On certification to the Superior Court, Appellate Division, whose opinion is reported at 356 N.J. Super. 413 (2003).
The Court addresses two issues on appeal: 1) whether the trial court's failure to charge the jury on lesserincluded offenses warrants reversal; and 2) whether the introduction of other-crimes evidence deprived Kendall Jenkins of a fair trial.
On May 8, 2000, Kendall Jenkins sold drugs to Arthur Thomas at the Lexington Courts housing complex in Atlantic City. After completing the drug buy and as Thomas was walking away, Jenkins recognized Thomas as the man who had testified against him when he was on trial for the murder of Mark Cotton. Although a jury had acquitted Jenkins of the Thomas killing, Jenkins went after Thomas, picking up a brick and hitting Thomas over the back of the head, causing Thomas to fall down a flight of stairs, landing headfirst on the pavement. Autopsy evidence indicated that being hit by the brick likely caused Thomas to lose consciousness, but that he ultimately died from skull and brain injuries suffered from the fall to the pavement.
LaVerne Garland lived in a nearby apartment. After hearing her niece, Adrian Bouldin, scream, LaVerne stepped onto her balcony in time to see Thomas fall and Jenkins run away. She called police, described what she observed, and identified Jenkins as the perpetrator. Another witness to the attack, Chevon Faulkner, told police that a brick had hit the man. Police found Thomas dead in a pool of blood.
After the attack, Jenkins went to the apartment of Jane Dunbar, the mother of one of his friends. When the police arrived in response to LaVerne Garland's call, Dunbar went to speak with them, whereupon she learned that Jenkins had allegedly killed someone. Dunbar returned to her home and order Jenkins to leave. Shortly thereafter, Jenkins was apprehended by police in another apartment.
Jenkins was placed in county jail. Subsequently, his fellow inmate, Edmond Garland, LaVerne's nephew, contacted police and told them that Jenkins had admitted that after selling drugs to Thomas, he had recognized Thomas as the man who had testified against him, so he "bashed" Thomas in the head. According to Edmond Garland, Jenkins also stated that one of his friends said, "You've done it again. I don't believe this. You done it again."
LaVerne Garland, Bouldin, and Faulkner gave formal statements to the police. Before trial, these witnesses recanted. Faulkner told police that she had made up her story to collect a reward. However, Faulkner had contacted police earlier, about a month after the killing, claiming that she had received threats because of her cooperation with the investigation. Bouldin, in withdrawing her formal statement, claimed she was under the influence of drugs when she first spoke with police. LaVerne Garland recanted her statement at trial after having received threats about cooperating with the prosecution. Edmond Garland also attempted to retract his statement, apparently after another inmate threatened him. Nonetheless, at trial he stood by his original statement to the police.
Jenkins was tried for murder; third-degree unlawful possession of a weapon for an unlawful purpose; fourth-degree unlawful possession of a weapon; and fourth-degree witness retaliation. In addition to the witnesses directly implicating Jenkins in the Thomas killing, the prosecution presented evidence indication that Jenkins attacked Thomas in retaliation for his testimony against Jenkins in the Cotton murder trial. That evidence included testimony from Detective DeShields that: immediately prior to Cotton's death in 1997, Thomas had seen Jenkins with a gun; Thomas had identified Jenkins as Cotton's killer from a photographic array; and Thomas had testified against Jenkins in the Cotton murder trial in 1999. Jenkins did not object to this testimony. Jenkins did object to the introduction of an excerpted videotape recording of Thomas' testimony at the Cotton trial. The trial court overruled that objection and the jury was permitted to view the tape. The prosecutor also adduced, without objection by the defense, additional information regarding Jenkins's conduct and the Cotton murder from the testimony of Terry McClain, Bouldin's parole officer.
At the charging conference, Jenkins argued against instructing the jury on lesser-included offenses pertaining to homicide, preferring to gamble with an all-or-nothing approach to the murder charge. The State argued that the evidence presented at trial required instructions on reckless manslaughter and aggravated manslaughter, as well as murder. The trial court determined that because there was no doubt that Jenkins struck Thomas either knowingly, purposefully, or intentionally, the facts did not support a charge on lesser-included offenses. The jury returned a verdict of guilty on all counts, including conviction for first-degree murder. The court merged the weapons offenses into the murder conviction and sentenced Jenkins to life with thirty years of parole ineligibility and a concurrent term of eighteen months on the witness retaliation charge.
On appeal to the Appellate Division, Jenkins reversed his position, arguing that the court erred in failing to instruct on lesser-included offenses of reckless manslaughter and aggravated manslaughter. He also claimed the court committed reversible error in admitting other crimes evidence and in failing to offer necessary limiting instructions for evidence that the trial court otherwise properly admitted. The Appellate Division agreed with Jenkins, vacating his convictions. The panel reasoned that, based on the evidence presented, a jury could have reasonably concluded Jenkins intentionally struck Thomas without being "practically certain" that the attack would kill but, nevertheless, in reckless disregard for the probability or possibility that death might result. Accordingly, the trial court had a duty, irrespective of Jenkins's wishes, to instruct on manslaughter and aggravated manslaughter. In addition the appellate panel found that the cumulative effect of the other-crimes evidence admitted at trial without clear and complete limiting instructions deprived Jenkins of a fair trial.
The Supreme Court granted the State's petition and Jenkins's cross-petition for certification.
HELD: The trial court's failure to instruct the jury on lesser-included offenses of aggravated manslaughter and reckless manslaughter warrants reversal of Kendall Jenkins's conviction for the murder of Arthur Thomas. In addition, the introduction of other-crimes evidence deprived Jenkins of a fair trial.
