February 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE R. WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3000.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 29, 2008
Before Judges Coburn and Grall.
Defendant Eugene R. Wilson appeals a final judgment conviction and sentence. The grand jurors charged defendant with murder, N.J.S.A. 2C:11-3(a)(1)-(2); felony murder, N.J.S.A. 2C:11-3(a)(3); and first-degree robbery, N.J.S.A. 2C:15-1. A jury found defendant not guilty of those charges but guilty of the lesser included crimes of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and theft, N.J.S.A. 2C:20-3a. The judge sentenced defendant as follows: for reckless manslaughter, a ten-year term of incarceration, eighty-five percent to be served without possibility of parole, and a three-year term of parole supervision, N.J.S.A. 2C:43-7.2; and for theft from the person, a consecutive, five-year term of incarceration, N.J.S.A. 2C:20-2b(2)(d) and N.J.S.A. 2C:20-3a. We affirm defendant's conviction for manslaughter. Because the question whether this theft was "from the person" was not submitted to the jury, we reverse that conviction and remand for further proceedings.
Dyneise Tucker, who was then ten years of age, and her friend, Gloria McCall, witnessed the crime. They both knew defendant.
The girls saw defendant and Joseph Hoff standing on Williams Street in East Orange. The men were near the entrance to Rowley Park. Logs placed at the entrance of the park block vehicular traffic.
Tucker saw defendant and Hoff argue. Both Tucker and McCall saw defendant hit Hoff, Hoff fall to the ground and Hoff hit his head on the logs. Defendant kicked Hoff while he was lying on the ground in the head and body; his body was shaking. Defendant reached into Hoff's pockets, removed a wallet, took credit cards and other papers and left the area without the wallet, which he threw on the ground.
Hoff was taken to the hospital by paramedics. He died the following day.
An autopsy disclosed bruises on Hoff's right eyelid and right upper lip, and on the left side of his neck and jaw. There was a scrape on his right lower lip. There were no bruises or injuries indicating that Hoff had been kicked or punched in the torso and no offensive or defensive injuries. The autopsy of Hoff's brain disclosed a subarachnoid hemorrhage and an intraventricular hemorrhage, both occurring less than twenty-four hours before his death.
In the opinion of the medical examiner, the hemorrhages were caused by blunt force trauma. The medical examiner, who acknowledged that he was told that Hoff had been beaten, concluded that Hoff's death was a homicide attributable "to blunt force trauma of the head sustained during a beating." He admitted that the hemorrhaging found in Hoff's brain could have been caused by a fall to the ground, but he found no fracture of the skull that would be consistent with a fall that led one to strike his or her head against a hard surface.
Hoff's blood alcohol level was .184. He had ingested cocaine.
When Wilson was arrested on the night of the incident he had a swollen eye and scratches on both sides of his hands and arms. After receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) and waiving his rights, he gave the police an account of the incident. According to defendant, he, "Ab" Adams and Hoff were sitting on the logs at the entrance to Rowley Park. Hoff screamed in Adams's face, stood up and "verbally assault[ed]" defendant. When Hoff got in his face, defendant could smell the alcohol on his breath. Hoff "bumped" defendant in the chest, and defendant hit him in the chin. Hoff fell. Defendant never kicked him and did not take anything from him.
On the basis of the foregoing evidence, the jurors acquitted defendant of murder, felony murder and robbery and found him guilty of reckless manslaughter and theft.
I. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT A BRIEF POSTPONEMENT SO THAT [WILSON] COULD PRODUCE AN EXCULPATORY EYEWITNESS.
II. TESTIMONY FROM THE MEDICAL EXAMINER THAT THE CAUSE OF DEATH WAS BLUNT FORCE TRAUMA "SUSTAINED DURING A BEATING" EXCEEDED THE PERMISSIBLE BOUNDS OF EXPERT TESTIMONY AND ENCROACHED ON THE JURY'S DUTY TO DECIDE THE ULTIMATE ISSUE. (Not Raised Below).
III. THE CONVICTION FOR THE LESSER-INCLUDED OFFENSE OF THEFT FROM THE PERSON MUST BE VACATED BECAUSE THE JURY DID NOT FIND THAT THE THEFT WAS FROM HOFF'S PERSON. (Not Raised Below).
IV. THE IMPOSITION OF CONSECUTIVE SENTENCES FOR MANSLAUGHTER AND THEFT, WHERE THE TWO CRIMES INVOLVED A SINGLE EPISODE AND A SINGLE VICTIM, IS CONTRARY TO THE DICTATES OF STATE V. YARBOUGH[, 100 N.J. 627 (1985)].
