October 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE M. WILSON, A/K/A HEADQUARTERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-2417.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Lisa, Baxter and Fall.
Defendant Eugene M. Wilson appeals from his April 7, 2006 conviction, following a trial by jury, on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of murder, (count one); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts seven and eight).*fn1 On count one, the judge imposed a twenty-seven year term of imprisonment, subject to an eighty-five percent parole ineligibility term, as required by the No Early Release Act (NERA).*fn2 On counts four and five, he imposed five-year terms of imprisonment, concurrent to each other and to count one, and on count six imposed a concurrent eighteen-month term. Five-year terms of imprisonment were imposed on counts seven and eight, concurrent to each other, but consecutive to the sentence imposed on count one. Appropriate fines and penalties were imposed.
We reject defendant's claim that his seizure disorder and resulting memory loss required the judge to sua sponte charge the jury on diminished capacity. We likewise reject his contention that the evidence presented to the jury was insufficient to demonstrate that he knew the victim's young children were present in the apartment when he murdered their mother, and that the judge's refusal to dismiss the endangering the welfare of a child conviction was therefore error. We do, however, accept defendant's contention that under the facts presented at trial, his conviction on count four for endangering an injured victim cannot be sustained, because, as the State acknowledges, the victim was either already dead, or at a minimum unable to be saved, at the time he left her apartment. Other than agreeing that counts five and six should have been merged with count one, we reject the sentencing claims defendant advances. We thus affirm defendant's conviction on counts one, seven and eight, but remand for the entry of an amended judgment of conviction merging counts five and six with count one and entering a judgment of acquittal on count four.
Defendant and the victim, Rosetta,*fn3 developed a personal relationship early in 2003 while Rosetta worked as a health aide in the home of defendant's mother. Defendant moved into Rosetta's apartment and came to know her eight-year-old son. However, because defendant drank excessively and smoked crack cocaine, Rosetta never gave him a key to the apartment, only letting him inside if he was not high or intoxicated.
Later that year, Rosetta became pregnant with defendant's child, but in June 2003, three months before the baby was born, she asked defendant to move out, which he did. Shortly thereafter, Rosetta met Antonio Tharp and the two began a relationship. In late November, approximately two weeks before Rosetta's death, Tharp stayed overnight at Rosetta's apartment. While he was there, defendant repeatedly banged on the bedroom window and rang the doorbell while calling Rosetta's name. After Rosetta asked Tharp to address the situation, he went outside and saw defendant at the bedroom window. Defendant asked Tharp if Rosetta was there, to which Tharp responded that Rosetta was present and he was living with her. Defendant answered, "Tell that bitch to give me my clothes and my bag." Tharp told him to retrieve them the next day. Defendant replied, "[T]ell that bitch I'm going to kick her ass. You must be the father of that bitch's baby."
Two weeks later, on December 9, 2003, after Rosetta put her two children to bed, she closed the bedroom door and went into the living room. Her eight-year old son, who was in the bedroom and testified at trial, heard a knock at the door. Rosetta answered, and her son, who recognized defendant's voice, heard defendant enter the apartment and begin to argue with his mother. The child heard Rosetta tell defendant he had been drinking and order him to leave the house, which was the last thing the child heard before falling asleep. When he awoke the next morning, he heard his half-brother crying from his mother's bed. He found his mother on the couch, and returned to his bedroom, where he remained until Tharp arrived later that afternoon. Tharp had become alarmed after learning that Rosetta had never dropped the baby off at the babysitter's house.
Tharp testified that upon his arrival, the eight-year old, who was crying and "very terrified," blurted out that his mother was dead. Tharp entered and saw Rosetta sitting on the sofa with stab wounds all over her body. After Tharp discovered that Rosetta had no pulse, he found the baby crying and soaking wet.
Upon arrival, police observed stab wounds on Rosetta's neck and chest and numerous crescent-shaped puncture wounds on her abdomen. Investigation revealed no evidence of forced entry into the apartment and no indication of a struggle. Police found a vegetable peeler in the sink and a box cutter hidden underneath a sofa cushion. An assistant medical examiner testified that the crescent-shaped wounds were consistent with the shape of the vegetable peeler. He opined that the absence of blood splatter in the apartment signified that Rosetta was "essentially medically dead" at the time most of the sixty-five stab wounds were inflicted, and that Rosetta "just went straight into cardiac standstill" and was incapacitated "very early on" during the attack.
