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State v. Erazo

Decided: August 8, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SAMUEL ERAZO, DEFENDANT-APPELLANT



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

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal -- Justice Handler. The opinion of the Court was delivered by Pollock, J. Garibaldi, J., concurring. Handler, J., concurring in part and dissenting in part. Justice Garibaldi concur in result. Justice Handler concurs and dissents.

Pollock

A jury convicted defendant, Samuel Erazo, of capital murder and possession of a weapon for an unlawful purpose. He appealed as of right to this Court. R. 2:2-1(a)(3). As the State recognizes, the trial court gave two erroneous charges on the murder count. The instruction concerning manslaughter impermissibly shifted to defendant the burden of proving passion/provocation. See State v. Grunow, 102 N.J. 133, 506 A.2d 708 (1986). Furthermore, the court failed to instruct that defendant could be convicted of capital murder only if he knowingly or purposely caused the death of the victim, as distinguished from knowingly or purposely causing serious bodily injury that resulted in death. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Finding that the charges on the issues were supported by a rational basis, we conclude that the errors were not harmless. Consequently, we reverse the conviction for capital murder, but not that for possession of a weapon for an unlawful purpose.

-I-

We restrict our factual recitation to those facts relating to the incorrect jury instructions. The tempestuous marriage of Samuel and Lucy Erazo ended on July 20, 1986, when he stabbed her to death after an evening of drinking and quarrelling. Samuel's primary defense was that she had provoked him and that he had killed her in the heat of passion. As the court and counsel recognized at trial, the case turned on Samuel's mental state at the time of the homicide. More specifically, the question was whether he had knowingly or purposely killed his wife, contrary to N.J.S.A. 2C:11-3a(1) and -3a(2), and, if so,

whether he had acted in the heat of passion on adequate provocation, N.J.S.A. 2C:11-4b(2).

Samuel and Lucy were married on May 19, 1982, at Rahway State Prison, where he was confined for the 1977 stabbing death of Gladys Colon, the daughter of a woman with whom he had been living. The relationship between Samuel and Lucy was marked by passion, recriminations, and violence. Once, during a visit by Lucy at the prison, defendant struck her because he saw her talking with other men. In April 1985, defendant was released on parole and went to live with Lucy in an apartment in East Orange. After his release, they became embroiled in an argument at the home of one of Lucy's daughters. Again defendant struck Lucy. She started to call the police, but when defendant pointed a knife at her and challenged her to "call the cops," she did not complete the call. On yet another occasion, Migdalia Rodriguez, one of Lucy's daughters, reported to law-enforcement authorities that defendant was staying in Lucy's apartment with Migdalia's sisters and defendant's daughters, a condition that violated a term of his parole. This violation led to the revocation of defendant's parole and his return to prison for several months.

At the time of the homicide, defendant was employed as a security guard at a Woolworth store in Newark. Together with Anthony Baptiste, the cashier-supervisor at the store, Anthony's girlfriend, Maribel Santos, and Michael Harrison, another security guard, defendant went to the Erazo apartment to celebrate Harrison's birthday. On the way, they purchased a six-pack of beer, four wine coolers, and a pint of rum. During the course of the evening, Harrison and another guest, Blanca Flores, who also lived in the apartment complex, purchased a second bottle of rum. Throughout the evening both Samuel and Lucy consumed alcoholic beverages. A test of Lucy's blood taken during her autopsy yielded a blood alcohol reading of .195 percent.

Tension started to build as soon as defendant arrived at the apartment. When he tried to introduce Lucy to the guests, she refused to leave the kitchen until after dinner. Defendant became further disturbed when he discovered that the stereo was not working because Lucy had disconnected it while rearranging furniture that day. After dinner, Lucy and Blanca joined the party, and the group sat, talked, and listened to the stereo, which defendant and Blanca had fixed. Blanca showed Harrison how to dance the merengue, and the couples changed partners. At one point defendant told Harrison that "my wife is making me mad," and "she is going to make me do something I don't want to do." Defendant recounted to Harrison that on the previous day Lucy had angered him when he brought her flowers, which she threw in the trash can.

