On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication December 27, 1997.
Before Judges Shebell, D'Annunzio and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Defendant was indicted in Atlantic County as follows: count one, first degree murder (N.J.S.A. 2C:11-3(a)(1) and -3(a)(2)); count two, third degree possession of a weapon, a walking cane, with a purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4(d)); and count three, assault with ill will, hatred, or bias (N.J.S.A. 2C:12-1(e)). Count three was severed by the trial Judge, and defendant was tried before a jury from May 3 to 17, 1995. He was found guilty on both counts. On June 16, 1995, count two, possession of a weapon for an unlawful purpose, was merged with count one, murder, and defendant was sentenced to a custodial term of life with a thirty-year parole ineligibility period.
Defendant appeals, raising the following legal arguments:
THE TOTAL OMISSION OF AN INSTRUCTION ON ACCOMPLICE LIABILITY, INCLUDING THE OMISSION OF AN EXPLANATION THAT AN ACCOMPLICE MIGHT HAVE A LESS CULPABLE MENTAL STATE THAN A PRINCIPAL, VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
THE GENOCIDAL RACIST MATERIAL SEIZED FROM DEFENDANT'S BEDROOM FIVE MONTHS PRIOR TO THE INCIDENT SHOULD HAVE BEEN EXCLUDED SINCE IT DID NOT FALL WITHIN ANY EXCEPTION REGARDING EXCLUSION OF PRIOR BAD-ACTS EVIDENCE AND WAS FAR MORE PREJUDICIAL THAN PROBATIVE.
THE GENOCIDAL ANTI-SEMITIC AND OTHER HATE MATERIAL SEIZED FROM DEFENDANT'S BEDROOM FIVE MONTHS PRIOR TO THE INCIDENT SHOULD HAVE BEEN EXCLUDED SINCE IT DID NOT FALL WITHIN ANY EXCEPTION REGARDING EXCLUSION OF PRIOR BAD ACTS EVIDENCE AND WAS FAR MORE PREJUDICIAL THAN PROBATIVE.
THE TRIAL COURT'S INSTRUCTION CONCERNING THE USE OF THE OTHER BAD-ACT EVIDENCE WAS INADEQUATE AND DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
THE MATERIAL OBTAINED FROM DEFENDANT'S BEDROOM IN HIS ABSENCE WAS IMPROPERLY ADMITTED INTO EVIDENCE SINCE IT WAS THE PRODUCT OF A WARRANTLESS AND NONCONSENSUAL SEARCH.
THE TRIAL COURT'S INSTRUCTION REGARDING THE JURY'S OBLIGATION TO ASSESS THE CREDIBILITY OF "A CERTAIN STATEMENT ALLEGED TO HAVE BEEN MADE BY THE DEFENDANT" ERRONEOUSLY OMITTED ANY REFERENCE TO THE CREDIBILITY OF THE MULTIPLE WRITTEN STATEMENTS SEIZED BY POLICE AS WELL AS THE VARIOUS ALLEGED ADMISSIONS MADE BY DEFENDANT TO FIVE DIFFERENT PERSONS, THEREBY DEPRIVING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
THE ACCUMULATION OF ERRORS DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.
During the morning of February 4, 1993, Detectives Michael Quigley and James A. Frohner of the Egg Harbor Township Police Department went to the trailer home where the twenty-year-old defendant lived with his mother and his step-father. Defendant was not home, but his mother invited the officers in and insisted that they take a look at his bedroom. The bedroom door was off of its hinges and the room was in disarray. The officers observed certain writings in the room. They left and then returned at about noon to take notes. Quigley eventually left the trailer and applied for and was granted a search warrant. Pursuant to the warrant, at approximately 5:00 p.m., Quigley, Frohner, and others collected various items from the bedroom, and Frohner took photographs. The evidence seized included writings and drawings demonstrating defendant's racial and anti-Semitic beliefs and affiliations. More details concerning the events of February 4, 1993 will follow.
On July 13, 1993, five months after this evidence was seized, Roy Dick, an African American man in his seventies, was brutally beaten in Atlantic City. He died of his injuries on July 19, 1993, without regaining consciousness. He was a frail man, about five feet, two inches tall, who spent much of his time cleaning up the streets and parking lots. He could not walk very well and was hunched-over, moving only a half an inch at a time. He used canes and an old broom. He wore hats and old long coats, even in the summer.
