March 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ENOCK TELLUS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0590.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 20, 2010
Before Judges Carchman and Parrillo.
Following a jury trial, defendant Enock Tellus was found guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (Count One); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three). On the murder conviction, defendant was sentenced to a forty-five year term subject to an eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent terms of four and seven years were imposed on the third and second-degree weapons offenses respectively. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs at trial, on the night of November 5, 2004, defendant shot and killed Clark "Biggie" Simon (Simon or victim) at the Oasis Bar in Elizabeth. The genesis of the homicide may be traced to encounters, weeks before the shooting, between defendant and Kareem Boyd, the victim's housemate, friend, and fellow drug dealer. According to Boyd, two weeks before the shooting, he met defendant in Jefferson Park, where defendant threatened to take over Boyd's drug-dealing territory. A week later, the two men became embroiled in a fistfight, wherein Boyd was badly beaten and facially scarred. Boyd related the incident to his friend Simon, who supposedly went looking for defendant to avoid further trouble and "peace things up," but could not find him.
On the evening in question - November 5th - Simon and Boyd were at the Oasis Bar, a neighborhood tavern with a regular crowd of local residents. There were about ten to twenty patrons in the bar. Jacqueline Quinones was bartending and the owner, Francisco Farinhas, and his son Alvaro, the assistant manager, were also present. Simon and Boyd were drinking and conversing with several of the patrons, including Veronica Thomas and Tawana Baker. Baker spent about thirty to forty-five minutes speaking with Simon about his friend, with whom she had been romantically involved. After their conversation, Simon moved to the other end of the bar.
About an hour after Simon and Boyd arrived, defendant entered the bar looking angry and bumped into Thomas on the way in. According to Thomas, who recognized him from the neighborhood, defendant immediately "sped" toward the bar where Simon was sitting. Within a few seconds, she saw defendant and Simon fighting. Thomas heard someone yell "he has a gun," and then heard shooting as she was halfway out the door.
Baker, who knew defendant for about a year, also witnessed the two men "tussling" by the interior wall. After only a few seconds, she heard a gunshot and saw Simon fall to the ground. Defendant then walked quickly past her with a black, nine millimeter gun in his hand, stating "f**k that n*****r" as he ran out of the bar.
Quinones, who recognized defendant as an occasional customer and had been attending to her bartending duties, saw defendant walk in right before the scuffle ensued, "maybe three, four second later." Although she saw Simon facing the wall during the fight, she was unable to see the other combatant because he was obscured by Simon's larger body. Upon seeing a gun pointed to the left side of Simon's head, Quinones dropped down behind the bar. When she heard a gunshot a few seconds later, Quinones managed to crawl to the kitchen and call 9-1-1. Quinones described what she observed:
I saw the back side of a big guy[, the victim,] and I saw a hand go up on the left-hand side facing the wall, and I saw a gun, and when I saw the gun I dropped to the ground behind the bar. Maybe, two seconds later I heard a gunshot and I proceeded to crawl to the end of the bar towards the kitchen.
When she came out of the kitchen, she saw Simon lying on the floor in a pool of blood. Except for the Farinhases, everyone left the bar, several of them screaming.
According to Boyd, when he saw Simon in a fight with defendant, whose back was against the wall, he ran over and punched defendant in the face. Boyd described the incident thus:
I had my back to the door. The female [I was talking to] was facing me. I was so in-depth in the conversation with her, you know what I mean, I had a few drinks... I hear scuffling in the background, like, tables moving, chairs moving. So I turned around to see what was going on and I see [the victim] had the defendant on the wall, and it looked like it was a fight, you know what I mean? My natural instinct kicked in. I jumped up, ran over there to help him. I seen who it was, as soon as I turned around, I noticed the altercation. So I jumped up, ran over there and I punched the defendant in the side of his face, not knowing that he had a gun, but the gun went off and [the victim] hit the floor.
According to Boyd, "[Simon] was struggling with [defendant]. I wouldn't say [Simon] had him pinned, controlling him.... [But] [h]e had him against the wall." Boyd further explained that the gun fired almost simultaneously with Boyd's punch to defendant's face: "[i]t seems like it was exactly when I hit him that the gun went off or once he felt the impact."*fn1
Alvaro Farinhas did not see much of the incident, which he estimated lasted only fifteen to twenty seconds. He did observe Simon and Boyd jump out of their seats "and jump on a guy and they start struggling" and "he, like, pushes them on top of the wall.... So when they jumped on him they hit the wall. They were on the wall and the table. There was a table there." Alvaro then saw a "puff of smoke," and the struggle ended.