When the party broke up around 11:30 p.m., defendant asked Blanca to drive his friends home. The victim, however, interrupted and told defendant, "no, they're your friends, you take them home." Blanca, however, agreed to drive them home. Embarrassed and angry, defendant accompanied Blanca on the drive. On their return home, defendant and Blanca met the victim, who was drunk and disconsolate, as she left the apartment house. Blanca unsuccessfully tried to persuade Lucy to return to the apartment.

At this point the parties' versions differ. The State contends that Blanca told defendant to follow his wife. According to the State, after threatening that if he went after Lucy, he "might have to kill again," defendant in fact brought her back to the apartment. Defendant denies that he followed Lucy and asserts that she returned voluntarily. Both parties agree that Lucy returned to the apartment sometime after midnight.

According to Blanca's sister-in-law, Anna, who also lived in the apartment house, after defendant and Lucy had returned to their apartment, Anna heard the sound of glass breaking and Lucy screaming "God help me. He is killing me." Defendant then changed his clothes and within minutes of Lucy's return

left the apartment house. Standing beneath the window of Blanca's apartment, he told her to call an ambulance.

At trial, the State theorized that defendant's motive in killing the victim was that she had purposely cut her hand during her walk and then threatened to call the police, with the intention of telling them that defendant had inflicted the wound. This, so the State would again revoke defendant's parole and return him to prison. In a telephone conversation with the victim's daughter on the morning after the slaying, defendant related that when the victim had threatened him, he had "lost his head" and stabbed her. To the extent that the State relied on the victim's threat to call the police, its theory coincided with that of defendant, who contended that her threat enraged him and that he killed her in the heat of passion.

When emergency medical service and police personnel arrived, they found the victim lying on the floor. Next to her body was a blood-stained knife blade with a broken tip; the handle was on the vestibule floor. The apartment was in disarray, with glasses, a rum bottle, and a box of cassettes knocked to the floor. An autopsy revealed that the victim had sustained four knife wounds to her hands, arms, and chest; three slashes to the neck; and a single stab wound to the back that, according to the medical examiner, killed her instantly.

After leaving the apartment, defendant went to his mother's home in Jersey City, where he told his brother, an unemployed police officer, that he had stabbed the victim. Later that day, defendant surrendered to the police.

During the guilt phase of the trial, the defense centered on the contentions that defendant had been intoxicated, that the victim had provoked him, and that he was therefore guilty only of manslaughter. The jury, however, convicted defendant of knowing or purposeful murder.

In the penalty phase, the jury found two aggravating factors: that defendant had previously been convicted of murder, N.J.S.A. 2C:11-3c(4)(a); and that the murder was outrageously

or wantonly vile, horrible, or inhuman, N.J.S.A. 2C:11-3c(4)(c). The jury also found four mitigating factors: that defendant had been under the influence of an extreme mental disturbance, N.J.S.A. 2C:11-3c(5)(a); that the victim had participated in the conduct resulting in her death, N.J.S.A. 2C:11-3c(5)(b); that defendant had been intoxicated, N.J.S.A. 2C:11-3c(5)(d); and that defendant had been under unusual or substantial duress, N.J.S.A. 2C:11-3c(5)(e). On the jury's finding that the aggravating factors outweighed the mitigating factors, the court sentenced defendant to death.

-II-

A. Jury Charge on Passion/Provocation Manslaughter

We begin with the jury charge that impermissibly shifted to defendant the burden of proving passion/provocation. As the United States Supreme Court has held, the State must prove beyond a reasonable doubt all elements of a crime. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). A requirement that defendant prove adequate provocation beyond a reasonable doubt violates that rule. See Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) (holding that prosecution must disprove adequate provocation beyond a reasonable doubt when the issue is raised in a homicide case). When a defendant places passion/provocation in issue, the State, to prove a knowing or purposeful murder, must prove beyond a reasonable doubt that defendant's actions were not the result of passion. Grunow, supra, 102 N.J. at 145, 506 A.2d 708; State v. Powell, 84 N.J. 305, 315, 419 A.2d 406 (1980).

At the conclusion of the trial, defense counsel requested an instruction that the State bore the burden of disproving passion/provocation. Without objection from the State, the trial court rejected the request. Instead, after explaining the elements of passion/provocation manslaughter, the court instructed:

So if you're satisfied beyond a reasonable doubt that the defendant caused the decedent's death under circumstances that would [otherwise] be murder but was committed in the heat of passion, then you may return a verdict of guilty of manslaughter.