Defendant gave his first statement to police that evening, describing his relationship with Rosetta and the events that took place at her apartment two weeks earlier. He admitted directing Tharp to tell Rosetta that he intended to "kick her ass." Defendant also told investigators that on the night of December 8, 2003, the night before Rosetta's death, he slept in an abandoned car parked outside his mother's house. The next night, December 9, 2003, he smoked crack cocaine twice and consumed alcohol. He claimed he slept at an unnamed friend's house for a part of that evening, later returning to the car and sleeping there.
In a second interview conducted in the early morning hours of December 11, 2003, defendant initially denied being at Rosetta's apartment on the night of December 9, 2003. However, after approximately forty-five minutes, Investigator John Greer recalled defendant's mother telling him that defendant was prone to epileptic seizures. Greer asked defendant if it was possible that he had such an episode at Rosetta's house and did not remember being there. According to Greer, defendant responded, "Yes, I guess that could have been possible. Maybe I was there and I just don't remember it." After further questioning, defendant acknowledged he had been present in Rosetta's apartment on the night she was murdered. Greer's testimony described defendant's statement that: he was sleeping in his car, smoking crack in his car. [He] [w]ent to [Rosetta's] house because of his demeanor the week before. [He] [w]as invited into the house. [He] [w]as asked to leave. [He] [w]ent into the bathroom, smoked more crack cocaine, and then came out and [did]n't remember much after that other than waking up, seeing that [Rosetta] was bleeding in the area of the neck, and running out, and the fact that [Rosetta] was dressed in a half top at the time and shorts.
Defendant then provided a tape-recorded statement that was consistent with the statements he had made during the pre-taped interview that we have already described. At the conclusion of the taped statement, when Greer asked defendant why he originally denied being at Rosetta's apartment on December 9, 2003, defendant said "he was afraid of the consequences of being involved with her death."
Shortly after the tape-recorded statement was concluded, Investigator Ronald Moten observed defendant fall to the floor and say "I'm having another one. I'm having another one. . . . It's happening again." Greer, who was also an Emergency Medical Technician (EMT), went inside the room and noted that defendant was conscious and alert, had a normal pulse, was not experiencing labored breathing and appeared to be "okay." Greer testified that "in an abundance of caution" 9-1-1 was called even though defendant did not appear to be experiencing trauma or "any type of episode."
Steve Skipton, an EMT who testified at trial, responded to the 9-1-1 call and, after examining defendant, confirmed that, although defendant was "a little agitated," he had normal vital signs, was alert and oriented, was not experiencing any pain and did not appear to be in any distress. Defendant was transported to Cooper Medical Center, where he was examined, given Dilantin, a seizure medication for which he had a prescription, then released and cleared for incarceration.
Michael Aldridge, who was lodged at the Camden County Correctional Facility on a burglary charge, and his stepmother, Melissa Gant, also testified on behalf of the State. Aldridge explained that on or about September 24, 2005, defendant approached him regarding paralegal work, and from that day forward he and defendant spoke every day until October 6, 2003. According to Aldridge, defendant asked him to research sleepwalking on the internet, because that would be his defense at trial. Defendant also told Aldridge that while high on crack cocaine, he killed his girlfriend, "Rose," by stabbing her numerous times with a potato peeler. Every night, Aldridge heard the same loud noises from defendant's cell, a yell and then a "real loud thud." Defendant told Aldridge he was trying to show a pattern of sleepwalking. At trial, defendant testified he never discussed his case with Aldridge.
Gant completed the research defendant had requested of Aldridge, and sent copies to both defendant and Aldridge. On October 5, 2005, Aldridge asked her to contact the Camden County Prosecutor's Office, which she did. As a result, Moten interviewed Aldridge at the jail, where Aldridge provided a tape-recorded statement describing his contact with defendant. A few days later, Gant told Investigator Moten she had sent sleepwalking documents to Aldridge and defendant. After receiving a copy of the documents from Gant, Moten searched defendant's cell and recovered the documents that defendant had received from Gant.
Defendant testified at trial, admitting he was at Rosetta's apartment in late November 2003 where he had angrily confronted Tharp; however, he denied stabbing Rosetta and denied being at her apartment on December 9 or 10, 2003. He asserted that his taped statement of December 11, 2003 was not true and was the result of pressure exerted by the investigators.
Defendant also described his whereabouts on the night of Rosetta's death. Specifically, he testified that on December 9, 2003, he and his friends smoked crack cocaine and drank at a friend's apartment. After he left them, he went to his sister's car to spend the night. He also described his history of seizures and noted that a doctor had prescribed anti-seizure medication.
