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State v. Mance

April 21, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERALD MANCE, DEFENDANT-APPELLANT.



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

Approved for Publication April 21, 1997.

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

The opinion of the court was delivered by: Coburn

The opinion of the court was delivered by

COBURN, J.S.C. (temporarily assigned).

On August 10, 1990, inmates rioted at the New Jersey State Prison. The Mercer County Grand Jury returned an eighteen count indictment against seven of the inmates, defendants Gerald Mance, Eugene Belton, Murray Whitfield, Ogbonna Khalfani, William E. Jones, Eugene Jones and Keith Bowman. Count I charges them with first degree attempted murder of Captain James Johnston (N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6); count II charges them with second degree aggravated assault upon Captain James Johnston (N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6); and count III charges them with third degree aggravated assault upon Captain James Johnston (N.J.S.A. 2C:12-1b(5)(a) and N.J.S.A. 2C:2-6).

Counts IV, V, and VI of the indictment relate to Senior Corrections Officer Manuel Ayala and counts VII, VIII, and IX relate to Senior Corrections Officer Leon Wilson. As to each, the charges as to all defendants are the same and in the same order as those levied with respect to Captain Johnston.

Counts X and XI charge defendants with second degree attempted aggravated assault (N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6) and third degree aggravated assault (N.J.S.A. 2C:12-1b(5)(a)), respectively, with regard to Corrections Officer Recruit Jose Rivera.

Counts XII and XIII charge defendants with second degree attempted aggravated assault (N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6) and fourth degree attempted aggravated assault (N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6), respectively, with regard to Corrections Officer Sergeant Bradley Boyd. Counts XIV and XV make the same allegations in the same order with regard to Senior Corrections Officer Rita Duffy; and counts XVI and XVII make the same allegations in the same order with regard to Senior Corrections Officer Ray Phelps. Finally, count XVIII charges defendants with third degree possession of weapons, "shanks", metal weights, and table legs with the purpose to use them unlawfully against the person of another (N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6).

The petit jury acquitted defendants Keith Bowman and Eugene Jones. Defendant Mance was convicted on counts II, III, IX, and XVIII. Defendant Belton was convicted on counts II, III, IX, XVII, and XVIII. Defendant Whitfield was convicted on counts III, IX, and XVIII. Defendant Khalfani was convicted on count IX. Defendant William E. Jones was convicted on count IX. The jury acquitted these defendants on the remaining counts of the indictment.

Defendants filed separate appeals. In this opinion, we will consider the points raised by defendant Mance. To the extent that the co-defendants have raised the same issues, the opinions filed as to each co-defendant shall incorporate by reference the applicable sections of this opinion. In each case, we affirm the conviction. However, with the exception of defendant William E. Jones, we reverse the sentences imposed on each defendant and remand for resentencing.

I

In a sudden, unprovoked and planned attack on the morning of August 10, 1990, armed inmates at the New Jersey State Prison (then known as Trenton State Prison) turned on their guards. In the ensuing melee, numerous officers were injured. Captain James Johnston was repeatedly stabbed in the chest, face and arm. He was also beaten in the head with a weight. He spent a week in the hospital with a collapsed lung as a result of the stab wounds. Officer Wilson was struck in the head, stabbed and kicked repeatedly, and had his cheekbone crushed by a weight. The attack rendered him unconscious. He was hospitalized for four days. Officer Ayala was beaten and stabbed. He suffered multiple broken facial bones, a sprained wrist, and tooth damage. He spent seven days in the hospital. Officer Rivera was treated for a puncture wound of his wrist. Other officers suffered minor injuries.

Before the trial began, the trial Judge held a hearing on the question of whether defendants should remain in shackles during the trial. In that regard, he noted that defendant Mance was serving prison terms in excess of fifty-one years, having been convicted of homicide, rape, assault, robbery, and weapons offenses. His prison record contained over 100 disciplinary infractions. Defendant Belton was serving a life term for murder. He had more than seventy-five prison infractions. Defendant Whitfield was serving a forty-five year sentence for armed robbery, kidnapping, and conspiracy and had over 125 prison infractions. Defendant Khalfani was serving a thirty year term for attempted murder, aggravated assault, armed robbery, robbery and drug offenses. He had more than thirty disciplinary infractions. Defendant William E. Jones was serving in excess of forty-four years, having been convicted of aggravated assault, robbery, conspiracy, weapons violations and resisting arrest. He had more than thirty-five disciplinary infractions. Defendant Bowman was serving thirty-six years in relation to charges for homicide, conspiracy, drug violations, and weapons offenses. He had accumulated ten prison infractions. Defendant Eugene Jones was serving a thirty year sentence for homicide and had been cited for infractions on more than fifteen occasions.