A fair reading leads to the conclusion that the charge erroneously placed on defendant the burden of proving passion/provocation. This error requires reversal. Grunow, supra, 102 N.J. at 148-49, 506 A.2d 708.

Although the State acknowledges that the quoted portion of the charge was erroneous, it contends that taken as a whole, the charge was at worst ambiguous. The State's argument continues that the proper standard for appellate review is whether there is a "reasonable likelihood that the jury * * * applied the challenged instruction" in an unconstitutional fashion. Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316, 329, reh'g denied, 495 U.S. 924, 110 S. Ct. 1961, 109 L. Ed. 2d 322 (1990) (enunciating test for adequacy of ambiguous jury instructions). To support its contention that the charge was merely ambiguous, the State points to an earlier instruction:

[T]he burden of proof is on the State. * * * [T]hat burden never shifts and it remains on the State throughout the whole case, so no burden with respect to proof is imposed upon the defendant, Mr. Erazo. He is not obligated to prove his innocence.

That general statement, although accurate, lacks the muscle to shift to the State the burden to disprove passion/provocation. At best, the charge was contradictory. As we have previously stated, "'[c]ontradictory and inconsistent charges are inherently inadequate as they "create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner."'" State v. Moore, 122 N.J. 420, 433, 585 A.2d 864 (1991) (S. Moore) (quoting Humanik v. Beyer, 871 F.2d 432, 442 (3d Cir.), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989) (quoting Francis v. Franklin, 471 U.S. 307, 323 n. 8, 105 S. Ct. 1965, 1975 n. 8, 85 L. Ed. 2d 344, 359 n. 8 (1985))). In brief, the charge was fatally flawed.

On appeal, the State also contends that the erroneous instruction was harmless because the evidence was insufficient to support a charge of passion/provocation manslaughter. In particular, the State argues that the evidence did not provide a rational basis for a jury to conclude that there had been adequate provocation. See N.J.S.A. 2C:1-8e (prescribing the "rational basis" test for an instruction on a lesser-included offense). Again, we disagree.

Our review of the record persuades us that the evidence of provocation was sufficient to support the charge on passion/provocation manslaughter. At trial, both the court and the State reached the same conclusion. As both the prosecutor and the court recognized, Erazo's defense was that he had committed manslaughter, not murder. At defendant's request, and without objection from the State, the trial court included a manslaughter instruction in the charge.

A court should grant a request for a charge on a lesser-included offense of manslaughter if the record provides a "rational basis" for a manslaughter conviction. State v. Crisantos (Arriagas), 102 N.J. 265, 276, 508 A.2d 167 (1986). Although a "rational basis" requires more than a mere "scintilla of evidence," it is "[n]evertheless * * * a low threshold." Id. at 278, 508 A.2d 167; see also State v. Coyle, 119 N.J. 194, 224, 574 A.2d 951 (1990) (applying the "low threshold" test). In effect, the question is whether there is room for dispute whether the jury could find defendant guilty of manslaughter. State v. Mauricio, 117 N.J. 402, 415, 568 A.2d 879 (1990).

The Penal Code defines passion/provocation manslaughter as "[a] homicide * * * [that] is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4b(2). Passion/provocation manslaughter has four elements: (1) adequate provocation of the defendant; (2) inadequate time for the defendant to "cool off"; (3) provocation of the defendant to a state of passion; and (4) the failure of defendant to "cool off." Mauricio, supra, 117 N.J. at 411, 568 A.2d 879.

Here, the focus is on the first element, adequate provocation. As we have cautioned, an abstract definition is only a guide in defining the parameters of passion/provocation manslaughter. Crisantos (Arriagas), supra, 102 N.J. at 275, 508 A.2d 167. Also, "[t]he specific evidence in each case must be carefully evaluated in the context of the entire record to determine whether passion/provocation manslaughter may properly be considered by the jury." Ibid.