According to defendant's mother, who testified at trial, defendant suffered from "real bad" seizures, during which he would wake up "screaming and hollering," "fall on the floor," sometimes "bang his head" and once broke his jaw. She explained that defendant had suffered from seizures since he was nineteen, and that he blacked out and remembered nothing each time.
In addition to his mother, defendant presented the testimony of his niece, his sister, and a home health aide who worked for his mother. None testified to defendant's whereabouts on the evening of December 9, 2003.
During a pre-trial hearing on September 16, 2005, the judge noted that defendant was not asserting a diminished capacity defense, but rather, was claiming that he "didn't do it," to which defense counsel responded, "That's correct." At the charge conference, the judge explained that in light of defendant's statement to police and his trial testimony, the judge "felt compelled" to instruct the jury on the alibi defense. Defendant agreed, asking only that the judge make a minor modification to the model charge, which the judge agreed to do.
Soon after, the judge stated that he intended to instruct the jury on the intoxication defense immediately following the substantive charges of murder, aggravated manslaughter and reckless manslaughter. The judge suggested that defendant and his counsel review the model intoxication charges, and then present any objections they might have. Defendant never requested an instruction on diminished capacity. In fact, he stated he did not seek any jury instructions other than those the judge had already discussed.
The defense delivered its summation, arguing defendant was innocent, Rosetta's son's statement that he heard defendant and his mother arguing was "not true," that with no physical evidence there was reasonable doubt as to whether defendant committed the crime, and defendant's trial testimony was the truth and his statement to police was coerced. The judge's charge to the jury instructed them on the elements of the offenses and the lesser-included offenses, as well as on alibi and intoxication.
On appeal, defendant raises the following claims:
I. BECAUSE THE COURT COMMITTED SERIOUS ERROR IN FAILING TO INSTRUCT THE JURY AS TO EVIDENCE OF DEFENDANT'S MENTAL DISEASE OR DEFECT, REVERSAL OF ALL CONVICTIONS IS REQUIRED. (Not Raised Below).
II. THE STATUTE CRIMINALIZING THE ENDANGERMENT OF AN INJURED PERSON IN ADDITION TO THE UNDERLYING CRIMINAL ACT THAT CAUSED THE INJURY VIOLATES PRINCIPLES PROHIBITING MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE. IN ADDITION, THE STATUTE BY ITS VERY LANGUAGE DOES NOT APPLY IN DEFENDANT'S CASE. (Not Raised Below).
III. THE COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE CHARGES OF ENDANGERING THE WELFARE OF A CHILD.
IV. IN IMPOSING AN AGGREGATE SENTENCE OF 32 YEARS, THE COURT IMPROPERLY CONSIDERED INAPPLICABLE AGGRAVATING FACTORS; VOICED A PERSONAL ATTITUDE TOWARD DEFENDANT THAT VIOLATED THE CODE OF JUDICIAL CONDUCT; FAILED TO ORDER THE REQUISITE MERGER OF OFFENSES; MISCALCULATED THE N.E.R.A. PAROLE BAR; AND, OVERALL, IMPOSED A MANIFESTLY UNFAIR AND EXCESSIVE SENTENCE.
A. Personal Bias of Sentencing Judge
B. Improperly Considered Aggravating Factors
C. Merger Errors
D. Misstatement of Parole Bar
E. Cumulative Sentencing Error.
We turn first to Point I, in which defendant asserts that the judge committed reversible error in failing to instruct the jury on the defense of diminished capacity. He maintains that because the record contained evidence of his ongoing seizure disorder, the judge was required to instruct the jury on that defense, using Model Jury Charge (Criminal), "Evidence of Mental Disease or Defect" (1999). He argues that this disorder may have impacted his mental state on the night in question as well as during his December 11, 2003 statement to police.
Comprehensive and accurate jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). Nonetheless, when a defendant fails to object to the charge at the time it was given, it may be assumed that the charge was not error and was unlikely to cause prejudice. State v. Macon, 57 N.J. 325, 333-34 (1971). Because defendant failed to object to the lack of a jury charge on diminished capacity, any such error will be disregarded unless it is "clearly capable of producing an unjust result . . . ." R. 2:10-2. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting Macon, supra, at 336).
Evidence of diminished capacity "is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2. To establish such a defense, a defendant must offer evidence that he "suffered from a mental disease or defect" that would "negate" the mental culpability element of the offense in question. Ibid.
However, before a defendant is entitled to present evidence of diminished capacity to a jury, he must serve the State with notice of his intention to do so, N.J.S.A. 2C:4-3a, no later than seven days from the arraignment/status conference described in Rule 3:9-1(c). R. 3:12-1. Defendant served no such notice. We do not, however, decide this appeal upon that basis, but instead determine whether the judge's failure to sua sponte issue such an instruction was plain error.
