On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 01-06-1164-I.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wecker, Fuentes and Graves.
Monmouth County Indictment No. 01-06-1164 charged defendant, Brendan O'Carroll, with one count of first-degree murder, N.J.S.A. 2C:11-3, in the death of Theresa Nieves.
After a Miranda*fn1 hearing, the trial judge denied defendant's motion to suppress statements he made while in custody.
On December 3, 4, 5, 10, 11 and 12, 2002, defendant was tried by a jury. The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3. The judge rejected the State's motion to impose a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(6), and sentenced defendant to thirty years in state prison with no eligibility for parole.
We conclude that it was plain error (1) to charge the jury only on murder and passion/provocation manslaughter, omitting lesser included charges on aggravated and reckless manslaughter; and (2) to omit self-defense as an element the State was required to disprove on the murder charge. We therefore reverse defendant's conviction and remand for a new trial.
On January 1, 2001, using a telephone cord, defendant strangled Theresa, with whom he had lived for six years and was raising two children. After killing Theresa, defendant placed her body into his automobile, drove into a parking lot behind a K-Mart store, put her body on a snow bank, and covered it with snow.
The State contended at trial that defendant knowingly and purposefully murdered Theresa. Defendant did not testify, but his statement to police, admitting that he killed Theresa, was read to the jury. The defense argued both in opening and in closing that the killing was passion/provocation manslaughter, telling the jury that the defense did not claim it was an "accident." The defense version was that he and the victim had been arguing, that Theresa came toward him with a steak knife and was pushing her away into the bathroom (where defendant claimed he was taking the telephone to call a friend), and in trying to stop her, as well as out of his developing anger, he pulled the telephone cord around her neck.
At trial, the State presented several witnesses in support of its case for purposeful murder. The manager at the restaurant where Theresa worked testified that at about 4:30 p.m. on the day she was killed, he called her house when she was about an hour late for work. The first time he called, he left a message. He called again at about 7:00 p.m. and spoke to her "boyfriend," who told him that Theresa was not at home and that he had dropped her at work at about 2:00 p.m.
Theresa's friend, Jennifer Graziano, testified that at approximately 6:30 p.m. the same day, "around dinner time," defendant called and told her that Theresa had not shown up for work after he dropped her there. Graziano testified that on January 4, 2001, she went with defendant to the Asbury Park Police Department, and then to the Ocean Township Police Department, to file missing persons' reports about Theresa's disappearance. Asbury Park Police Officer Anthony Napoleone testified that defendant told him that Theresa had been missing for several days, since he dropped her at work on January 1. Patrolman Kevin Meseroll of the Ocean Township Police Department testified that defendant told him the same story.
At about noon on January 4, 2001, a truck driver discovered Theresa's body at the K-Mart in West Long Branch. Detective Keith Coleman of the Monmouth County Prosecutor's Office testified that he questioned defendant on the evening of January 4, 2001, because defendant was the last person to see her. Detective Coleman testified that defendant suggested that Theresa could be with an ex-boyfriend in Connecticut or a "black guy that she met from a rehab." Coleman testified that after defendant had been read his Miranda rights, he gave a formal statement on January 4, telling the same story. The jury heard that statement, which defendant gave on January 4, before he was a suspect, and in which he continued the false version of the victim's disappearance.
Dr. Jay Peacock, the Chief County Medical Examiner and a board-certified forensic pathologist, testified that Theresa died from asphyxia due to strangulation. He also testified that the telephone cord from defendant's apartment matched the marks on Theresa's neck, and that there were three different ligature marks on her neck. On cross-examination, he agreed that the multiple marks could be explained by the cord becoming repositioned during the struggle.*fn2 He testified:
[The cord could have been] wrapped around the neck. There is a way that the marks could be recreated by wrapping the ligature around the neck. There is also as we have mentioned possibly for it to be held in such a way that they merge together. So that it's not, it is held tight, released, held tight, released, held tight . . . [there are] at least [those] two ways you could get that recreation of those marks.
Strangulation causes the brain to be deprived of oxygen. When asked how long it would take for a person to die as a result of strangulation, Dr. Peacock testified in detail as to how much time it would take for a victim of strangulation to lose consciousness, to suffer reversible damage and then irreversible damage, and ultimately to die. He testified that in a controlled experimental setting, a person whose carotid arteries are compressed will lose consciousness in ten to fifteen seconds, but spontaneously resume breathing and regain consciousness when the pressure is released. After about a minute and a half, cardiopulmonary resuscitation (CPR) is required in order to restart breathing, but no irreversible brain damage is likely. If, however, pressure is maintained for between four and six minutes, the person may be revived by CPR but will suffer irreversible brain damage. Finally, if pressure on the carotid arteries is continued for ten minutes, brain death will result. On cross-examination, Dr. Peacock testified that those time periods are ranges, and he could not definitely state how long it would take for a person to reach each stage in every strangulation case. Several factors would come into play, including the particular victim and the extent of the pressure applied.
Sergeant Frank Cavalieri of the Monmouth County Prosecutor's office testified that on January 5, 2001, after reading defendant his Miranda rights, he questioned defendant at the West Long Branch Police Department. At that time, Cavalieri knew that the cause of Theresa's death was strangulation. During that questioning, and after being confronted with some of the facts known to the detectives, defendant confessed to the killing. After Miranda warnings were re-read to him, he signed a statement describing the circumstances: that he accidentally killed Theresa during an argument that began when she threatened him with a steak knife.