The attacks occurred in an eight-foot wide, 121 foot long room known as the gym corridor. At one end of the room was a heavy metal door which led to a reinforced sliding mesh fence and then to a recreation yard. At the other end of the room was another metal door, known as the 1-D door, which led to the interior of the prison. A metal detector was located in the gym corridor near the 1-D door. The corrections officers were aware of rumors that some kind of protest demonstration might occur that day. As a result, Captain Johnston had increased the number of officers. He located himself against a wall in the gym corridor near the outside door to supervise the movement of prisoners from the recreation area through the gym corridor. Sergeant Boyd took up a position near the other wall opposite Captain Johnston. Officers Ayala, Duffy, Phelps, Rivera, Wilson, and Leon H. Smith were standing near the metal detector. The first group of approximately twenty prisoners passed through uneventfully and exited the 1-D door. Sergeant Boyd then instructed the yard-gate officer to allow the second group of prisoners to enter the gym corridor. Defendant Mance entered first. He silently faced Sergeant Boyd, then removed a home-made knife, known as a shank, turned on Captain Johnston and repeatedly plunged the knife into Johnston's body. Defendant Belton entered next with a shank clenched in his upraised hand. He struck Boyd, knocking him into the metal detector, turned on Johnston and stabbed him. Sergeant Boyd depressed an emergency alarm button, which broadcast the alarm on the prison's public address system. Several prisoners including defendants Whitfield, Khalfani and William E. Jones then entered into the gym corridor. Mance, Belton and Whitfield attacked Johnston again, violently shoving him against the wall. They punched and stabbed him and Mance swung a five-pound weight into his face and head. Officer Ayala went to assist Johnston and was knocked over and attacked with a shank. He was struck by shanks repeatedly in the stomach and back and his left hand was pierced.

Officer Wilson was approached by Mance, Belton, William E. Jones, Khalfani and Whitfield who walked towards him "shoulder to shoulder." Wilson saw a metallic "glitter" pass between Whitfield and Khalfani and another "glitter" pass between William E. Jones and Belton. He saw a "glitter" on Mance. They struck him and he went down. Belton and Whitfield kicked him in the head, rendering him unconscious. Another prisoner repeatedly struck Wilson with a table leg which he had torn from a wooden table next to the metal detector. Officer Ayala tried to assist Wilson. Mance struck Ayala with a steel weight. Other inmates then kicked him and hit him with objects.

Captain Johnston started to move towards the 1-D door when Mance and Belton attacked him again. They stabbed him again and again they struck him with a steel weight. At this point, Officers Duffy, Boyd, Phelps, and Rivera had been forced back to the area of the 1-D door. Just before they managed to get through the 1-D door to safety, defendant Belton, while standing directly in front of Officer Phelps, repeatedly tried to stab him in the face with his shank.

The prisoners then heard the steps of the first emergency response team approaching from the other side of the 1-D door. They immediately fled from the gym corridor into the recreation area, leaving behind the bleeding and bludgeoned, unconscious bodies of Captain Johnston, and Officers Wilson and Ayala. The attacks had taken only several minutes and had been carried out in complete silence.

As the prisoners were being subdued in the recreation area, defendant Whitfield was in possession of a shank. Another shank fell out of William E. Jones's green coat and defendant Bowman had a shank tucked into his waistband. Other shanks were found around the recreation area. The clothing of defendants William E. Jones, Mance, and Belton all contained human blood according to Joseph Petersack, a forensic science expert. He also found human blood on a steel barbell and on a broken table leg.

II

Defendant Mance has raised the following points of alleged error:

POINT I THE TRIAL COURT DENIED DEFENDANT MANCE'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN HE WAS COMPELLED TO APPEAR BEFORE THE JURY WITH HIS HANDS AND FEET SHACKLED.

POINT II THE TRIAL COURT DENIED DEFENDANT MANCE'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT DENIED HIS MOTION FOR A CHANGE OF VENUE.

POINT III THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT MANCE'S MOTION FOR SEVERANCE OF HIS CASE FROM THOSE OF HIS CO-DEFENDANTS.

POINT IV THE TRIAL COURT ABUSED ITS DISCRETION, COMMITTED ERROR CAPABLE OF PRODUCING AN UNJUST RESULT, AND VIOLATED DEFENDANT MANCE'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT DENIED HIS APPLICATION FOR A CONTINUANCE.