A jury instruction on diminished capacity is required "when [the] defendant has presented evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea." State v. Galloway, 133 N.J. 631, 647 (1993). "[A]ll mental deficiencies, including conditions that cause a loss of emotional control," entitle a defendant to a jury instruction on diminished capacity "if the record shows that experts in the psychological field believe that [the defendant's] kind of mental deficiency can affect a person's cognitive faculties . . . ." Ibid.
However, a defendant is not entitled to a diminished capacity charge if there is no evidence of a specific diagnosed mental deficiency. State v. Reyes, 140 N.J. 344, 364-65 (1995). In Reyes, "[a]lthough the doctor opined about the [defendant's] lack of full consciousness or deliberation, he did not outline any underlying mental deficiency," and the defendant was therefore not entitled to a diminished capacity instruction. Id. at 365. The Court agreed with the trial judge's determination that merely being "jealous, angry, out of control and probably somewhat affected by PCP and heroin and marijuana . . . is not diminished capacity," but is instead "motive plus personality description plus some degree of intoxication from drugs." Id. at 364. Because the defendant "had no underlying mental disorder at all," he was not entitled to a jury instruction on diminished capacity. Id. at 365.
Similarly, in State v. Pitts, 116 N.J. 580, 609-10 (1989), the Court concluded that the psychiatric testimony presented by the defendant, which characterized the defendant's behavior as a loss of emotional control, or a rage reaction, rather than a loss of cognitive faculties, was not the type of evidence that required the diminished capacity instruction to be submitted to the jury. As the Court observed in State v. Breakiron, 108 N.J. 591, 618 n.10 (1987), "[n]ot every mental disease or defect has relevance to the mental states prescribed by the Code. The variety and forms of mental disease are legion. . . . Some, such as depression or anti-social disorders, have little or no relevance to knowledge [or purpose]."
Contrary to the requirement imposed by the Court in the opinions we have discussed, here defendant failed to present any testimony from experts in the psychological field opining that his seizures affected his cognitive capacity to form the mental state necessary to commit the crimes charged. Despite the requirement the Court imposed in Reyes, supra, 140 N.J. at 364-65, defendant presented no testimony identifying a specific and diagnosed mental deficiency. Only defendant and his mother testified to his seizures and his loss of memory as a result of those seizures. Unquestionably, loss of memory is not the equivalent of an inability to form a purposeful and knowing mental state. Thus, as there was no evidence establishing mental disease or defect, much less a mental defect with the capacity to affect defendant's ability to form the requisite mental state, an instruction on diminished capacity was not warranted, and the judge had no obligation to sua sponte issue such an instruction. The failure to do so was not error, much less error that was "clearly capable of producing an unjust result . . . ." R. 2:10-2.
Defendant's reliance on State v. Washington, 223 N.J. Super. 367 (App. Div.), certif. denied, 111 N.J. 612 (1988) is misplaced. There, the defendant presented expert witness testimony showing he was experiencing an epileptic seizure at the time of the crime and "did not know what he was doing when he killed his wife." Id. at 372. Under those circumstances, we concluded that because the defendant's ability to act purposely and knowingly was at issue, the judge's failure to charge the jury on aggravated manslaughter and manslaughter as lesser-included offenses of murder was reversible error. Id. at 375. We recognize that like defendant here, the defendant in Washington suffered from epileptic seizures that caused him to fail to recall events that occurred while he suffered from the condition. However, there, unlike here, the defendant presented testimony from a medical expert who opined that the defendant's seizure disorder affected his ability to act knowingly or purposely. Id. at 372. This is not such a case. Here, no expert testimony was presented. Moreover, the defendant's conviction in Washington was reversed because of the failure to charge the jury on the lesser-included manslaughter offenses, id. at 375-76, not because of a failure to charge diminished capacity. The trial judge had issued an instruction on diminished capacity, id. at 372, and we therefore had no cause to address the issue of its necessity. Consequently, defendant's reliance on State v. Washington is unavailing.
In Point II, defendant asserts that his conviction on count four for endangering an injured victim, N.J.S.A. 2C:12-1.2a, must be vacated because Rosetta was already dead, and therefore could not have been endangered by his leaving her in a life-threatening condition when he exited her home. He also maintains that a reading of the statute that would allow multiple punishments arising from convictions for aggravated manslaughter and endangering an injured victim would constitute impermissible double punishment. The State candidly concedes that based on the evidence adduced at trial the judge should have granted defendant's motion to dismiss count four.