[S]he had a face on her and I said, what's wrong. She was like, nothing, every time I'm with you there's gotta be something wrong. Can't I just sit here and watch TV. You know, like I said, she had a real bitchy attitude, or whatever. She was just like nasty and bitchy, you know, just snappy. We just started having words, you know, anything I said to her and everything she said back to me was like a snappy comment or sarcastic. And I asked her since we didn't get to do nothing for New Year's Eve and she would be getting out of work earlier, you know, could we do something New Year's night. Theresa turned around and said, you know, we'll see and that's when I turned around and I said to her, I guess, you know, you'll have to wait and see if you have a better offer for tonight than me . . . Then there was just like words, I can't remember everything, you know, exactly what words were said. I got up and I, you know, I stomped into the kitchen . . . I was pouring my glass of iced tea at the counter. Theresa came in as I was getting ready to put the pitcher back in the refrigerator and Theresa said, I want the bagels. I went back into the living room and sat back down on the couch . . . I got mad at something she said . . . I just yelled into her into the kitchen . . . Theresa came out of the kitchen and into the living room. She had a knife in her hand . . . Theresa was waving the knife, saying, you know, you mother fuckers . . . she went back into the kitchen . . . I got up to grab the phone to call a friend of mine . . . I said, that's it, I'm not taking no more. She turned and said, what are you doing, calling the fucking police now because I have a knife in my hand . . . I was going into the bathroom . . . I went to close the bathroom door and that's when Theresa stood in the way . . . she had the knife in her right hand . . . all I could see out of the corner of my left eye was the knife was right here, about two or three inches from my face . . . I said, what are you gonna do, kill me . . . The way her arm moved, it looked like the knife was coming closer to me and I believed that she was going to stab me . . . .
Defense counsel sought to demonstrate to the jury that although defendant may have acted knowingly, he strangled Theresa under circumstances that met the definition of passion/provocation manslaughter. Counsel argued that the provoking incident was an argument with Theresa, followed by her approach with a knife, all a culmination of an abusive relationship in which defendant was the victim.*fn3 The defense called several witnesses who testified about incidents of Theresa's physical violence toward defendant. Two witnesses, April O'Carroll, defendant's ex-wife, and Angel Vallone, a childhood friend of Theresa, each testified to having seen Theresa assault defendant years earlier. Ms. O'Carroll testified that she saw:
Theresa beating [defendant] and kicking him . . . Brendan was laying [sic] on the ground and she was punching him and kicking him . . . kicking him in the leg and punching him in the face . . . He was just laying [sic] there and taking it.
Vallone testified that the first time she saw Theresa hit defendant was when the three were in a car smoking marijuana, and defendant dropped the marijuana cigarette on Theresa.
He was passing the cigarette to her and it . . . fell on her leg and she had a skirt on with stockings and her immediate reaction was to hit him . . . in the face.
Another time that they fought, according to Vallone, was when Theresa and defendant were living temporarily with Vallone, and Vallone had been sleeping in the living room.
[W]hen [defendant] got home from work, [Theresa] wasn't home and she didn't get home until after I was sleeping. I guess he heard her come in or heard her pull up. He met her downstairs. I heard them arguing in the hallway. And they brought it into the living room. And they were fighting, screaming and yelling. She was hitting him and he was blocking her hits . . . She was hitting him like she was attacking him and he was holding his hands up dodging her hits, blocking himself from getting hit.
Vallone testified that she never saw defendant hit Theresa.
The decedent's sister, Paula Nieves, who testified for the State, also testified that defendant's relationship with Theresa had been deteriorating shortly before her death, that Theresa wanted to leave defendant, and that Theresa frequently stayed out overnight. She also testified that once, during an Easter egg hunt, defendant hid an egg where Theresa did not want it to be hidden; Theresa yelled at him and hit him, and defendant responded by walking away. On the day Theresa was killed, Paula was living in the apartment along with Theresa, defendant, and the two children. Neither Paula nor the children were at home when Theresa was killed. Paula would take both children to stay with her at her grandmother's on alternate weekends (including the weekend that ended with her sister's death), to give defendant and her sister "a break." According to Paula, defendant was the primary caretaker for both children while the victim worked, but also while she regularly went out with other men and even stayed out overnight. It was defendant who had cared for the children while Theresa was in jail on a drug charge, and while she was in an inpatient rehabilitation facility for two weeks.
Graziano, Theresa's friend, also was called by the State. She testified that defendant knew that Theresa was cheating on him, but Graziano never knew defendant to be violent toward Theresa. Graziano did, however, hear Theresa threaten to punch defendant in the face once, when defendant was verbally abusing their daughter.
On appeal, defendant presents these arguments:
THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partly Raised Below).
THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER ON AN IMPERFECT SELF-DEFENSE THEORY CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)
DEFENDANT'S MURDER CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO REVIEW THE RECORD TO DETERMINE WHICH JURY CHARGES WERE CLEARLY INDICATED, AND CONSEQUENTLY, FAILED TO INSTRUCT THE JURY ON SELF-DEFENSE AND THEREBY DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, ...