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State v. Sette

Decided: August 11, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK SETTE, DEFENDANT-APPELLANT



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

King, Gruccio and Brochin. The opinion of the court was delivered by King, P.J.A.D.

King

Defendant killed an apartment roommate, stabbed another and tried to stab several neighbors. At trial he asserted the affirmative defenses of involuntary and pathological intoxication. He claimed that he was prevented from knowing the nature and quality of his conduct by a combination of cocaine, marijuana and Co-Tylenol, which he voluntarily ingested, and by a buildup of toxic pesticides in his body acquired during several years as a landscape worker. The State asserted that the homicidal attack and sequelae were prompted by revenge because of sexual rejection. Defendant was convicted of murder, attempted murder, several assaults, and weapon's offenses.

On appeal defendant's main thrust is that the Judge erred in restricting his involuntary or pathological intoxication defenses to the consequences of pesticide exposure only. The Judge instructed the jury that it could not consider any mental state induced by a combination of pesticide exposure with the voluntarily

consumed cocaine and other drugs as an affirmative defense to the crime. The Judge did instruct the jury that voluntary intoxication was relevant to disputing the purposeful and knowing mental state required for murder.

Defendant also attacks several of the Judge's evidentiary rulings and several of her jury instructions. We conclude that the appeal is without merit, except for error in the jury instruction on the attempted murder of Peter Johnson, and save for that conviction, we affirm.

I

These are the facts. In March 1988 defendant, then age 23, lived in the basement bedroom of a four-bedroom condominium in Plainfield. The three other bedrooms were occupied by Peter Johnson, Amy Cavalli, whose parents owned the condominium, and Rosemary Devaney. Johnson and defendant had been good friends for a long time and defendant had been friendly with Cavalli and her friend, Devaney, for several years.

At about 1 a.m. on March 21, 1988, in the condominium, defendant stabbed Devaney to death with a hunting knife and also stabbed Johnson. Defendant then left the building and entered a nearby condominium occupied by Michael Triano and Gina Columbus, whom defendant also tried to stab. Defendant claimed to have little or no recall of these events, a phenomena he and his expert witnesses attributed to several factors and events which occurred in the years and months leading up to the night of March 21.

Defendant had been employed since his high school graduation in the gardening and landscaping business. At these jobs defendant had been exposed to pesticides, herbicides and chemicals, including the bug killer, Sevon, although the level and concentration of exposure to these chemicals was disputed. He had often used cocaine on weekends. Defendant claimed to have experienced severe diarrhea, nausea, tingling in his fingertips and headaches with increased frequency for the two years

prior to March 1988, although defendant did not complain of these symptoms to friends or coworkers, nor did he seek any medical attention.

About one week before March 21, defendant had an argument with his long-standing female friend, Robin Nadel, after which he went to Florida for several days to think about their relationship and to relieve feelings of stress from his job. He returned on either Tuesday, March 15 or Wednesday, March 16 and promptly argued again with Nadel, who immediately left on her own trip to Florida. On Wednesday, Thursday and Friday nights (March 16-18) defendant, feeling upset from his disputes with Nadel, went to a bar called the "Goal Post" and drank heavily. On Thursday night, Kelly Fitzgerald, a female friend of Nadel's, went to a diner with defendant after leaving the "Goal Post" and returned with him to the condominium to spend the night. With the exception of the diner, they did the same thing on Friday night. Fitzgerald did not think defendant was depressed about Nadel nor did he complain about Nadel's absence to her.

On Saturday morning, March 19, defendant was having trouble with nasal congestion, prompting Fitzgerald to warn him to stop using cocaine. After Fitzgerald left the condominium on Saturday, defendant made arrangements with Kurt Terry to get some cocaine which Terry delivered to defendant at about 7 p.m. on Saturday night. Defendant snorted some cocaine as people in the house were preparing to go out on Saturday night to the "Hunka Bunka Ballroom," another local bar. His sister, Maria, recalled defendant asking in the car that night whether any of his friends would miss him if he died or whether they would attend his funeral. He drank heavily that night and awoke around noon Sunday with a hangover.

Sunday passed in a desultory fashion until evening, when defendant joined Kurt Terry and Terry's girlfriend, Tracy Martin, in snorting cocaine. Terry, Martin and another friend, Lawrence Guarino, saw that defendant was snorting uncharacteristically

large amounts of cocaine with unusual frequency, and warned him to slow down or stop. Between 8:30 and about 11:30 on Sunday evening, while defendant continued to ingest cocaine, Guarino and defendant played a war game titled "Axis and Allies" in the kitchen while the others were in the living room watching videotapes. Toward midnight several people, including defendant, smoked marijuana; defendant took several puffs from a marijuana cigarette and two "hits" from a bong or water pipe.