Police arrived at the scene at around 11:30 p.m. An ambulance was called, and within minutes of its arrival, Simon was officially pronounced dead. The crime scene was secured and the police recovered a live round near Simon's body, as well as a spent bullet casing near the pool table. Ballistics testing of these materials revealed that the ammunition was.380 caliber. The Medical Examiner determined the cause of death to be a single bullet wound to the head, fired with a gun at point blank range, tightly against the victim's head.
At the close of evidence, there was a charge conference, at which the judge proposed instructing the jury on aggravated and reckless manslaughter, in addition to murder. Defense counsel, whose strategy throughout the trial was that defendant was misidentified and not present at the scene of the crime, objected:
[I]t's the defendant's request that the jury be instructed only on those offenses charged.
... [N]amely, the murder and the two weapons offenses.... [Defendant believes] there is no basis to charge the lesser included offenses. [Defendant] contends he was not present when the incident occurred... therefore... the lesser included offenses are not clearly indicated by the evidence before this jury and the jury should only be charged murder and the two weapons offenses.
Finding that "the lesser includeds are clearly indicated from the evidence in the case," and relying on State v. Garron, 177 N.J. 147 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004), the court instructed the jury on murder, and the lesser-included offenses of aggravated manslaughter, and reckless manslaughter. No objection was voiced to these instructions, and there was no request to charge on passion-provocation manslaughter. The jury convicted defendant of murder and the two weapons offenses.
On appeal, defendant claims that the trial court's failure to instruct on passion/provocation manslaughter, was reversible error, and that his sentence was excessive.
With respect to the former, it is well-settled that "'[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense....'" State v. Muhammad, 182 N.J. 551, 577 (2005) (quoting Garron, supra, 177 N.J. at 180). On this score, when requested by defense counsel, "'[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting N.J.S.A. 2C:1-8e), certif. denied, 188 N.J. 489 (2006). By the same token, in the absence of any such request, "[t]he judge is not required to provide the jury with an instruction on a lesser-included offense sua sponte unless 'the facts clearly indicate the appropriateness of that charge.'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting State v. Choice, 98 N.J. 295, 299 (1985)), certif. denied, 195 N.J. 522 (2008). This is because the primary obligation of trial courts "is to see that justice is done, and that a jury is instructed properly on the law and on all clearly indicated lesser-included offenses, even if at odds with the strategic considerations of counsel." Garron, supra, 177 N.J. at 180.
Nevertheless, while a trial judge "'has an independent obligation' to instruct the jury on lesser-included charges when the evidence 'clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense[,]'" O'Carroll, supra, 385 N.J. Super. at 224 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)), "[t]here is no onus placed upon the trial court to 'on its own meticulously... sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain' a murder charge." Noble, supra, 398 N.J. Super. at 596 (quoting Choice, supra, 98 N.J. at 299).
Passion/provocation manslaughter is a lesser-included offense of murder. See State v. Robinson, 136 N.J. 476, 489 (1994). "A criminal homicide is passion/provocation manslaughter when it '[i]s committed in the heat of passion resulting from a reasonable provocation.'" O'Carroll, supra, 385 N.J. Super. at 226-27 (quoting N.J.S.A. 2C:11-4b(2)). "'Passion/provocation manslaughter involves the same purposeful or knowing culpability requirement [as murder], as it involves what otherwise would be murder but for its being'" carried out in the heat of passion following a reasonable provocation. Id. at 227 (quoting State v. Pridgen, 245 N.J. Super. 239, 251 (App. Div.), certif. denied, 126 N.J. 327 (1991)).
Passion/provocation manslaughter has four elements: (1) "the provocation must be adequate;" (2) there must not have been time for defendant to cool off "between the provocation and the slaying;" (3) defendant must have actually been impassioned by the provocation; and (4) "defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990); Noble, supra, 398 N.J. Super. at 596-97. "The first two elements are objective, and the last two are subjective." Noble, supra, 398 N.J. Super. at 597.*fn2
The threshold "adequate provocation" element addresses:
"whether [or not] loss of self-control is a reasonable reaction. If no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person, the trial court should withhold the charge."
[Ibid. (quoting Mauricio, supra, 117 N.J. at 412).]*fn3
In other words, the provocation, when viewed from an objective standard, must be "sufficient to arouse the passions of an ordinary [person] beyond the power of his control." State v. King, 37 N.J. 285, 301-02 (1962). And "[t]he provocation must be severe enough [so] that the 'intentional homicide may be as much attributable to the extraordinary nature of the situation as to the moral depravity of the actor.'" Mauricio, supra, 117 N.J. at 412 (quoting Model Penal Code § 210.3 cmt.).
