December 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY PARISI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 07-10-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submit November 30, 2009
Before Judges Rodríguez and Reisner.
Defendant Anthony Parisi was convicted by a jury of making terroristic threats, N.J.S.A. 2C:12-3a, but acquitted of making an immediate threat to kill, N.J.S.A. 2C:12-3b. He was sentenced to the 152 days of jail time he had already served, plus three years probation. He was also sentenced to: pay required fees and fines; continue mental health treatment; take his prescribed medication; and avoid contact with the victim. He appeals from the conviction. We reverse and remand.
The State presented testimony from Jennifer DeCamp, an employee of Collaborative Support Programs of New Jersey (CSP), a social services agency of which defendant was a client.*fn1
According to DeCamp, on December 18, 2006, defendant became angry after she told him that she could not provide him with transportation to an appointment that afternoon. DeCamp testified that defendant cursed at her and called her a liar and said she was incompetent. He then followed her out to her van, pounded on the hood of the vehicle, gave her the "finger" and "started yelling that he was going to get me." He continued shouting that he would "have" her job, he would get her social security number and phone number and address, and that he knew where she lived. DeCamp testified that she "had enough" of defendant's behavior; she got out of the van, returned to her office and called the police. She testified that she was fearful because of defendant's physical conduct of banging on the van, yelling and making an obscene gesture.
DeCamp explained that in the past defendant had told her that he had been a boxing champion and had served in the military. On prior occasions, defendant had expressed his dislike for her and for the agency. She became concerned that "he was very fixated on, you know, getting revenge from me. He would say that I ruined his life, that CSP ruined his life and . . . at that point, I didn't stay late after work because I knew . . . he knows I'm at the office. We do lock the door now . . . we're a public office and we keep our door locked . . . that's a shame."
However, she also testified that she was not "exactly" fearful of defendant in the past, but that on December 18, "he actually made a direct threat . . . wanting my address and he was very, very fixated all day so the police encouraged me to . . . at least have it documented, what was going on." She also testified that she was fearful of defendant after December 18 because he "continued to write letters that . . . had threatening . . . remarks in it."
In response to a defense objection at this point, concerning N.J.R.E. 404(b), the trial judge instructed the jury that the evidence concerning defendant's alleged past conduct and the later sending of letters, was "to show . . . that there was a fearfulness on the part of the witness." However, he instructed them that defendant was not charged with any subsequent offenses or "any other threats" and that they could not consider the evidence as showing that defendant was a "bad person" or that he committed any other offenses. He charged the jurors that they could "not consider anything that occurred after [December 18, 2002] except as you may give it some weight to show that there was no mistake or that there was, indeed, a justified reason for her to be fearful."
On cross-examination, DeCamp testified that she was fearful that defendant "could hurt me." Also on direct examination, defense counsel opened the door to questioning on an issue not raised on direct, i.e., an alleged death threat which defendant made about DeCamp to another employee. He succeeded in getting DeCamp to admit that she did not hear defendant make the threat. However, on re-direct, the prosecutor elicited DeCamp's testimony that the co-worker had told her about the death threat and it made DeCamp feel "even more fearful."
The State next presented testimony from the co-worker, Jennifer Zoyac. According to Zoyac, as soon as DeCamp walked into the CSP office on December 18, defendant began saying "that he was going to have her fired, . . . find out her Social Security number and last name, [and] that he was going to have a lawsuit against her and the agency for two million dollars." Zoyac calmed him down and convinced defendant to go across the street to get pizza. DeCamp left the office also but came back a few minutes later appearing "very scared" and saying she was "tired of his verbal threats." As DeCamp was calling the police, defendant came back into the office and started yelling at her, threatening to "make sure that you're fired. You're going to be taken care of. You're no longer going to be working here anymore."
Again, Zoyac tried to calm defendant down and finally convinced him to come outside with her. According to Zoyac,
[Y]ou could tell that he was . . . visibly upset . . . just very angry, and he was pacing back and forth and then he had made the comment to me . . . to quote him exactly he said if she's in there lying about me, she's done. I'm going to get my friends and military buddies to come down here and make sure she's taken care of. She's dead. She's going to be taken care of.
And then I actually responded back making sure, I said, Anthony, I said, now you're making a direct threat to me and he said you're damn right I'm making a threat.
I'm tired of this shit. This is fucking unbelievable.
As soon as the police arrived, Zoyac returned to the office and told DeCamp that defendant had made a threat. On cross-examination, she admitted she did not recall if she told Zoyac that defendant had made a threat to kill her. However, a short time later, when the police were interviewing the two women together, Zoyac did tell them in DeCamp's presence exactly what defendant had said. Zoyac observed that DeCamp was "upset" and "shaken up."
