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State v. Clowney

March 19, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAROB CLOWNEY, DEFENDANT-APPELLANT.



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

Approved for Publication March 19, 1997.

Judges Michels, Muir, Jr., and Coburn. The opinion of the court was delivered by Muir, Jr., J.A.D.

The opinion of the court was delivered by: Muir

The opinion of the court was delivered by MUIR, JR., J.A.D.

On the evening of November 11, 1991, the police discovered the body of Barbara Williams (Williams) in her Elizabeth apartment. She had been repeatedly stabbed and had an electrical cord wrapped around her neck. Sitting in the bed near their naked mother's body were two of Williams' children--Kyshon, age five, and Karee, age nine. Both children had sustained multiple stab wounds estimated by a paramedic to have occurred 14 hours prior to their discovery. Defendant turned himself in to police the next day at the urging of some friends and associates to whom he had admitted stabbing the woman and her children.

A Union County Grand Jury indicted defendant for purposeful or knowing murder (N.J.S.A. 2C:11-3a(1), (2), count one); felony murder (N.J.S.A. 2C:11-3a, b, count two); burglary (N.J.S.A. 2C:18-2 a, count three); aggravated sexual assault (N.J.S.A. 2C:14-2a(3), count four); attempted murder of the two children (N.J.S.A. 2C:11-3 a(1), (2), counts five and six); possession of a weapon, a knife, for an unlawful purpose (N.J.S.A. 2C:39-4d, counts seven, eight, and nine); and possession of a weapon, the same knife, under circumstances not manifestly appropriate for such lawful uses as it may have (N.J.S.A. 2C:39-5d, count ten).

A trial jury found defendant not guilty of burglary but guilty on the remaining charges. The trial court merged the appropriate counts and imposed the following sentences: on count one, life imprisonment with 30 years parole ineligibility; on count four, 9 years with 4 years parole ineligibility concurrent with count one; on count five, 20 years with 10 years parole ineligibility consecutive to count one; on count six, 20 years with 10 years parole ineligibility concurrent with count five and consecutive to count one. The court also imposed Violent Crimes Compensation Board (VCCB) penalties on counts one, four, five, and six. In the original judgment of conviction, the court imposed $30 VCCB penalties. In the amended judgment, it improperly increased those penalties to $35. As noted hereafter, we remand for correction. See N.J.S.A. 2C:43-3.1 (requiring a VCCB penalty of $30 be imposed for all crimes committed prior to December 23, 1991).

Defendant appeals from the October 16, 1994, amended judgment of conviction. A brief filed by counsel raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN REFUSING TO ADMIT EVIDENCE OF MS. WILLIAMS'S ADMISSION THAT SHE WOULD EXCHANGE SEX FOR DRUGS.

POINT II

THE TRIAL COURT ERRONEOUSLY ADMITTED HEARSAY TESTIMONY AND UNFOUNDED EXPERT TESTIMONY AS EVIDENCE THAT DEFENDANT BROKE INTO MS. WILLIAMS'S APARTMENT THROUGH HER FIRE ESCAPE WINDOW (Partially Raised at Trial Level).

POINT III

THE TRIAL COURT'S ERRONEOUS RULINGS THAT PROFFERED TESTIMONY WAS HEARSAY DEPRIVED DEFENDANT OF A DEFENSE.

POINT IV

THE PROSECUTOR ON CROSS-EXAMINATION OF DR. COOKE ADDUCED INADMISSIBLE EXPERT TESTIMONY AS TO WHETHER DEFENDANT BORE THE CHARACTERISTICS OF A RAPIST.

POINT V

THE TRIAL COURT'S INSTRUCTIONS ON A NUMBER OF OFFENSES IN THE INDICTMENT WERE FATALLY DEFECTIVE.

A. Passion/provocation manslaughter.

B. Imperfect Self-defense.

C. Felony murder.

D. Possession of a Weapon for an unlawful Purpose.

E. Sexual Assault.

F. Diminished Capacity.

POINT VI

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

Defendant's pro se brief argues:

POINT I THE STATUTE, N.J.S.A. 2C:4-2, DEFINING THE DEFENSE OF MENTAL DISEASE OR DEFECT, ON ITS FACE AND AS CHARGED TO THE JURY, SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 1).

POINT II THE JUDGE'S DEFINITION OF REASONABLE DOUBT DILUTED THE STATE'S BURDEN OF PROOF IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III THE FAILURE OF THE COURT TO CHARGE "MISADVENTURE" OR ACCIDENT WAS ERROR. (Not Raised at Trial Level)

POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE ADMISSION OF PHOTOGRAPHS THAT CREATED A SUBSTANTIAL DANGER OF UNDUE PREJUDICE. (Not Raised at Trial Level)

POINT V THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. (Not Raised at Trial Level)

We affirm.

I.

The State presented evidence of a tragic criminal drama. In the very early morning hours on the day of the crime, an upstairs neighbor heard "unusual" sounds of a man's voice and a radio-like a party going on emanating from Williams' apartment. Around 7:30 a.m. she heard screaming, first by "kids" and then by "the lady." She also heard what sounded like rearranging of furniture.

Around nine or ten o'clock in the morning, Williams' oldest son, Kamil, returned to the apartment from a weekend with his father. Unable to gain entry, he sought the assistance of a neighbor, Patricia Andrews, a friend of his mother. Andrews and Kamil ...


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