Defendant testified that he was despondent because he had not heard from Robin Nadel during the four days preceding Sunday night. Shortly after 7 p.m. he called Fitzgerald and told her he was "wired" from cocaine. To Fitzgerald, he did not seem depressed nor was he complaining about Nadel's absence. Kurt Terry and Tracy Martin recalled that defendant made several uncharacteristic remarks on Sunday night to the effect that "nothing matters." However, he also told Martin he did not care about Nadel, and told Guarino that there would be "trouble" when Nadel returned because defendant had stayed with Fitzgerald.

At about 11:30 p.m. on Sunday, March 20, 1988, Johnson went upstairs to sleep in his bedroom. By midnight, when Guarino left the condominium, Martin, Chris Smith and the other friends who had been there during the evening had already left. Erin Devaney, who had been there after returning from a family dinner with her sister Rosemary, left at about 12:50 a.m., or in the early morning of March 21. When Erin Devaney left, defendant was in his basement bedroom where he had gone at about 12:30 a.m., while Rosemary was in her second floor bedroom. Amy Cavalli had come home to the condominium at about 12:30 a.m. and had left at about 12:50 a.m. At that time there were lights on in Rosemary Devaney's bedroom.

Defendant remembered going downstairs to his room and thinking he wanted to die. To accomplish this he ingested the rest of his cocaine and swallowed most of the tablets in a Co-Tylenol

box on his dresser. Then, he said, everything went "crazy" and he could recall little except that he thought he was dead and nothing was real.*fn1

Notwithstanding this memory lapse expressed at trial, defendant gave several statements to police when arrested on March 21 in which he recounted going up to Devaney's room and stabbing her when she opened the door, chasing her as Devaney fled into Cavalli's empty room, and then stabbing Johnson in the chest as Johnson tried to help the screaming Devaney. In his statement to police, defendant remembered Johnson fleeing the room after which defendant pursued Devaney down the stairs and slit her throat in the living room.

According to Johnson, he was awakened by Devaney's screams for help. He ran to Cavalli's room where he saw defendant holding a hunting knife which defendant had purchased

about three weeks earlier at a hunting convention. He told defendant to stop. Johnson put his arms on defendant's shoulders to get his attention but defendant stabbed Johnson in the chest. This wound measured three inches in width and seven to eight inches in depth and posed a substantial risk of death. Devaney was bleeding from the stomach area and yelled for Johnson to get help. She bled to death as the result of the many stab wounds inflicted by defendant. Johnson ran downstairs, unchained the front door and ran out to the yard, all the while hearing Devaney screaming for defendant not to kill her as she crashed down the stairs. Annie Latimore, a neighbor in the next condominium, was awakened by a woman's screams after which she saw defendant leaving the condominium at a normal pace carrying a bloody knife and saying "I have tried," several times.

Johnson ran screaming to a nearby condominium and was let in by Stephen Bodmer. Bodmer, his brother Richard, and their roommate Jeffrey Wenel, heard Johnson screaming hysterically that defendant had stabbed him and was chasing him. Johnson was bleeding and screaming for them to stop defendant. At about this time they heard sounds of a physical confrontation and a woman's screams coming from the condominium next to the Bodmers. Michael Triano, who lived next to the Bodmers, had been awakened by Johnson's calls for help and opened his door to see Johnson's blood all over his porch. Triano told Gina Columbus, his friend, to phone for the police.

As Columbus was phoning the police, defendant rushed in through Triano's open door covered in blood and began swinging his hunting knife at Triano. Defendant pushed Triano aside and ran for Columbus, who fled out the rear door as defendant chased her with the bloody knife raised over his head. Defendant chased Columbus around to the front of the buildings and down the street. Columbus ran into three people who brought her inside their house and called the police as defendant strode past the house still holding the knife.

When the police arrived, Columbus got into their patrol car and pointed them in the direction defendant had taken. Two police cars converged on defendant, a short distance away. He was arrested, handcuffed and placed in a patrol car. The police then saw that defendant was kicking the rear window of the car, trying to break out of the car. When Sergeant Edwards of the Plainfield Police opened the patrol car door, defendant coiled his legs and landed a kick on Sergeant Edwards's nose. The officers then put ankle cuffs on defendant's legs and took him to the station.

At his "booking", defendant responded appropriately and accurately to questions about his biographical information and had no trouble walking without assistance to places he was directed toward. He was later read his rights and signed a waiver, after which he responded to police questioning by giving the details of Devaney's death as described. Several times during the questioning defendant claimed he could not recall some things and repeated that he felt he had died during the entire incident. At one point the police interviewer told defendant he thought he was lying about not being able to recall the stabbing, after which defendant admitted he had been wrong and described how he had stabbed and slashed Devaney and Johnson.

On the evening of Monday March 21, defendant was interviewed by a psychiatrist, Dr. Robert Latimer, who went to the county jail at the request of defendant's father. Dr. Latimer determined that defendant was delusional and acutely psychotic during the killing spree of the previous night and signed the first of two required "commitment" letters for defendant's transfer to a psychiatric hospital. On March 22 defendant was taken to an emergency room for sutures to a wound on his left leg and was examined there by the staff psychiatrist, Dr. Chong Jaw, who found him dazed but fully cognizant of what had happened and of the charges of murder lodged against him. However, since defendant claimed to be contemplating suicide, Dr. Jaw concurred with the recommendation that defendant be

sent to a psychiatric hospital, although he felt that defendant's problems were strictly related to substance abuse.

