On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was convicted by a jury of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; and possession of a handgun with the purpose to use it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4a.*fn1 The court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for murder, and consecutive terms of five years imprisonment for possession of a handgun without a permit, and ten years imprisonment, with five years of parole ineligibility, for possession of a weapon for unlawful purpose, for an aggregate sentence of life plus fifteen years imprisonment, with thirty-five years of parole ineligibility.
On appeal the Public Defender has filed a brief on defendant's behalf which makes the following arguments:
I. THE TRIAL JUDGE IMPROPERLY REFUSED TO CHARGE RECKLESS MANSLAUGHTER AS A LESSER INCLUDED OFFENSE THEREBY VIOLATING DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.
II. THE TRIAL JUDGE INCORRECTLY INSTRUCTED THE JURY THAT A DEFENDANT IS AN ACCOMPLICE TO A CRIME IF HE ACTS "WILLFULLY AND KNOWINGLY" IN AIDING ANOTHER TO COMMIT THAT CRIME, WHEN IN FACT, ONLY A CULPABILITY LEVEL OF "PURPOSELY" SATISFIES THE REQUIREMENTS OF N.J.S.A. 2C:2-6. (Not Raised Below).
III. THE TRIAL JUDGE'S INSTRUCTION TO THE JURY THAT THE JURORS COULD INFER THAT DEFENDANT'S PURPOSE WAS TO TAKE A LIFE IF THEY FOUND HE KILLED THE VICTIM WITH A DEADLY WEAPON VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS BY FAILING TO INFORM THE JURY ADEQUATELY THAT THE INFERENCE WAS (A) ONLY PERMISSIBLE, NOT MANDATORY, AND (B) CAN BE OVERCOME ONCE IT IS MADE THEREBY LESSENING THE STATE'S BURDEN OF PROOF. (Not Raised Below).
IV. DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL BECAUSE THE TRIAL JUDGE VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS BY INSTRUCTING THE JURY THAT "KNOWING," RATHER THAN "PURPOSEFUL," POSSESSION FULFILLS THE POSSESSION ELEMENT OF N.J.S.A. 2C:39-4a. (Not Raised Below).
V. THE CONSECUTIVE SENTENCES IMPOSED UPON DEFENDANT ARE MANIFESTLY EXCESSIVE.
Defendant has filed a supplemental pro se brief which makes the following additional arguments:
I. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND TO AN IMPARTIAL JURY WERE VIOLATED WHEN COUNSEL FAILED TO USE PREEMPTORY STRIKES TO EXCLUDE VICTIMS OF CRIME FROM THE JURY; Const.Amend. 5, 6, 14.
II. DEFENDANT SHOULD HAVE ENJOYED SPOUSAL PRIVILEGE REGARDING ELIZABETH LOPEZ, HIS "COMMON LAW WIFE", AND THE MOTHER OF HIS SIX CHILDREN, WHEREFORE THE TRIAL MUST BE REVERSED AND A NEW TRIAL MUST BE GRANTED. (Not Raised Below).
III. DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAS NOT AFFORDED ANY DUE PROCESS SAFEGUARDS WHEN THE ALLEGED STATEMENT WAS TRANSCRIBED FROM SPANISH TO ENGLISH. (Not Raised Below).
We conclude for the reasons expressed in section I of this opinion that the trial court properly refused to submit the lesser included offense of reckless manslaughter to the jury. Moreover, even if the court had erred in refusing to submit reckless manslaughter to the jury, we would conclude, as set forth in section II of this opinion, that the error was harmless, because the court instructed the jury regarding the lesser included offense of aggravated manslaughter and the jury nonetheless found defendant guilty of purposeful or knowing murder. Defendant's other arguments relating to the court's instructions to the jury, defense counsel's representation of the defendant and the conduct of the trial are clearly without merit. R. 2:11-3(e)(2). Although these arguments do not require extended discussion, we note that the objections now made by defendant to the court's instructions were not raised at trial. While those instructions could have been refined in the manner suggested by defendant's appellate arguments, we believe that the instructions, considered in their entirety, adequately conveyed the applicable law and could not have misled the jury. Accordingly, we affirm defendant's conviction. However, we also conclude for the reasons expressed in section III of this opinion that the court failed to follow the sentencing criteria set forth in State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in imposing consecutive sentences upon defendant. Therefore, we remand for resentencing.
N.J.S.A. 2C:1-8(e) provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." This "rational-basis" test establishes a "low threshold . . . for permitting a charge on a lesser included offense." State v. Crisantos, 102 N.J. 265, 278, 508 A.2d 167 (1986). However, a court should not submit a lesser included offense which invites the jury to engage in sheer speculation.
State v. Rose, 112 N.J. 454, 479-85, 548 A.2d 1058 (1988); State v. Davis, 50 N.J. 16, 28, 231 A.2d 793 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968).
Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2). Under the Code, conduct is "purposeful" if it is the person's "conscious object" to cause a result, N.J.S.A. 2C:2-2b(1), and conduct is "knowing" if the person is aware that "it is practically certain that his conduct will cause such a result." N.J.S.A. 2C:2-2b(2). Defendant claims that the court should have submitted reckless manslaughter, in violation of N.J.S.A. 2C:11-4b(1), as a lesser included offense of purposeful or knowing murder. A person acts "recklessly," justifying a conviction for reckless manslaughter, if he "consciously disregards a substantial and unjustifiable risk that [death] will result from his conduct." N.J.S.A. 2C:2-2b(3). Therefore, the question is whether there was a rational basis for the jury to find that defendant "recklessly" caused the victim's death by consciously disregarding the substantial risk that death would result from his conduct or whether defendant was necessarily aware that it was practically certain his conduct would cause death or serious bodily injury. State v. Rose, supra, 112 N.J. at 484, 548 A.2d 1058.
The State presented evidence that defendant and the victim became involved in some form of argument on a Newark street corner around 11:30 p.m. on September 28, 1988. Defendant went into a building, from which he re-emerged a few minutes later with an Uzi machine gun. Defendant then opened fire into a group of people which included the victim, who was killed by one of the shots.
Defendant did not testify at trial. However, the State introduced a pretrial statement defendant gave to the police, which included the following account of the shooting:
I saw Marisol Baez walking down the street with a bag in her hand.
Then I saw my cousin, Juanchi [Juan Rivera Mendieta], walk over to her, grab the bag and pull a machine gun out of the bag and start shooting at the building across from 69 North 9th at the black guys in front.
The black guys started running all different ways and then I walked over to my cousin and took the gun off him. Then I saw another group of black guys just standing on the corner by my building and they started walking towards me. I ...