1. The doctrine of invited error precludes a defendant from taking a position at trial and then, after embracing that approach to his ultimate disadvantage, changing course and alleging error on appeal. The criminal analog of invited error is designed to prevent defendants from manipulating the system and is only implicated when a defendant in some way has led the court into error. Thus, some measure of reliance by the court is necessary for the invited-error doctrine to come into play. Here, the trial court's reasons for deciding not to charge on the lesser-included homicide defenses make clear that the court reached its decision independently of any encouragement or request by the defense. Thus, the doctrine of invited error is inapplicable. (Pp. 8-12)
2. To be guilty of serious bodily injury murder, the defendant must have knowingly or purposefully inflicted serious bodily injury with the actual knowledge that the injury created a substantial risk of death and that it was highly probable that death would result. In aggravated manslaughter, the defendant must have caused death with an awareness and conscious disregard of the probability of death. If the defendant disregarded only a possibility of
death, the result is reckless manslaughter. The trial court focused on the purposeful, knowing, and intentional nature of Jenkins's alleged striking of Thomas. Instead, the court should have inquired as to Jenkins's state of mind regarding the risk of death. Because the facts indicate that jurors could have found that Jenkins consciously disregarded a known risk that created the possibility or probability that death would result from his actions, the trial court should have instructed the jury on the lesser-included offenses of aggravated manslaughter and reckless manslaughter. (Pp. 12-17)
3. The Court agrees with the Appellate Division that, in admitting the other-crimes evidence, the trial court did not provide adequate limiting instructions. The Court also finds that, as a threshold matter, the trial court erred in admitting the videotape. In combination with the additional other-crimes evidence presented to the jury, the admission of the tape amounted to reversible error. The State was entitled to show that Jenkins held a grudge against Thomas for his role in accusing Jenkins of killing Mark Cotton; however, less prejudicial evidence exists to prove that motive. Informing the jury that Jenkins had once been accused of another unrelated killing ran the serious risk that at least some of the jurors would determine that Jenkins had a propensity to kill. Thus, Jenkins is entitled to a new trial. (Pp. 17-25)
Judgment of the Appellate Division is AFFIRMED as MODIFIED.
JUSTICE VERNIERO, concurring in part and dissenting in part, joins in the Court's reversal of Jenkins's conviction in all but one narrow aspect. Regarding Jenkins's retrial, Justice Verniero would permit the State to play the videotaped excerpt of Arthur Thomas's testimony from Jenkins's previous murder trial. The fact that that testimony constitutes the entire reason that Jenkins allegedly attacked Thomas renders the tape highly relevant and probative.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, and ALBIN join in JUSTICE ZAZZALI'S opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part. JUSTICE WALLACE did not participate.
The opinion of the court was delivered by: Justice Zazzali
This appeal involves two issues. The first is whether the trial court's failure to instruct on lesser-included offenses warrants reversal; the second centers on whether the introduction of evidence of other crimes deprived defendant of a fair trial. Because each inquiry leads us to conclude that defendant is entitled to relief, we affirm the judgment of the Appellate Division and remand the matter for a new trial.
We summarize the essential facts adduced at trial. On May 8, 2000, Kendall J. Jenkins, later identified as defendant, and some friends were sitting on the porch of an apartment located in the Lexington Courts housing complex in Atlantic City. Arthur Thomas approached defendant and his friends to buy some drugs. After completing the transaction, Thomas began to walk away. At that point, defendant recognized Thomas as the man who had testified against him when he was on trial for the killing of Mark Cotton. Although a jury had acquitted defendant in that proceeding, defendant went after Thomas, picked up a brick, and slammed it into the back of his head. Reeling from the blow, Thomas fell down a flight of stairs and landed headfirst on the concrete below. Autopsy evidence indicated that being struck by the brick likely caused Thomas to lose consciousness, but that he ultimately died from skull and brain injuries resulting from his fall to the pavement.
LaVerne Garland lived in a nearby apartment. As events unfolded, Garland's niece, Adrian Bouldin, apparently yelled for help. Responding to Bouldin's call, Garland stepped out onto her balcony in time to see Thomas fall and defendant run away. She telephoned the police, described what had transpired, and named defendant as the perpetrator. She also informed the police that defendant was still in the area. When Officers Charles Miller and Mary McMenamin arrived, another witness to the attack, Chevon Faulkner, informed the officers that a man had been hit by a brick. The police then found Thomas, dead, in a pool of blood.
Meanwhile, defendant had gone to the apartment of Jane Dunbar, the mother of one of his friends. There, he began playing video games with Dunbar's eleven-year-old son. After the police arrived in response to Garland's call, defendant asked the boy to check whether the officers were still outside. The youth alerted his mother to the police presence. Dunbar went outside and talked to one of the officers and some neighbors, whereupon she learned that defendant allegedly had killed someone. Dunbar returned to her home and ordered defendant to leave. Shortly thereafter, the police apprehended defendant in another apartment.
Defendant was placed in the county jail. Subsequently, his fellow inmate, Edmond Garland (LaVerne Garland's nephew), contacted the police and informed them that defendant had admitted that after selling drugs to Thomas, he had recognized Thomas as the man who had testified against him, so he "bashed" Thomas in the head. According to Edmond Garland, defendant also stated that after he struck Thomas, one of defendant's friends said, "You've done it again. I don't believe this. You done it again."
LaVerne Garland, Bouldin, and Faulkner also gave formal statements to the police. Before trial, however, three witnesses recanted. Faulkner informed the police that she had made up her story (she had claimed to have seen defendant strike Thomas) so that she could collect a reward. However, she had contacted the police earlier, approximately a month after the killing, stating that she had received threats because of her cooperation in the investigation. Bouldin, in withdrawing her formal statement, claimed that she was under the influence of drugs when she first spoke with the police. Edmond Garland ...