The record demonstrates the tension between defendant and the victim on the night of the slaying. That tension was not an isolated occurrence, but a continuing strain in a marriage fraught with violence. The stress began the preceding evening when the victim rejected the flowers defendant had brought her. On the night of the homicide, the couple continued to feud. Defendant chastised the victim for rearranging the furniture and disconnecting the stereo. She refused to join his guests in the living room and remained in the kitchen with her friend Blanca until after dinner. Both defendant and the victim consumed alcoholic beverages that evening. Objective evidence establishes that she was intoxicated. The defense emphasized, moreover, that the partner-switching while dancing the merengue may have fueled their mutual feelings of jealousy and suspicion. At one point defendant told Harrison that the victim "was making him mad." After Blanca returned from taking the guests home, the victim drunkenly swung her pocketbook at Blanca, began to cry, and accused Blanca of "trying to go after my husband."

According to statements made by defendant after the homicide, the victim returned from her walk having deliberately cut her hand. He claims that he became enraged and attacked her when she told him she intended to have his parole revoked by telling the police that he cut her. His version is consistent with the fact that the victim previously had threatened to report defendant to the authorities. Moreover, defendant's parole had previously been revoked because of an "anonymous" report from one of the victim's children that defendant was violating

his parole. Thus, defendant argues that he was infuriated by the victim's threat to fabricate facts to cause the revocation of his parole. In this regard, we note that on the penalty phase the jury found that the victim had participated in the conduct that resulted in her death. That finding, as defendant argues, is consistent with the proposition that the victim's conduct and death are causally connected.

As is now well settled, the purpose of our review is not to determine whether the jury would have accepted defendant's explanation, Mauricio, supra, 117 N.J. at 415, 568 A.2d 879, but whether the evidence provided a "rational basis" for a passion/provocation charge, N.J.S.A. 2C:1-8e. We so find. See Coyle, supra, 119 N.J. at 224, 574 A.2d 951 (evidence of a confrontation between defendant, his lover, and the victim sufficient to support manslaughter charge).

The error in the manslaughter charge was aggravated by the court's instruction that the jury should first consider whether defendant was guilty of murder and that if it acquitted defendant of that offense, it should then consider the manslaughter charge. As we recently noted, a sequential charge can confuse jurors in a murder case when the court also charges on manslaughter. See id. at 222-24, 574 A.2d 951.

This part of the charge contained two errors. First, the instruction had the capacity to confuse the jurors about the elements of knowing or purposeful murder. As explained above, when a defendant places passion/provocation in issue, the State, to prove a knowing or purposeful murder, must prove beyond a reasonable doubt that the defendant did not act from passion aroused by reasonable provocation. Hence, the initial problem with the charge is that it may have foreclosed the jury from considering passion/provocation during its deliberations on the murder count. Second, the court erroneously instructed the jury that it could find passion/provocation manslaughter only if it first acquitted defendant of knowing or purposeful murder. This instruction is backwards. Only a

homicide that would otherwise be a knowing or purposeful murder may be reduced to manslaughter by the presence of passion/provocation. If, on retrial, the court should again give a sequential charge, it should make clear both that the absence of passion/provocation is an element of murder on which the State bears the burden of proof and that the jury may convict defendant only of manslaughter when the homicide would have been murder but for the existence of passion/provocation.

B. Jury Charge on Knowing or Purposeful Murder

Defendant argues as a matter of plain error that neither the jury instructions nor the verdict form distinguished between knowingly or purposely causing death and knowingly or purposely causing serious bodily injury that results in death. See Gerald, supra, 113 N.J. 40, 549 A.2d 792. We agree. In Gerald, we held that the death penalty may be imposed only if the jury finds that the defendant knowingly or purposely caused death as distinguished from knowingly or purposely causing "serious bodily injury resulting in death." Id. at 69, 549 A.2d 792. This rule has required reversal of several pre- Gerald convictions when the charge did not distinguish between capital murder and serious bodily injury murder. See State v. Dixon, 125 N.J. 223, 251-55, 593 A.2d 266, 279-81 (1991); S. Moore, supra, 122 N.J. at 484-86, 585 A.2d 864; State v. Harvey, 121 N.J. 407, 412-14, 581 A.2d 483 (1990), cert. denied, U.S. , 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991); State v. Clausell, 121 N.J. 298, 312-16, 580 A.2d 221 (1990); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); State v. Long, 119 N.J. 439, 460-65, 575 A.2d 435 (1990); Coyle, supra, 119 N.J. at 208-12, 574 A.2d 951; Gerald, supra, 113 N.J. at 69-70, 549 A.2d 792.