POINT V THE TRIAL COURT ERRED IN REFUSING TO ASK THE POTENTIAL JURORS DURING VOIR DIRE IF THEY HAD READ AN INFLAMMATORY NEWSPAPER ARTICLE.

POINT VI THE STATE'S FAILURE TO PROVIDE DISCOVERY TO DEFENDANT MANCE IN A TIMELY MANNER AND THE TRIAL COURT'S SUBSEQUENT FAILURE TO GRANT A CONTINUANCE IN ORDER TO PERMIT DEFENDANT TO REVIEW THE DISCOVERY WAS AN ABUSE OF DISCRETION, ERROR CAPABLE OF PRODUCING AN UNJUST RESULT, AND A DENIAL OF DUE PROCESS IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS.

POINT VII THE TRIAL COURT'S EXCUSING OF ONE JUROR WHILE REFUSING TO ADVISE COUNSEL OF HIS REASON FOR DOING SO AND HIS SUBSEQUENT REFUSAL TO GRANT A MISTRIAL WHEN ANOTHER JUROR FLIRTED WITH ONE OF THE PROSECUTION WITNESSES WAS ERRONEOUS, AN ABUSE OF DISCRETION, AND VIOLATED DEFENDANT MANCE'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A TRIAL BY AN IMPARTIAL JURY.

POINT VIII THE OUT-OF-COURT DISPLAY

OF DEFENDANT MANCE'S PHOTOGRAPH TO OFFICERS RIVERA AND WILSON VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND THE LINE-UP DISPLAY OF DEFENDANT MANCE TO CAPTAIN JOHNSON DURING TRIAL VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL, DUE PROCESS, AND A FAIR TRIAL.

POINT IX THE TRIAL JUDGE'S REFUSAL TO PERMIT CROSS-EXAMINATION OF A CORRECTIONS OFFICER REGARDING HIS DENIAL THAT HE HAD VIOLATED THE CIVIL RIGHTS OF INMATES IN THE PAST VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT OF CONFRONTATION, WAS ERROR CAPABLE OF PRODUCING AN UNJUST RESULT, AND WAS AN ABUSE OF DISCRETION.

POINT X THE TRIAL COURT'S REFUSAL TO PERMIT DEFENDANT MANCE TO PRODUCE EVIDENCE REGARDING HIS NON-INVOLVEMENT IN INCIDENTS AT THE PRISON ON JULY 29 AND AUGUST 7 FOR THE PURPOSE OF DEMONSTRATING THAT HE LACKED THE MOTIVE TO PARTICIPATE IN THE ASSAULT ON THE CORRECTIONS OFFICERS ON AUGUST 10 WAS ERROR CAPABLE OF PRODUCING AN UNJUST RESULT AND WAS AN ABUSE OF DISCRETION.

POINT XI THE STATE'S FAILURE TO PROVIDE TO DEFENDANT MANCE DISCOVERY WHICH HAD NOT BEEN MADE PART OF A WRITTEN REPORT OR STATEMENT WAS AN ABUSE OF DISCRETION, ERROR CAPABLE OF PRODUCING AN UNJUST RESULT, AND A DENIAL OF DUE PROCESS IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS.

POINT XII THE TRIAL COURT'S PROHIBITION UPON DEFENDANT MANCE'S CROSS-EXAMINATION OF A CO-DEFENDANT'S WITNESS BY ASKING HIM LEADING QUESTIONS VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT OF CONFRONTATION, WAS ERROR CAPABLE OF PRODUCING AN UNJUST RESULT, AND WAS AN ABUSE OF DISCRETION.

POINT XIII THE TRIAL COURT COMMITTED

PREJUDICIAL ERROR WHEN IT REFUSED TO PERMIT A SPOKESPERSON FOR THE DEPARTMENT OF CORRECTIONS TO TESTIFY REGARDING INFORMATION SHE RECEIVED FROM THE DEPARTMENT OF CORRECTIONS.

POINT XIV THE TRIAL COURT'S FAILURE TO CHARGE THE JURY REGARDING FOURTH DEGREE AGGRAVATED ASSAULT AND ITS INSTRUCTION REGARDING CONSPIRACY CONSTITUTED PREJUDICIAL ERROR, AN ABUSE OF DISCRETION, AND A DENIAL OF DEFENDANT MANCE'S RIGHT TO DUE PROCESS AND A FAIR TRIAL, IN VIOLATION OF ...


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