Defendant's friends and acquaintances explained that during the Summer of 1993, defendant had strong beliefs about various groups of people. A friend of defendant's since high school recalled that defendant shaved his head to be a part of the skinhead faith. The friend said defendant had mixed feelings about actually being a skinhead, but "he acted the faith," and expressed strong feelings about black, Jewish, and Puerto Rican people. Defendant had a tattoo that said "white" on his right wrist and one that said "power" on his left wrist. He wore black combat boots with red laces to symbolize neo-Nazi beliefs.
During the Summer of 1993, Tabitha Buntele, then seventeen years old, lived with her mother in the same trailer park where defendant resided with his mother and step-father. She was five feet, four inches tall and weighed about one hundred pounds. At that time, she and defendant, who was twenty years old, were friends. Buntele was with defendant on the night of July 12, 1993, and into the morning of July 13, 1993. They decided to go to the Chelsea Pub in Atlantic City, as defendant used to work there and knew a lot of people. Sometime after midnight, Buntele drove the two of them to the Pub in her mother's car, a gray 1987 Reliant K. They parked in the rear of the parking lot near the bushes. While at the Pub, they drank and played pool. Buntele estimated she had two or three "nuclear kamikazes." She said defendant was drinking beer, but she did not remember how many he had.
The Pub's bartender recalled seeing defendant and a girl at the bar during the early morning hours, but said that defendant did not want anything to drink. He estimated that the couple was in the bar for about fifteen to twenty minutes sometime between 3:30 a.m. and 4:30 a.m.
Buntele recounted that when they left the Pub, they walked a couple of blocks to the Trop World Hotel Casino because defendant wanted to talk to one of their mutual friends who worked there. During the walk, defendant did not appear to be drunk. They spoke to the friend and agreed to pick him up at a bar and grill, two blocks from Trop World, when he got off of work at 8:00 a.m. According to the friend, defendant did not appear to be drunk or under the influence of alcohol. Buntele and defendant walked back to the car which was still parked at the Pub.
Buntele recalled that before getting into the car, defendant said that he needed to urinate and went behind some bushes. She saw a small, skinny black man wearing a long trench coat near those bushes, and opined that he was "a bum." She saw defendant swing his hand at the man "like he was throwing something," and tell him "to get lost." Defendant was a foot or two away from the man, within arm's reach, but she could not tell whether defendant actually hit the man. The man walked off a couple of feet through an opening in the bushes and defendant followed. Buntele was not able to see what the men were doing and could not hear anything. She did not see or hear anyone else in the area. About a minute later, defendant came from the bushes and said: "get in the car. Let's go." Once in the car, he told her, "I think I just beat somebody up." They left the parking lot and went to a McDonald's by the bus station. After getting something to eat at the drive-through window, they drove back to Egg Harbor Township. During the morning, defendant told Buntele that he kicked the man once or twice.
During the early morning hours of July 13, 1993, a woman who lived at 17 South Chelsea Avenue was awakened by the sound of a lady repeatedly screaming, "no." She looked out the window and saw a white male getting into the driver's side of a car which was parked in the parking lot of the Pub. The woman described the car as light in color and having a box shape. At trial, she was shown a photograph which she identified as the car she had seen that morning. She said that a woman was seated in the passenger's seat. She went back to bed and a few minutes later, she heard police vehicles. She looked out and saw police officers and ambulance personnel assisting an individual on the other side of the fence. On cross-examination, she acknowledged that she had described the white man as being in his early thirties and of average build. She explained that she was looking at the top of his head from her second story window and she guessed his age because he was not an old person and was at least of driving age.
Another resident of the second floor of the same rooming house testified that at 4:34 a.m. on July 13, 1993, he heard someone say in a loud voice, "come on." The noise was coming from the direction of the parking lot of the Pub. He looked out of the window, but did not see anything so he went and sat down. He then heard a real loud crack like someone was hit with a stick. He said it was not a regular sound. He went back to the window, and saw a girl and a guy run and jump into a gray, K car. From a photograph at trial, he identified the gray car he had seen that morning. He also said the female got into the passenger's seat, explaining the male was the last to come out of the yard and he went around the back and got into the driver's side. The witness went out onto his fire escape and saw someone lying down in the yard trying to sit up. He went down and saw it was Dick. Dick was moaning and his face was "all puffed out" with blood coming from it.