At trial, the court charged the jury:

Now, the charge contained in the indictment against Mr. Erazo is that he did murder one Lucy Erazo. Murder is the unlawful killing of one person by another purposely or knowingly. A person who commits a killing does so

purposely when it is his conscious object to cause death or serious bodily injury resulting in death.

A person who commits a killing does so knowingly when he is aware that what he is doing will cause death or serious bodily injury resulting in death. In either case, that is, whether the killing is committed purposely or knowingly caused the death or serious bodily injury, must be within the design or contemplation of the defendant.

The State concedes that the charge violates Gerald, but argues that the error was harmless. In its view, the evidence provides no rational basis for a jury to conclude that defendant intended to cause only serious bodily injury. As is so often the case when a defendant's mental state is at issue, the evidence points in more than one direction. Adequate evidence supports the State's contention that defendant intended to kill the victim. On the night of the homicide, defendant made statements to the effect that he "might have to kill" the victim. He cut her several times on her arms and neck and stabbed her once in the back. A bloody knife blade broken at both the tip and handle was found near the body, suggesting that defendant stabbed the victim with such ferocity and frequency to indicate an intent to kill.

Other evidence, however, points toward the conclusion that defendant killed neither purposely nor intentionally, but intending to cause only serious bodily injury. Within minutes after the stabbing, defendant asked Blanca Flores to call an ambulance. When he fled to his mother's apartment, he related the stabbing to his brother, who tried to summon help for Lucy. Several hours later, when defendant called the victim's daughters, he asked them how their mother was. In his conversation with one of the victim's daughters, defendant indicated that he had "lost his head" and attacked the victim after she had threatened to lie to the police to cause his parole to be revoked.

Further, a letter to Blanca, written by defendant after his arrest, explains that after Lucy had threatened to force his return to prison, he panicked. In that letter, which was admitted on the State's case, defendant wrote:

I couldn't react logically. My mind went blank: I only saw the time I was going to serve unfairly, without having done anything. When I came to and realized, she was [sprawled] on the floor and I had a knife in my hand, which I quickly let go of. * * * I didn't know whether she was dead or alive, although she appeared to be alive, because I felt like her breathing; that's when I told her that I was going to call the ambulance for her and I begged her not to die.

To some extent, the facts of this case are reminiscent of those in S. Moore, supra, 122 N.J. 420, 585 A.2d 864, in which we also reversed on Gerald grounds. Like the present case, S. Moore involved a killing in the context of jealousy and a deteriorating marriage. The defendant in S. Moore became involved in a confrontation with his wife after announcing his intention of leaving her for another woman. When the argument turned violent, the defendant struck his wife more than twenty times on the head with a hammer, killing her. On those facts, we held that it was for the jury "to consider a defense * * * that [defendant] did not intend to kill his wife, but lost control of himself and struck her, causing her to die, without intending her death." Id. at 485-86, 585 A.2d 864. Here, although defendant slashed the victim several times, he inflicted only a single fatal wound. He then sought medical assistance for the victim. We conclude that minimally adequate evidence exists to provide a rational basis for the jury to conclude that defendant intended to cause only serious bodily injury that resulted in death. Hence, we find that the charge constitutes plain error under State v. Gerald.

-III-

Because we reverse defendant's conviction and sentence for the reasons in Part II, we limit our remaining discussion to those issues on which further guidance might be helpful on retrial.

A. Voir Dire

Since the trial, we have rendered several decisions explaining that voir dire in a capital cause should be open-ended, State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II);

thorough and searching, State v. Biegenwald, 126 N.J. 1, 32-35, 594 A.2d 172, 188-89 (1991) (Biegenwald IV); Dixon, supra, 125 N.J. at 246, 593 A.2d at 277; State v. Marshall, 123 N.J. 1, 90-94, 586 A.2d 85 (1991); S. Moore, supra, 122 N.J. at 451-54, 585 A.2d 864; Williams II, supra, 113 N.J. at 413, 550 A.2d 1172; State v. Biegenwald, 106 N.J. 13, 29-30, 524 A.2d 130 (1987) (Biegenwald II); sensitive to attorney participation, Biegenwald II, supra, 106 N.J. at 30, 524 A.2d 130; and designed to elicit a "potential juror's views, biases, and inclinations," Biegenwald IV, supra, 126 N.J. at 39, 594 A.2d at 192.

