On appeal from the Superior Court of New Jersey, Law Division, Mercer County, No. 01-04-0404-I.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2006
Before Judges: Coburn, Axelrad and R.B. Coleman.
A jury found defendant Malvern Lewis guilty of numerous offenses, and, after the merger of some of those offenses, judgment was entered for fourth-degree aggravated assault on Madeline Rosado, for fourth-degree contempt of a domestic violence order issued to protect Rosado, and for the first-degree murder of Clarence Brown. The trial judge sentenced defendant to prison for the following terms: eighteen months with nine months of parole ineligibility for the aggravated assault; a consecutive eighteen months with nine months of parole ineligibility for the contempt; and a consecutive life with thirty years of parole ineligibility for the murder. Defendant appeals, and the State cross-appeals. Although we reverse the aggravated assault conviction (Count VI) and the related weapons convictions (Counts VIII and IX), we affirm the convictions for contempt and murder.
Before describing the relevant facts, some introductory remarks are appropriate. In his opening statement, defense counsel told the jury that Lewis would testify in support of his claim that he killed Brown in self-defense. Lewis had agreed to that strategy after a full exploration of the matter on the record. But when the State rested and Lewis was called as a witness, he suddenly changed his mind, saying in front of the jury that he would not testify.
Because the State's proofs were quite overwhelming and contained no evidence of self-defense, defense counsel had to alter his strategy in summation. He conceded to the jury early on that "[t]his is not a case about who did it . . . ." He described the confrontation between defendant and Brown as a "life-and-death struggle," while trying to imply, although there was no evidence of it, that Brown was armed, and while asserting in general terms that the State had not met its burden of proof. The judge had excluded self-defense and heat-of-passion manslaughter, but had agreed to charge on aggravated manslaughter and manslaughter as lesser included offenses of murder. Since defense counsel only discussed the murder charge, we infer that he was implicitly arguing for the jury to convict, if it had to, of one of the lesser included offenses, or to indulge in jury nullification and find defendant not guilty because he acted in self-defense. In short, as we shall discuss in greater detail later, once defendant decided not to testify, the only conceivable issue in this case as to the murder was his state of mind. Therefore, our statement of facts will be abbreviated accordingly to demonstrate mainly that this killing could not have been done recklessly and had to have been done purposely or knowingly.
Around 1995, defendant, then age thirty, and Rosado, then eighteen, began living together. Rosado had three daughters, and defendant was the youngest daughter's natural father. In 1999, the family moved into a house on North Overbrook Avenue in Trenton.
By early 2000, the couple's relationship had deteriorated. According to Rosado, the following events occurred: in April of that year, defendant prevented her from going to work and forced her to have sexual intercourse with him at knifepoint; during arguments on the following days, Lewis punched and kicked her and pulled her hair; on April 16, he threatened to kill himself, and later that same day, he held a steak knife to her throat while threatening to kill her. As a result, on April 25, Rosado obtained a domestic violence final restraining order from the Family Court. The order barred defendant from possessing weapons, from contact with Rosado or the children, and from going to the family house after returning once to retrieve his belongings. Defendant received a copy of the order at the hearing, and collected his belongings a few days later. In the meantime, Rosado and Clarence Brown had begun a romantic relationship. After defendant collected his belongings from the house, Brown moved in.
On May 7, 2000, sometime after 1:20 a.m. but before 3:30 a.m., defendant broke into Rosado's house, and repeatedly stabbed and clubbed Brown until he died. The medical examiner testified that Brown's body, which was clad only in boxer shorts, was covered with blood. Without contradiction, he also testified to the following wounds, all inflicted before death:
(1) six stab wounds to the chest, all but one closely grouped over the heart; three of them inflicted with considerable force, the knife blade going deep into the victim's body, with one cut penetrating the diaphragm and one penetrating the heart; (2) four stab wounds to the back, all near the heart; two of them inflicted with considerable force, one penetrating the victim's lung and the other his aorta; (3) five knife slashes on the victim's neck, cutting both the right and left jugular veins; (4) many superficial defensive knife wounds to the victim's extremities; and (5) three head lacerations caused by a blunt object, a metal car tool known as "The Club," which was broken in two by its use in the attack. Expert blood splatter testimony indicated that a number of the wounds occurred while Brown was lying on the floor and while he was trying to escape.
Between 4:00 a.m. and 4:25 a.m., on May 7, Rosado and her children returned home from a trip to Atlantic City in a car driven by her brother Miguel Rosado. When she put her key in the front door of her house, defendant, carrying a knife in his hand, slammed the door open, and Rosado saw that the walls were covered with blood. She jumped off the porch to run away, but defendant grabbed her and stabbed her in the arm and cut her shoulder. The children screamed, and defendant said he would let Rosado live for her children. He then ran toward Miquel. Rosado reached out to stop him and was cut on her hand by the knife. Defendant ran away; Rosado went into the house, discovered Brown's body, left, and ...