Defendant was transferred to Trenton Forensic Hospital where he was treated from March 22 to April 13, 1988 by Dr. Terrence Chamberlain, another psychiatrist. Dr. Chamberlain rendered no opinion at trial about defendant's mental capacity at the time of the killing and assaults, but diagnosed defendant's admission and discharge condition at Trenton Psychiatric as atypical psychosis secondary to substance abuse.

At trial Dr. Latimer testified that defendant did not know the nature and quality of his acts on March 21, 1988, as a result of psychosis induced by the various intoxicants. The State's psychiatrist, Dr. Daniel Greenfield, thought that defendant was not psychotic on March 21 and acted in a knowing, purposeful and goal-directed manner evincing awareness of both the nature and quality of his acts. There were also conflicting opinions offered at trial from several pharmacologists concerning the effect of his exposure to pesticides and chemicals during his work as a landscaper and their interaction with cocaine, marijuana and Co-Tylenol upon defendant's behavior and ability to act knowingly and with purpose on March 21. The defense experts said that defendant's conduct was a result of psychosis produced by the interaction of the drugs he took and his occupational exposure to toxic substances.

II

On June 6, 1988 defendant was indicted for murder and other charges arising from the events of March 21, 1988, as follows: first-degree capital murder of Rosemary Devaney, N.J.S.A. 2C:11-3a(1), (2); aggravated manslaughter of Devaney, N.J.S.A. 2C:11-4a; first-degree attempted murder of Peter Johnson, Michael Triano and Gina Columbus, N.J.S.A. 2C:5-1a(1), (2); aggravated assault of Johnson, Triano and Columbus, N.J.S.A. 2C:12-1b(1); unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d; possession of the knife for unlawful purpose,

N.J.S.A. 2C:39-4d; third-degree aggravated assault (simple assault upon a police officer), N.J.S.A. 2C:12-1b(5); and, resisting arrest, N.J.S.A. 2C:29-2.

Defendant pled not guilty and his motion to suppress pretrial statements made to police was denied. A trial by jury was held before Judge Span between March 20 and April 19, 1989 (21 trial days), resulting in verdicts of guilty of first-degree murder of Devaney (Count One), attempted murder of Johnson (Count Three), aggravated assault on Triano (Count Six) and Columbus (Count Eight), possession of a weapon (Count Nine), possession of a weapon for unlawful purpose (Count Ten), aggravated assault of a police officer (Count 11) and resisting arrest (Count 12). Defendant was found not guilty of attempted murder of Triano (Count Five) and attempted murder of Columbus (Count Seven), while the lesser-included offenses of aggravated manslaughter of Devaney (Count Two) and aggravated assault of Johnson (Count Four) were dismissed.

A penalty-phase trial on capital punishment was held on April 20, 1989. The jury declined to impose the death penalty. On June 9, 1989 the Judge sentenced defendant as follows: life, including 30 years without parole, on Count One; 20 years, including ten without parole, on Count Three, consecutive to the sentence on Count One; seven years each for Counts Six and Eight, each consecutive to the prior terms imposed on the other counts; four years each on Counts Ten and 11 concurrently; and, nine months on Count 12 concurrently. The aggregate sentence was 40 years without parole, minimum, to life plus 34 years, maximum.

Defendant raises these eight issues on appeal, five of which were not raised in the Law Division and which we examine under the "plain error" standard.

I. DID THE COURT ERR IN ITS INSTRUCTION CONCERNING PATHOLOGICAL INTOXICATION RESULTING FROM THE INTERACTION OF VOLUNTARILY INGESTED COCAINE, MARIJUANA AND CO-TYLENOL WITH INVOLUNTARILY INGESTED PESTICIDES? (Not Raised Below).

II. WAS IT ERROR TO ADMIT EVIDENCE OF THE JURY VERDICT FROM A SIMILAR MASSACHUSETTS CASE?

III. WAS IT ERROR TO INFORM THE JURY OF DEFENDANT'S INCARCERATION ON THE CHARGES BEING TRIED?

IV. DID THE COURT ERR IN ITS INSTRUCTION CONCERNING INFERENCE OF INTENT FROM DEFENDANT'S USE OF A DEADLY WEAPON? (Not Raised Below).

V. DID THE COURT ERR IN INSTRUCTING THE JURY AS TO THE STATE OF MIND REQUIRED TO PROVE THE CHARGE OF ATTEMPTED MURDER OF JOHNSON? (Not Raised Below).

VI. DID THE COURT ERR IN ITS INSTRUCTION CONCERNING THE REQUISITE STATE OF MIND FOR CONVICTION OF POSSESSION OF A DEADLY WEAPON? (Not Raised Below).

VII. WAS DEFENDANT SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL? ...


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