In this regard, "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." State v. Crisantos (Arriagas), 102 N.J. 265, 274 (1986). On the other hand, a threat with a gun or knife might amount to adequate provocation. Mauricio, supra, 117 N.J. at 414; State v. Powell, 84 N.J. 305, 320 (1980).
Battery also "has traditionally been considered... to be sufficiently provocative." Mauricio, supra, 117 N.J. at 414. Even "mutual combat[,] under certain circumstances[,] could constitute adequate provocation to reduce murder to manslaughter." Crisantos, supra, 102 N.J. at 274; State v. Darrian, 255 N.J. Super. 435, 449 (App. Div.), certif. denied, 130 N.J. 13 (1992). However, "to reduce the offense from murder to manslaughter the contest must have been waged on equal terms and no unfair advantage taken of the deceased." Crisantos, supra, 102 N.J. at 274. In other words, "the provocation must be proportionate to the manner of retaliation...." Darrian, supra, 255 N.J. Super. at 449. Whether the victim started the fight is not dispositive. Where the defendant attacks the victim "with violence out of proportion to the provocation, the crime is murder." Ibid. (citing Crisantos, supra, 102 N.J. at 280 n.12). Stated somewhat differently, "[t]he offense is not manslaughter but murder where the defendant alone was armed; and took an unfair advantage of the deceased." Crisantos, supra, 102 N.J. at 274-75.
Another authority expresses the same rule in these terms: "But if a person, under color of fighting on equal terms, kills the other with a deadly weapon which he used from the beginning or concealed on his person from the beginning, the homicide constitutes murder. [Id. at 275 (citations omitted, emphasis added).]
See also State v. Ruscingno, 217 N.J. Super. 467, 473 (App. Div.), certif. denied, 108 N.J. 210 (1987); State v. Copling, 326 N.J. Super. 417, 430 (App. Div. 1999) ("where there is voluntary combat, if the defendant alone is armed and takes unfair advantage of the victim, the offense is murder rather than passion-provocation manslaughter"), certif. denied, 164 N.J. 189 (2000).
Thus, in State v. Oglesby, 122 N.J. 522 (1991), the evidence was sufficient to allow jury consideration of adequate provocation where the defendant was guilty of murdering his son's mother, with whom defendant had a tumultuous relationship for eight years, but who had been slashed and stabbed fifty times with three knives. Controverted evidence suggested that the victim hit defendant before he killed her. In rejecting defendant's claim that he was entitled to a jury charge on passion/provocation manslaughter, the court stated that even if the victim struck defendant, "we cannot hold that the jury should have been allowed to find that a single blow by an unarmed woman could have aroused the passions of an ordinary man beyond the power of his control." Id. at 536.
Similarly, in Crisantos, supra, a fifty-four year old unemployed, inebriated victim was robbed and murdered while heading home. 102 N.J. at 267. The State's evidence showed that defendant and a second assailant attacked the victim, immobilized him by breaking his ankle, and then robbed him.
Ibid. When another person approached, the attackers hid nearby.
Ibid. After the person left to call the police, the defendant and his confederate jumped on top of the victim, stabbing him repeatedly. Id. at 268. The defendant's account was that the victim provoked a fight by calling them names and ethnic epithets and then began a physical altercation during which he was stabbed. Id. at 268-69. Characterizing defendant's version as describing a "gross mismatch, an older inebriated man against two younger men, at least one armed with a knife," the court found no evidence of passion or extreme emotional disturbance. Id. at 279-80.
On the other hand, the Court in Mauricio, supra, found a passion/provocation manslaughter charge should have been given where there was evidence that defendant was engaged in two violent physical confrontations with a bouncer in the space of approximately twenty minutes, and that less than half an hour elapsed between the last confrontation and the time the defendant shot the victim in the mistaken belief that the victim was the bouncer. 117 N.J. at 414-15. In Mauricio, however, unlike here, the defense counsel affirmatively requested a passion/provocation manslaughter charge, and therefore, the Court's inquiry was limited to whether there was a rational basis in the evidence for such an instruction. Id. at 417-18. There, the rational basis consisted of evidence that [d]uring the first confrontation[,] the bouncer pushed the defendant[,] who fell and hit his head on the floor. He was then physically pushed out the door.
The second incident was even more violent.
