August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH PEARYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2010
Before Judges Wefing, Messano and LeWinn.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). His co-defendant, Anthony Pearyer, who is also defendant's brother, was charged in the same indictment with first-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Defendant and his brother were tried together to a jury in March 2007. The jury convicted defendant of the lesser-included offense of reckless manslaughter and the two weapons charges. On July 20, 2007, defendant was sentenced to an aggregate term of six years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The pertinent trial evidence may be summarized as follows. Bad blood existed between defendant and Dashaun Goines, the victim of the homicide in question. Defendant's former girlfriend, Kyra Johnson, was dating Goines and, according to her testimony, defendant and Goines did not get along.
On the night of March 5, 2005, defendant, his brother and several other individuals arrived at the Chez Maree nightclub in Plainfield. As this group attempted to enter the club, another entourage of men approached the entrance. Goines and his friend, Al-Rahman Stembridge, were among the group.
Shawn Adams, the bouncer at the nightclub, testified that he heard someone in Goines' group say "something" to defendant's group "and they just started fighting." Adams testified that defendant threw the first punch; however, Stembridge testified that "[s]omebody threw a punch over [defendant]."
A fracas broke out between the two groups. Adams testified that one fight involved defendant and his brother and Goines, adding that defendant and his brother were "just punching [Goines] all over the place, punching him and kicking him."
Kurt Donnell, a security officer on duty at the nightclub that night, observed the fight and testified that Goines "was the one getting beat up." He could not recall how many people were attacking Goines. Donnell interceded in the fight, assisted Goines to his feet and stated that initially he seemed alright. At that point, however, both Donnell and Adams observed blood on the back of Goines' shirt in the same area where Donnell had seen Goines being punched.
Goines refused medical attention. He shortly thereafter collapsed and later died in the hospital. No witness saw anyone stab Goines; nor did any witness describe any individual wielding a knife or any similar object. Defendant was observed running away after Donnell intervened and brought Goines to his feet.
The medical examiner testified that the cause of Goines' death was "[a] stab wound of his torso." She also observed a stab wound on Goines' right arm, "just below the elbow" as well as a "laceration, . . . an abrasion, and contusion on the top area of his head[,]" in addition to "two lacerations of his lower lip and a laceration on the inner aspect of his lower hip." According to the medical examiner, the wound to Goines' torso was consistent with a knife wound.
Following the arrest of defendant and his brother, forensic tests were conducted which concluded that blood found on co-defendant's jeans was that of Goines.
Defendant did not testify at trial; however, he presented four character witnesses who attested to his reputation as a law-abiding citizen in the community. Through defendant's attorney, the jury was informed that his defense was that he was not involved in the fight that led to Goines' death. Defense counsel told the jury in summation:
His Honor when he reads you the instructions, there's certain things if, as a matter of law, if there is a factual basis in the record, his Honor is constrained, even if it appears to be inconsistent with the defense, to give the legal instruction.
One such thing in this case is self-defense. I'm not arguing that [defendant] acted in self-defense. My position is [defendant] was not involved and did not do it . . . but because Al-Rahman Stembridge testified that Mr. Goines punched [defendant], his Honor is constrained as a matter of law for some other considerations which he'll explain to instruct you with respect to self-defense. So that you can discount whether or not if anything happened in this case and you can attribute it to him, that self-defense negates that . . . .
So [the judge] must give you full and complete jury instruction[s] and many of those jury instructions may seem to you to be inconsistent with that which [defense counsel] proposed as his defense, which is we didn't do it. . . . [I]t is our position [defendant] never had a knife, didn't stab anybody and nobody said he did.
The prosecutor, in summation, made numerous remarks that prompted objections by defense counsel. Regarding co-defendant, the prosecutor stated to the jury: "here are . . . reasons that you know that Anthony Pearyer was in that fight that night: was there any explanation whatsoever as to how the victim's DNA ended up on these jeans? No, none." The judge sustained counsel's objection and told the jury: "There's no requirement for a defendant to say anything at all or, obviously, to testify. So the reference that there's no explanation is improper. Therefore, it must be struck from the record and you must disregard same."