V. THE SENTENCES MUST BE REMANDED PURSUANT TO STATE V. NATALE[, 184 N.J. 458 (2005)].
The record does not support defendant's claim of error based on the trial court's denial of an adjournment to permit the defense to secure the favorable testimony of Ronald "Ab" Allen.*fn1 The judge declined to adjourn the trial date on November 30, a date which was a full week before opening statements in this trial. The judge, however, did not foreclose the possibility of a subsequent request. To the contrary, the judge made it clear that defendant could renew the request if the defense acquired any information that suggested they would be able to locate Mr. Allen. Defendant's attorney did not renew the request. Rather, at the close of the State's case, defendant's attorney advised the judge that the defense had made continuous but unsuccessful efforts to locate the witness. She indicated her intention to move for a new trial if the outcome of this case was unfavorable and the defense was able to locate the witness. The issue was not raised again. We see no possible basis for concluding that the judge abused his discretion in addressing the request that was made. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).
Defendant's objection to the medical examiner's testimony lacks sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). Defense counsel did not object when the medical examiner testified that, in his opinion, Hoff's death was a homicide and caused by "blunt force trauma of the head sustained during a beating." Rather, defense counsel thoroughly and effectively cross-examined the medical examiner about the basis for his opinion. It is not improper for a medical examiner to state an opinion that a death was a homicide -- i.e., the result of the actions of another human being. See State v. Baluch, 341 N.J. Super. 141, 185 (App. Div.), certif. denied, 170 N.J. 89 (2001). Moreover, given the multiple bruises and their location on Hoff's neck and both sides of his face, the expert's testimony, fairly read, characterizes the human action that caused death based on the facts in evidence and his specialized knowledge. See State v. Papasavvas, 163 N.J. 565, 605 (2000). Even if we were to conclude that the testimony was improper, we could not find that the error was "clearly capable of producing an unjust result." R. 2:10-2.
Defendant's conviction for theft from the person must be vacated. Although the judge gave a complete and accurate instruction that included each element of "theft of movable property," N.J.S.A. 2C:20-3a, the instruction did not mention "theft from the person," N.J.S.A. 2C:20-2b(2)(d). The State argues that "there was no need to specifically instruct the jury on the additional element that the theft was 'from the person of the victim.'" But it is well-settled that "the court must always charge on the elements of the crime." State v. Jordan, 147 N.J. 409, 423 (1997); see State v. Vick, 117 N.J. 288, 291 (1989).
Theft constitutes a crime of the third degree only if: the amount involved is greater than $500 but less than $75,000; the property is of a specified class -- e.g., a firearm, a motor vehicle or a controlled dangerous substance; or the property is taken in a specified manner -- e.g., "from the person," by "threat not amounting to extortion," or in breach of a fiduciary obligation. N.J.S.A. 2C:20-2b(2)(a)-(l). Thus, where third-degree theft is at issue, the State must prove the "amount involved," or that the property is of a "specified class," or that the property was taken in a "specified manner." One of the three elements must be shown to elevate the grade of the crime. See N.J.S.A. 2C:20-2b(2)-(3).
It is beyond dispute that "the amount involved in a theft is an element of the offense required to be determined by the jury." State v. Castaldo, 271 N.J. Super. 254, 258 (App. Div. 1994) (and cases cited therein); see N.J.S.A. 2C:20-2b(4) (expressly providing that the amount involved must be determined by the trier of fact). Proof that the property was taken in a "specified manner" serves the same function as proof of the "amount involved." Proof of either elevates a theft that would otherwise be a disorderly persons offense or a crime of the fourth degree to a crime of the third degree. N.J.S.A. 2C:20-2b(2)-(3). Accordingly, there is no reason to treat proof of "specified manner" differently than proof of the "amount involved." It must be considered an "element" of third-degree theft.
The Supreme Court's decision in State v. Franklin, 184 N.J. 516, 530-34 (2005) makes it clear that grading factors like those included in N.J.S.A. 2C:20-2b, are the "functional equivalent" of an element of a more serious crime and must be treated as if the Legislature had stated the factor as an "element" of a crime. As a matter of constitutional law, such elements "'must be charged . . . submitted to a jury, and proven beyond a reasonable doubt.'" Id. at 531 (quoting Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed. 2d 435, 446 (2000)). N.J.S.A. 2C:20-2b(4), which expressly provides that the amount involved must be determined by the trier of fact but is silent as to whether the trier of fact must determine whether the analogous elements -- "specified manner" or "specified class" -- cannot trump the constitutional rule.
Because the element of "theft from the person of the victim" was not submitted to the jury, defendant's conviction and sentence for that crime must be vacated. Cf. State v. Link, 197 N.J. Super. 615, 619 (App. Div. 1984) (finding no error where the element of "theft from the person" was submitted to the jury without further elaboration), certif. denied, 101 N.J. 234 (1985). We reverse and remand for future proceedings. See State v. Farrad, 164 N.J. 247, 266-69 (2000) (discussing factors relevant to exercise the court's authority to mold the verdict).
Defendant was sentenced prior to the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005). The State and defendant agree that his sentence for reckless manslaughter must be remanded for reconsideration in light of that precedent. We find no merit to defendant's objection to consecutive sentences for reckless manslaughter and theft. R. 2:11-3(e)(2).
In conclusion: defendant's conviction for reckless manslaughter is affirmed, but that sentence is remanded for reconsideration in light of Natale; defendant's conviction for third-degree theft is reversed and remanded for further proceedings.