The witness went to Pacific Avenue where he flagged-down a police car. The officer followed the witness to the parking lot, and found Dick injured about the face with a lot of blood coming out of his mouth and around his nose. There were a couple of canes and a hat near Dick.
The witness described the two perpetrators as being white and having blond hair. The female "had something big in her hair, like a ribbon or something" which was pink. The male was "pretty tall," about six feet, and "biggish," and the girl was "kind of short" in comparison with him, about five feet, six inches. The male was wearing a light-colored or white T-shirt. On cross-examination, he acknowledged that he had said that the male appeared to be in his mid-twenties.
At 5:07 a.m., the paramedics transported Dick to Atlantic City Medical Center. He arrived at the hospital in a comatose state. He had a collapsed left lung, multiple fractures of the bones of the mid-face, and fractures of the walls of the maxillary sinus on either side of the nose, so severe that "they were almost unrecognizable." The nasal bones and the part of the nose that extends backwards and lies beneath the brain were also fractured. There were also fractures of the zygoma bone which runs along the cheek and of both orbits around the eyes. His sternum and four ribs were fractured, and he had extensive hemorrhaging of his right arm indicative of at least three blows. He was unable to survive these injuries.
Later on the morning of July 13, 1993, Buntele went to defendant's house to awaken him to go to Atlantic City to pick up their mutual friend from work. Defendant stopped at the Pub and walked into the bushes for a couple of seconds. When he came back into the car, he told Buntele that he found medical examiner's gloves there.
Defendant's longtime friend recounted that on the day after the incident, defendant showed him a newspaper account of Dick's beating and said that the article was about him, as the previous evening he "beat up some old guy" near the Pub on Chelsea Avenue. Defendant was "kind of hyper" and somewhat exuberant about the incident, stating that the man was black and referring to him as an "old dirty man" and a bum who looked like "a scum." Defendant said that the man had swatted his cane in defendant's direction, but had not struck him. Defendant said he hit the man in the back of the head as the man walked past him and that when the "old guy" fell down, he "started kicking and stomping him." He said Buntele cheered him on. Two of defendant's friends were also present during this conversation.
Detective Carl Rando of the Atlantic City Police Department received a phone call from Buntele's boyfriend at approximately 2:00 a.m. on July 16, 1993. As a result of that call, he and Detective Gasparo drove to the trailer park where defendant lived in Egg Harbor Township at approximately 3:30 a.m. They observed a gray 1987 Reliant K car there and noted the license plate number. They next saw three people getting into the K car, a female and two males. Two of these people fit the descriptions given, so the detectives followed the vehicle and eventually stopped it. The three were transported in separate cars to an office of the Atlantic County Prosecutor for questioning.
On July 16, 1993, Sergeants Anthony Porcelli and Raymond Bolis, of the homicide unit of the prosecutor's office, met with defendant who was incarcerated. Bolis advised defendant of his Miranda *fn1 rights, and at 9:53 a.m., defendant signed a Miranda form, waiving his rights and agreeing to speak to the officers. Initially, defendant denied he had any altercation with an older man in Atlantic City. However, at approximately 10:30 a.m., he told the officers that he left the Chelsea Pub and walked to the rear of the property through a fence to relieve himself, when an older man came up to him and swung a cane at him. He noted that he was not hit by the cane. Defendant admitted he struck the man in the head and face area with his fist at least two times, causing the man to fall to the ground. Defendant said that he was with a female, but that she was sitting in the car and had nothing to do with the assault.
At 11:30 a.m., in a taped statement, defendant said he had initially denied there was any altercation because he was afraid of going to jail. He continued that at 10:00 p.m. on July 12, 1993, Buntele picked him up in her mother's car at the 1400 Bar in Egg Harbor Township and they went to the Chelsea Pub, arriving at 10:30 p.m. Defendant said he had two or three beers in the 1400 Bar and about three beers in the Pub.
According to defendant, they left the Pub and walked to Trop World to talk to a friend who worked there. After about ten minutes, they returned to the Pub parking lot. Defendant went to urinate out by the back fence. He went through a cut in the fence into the rear yard of a green house. He said a dark-skinned older man approached him and swung a cane. Defendant grabbed the cane and hit the man in the face. Defendant "possibly" hit the man again. The man fell down and did not get up. Defendant then got in the car and told Buntele that he had "hit somebody" and they had to leave. Buntele drove them to the Trump Plaza parking garage, and they went for a walk on the boardwalk for about a half-hour, before going to McDonald's.