The prosecutor then stated, "there's nobody, nobody that says that anybody else came up there and stuck a knife in [Goines'] back." The trial judge overruled defendant's objection to this statement.
The prosecutor told the jury, "[y]ou heard [defense counsel] talk to you about self-defense[,]" whereupon defense counsel objected, noting that he "didn't talk about that." The prosecutor continued:
[T]he facts in this case, all of them, prove that Anthony Pearyer had the victim's blood on his pants and that he is guilty of aggravated assault.
And then the same way that he had the blood on his pants, Anthony had the blood on his pants, this man, [defendant], still has that man's blood not in a physical sense but in a very literal sense.
Defense counsel objected; the judge sustained the objection and "struck" that comment "from the record."
The prosecutor also told the jury that defendant and his brother "fle[d]; one in [a] limousine toward Route 22, the other one [defendant] back around into a parking lot and gone. Only three days later he is arrested." Counsel objected; a sidebar followed and the prosecutor then told the jury it could consider flight as "consciousness of [defendant's] guilt."
At the conclusion of the State's summation, before adjourning for the evening, the judge gave the following curative instruction to the jury:
A few things before you go home. . . . .
[T]here is no duty upon a defendant to make any comment at all vis-à-vis statements as to what they did or what they would have done. I told you before that the prosecutor's comment regarding you have not heard a response to these inquiries is an improper comment by him because everyone, the two defendants here, you and me, have the right to remain totally mum and say nothing at all and we are presumed innocent until the charges have been proven beyond a reasonable doubt. There's no requirement and you may not consider at all that the defendants said anything about a particular response.
We had a lot of discussion about what the lawyers remember. They are not controlling upon you at all. . . . Ultimately, [twelve] who decide must decide the case based on your recollection of the facts that you think are true or not true on the issue of identification and all other issues before you.
The following morning, prior to the charge, the trial judge, sua sponte, made several comments to the jury about the objections defendant had raised to the State's summation. The judge first addressed the prosecutor's comments regarding defendant's failure to explain where the blood on co-defendant's jeans came from:
It was improper because it went into two areas of constitutional rights that the defendant has. One, the right to remain silent which, of course, everyone has. He cannot be compelled to say why or how or that type of thing and, two, everyone, and you have been told by me many times, is presumed innocent and that presumption is effective when the charges are brought and remains effective through the trial unless the State proves the allegations beyond a reasonable doubt.
In addition to that, the burden is only upon the State in this arena. There is no burden on the defense to do anything. They are not required to ask a question, to propound a particular witness before you or anything of that type. So to the extent that [the State] perhaps called upon the defense to do something, it was an improper comment and, again, you must disregard it totally and pay no attention to it for your deliberations at all.
The trial judge next addressed the prosecutor's reference in summation to defendant's flight:
[T]he legal flight pertains to [defendant] only at the scene of the crime. That is to say, allegedly leaving the front where the event occurred and running apparently around allegedly to the back towards the cars. There is nothing in the record before us to say that he is trying to avoid the police between the 6th of March until he was arrested on the 9th.
To the extent there was a reference to where he was, perhaps, that was an improper reference and is struck from the record.
During its deliberations, the jury asked the judge to explain the law on reckless manslaughter. After instructing the jury on this charge, the judge told it to "take these instructions on . . . reckless manslaughter . . . together with all the other instructions [the judge] gave [to]" the jury. Defendant raised no objection to this instruction.
The court re-instructed the jury on reckless manslaughter on the following day and explained, "[w]hen applied to those offenses in Count One, self-defense requires the defendant to have an honest and reasonable belief in the need to use force."