The police were able to calm defendant down and did not arrest him. After this incident, Zoyac and another employee drove defendant to a pharmacy to fill some prescriptions that she knew he needed. On cross-examination, Zoyac explained that she was "used to working with individuals" like defendant, and although she feared for DeCamp, she did not fear for herself. Zoyac also admitted that when defendant made the threat to her, there was no "immediacy of any physical harm" to DeCamp. While she was driving defendant on the errand, he stated "the way we do it [in the Bronx] is beat them until they're almost dead and then leave them there." However, DeCamp ignored the statement and continued with the errand.
On direct, over defense objections, Zoyac testified that after the December 18 incident, the agency had received letters from defendant warning her not to lie at his trial, because of the criminal and civil penalties associated with perjury, and criticizing the services he received from CSP. Those letters were admitted in evidence. However, the judge ruled that they were admissible to show absence of mistake or accident.
In his testimony, defendant described the difficulties he experienced in obtaining appropriate housing and other services from CSP. He explained that early on the morning of December 18, 2002, he had gone to the hospital to be treated for pneumonia, had been released very early in the morning and had only gotten a few hours of sleep. He testified that he went to the CSP offices to get a ride to the pharmacy. According to defendant, as he walked through the parking lot, he saw DeCamp sitting in her van. He testified that she gave him the finger and later "stormed" into the CSP office and started an argument with him. He denied banging on her van or threatening her, other than telling her that she would be fired. He denied telling Zoyac at any time that he was going to kill or assault DeCamp.
In his summation, the prosecutor told the jury "What the State is claiming Mr. Parisi did was threatened to kill Ms. DeCamp. That is the threat." However, he also read the jurors portions of a letter defendant sent to Zoyac stating that if she lied at the trial he would sue her; the prosecutor characterized this letter as an "attempt to intimidate these ladies that work at this agency."
Although the prosecutor characterized the State's case as hinging on a threat to kill, in the jury charge the judge significantly deviated from that clear contention. Instead, he instructed the jury as follows on the subsection 3a charge of terroristic threats:
The first element the State must prove is that the defendant threatened to commit any crime of violence. The State alleges here that the defendant threatened to commit either an assault or physical harassment or a threat to kill. The words or actions of the defendant must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person.
Moreover, in charging the jury on subsection 3b, the judge instructed that this crime was "different" from 3a because it was based on a threat to kill:
Let me move on to the second charge in the indictment. And it's a terroristic threat, but it's different in that it is a threat to kill.
Later in the charge, the judge emphasized the same distinction: "The State maintains that there was a terroristic threat. The State maintains that there also was a threat to kill." He repeated this in the next paragraph as well. The judge then charged the jury on the lesser included offense of harassment.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF THE CRIMES OF VIOLENCE DEFENDANT ALLEGEDLY THREATENED TO COMMIT FOR THE THIRD DEGREE THREATENING TO COMMIT A CRIME OF VIOLENCE CHARGE, N.J.S.A. 2C:12-3(A) (Not Raised Below).
POINT III: THE COURT ABUSED ITS DISCRETION WHEN IT ADMITTED "OTHER WRONGS OR ACTS" EVIDENCE DURING THE TRIAL.
A. The Other Wrongs And Acts Evidence Did Not Satisfy The First Prong Of The Cofield/Marrero Test Because Said Evidence Was Not Relevant To A Material Fact In Dispute.
B. The Other Act Evidence Failed To Establish The Second Prong Of The Cofield/Marrero Test Because Said Evidence Was Not Similar In Kind To The Offenses Charge[d].
POINT IV: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED CHARACTER EVIDENCE CONCERNING DEFENDANT'S PROPENSITY FOR ANGER (Not Raised Below).
POINT V: THE ASSISTANT-PROSECUTOR'S PREJUDICIAL MISCONDUCT BOTH DURING TRIAL AND IN SUMMATION DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND NEW JERSEY. U.S. CONST. AMENDS VI, XIV; N.J. CONST. ART I, ¶ 10 (Not Raised Below).
A. The Assistant-Prosecutor Engaged In Prejudicial Prosecutorial Misconduct During Cross-Examination When He Improperly Directed Defendant To Assess The Credibility of The State's Witnesses.
B. The Assistant Prosecutor Engaged In Prejudicial Prosecutorial Misconduct Clearly Capable of Producing An Unjust Result When He Vouched For The Credibility of The State's Witnesses In Summation.
