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State v. Winder

April 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAVAR WINDER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1365.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2008

Before Judges Cuff, Lisa and Simonelli.

The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count two); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three). After merging count two with count one, Judge Donio sentenced defendant on count one to fifty-five years imprisonment, subject to an 85% parole disqualifier and five years parole supervision upon release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent three-year term on count three. Defendant argues on appeal:

POINT I

THE COURT'S INSANITY DEFENSE JURY INSTRUCTION FAILED TO DISTINGUISH BETWEEN KNOWING AN ACT IS LEGALLY WRONG AND KNOWING IT IS MORALLY WRONG, AS REQUIRED BY STATE V. WORLOCK, 117 N.J. 596 (1990), DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10

POINT II

DEFENSE COUNSEL'S FAILURE TO REQUEST AN INSANITY INSTRUCTION THAT DISTINGUISHED LEGAL AND MORAL WRONG PRIOR TO TRIAL, TO VOIR DIRE PROSPECTIVE JURORS FOR BIAS, AND TO COMPETENTLY STATE THE INSANITY DEFENSE BURDEN OF PROOF CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10 (Not Raised Below.)

A. Prior to Trial, Defense Counsel Knew, or Should Have Known, That Defendant Told His Experts He Was Complying With a Command Hallucination When He Committed the Offense, Which Warranted a Distinction Between Legal and Moral Wrong in the Insanity Instruction

B. During Jury Selection, Defense Counsel's Performance Was Deficient Because He Did Not Probe Prospective Jurors for Bias Against the Insanity Defense

C. Defense Counsel Incorrectly Told the Jury Three Times That the State had the Burden of Proof of Insanity

POINT III

THE VOIR DIRE OF PROSPECTIVE JURORS, WHICH DID NOT PROBE THEIR VIEWS ABOUT THE PROPRIETY OF THE INSANITY DEFENSE, WAS DEFICIENT, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR JURY TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10

POINT IV

THE TRIAL COURT'S N.J.R.E. 404(b) LIMITING INSTRUCTION ON THE PURPOSES FOR WHICH OTHER CRIMES EVIDENCE IS ADMISSIBLE WAS IN ERROR, DEPRIVING THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10

POINT V

THE TRIAL COURT'S ASSESSMENT OF MITIGATING AND AGGRAVATING FACTORS RESULTED IN A MANIFESTLY EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

We reject these arguments and affirm.

On the evening of April 18, 2003, defendant hailed a cab in Atlantic City. He asked the driver to take him to the police station. As the cab arrived at the police station and was coming to a stop, defendant, seated in the backseat, placed a handgun to the back of the cab driver's head and shot him two times, causing his death. Defendant got out of the cab and walked over to a nearby police officer and reported the killing. Throughout this case, defendant never denied committing the homicidal act. His defense was that he was not guilty by reason of insanity. The evidence at trial focused on events in defendant's life in the days and months prior to April 18, 2003, and included testimony from mental health experts called by both sides regarding defendant's mental state at the time of the shooting.

Defendant lived and worked in Philadelphia, Pennsylvania. Until January 2003, at age twenty-five, he was employed by an armored car service and was legally authorized to carry a gun in Pennsylvania. He became unemployed that month. He was a high school graduate, but had an IQ in the low seventies, thus evidencing borderline mental functioning.

In February 2003, defendant was shot in the groin. Defendant provided various accounts of the circumstances under which he was shot, and the record is unclear as to what actually happened. Nevertheless, after that incident, defendant began to exhibit strange and paranoid behavior. His parents were divorced. His father lived in Philadelphia and his mother lived in Virginia. Defendant's former girlfriend, Lillian Andrews, the mother of defendant's child, lived in New Jersey. Defendant periodically visited Andrews and his son. According to Andrews, after defendant was shot she observed him talking out loud to himself, crying out of nowhere, and telling her that people were out to get him. She discussed defendant's behavior with defendant's father, who had also observed defendant acting in an unusual manner.

On April 16, 2003, defendant's father took defendant to the hospital after defendant called complaining of a bad headache. Doctors examined defendant, but found nothing medically wrong and released him. His father took defendant to a hotel because defendant said he did not feel safe in his home. Later that evening, defendant's father received a call from the police informing him they had taken defendant into custody after they found him walking along a busy and dangerous roadway in Philadelphia near the hotel. Defendant's parents deemed it advisable to seek to have defendant involuntarily committed. On the way to the hospital, defendant stated he was going to kill himself or someone else if he did not go to jail.

Defendant was admitted to the hospital, and he tested positive for phencyclidine (PCP). He told doctors he had used "a ton of wet," meaning PCP soaked in formaldehyde, an embalming fluid. Defendant was diagnosed with psychosis not otherwise specified (NOS) and possible PCP dependence. He was ...


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