On appeal, defendant raises the following issues for our consideration:
POINT I The Trial Court Committed Plain Error Because It did Not Clearly Inform The Jury That The Defense Of Self-Defense Applied To Reckless Manslaughter (Not Raised Below)
i. The Defense of Self-Protection
ii. General Law As To Jury Instructions
iii. This Court Must Reverse
POINT II The Prosecutor's Statements In His Summation Denied Appellant A Fair Trial
A. Pertinent Facts
B. Applicable Law
i. Comment on Failure to Testify And Transfer of the Burden of Proof
ii. Appeal to Emotions and Sympathy
iii. Call to Arms
C. This Court Must Reverse.
Having reviewed these contentions in light of record, we conclude that they do not warrant reversal of defendant's convictions.
Defendant's first argument respecting the jury charge is raised as plain error as no objection was lodged at trial. Having reviewed that charge in its entirety, we are satisfied that this claimed error was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.
Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The charge must be read as a whole in determining whether there was any error. [State v. Torres, 183 N.J. 554, 564 (2005) (citation omitted).]
See also State v. Wilbely, 63 N.J. 420, 422 (1973) ("Portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect").
We note initially the anomaly of defendant raising this argument, since he expressly eschewed self-defense as a defense at trial; defense counsel informed the jury of this on several occasions in his summation.
In any event, we are satisfied that the trial judge's failure to charge the jury specifically regarding self-defense when he re-instructed them on the lesser-included offense of reckless manslaughter was not error. During his initial instructions to the jury, the judge extensively discussed all of the parameters pertinent to self-defense. In giving this instruction, the judge referenced defense counsel's summation comments to the effect that defendant "was not there[,]" but advised the jury that he "ha[d] a duty to give the law that in [his] view comes forward to you and you have the right to consider same."
The judge's initial charge on self-defense started with his reminder to the jury that "the indictment charges [defendant] with the charge of obviously homicide." A thorough and comprehensive explanation of self-defense followed this statement.
Thereafter, on subsequent days as the jury deliberated and sought re-instruction on the lesser-included offense of reckless manslaughter, the trial judge reminded them to take those instructions "together with all the other instructions" he had given them. In fact, the judge reminded the jury during the course of his re-instructions that he had "[e]arlier . . . g[iven it] the law to self-defense as to Count One and lesser included charges." Clearly this served to remind the jury that they were to consider self-defense with respect to all of the "homicide" charges encompassed in the first count of the indictment.
Under the circumstances, we find no merit to defendant's contention that he "was convicted of reckless manslaughter only because he was deprived of the jury's intelligent consideration of the applicability of self-defense."
We briefly address defendant's contention respecting the prosecutor's comments in summation. Even were we to concur with defendant that some of the prosecutor's comments were "an inappropriate 'call to arms' and . . . an appeal to the jurors' emotions and sympathy[,]" as he contends, we are nonetheless satisfied that the trial judge effectively mitigated any prejudicial effect from such comments. The judge sustained most of defendant's objections and gave the jury curative instructions immediately at the conclusion of the prosecutor's summation and then again the following morning before commencing his instructions.
Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness . . .
"[A] prosecutor . . . must . . . refrain from any conduct lacking in the essentials of fair play, and where his conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered."
For those reasons, we gauge the consequences of prosecutorial misconduct or error differently. We "evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial" and conclude that "prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." . . . It is in that context that we consider defendant's prosecutorial misconduct or error claims. [State v. Wakefield, 190 N.J. 397, 436-38 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008) (citations omitted).]
In assessing whether the challenged comments meet this "so egregious" standard, "a reviewing court must 'consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" State v. Echols, 199 N.J. 344, 360 (2009).
Our review of the record convinces us that this was a hard-fought trial on both sides. Defendant vigorously cross-examined State witnesses and attacked their credibility in summation.
We are particularly impressed by the lengths to which the trial judge went in mitigating the effects of the prosecutor's summation upon the jury. Between the conclusion of the prosecutor's summation and the charge, the judge gave the jury two substantive instructions explaining what was improper in the summation and emphatically instructing them to ignore those comments.
Under the circumstances, we are satisfied that the prosecutor's summation comments did not deprive defendant of a fair trial. That right was zealously guarded by the trial judge in this case.
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