On appeal from Superior Court, Law Division, Essex County.
Approved for Publication May 9, 1996.
Before Judges Long, Muir, Jr. and Brochin. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
Tried to a jury, defendant, Blaine Holmes, was convicted of the murder of Jerome Alford, a/k/a/ Fuquan, contrary to N.J.S.A. 2C:11-3a(1),(2) (count one)) fourth degree unlawful possession of a knife, contrary to N.J.S.A. 2C:39-5d (count two); and third degree possession of a knife, contrary to N.J.S.A. 2C:39-5d (count two); and third degree possession of said knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three). After merging the conviction on count three into the conviction on count one for sentencing, the trial Judge sentenced defendant to life in prison with thirty years of parole ineligibility on count one, and to a concurrent custodial term of eighteen months on count two. Appropriate monetary penalties were also imposed.
Defendant appeals, contending that the following errors warrant reversal:
DEFENSE COUNSEL'S FAILURE TO IMPEACH THE CREDIBILITY OF THE TWO PRINCIPAL WITNESSES AGAINST DEFENDANT, ROBERT AND SHARON DENIKE, ON THE GROUND THAT BOTH HAD PRIOR CRIMINAL RECORDS, AND, IN RALPH DENIKE'S CASE, WAS ON LIFETIME PAROLE, AND, IN SHARON DENIKE'S CASE, WAS ON PROBATION FOR INDICTABLE CRIMES, BOTH AT THE TIME THEY MADE THEIR ORIGINAL STATEMENTS TO THE POLICE AND AT THE TIME THEY TESTIFIED AT TRIAL, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, ALTHOUGH THE OMISSION IS ALSO ATTRIBUTABLE TO THE FAILURE OF THE PROSECUTION TO AFFORD DEFENSE COUNSEL A LIST OF THE RECORDS OF CRIMINAL CONVICTIONS OF THE WITNESSES IT CALLED TO TESTIFY AGAINST DEFENDANT. WHETHER, HOWEVER, THE OMISSION IS ASCRIBABLE PRIMARILY TO DEFENSE COUNSEL'S INCOMPETENCE OR THE STATE'S FAILURE TO PROVIDE THE DISCOVERY MATERIALS REQUIRED OF IT BY RULE, ITS EFFECT IN EITHER EVENT WAS TO DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO ADEQUATE REPRESENTATION OF COUNSEL, OF HIS RIGHT TO MEANINGFULLY CONFRONT THE WITNESSES AGAINST HIM, AND OF HIS RIGHT TO DUE PROCESS OF LAW. (Not Raised Below).
The Centrality of the Denikes' Testimony.
The Prejudicial Effect of the Fai lure to Apprise the Jury of the Denikes' Prior Conviction of Indictable Crimes, as Well as the Vulnerable Status They Occupied Both at the Time They Made Their Statements to the Police and When They Testified at Trial. Whether Primarily Attributable to Defense Counsel's Incompetence or to the Prosecutor's Willful Neglect in Providing Defense Counsel With Information Concerning Such Prior Convictions and Vulnerable Status, Requires Reversal of Defendant's Convictions.
The Question of Reversible Error.
IN VIEW OF THE FACT THAT THE DEFENDANT'S STATEMENT TO THE POLICE AND HIS TESTIMONY AT TRIAL UNEQUIVOCALLY CLAIMED THAT HE WAS NOT ONLY PROTECTING HIS PERSONAL SAFETY IN RESISTING FUQUAN, BUT WAS RESISTING AN ATTEMPTED ARMED ROBBERY BY THE LATTER AS WELL, HIS COUNSEL'S FAILURE TO REQUEST A CHARGE RAISING HIS DEFENSE AS WELL AS SELF-DEFENSE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE TRIAL JUDGE'S FAILURE TO ISSUE THE INSTRUCTION PLAIN ERROR. THIS FAILURE WAS PARTICULARLY DAMAGING IN THAT DEFENDANT WAS NOT, UNDER THE CIRCUMSTANCES, OBLIGED TO RETREAT, AS THE JURY WAS INSTRUCTED HE MUST, BUT COULD LEGALLY HAVE STOOD HIS GROUND AND RESISTED THE ATTEMPTED ROBBERY. (Not Raised Below).
DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S QUESTIONING OF DEFENDANT CONCERNING HIS POST-ARREST SILENCE (IN THAT DEFENDANT DID NOT INFORM THE POLICE THAT THE HOMICIDE WAS JUSTIFIED) AS WELL AS, EVEN SHOULD THE TRIAL JUDGE HAVE FOUND SUCH TESTIMONY ADMISSIBLE, HIS FAILURE TO REQUEST AN INSTRUCTION AS TO THE LIMITED EFFECT OF SUCH TESTIMONY, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND REQUIRES REVERSAL. (Not Raised Below).
In a supplemental pro se brief, defendant contends that:
THE TRIAL COURT ERRED IN GIVING A "FLIGHT" INSTRUCTION.
DEFENDANT'S MURDER CONVICTION WAS A MISCARRIAGE OF JUSTICE BECAUSE OF A FAULTY AND CONFUSING INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
We have carefully reviewed this record in light of these contentions and have concluded that defendant did not receive a fair trial as a result of his counsel's failure to impeach the two principal witnesses against him and to intervene when the prosecutor raised the issue of defendant's pre-arrest silence before the jury. Thus, we reverse and remand the case for a new trial.
For the purposes of this opinion, it is unnecessary to detail every aspect of the trial testimony except to say that Robert and Sharon Denike, who were at the location of the crime for the purpose of obtaining drugs, were the only eye witnesses to the whole encounter between defendant and the victim. They testified essentially that the defendant and the victim fought over money the victim owed the defendant; that defendant was the aggressor in the fight; and that ...