side of the Reilly auto. Reilly got out of her car. Defendant suggested that they exchange information in her car but she refused and suggested that they do it in the police station.

Defendant then pulled out a gun from his pocket, showed it to Reilly and said, "Lady, get back in the car, you're going to drive me some place.' When she refused he repeated his demand but she managed to run across the street into the police station.

Detectives Robert Jarman and John Hynes were in their police car responding to the Foodtown robbery when they observed Reilly's encounter with defendant. Jarman estimated the time as 10:10 in the morning. Jarman saw defendant nudging Reilly and then saw her run towards police headquarters. Defendant got into Reilly's car and was attempting

to start it when the officers approached him. A frisk revealed that defendant had a silver .357 magnum revolver in his pocket. Defendant was then arrested.

III

Defendant claims that the State failed to prove beyond a reasonable doubt that defendant caused the automobile accident and that the accident was the cause of decedent's heart attack and ensuing death. The basic test for evaluating the sufficiency of evidence is:

[w]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [ State v. Brown, 80 N.J. 587, 591 (1979), citing with approval State v. Reyes, 50 N.J. 454, 459 (1971)].

State v. Moffa, 42 N.J. 258, 263 (1964) (same standard for appellate review). See also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) reh. den. 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); State v. Martinez, 97 N.J. 567, 571-572 (1984); State v. Mayberry, 52 N.J. 413 (1968), cert. den. 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Latimore, 197 N.J. Super. 197, 208 (App.Div.1984), certif. den. 101 N.J. 328 (1985). The approach is the same whether the evidence is circumstantial or direct. State v. Mayberry, supra, 52 N.J. at 437. A jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference. State v. Brown, supra, 80 N.J. at 592; State v. DiRienzo, 53 N.J. 360, 376 (1969). Circumstantial evidence need not preclude every other hypothesis in order to establish guilt beyond a reasonable doubt. State v. Mayberry, supra, 52 N.J. at 436. Further, evaluation of the credibility of witnesses and the weight and worth of the evidence is a function of the jury. State v. Ingenito, 87 N.J. 204, 211 (1981).


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