Without the benefit of those opinions, the trial court took a more constricted approach to the voir dire. Because we reverse on other grounds, we need not belabor this point. On remand, we trust the court will be guided by the intervening decisions.

Suffice it to state that voir dire in a capital cause should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially. An appropriate subject for such an inquiry is a juror's attitude about a defendant's prior murder conviction. Biegenwald IV, supra, 126 N.J. at 34-35, 594 A.2d at 189; cf. Williams II, supra, 113 N.J. at 413-17, 550 A.2d 1172 (error to refuse to ask jurors whether fact that defendant had raped victim in course of murder would unduly influence juror's decision to impose death penalty). Also, a court should avoid any artificial time limits on questioning by counsel. Here, the court imposed a "three minute rule," which limited counsel's questioning to three minutes. The record reflects that this limitation led to questioning that often was rushed and superficial. As long as counsel acts reasonably and responsibly, as counsel did here, voir dire should proceed uninhibited by any such artificial constraints.

B. Evidence Issues

1. Prejudice to Guilt Phase from Admission of Prior-Murder Evidence

Defendant challenges the admission during the guilt phase of evidence that he had previously been convicted of murder for the 1977 stabbing death of Gladys Colon. During the guilt phase, Michael Harrison and Blanca Flores testified that on the night of the subject murder, defendant stated that he had killed before and that Lucy's behavior might cause him to kill again. Defendant argues that their testimony should have been excluded because the prejudicial effect outweighed its probative value. We find, however, that the trial court did not abuse its discretion in allowing the testimony.

Harrison testified that on the night of the killing defendant had confided that he had served a prison term for killing someone and that "Lucy is going to make me do something I don't want to do." Blanca Flores testified that when Lucy left the apartment to go for a walk after the party, defendant rejected Blanca's suggestion that he follow Lucy, stating that "I killed before and if I go after her I'll kill again."

At pre-trial proceedings, the court ruled admissible the testimony of both witnesses about defendant's prior crimes. Originally the State sought admission to prove both a signature crime and defendant's mental state. At trial, the State introduced the evidence solely to establish defendant's state of mind.

In addition to the testimony of those witnesses, the court also admitted redacted records of defendant's convictions for the prior murder and for carnal abuse of Gladys Colon. The nature of the offenses was redacted, so the records revealed only that defendant had been convicted of two indictable offenses and that he had been sentenced to prison for a term of twenty to thirty years on one offense and to a concurrent ten to fifteen years on the other offense. The State sought admission of the records to prove that defendant was on parole, thereby corroborating

the State's theory that Lucy had threatened to report him for a parole violation.

Appellate courts generally defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion. State v. Ramseur, 106 N.J. 123, 265-66, 524 A.2d 188 (1987); State v. Atkins, 78 N.J. 454, 462, 396 A.2d 1122 (1979). We find no such abuse here.

Defendant's statements evidence his state of mind at the time he killed Lucy. The statements, which were made shortly before he killed her, referred to a prior murder. They were relevant to whether defendant had killed Lucy purposely or knowingly, or whether he had been provoked and had killed her in the heat of passion. Thus, defendant's statements related to the crucial issue of his mental state. The records of defendant's convictions arising out of the killing of Gladys Colon were necessary to prove the State's theory of defendant's motive. The State's theory was that defendant killed Lucy because she had threatened to cause revocation of his parole from his sentence for those convictions.

2. Prejudice to Penalty Phase from Guilt-Phase Evidence

Defendant argues as plain error that evidence presented during the guilt phase prejudiced the penalty-phase proceedings. At issue are records of defendant's prior conviction for carnal abuse of Gladys Colon, the previously-mentioned statements by defendant that he had killed before and might have to kill again, and three 8" X 10" color photographs of the autopsy. The photographs were admitted to prove the manner and cause of death. One photograph showed the cuts to the victim's left hand, and a second showed the fatal stab wound to the victim's back. The last photograph not only showed the slash wounds to the victim's chest and neck, but also depicted the icy stare frozen on the ...


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