The defendant returned to the bar and tried to pull the door open[,] but [the bouncer] held it shut. [The bouncer] then forcefully opened the door, slamming and pinning the defendant to the wall. [The bouncer] appeared to be "madder" at the defendant than he was the first time. [The bouncer] then forcefully "pinned" the defendant, and kicked him. [Id. at 414.]
In Robinson, supra, the victim, the first aggressor in this case, encountered the defendant late at night on the street. 136 N.J. at 479. The victim believed that defendant owed him money. Ibid. The victim approached the defendant, telling him that he wanted his money, and if the defendant failed to pay, the victim was "going to hurt him." Ibid. Shortly thereafter, the victim again met up with defendant and repeated his demand. Ibid. This provoked an argument, wherein the victim, "a boxer, punched defendant once extremely hard on the nose and mouth, and defendant 'buckled' and 'staggered back.'" Ibid. The victim ceased his attack, fearing he would cause severe injury, and instead told defendant that he must repay soon or the victim would "'really' hurt him." Id. at 479-80. The victim then turned and walked away. Id. at 480. Shortly after the victim turned, defendant opened fire with a handgun, wounding the victim several times. Ibid. Despite his wounds, the victim survived.
After finding that attempted passion/provocation manslaughter was cognizable under the Criminal Code, the Court determined that the facts of this case supported an attempted passion/provocation charge. Citing to Mauricio, the Court ruled that "in view of [the victim's] admittedly powerful blow to defendant's face, we agree that the facts clearly indicate the objective adequacy of the provocation." Id. at 492. After finding that defendant had insufficient time to cool, the Court determined that "the evidence was indeed sufficient to mandate a sua sponte charge to the jury on attempted passion/provocation manslaughter." Ibid.
The present matter is clearly distinguishable from both Mauricio and Robinson. First, unlike Mauricio, defense counsel here expressly opposed a passion/provocation manslaughter charge. Thus, to have so charged the jury sua sponte, the trial court had to find the threshold element of "adequate provocation" was "clearly indicated" by the evidence. Noble, supra, 398 N.J. Super. at 596. Second, the evidence here is significantly different from Mauricio and Robinson, and in our view, does not "clearly indicate" the appropriateness of such a charge. In Robinson, the victim, a boxer, punched the defendant after the two began to argue about an unpaid debt. The victim followed this punch with a threat of further violence, suggesting severe bodily harm or perhaps worse. In Mauricio, there were repeated acts of physical violence against the defendant.
Here, it is undisputed that the encounter with Simon was instigated by an angry defendant, who walked into the tavern and headed straight for the victim seated at the bar. By all accounts, in the struggle that immediately ensued, defendant alone was armed. In that fight, which endured for only a short time, defendant pressed the concealed gun he was carrying tightly to the victim's head and fired at point blank range. Even with Boyd entering the fray, such fleeting unarmed action could not have aroused the passions of an ordinary man beyond the power of his control. Indeed, his cold-hearted remark upon fleeing the scene left no doubt that defendant's actions were both purposeful and bereft of passion or emotion.
In any event, putting a gun to the victim's head and firing it at point blank range was violence far out of proportion to any such provocation, even if one were to speculate that the victim might have somehow provoked defendant. Thus, it cannot be said that defendant, in bringing a gun into the Oasis Bar, engaged in mutual combat on "equal terms." Crisantos, supra, 102 N.J. at 274-75. No jury could rationally conclude that "the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person." Noble, supra, 398 N.J. Super. at 597.
Under the circumstances, we conclude that the evidence, viewed most favorably to defendant, ibid., does not support a passion/provocation manslaughter charge, much less "clearly indicate" the appropriateness of such a charge. We therefore find no error in the trial court's refusal to sua sponte instruct the jury on passion/provocation manslaughter.
We also find no warrant for interference with the sentence imposed. The sentencing range for defendant's crime, knowing and purposeful murder under N.J.S.A. 2C:11-3a(1) and (2), was thirty years to life. N.J.S.A. 2C:11-3b(1). He received a forty-five year prison term, with an eighty-five percent parole bar pursuant to N.J.S.A. 2C:43-7.2a. The forty-five year sentence was within the sentencing range, and the parole ineligibility period was mandatory under NERA. In imposing this sentence, the court found aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1b(3), (6), and (9), which are adequately supported in the record, namely by defendant's extensive criminal history, the seriousness of his offense, his consistent denial of involvement, and lack of remorse. Weighed against these considerations is the lack of any mitigating factors, which the court also properly determined. Thus, defendant's sentence does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).