Defendant told the officers that he went back to the area of the Pub at 8:00 a.m. because he wanted to see if "the guy was alright." The man was gone and defendant "thought he left." Defendant said he did not mean to do it and did not want to hurt the man. Detective Bolis testified that Dick was found in the very spot where defendant admitted that he had hit an older man.
Defendant was held at the County Jail in Mays Landing, where Arthur Thomas, an African American prison inmate, claimed to have spoken to defendant on July 16 or 17, 1993. Defendant allegedly told Thomas he was a skinhead and did not like blacks, Puerto Ricans, Hispanics, and Jews. Defendant told Thomas he went into the bushes to urinate, and an old man had raised his cane to him. As a result, he kicked and beat the old man, who he referred to as scum. Then, the girl he was with went through the man's pockets. Defendant said he did not "leave the guy for dead" like the newspapers were saying. Thomas claimed defendant said his parents were going to pay off Buntele to testify on defendant's behalf and that he was going to "play like" he was "crazy" to get away with the crime. Thomas allegedly witnessed defendant demonstrating to another inmate how he had stomped, punched, and kicked the old man. Thomas lent defendant his white shoe laces so he did not have to go to court wearing his red shoe strings which symbolized Nazism.
Thomas also indicated that in June 1993, before the attack on Dick, Thomas and defendant were housed together in the same jail for a couple of days. According to Thomas, defendant, who had a shaved head at the time, put Nazi signs on the walls and on his desk. Thomas had an extensive criminal record and acknowledged that the assistant prosecutor had written a letter to the Parole Board advising that Thomas had been cooperating in defendant's case.
After Dick's death, on July 19, 1993, defendant was charged with murder. The next day, Detective Burke went to the Atlantic County Justice Facility to advise defendant. Defendant then told Burke he "may have hit the guy more than twice." Burke advised defendant of his constitutional rights. Defendant said he was willing to waive his rights and speak to Burke and then told Burke that Buntele was not involved and that she stayed near the car. Defendant also said he did not take anything from the victim.
A girlfriend of the defendant testified that he called her from jail twice and on the second occasion, told her he had kicked a black bum in the head when he and Buntele had gone to Atlantic City looking for black bums to beat up. She further stated that before receiving these calls, she saw Buntele in Absecon, and Buntele bragged that she was involved in the assault and "did most of it," and was the one kicking Dick in the head.
According to Buntele, she and defendant had been no more than friends up until the point that they were brought to the prosecutor's office on July 16, 1993. After that, they became boyfriend and girlfriend. This was defendant's idea, and they wrote letters to each other almost every day and spoke on the telephone. She also visited defendant in jail, and by October 1993, they were planning to get married, and she began using the surname Crumb. Defendant did not want her to testify as a State's witness and suggested she say she was drunk or high when she gave the statement on July 16, 1993. He also suggested they claim they left the Pub at 2:30 a.m. She broke their engagement because defendant became possessive, calling her constantly at home and at work, insisting that she visit him all of the time, and not allowing her to talk to her friends.
Defendant did not testify, but several character witnesses testified that he was not violent. Defendant's friend of four years said he observed defendant in the company of a black friend quite often and that defendant had several Jewish friends. The witness acknowledged that defendant would occasionally tell Jewish jokes, but he never said any racial slurs, and he never heard defendant use "the N word." He was aware that defendant was interested in Adolph Hitler and neo-Nazism, and admitted he had seen him with a shaved head wearing black boots with red laces, and knew the significance of such attire.
Defendant first contends that the Judge's failure to give a jury instruction on accomplice liability on count one, murder, violated defendant's rights to due process and a fair trial. He asserts the trial Judge should have instructed the jury that an accomplice might have a less culpable mental state than a principal. Defendant's appellate counsel refers to Buntele's possible involvement in the attack and suggests that defendant may have been attempting to protect Buntele by denying to the police that she had any involvement in the incident. Therefore, defendant's counsel argues that it was the Judge's obligation to give such a charge, sua sponte, even if it was inconsistent with the defense theory and was not requested. Defendant cites State v. Powell, 84 N.J. 305, 318-19, 419 A.2d 406 (1980) and State v. Ramseur, 106 N.J. 123, 270 n.62, 524 A.2d 188 (1987).
We recognize that in a murder case, the Judge has an obligation to charge the applicable law to the jury even when not requested. State v. Powell, (supra) , 84 N.J. at 318. Here, however, ...