Defendant's Point I is without merit. As further discussed below, if the jury believed that defendant threatened to kill DeCamp, there was sufficient evidence to support a conviction under N.J.S.A. 2C:12-3a.
Turning to defendant's Point II, we begin by considering the law concerning terroristic threats. N.J.S.A. 2C:12-3a provides in pertinent part: "A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror." N.J.S.A. 2C:12-3b specifically prohibits the making of death threats under circumstances creating an imminent fear of death: "A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out."
However, in State v. Conklin, 394 N.J. Super. 408, 412-13 (App. Div. 2007), we held that a threat to kill may be prosecuted as a violation of subsection a or b, depending on the defendant's purpose in making the threat:
[T]he actor's purposes under the two subsections are different. Subsection (a) requires proof of a purpose to terrorize another; subsection (b) requires proof of a purpose to put the other in imminent fear of death. [Citations omitted.]
In contrast to subsection b, subsection a does not necessarily require a threat to kill, but can be triggered by a threat to commit any crime of violence. However, focusing on subsection a, in State v. MacIlwraith, 344 N.J. Super. 544, 547 (App. Div. 2001), we emphasized the need for clear jury instructions concerning the threatened "crime of violence":
An element of a subsection (a) terroristic threat is a threat "to commit any crime of violence." In order for a jury to be properly guided it must be instructed on the qualities of "any crime of violence" the proofs suggest the defendant may have threatened. That is, the elements and definition of any such crimes must be adequately explained to the jury, so that the jury is not left to speculate as to the crimes that might be supported by the evidence. See Model Jury Charges (Criminal), N.J.S.A. 2C:12-3(a) (1991) (providing that the instruction should "set forth and define appropriate crime of violence alleged"). This approach exemplifies a well-established principle applying to all matters in which juries are required to determine criminal purpose as an element of the crime charged.
We further emphasized the importance of clearly defining the threatened "crime" of violence, where the only related offenses of which defendant was convicted were not "crimes":
. . . The instruction is one of special importance where, as here, the only other convictions that occurred which embodied facts pertinent to the cognate charges were for petty disorderly persons offenses, which are not crimes by definition. See N.J.S.A. 2C:1-4(b). [Id. at 548.]
In this case, we conclude that errors in the charge on subsection 3a, although not the subject of an objection at trial, constituted plain error requiring reversal of the conviction and re-trial. See MacIlwraith, supra; R. 1:7-2; R. 2:10-2. See also State v. Afanador, 151 N.J. 41, 54 (1997) ("Erroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error.").
As permitted by Conklin, and as stated by the prosecutor in summation, the State's case under both subsections 3a and 3b was premised on defendant's alleged threat to kill DeCamp. The State did not argue that defendant was guilty because he cursed at DeCamp or pounded on the hood of her van, and neither of those actions are "crimes" that would support a conviction under subsection 3a. See MacIlwraith, supra, 344 N.J. Super. at 548; N.J.S.A. 2C:12-1a (simple assault is a disorderly persons offense); N.J.S.A. 2C:33-4c (harassment is a petty disorderly persons offense); N.J.S.A. 2C:1-4b. Nor did the judge explain to the jury the elements of "assault." See MacIlwraith, supra, 344 N.J. Super. at 547. Further, in defining N.J.S.A. 2C:12-3b, the judge told them it was "different" from 3a because 3b required a threat to kill. Consequently, the jury very well may have concluded that it did not need to find a threat to kill in order to convict defendant under 3a.
Additionally, the improper admission of defendant's letters threatening to sue CSP as well as other fundamentally irrelevant testimony about defendant's threats to file lawsuits against DeCamp and Zoyac may have confused the jury. It was error to admit the letters to rebut a claim of mistake, under N.J.R.E. 404(b), because the defense made no such claim. Nor were the threats to file lawsuits otherwise relevant. Indeed, rather than focusing its case on the events of December 18, 2002, the prosecution placed before the jury prejudicial and irrelevant evidence designed to show that defendant was angry and difficult to deal with. See State v. Hunt, 115 N.J. 330, 372 (1989); State v. Mazowski, 337 N.J. Super. 275, 284-85 (App. Div. 2001).
Based on our review of the entire trial transcript we are left with the distinct sense that the jury may have convicted defendant because they erroneously believed that for purposes of 3a, they were to focus on conduct other than the threat to kill. This plain error requires that the conviction be reversed and the case remanded for re-trial.*fn2
Reversed and remanded.