N.J.S.A. 2C:12-1.2a provides in relevant part that a person is guilty of endangering an injured victim if he or she "causes bodily injury to any person . . . and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself." In State v. Moon, 396 N.J. Super. 109 (App. Div. 2007), certif. denied, 193 N.J. 586 (2008), we interpreted N.J.S.A. 2C:12-1.2, and held that a conviction under N.J.S.A. 2C:12-1.2 is unwarranted where a defendant "kills another and leaves the body behind." Id. at 116. Therefore, "the State must introduce evidence that would permit jurors to find that the victim was alive and 'physically helpless, mentally incapacitated or otherwise unable to care for himself' and that the defendant left the scene of the injury knowing or reasonably believing that the victim was in that condition." Id. at 117 (quoting N.J.S.A. 2C:12-1.2).
Here, the expert witness testimony established that Rosetta was "essentially medically dead" in the "very early" stages of the attack. In fact, the assistant medical examiner opined that the first wounds stopped Rosetta's heart.
Consequently, the judge erred when he denied defendant's motion to acquit on count four because the evidence adduced clearly showed that Rosetta was dead before defendant left the scene. We reverse defendant's conviction on court four, and remand for entry of an amended judgment acquitting defendant on that count. In light of this disposition, we perceive no need to address the additional arguments defendant advances in Point II.
Defendant argues in Point III that the judge erred when he denied defendant's motion for acquittal on the charges of endangering the welfare of a child contained in counts seven and eight. Defendant asserts that the record was devoid of evidence that he knew Rosetta's children were present in the apartment at the time of the murder. We disagree.
The record establishes that when defendant killed Rosetta in her apartment, he either knew her children were home or was aware of the high probability of their presence, thereby satisfying the statutory definition of knowing conduct. See N.J.S.A. 2C:2-2b(2). Specifically, evidence was presented establishing that defendant had a relationship with Rosetta, lived with Rosetta and her eight-year old son for a period of time, and was the father of Rosetta's younger child. Accordingly, defendant knew Rosetta had two young children, and after leaving the apartment, should have, at the very least, been aware that leaving such young children in the apartment with no one to care for them would cause them to be "abused and neglected" within the meaning of the statute, N.J.S.A. 2C:24-4a.
Viewing this evidence in the light most favorable to the State, as the judge was required to do, State v. Reyes, 50 N.J. 454, 458-59 (1967), a reasonable jury could have found defendant knew that the children were present and that by murdering their mother, he left them helpless and alone, thereby endangering their welfare. We therefore reject the claim defendant advances in Point III.
Last, defendant asserts that his sentence must be vacated and remanded for resentencing because of the judge's personal bias against him, merger errors, misstatement of the parole ineligibility term, the judge's improper consideration of aggravating factors, and the excessiveness of the sentence. All but two of those contentions lack sufficient merit to warrant discussion, R. 2:11-3(e)(2), and we confine our analysis of Point IV accordingly.
First, we agree with defendant's claim that his convictions on counts five and six, third-degree possession of a weapon for an unlawful purpose and fourth-degree unlawful possession of a weapon, should have been merged with his conviction on count one, first-degree aggravated manslaughter. "Merger must occur '[w]hen the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense.'" State v. Romero, 191 N.J. 59, 79-80 (2007) (quoting State v. Diaz, 144 N.J. 628, 636 (1996)). Here, the State acknowledges that the only reason defendant possessed the vegetable peeler and knife was to kill Rosetta. Consequently, defendant's conviction on counts five and six should have been merged with count one. We remand for the entry of an amended judgment of conviction (JOC).
Second, we agree that the judge misspoke when he stated during sentencing that defendant's "aggregate sentence will be 32 years [in] New Jersey State Prison, 85 percent, or 27 years, to be served without parole."*fn4 However, that error was corrected in the JOC. As reflected in the JOC, defendant's eighty-five per cent period of parole ineligibility is only applicable to the twenty-seven year term of imprisonment imposed on count one. Furthermore, the judge's written statement of reasons accompanying the JOC provides that "the aggregate sentence is thirty-two (32 years) NJSP, 85% of 27 years to be served without parole." Therefore, it is clear that defendant's period of parole ineligibility was imposed pursuant to NERA only on count one of his conviction, and has no effect on the remaining five years of imprisonment that he will serve consecutively on counts seven and eight.
Affirmed in part and reversed in part. Remanded for entry of an amended judgment of conviction, acquitting defendant on count four, and merging defendant's conviction on counts five and six with his conviction on count one. Fines and penalties imposed on counts four, five and six are to be vacated.