On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-09-1510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007 -- Decided Reversed and Remanded by Supreme Court December 29, 2009 -- Decided Before Judges Stern, A. A. Rodriguez and C. S. Fisher.
This matter is now before us on a reversal of our judgment and a remand from the Supreme Court. See State v. Chippero, 201 N.J. 14 (2009) (Chippero II). Because we concluded in our first opinion that defendant Richard Chippero's convictions stemming from the July 23, 1991 homicide of Ermina Rose Tocci should be reversed, we did not address certain contentions. The Supreme Court, in reversing, has directed us to address those contentions. After a careful review we affirm.
The facts and procedural background are set out in the Supreme Court's decision and ours, and need not be restated at length here. In order to provide context, the testimony of some witnesses is summarized as part of the discussion.
THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT AND THE COURT IMPROPERLY RESPONDED TO JURY REQUESTS FOR CLARIFICATION.
In addition to his contention regarding the entire charge, the defendant challenges several specific portions of the jury charges. We disagree.
The Lesser-Included Offenses Charge
At the charge conference, defendant asked for a reckless manslaughter charge, arguing that the element of recklessness or intent was a jury question. The State objected. Focusing on the number of stab wounds to Tocci's neck, the judge ruled that there was no rational basis to charge the jury on aggravated or reckless manslaughter.
Aggravated manslaughter is a criminal homicide wherein "the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). Second degree reckless manslaughter is a criminal homicide "committed recklessly." N.J.S.A. 2C:11-4(b)(1). The crime is aggravated manslaughter if the risk of death is a probability, and reckless manslaughter if the risk of death is a possibility. State v. Breakiron, 108 N.J. 591, 605 (1987).
"In general, when a lesser-included offense charge is requested by a defendant, the trial court is obligated, in view of the defendant's interest, to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense." State v. Sloane, 111 N.J. 293, 299 (1988); N.J.S.A. 2C:1-8(e). The "rational basis" test of N.J.S.A. 2C:1-8(e) "imposes a low threshold . . . for permitting a charge on a lesser-included offense." State v. Crisantos, 102 N.J. 265, 278 (1986).
However, "sheer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994). The lesser- included charge must be given if the proofs leave any room for dispute. Crisantos, supra, 102 N.J. at 278; State v. Sinclair, 49 N.J. 525, 542 (1967). It is only when "instructing a jury on a lesser-included offense would be so unanticipated by either party as to cause complete surprise, or so inconsistent with the defense as to undermine the fairness of the proceedings," that "the trial court may depart from this general rule . . . ." State v. Garron, 177 N.J. 147, 180-81 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).
On appeal, defendant does not explain the basis for his argument. Instead, he cites to two civil, out-of-state cases that discuss circumstantial evidence and speculation as support for the requested charge.*fn1 Defendant, also relies on United States v. trial court gave a similar instruction to the jury in that case and was reversed.
Based on a careful review of the briefs and the evidence judged against the applicable standards, we conclude that the judge correctly determined that the trial record, viewed as a whole, did not support giving to the jury the lesser-included charges as aggravated and reckless manslaughter. No evidence was presented on the state of mind of the killer. Moreover, we conclude that Fegles, Olympia and Glenn provide no support for defendant's argument.
Defendant also argues that the judge's charges on credibility and motive "went beyond the model charges and were improper." The record reveals that the judge first acknowledged that it was the jury's province to judge the credibility of witnesses. Discussing the use of prior inconsistent statements, the judge instructed that witnesses were testifying as to events that happened almost twelve years earlier. He said, "don't judge a witness's testimony more harshly than you would judge your own testimony" because it is hard to remember what happened that long ago. After the charge, but before deliberations, defendant objected. The judge then instructed the jury that: when you consider any inconsistencies you should first consider the extent to which any inconsistency is really material or important to the issues in this case. And once you reach that determination, you may then consider all of the factors surrounding the inconsistent statements . . . . It is for you to decide the ultimate credibility of the witnesses and whether a prior statement that was made, no matter when or how long ago it was made . . . is more credible or less credible.
At the request of the parties, the judge also repeated the State's contentions as to witness Kevin McMenemy's observation on the day of the murder.*fn2 The judge also repeated defendant's two alternate contentions: that McMenemy did not see defendant; and if it was defendant, he was not doing anything wrong.
We conclude that, even if the judge erred in instructing the jury to not judge the witnesses' testimony more harshly than they would judge themselves, the curative instructions given by the judge were sufficient to explain the jury's proper role in examining prior inconsistent statements. This instruction, read together with the rest of the charge adequately informed the jury of its function in assessing and weighing credibility. State v. Thompson, 59 N.J. 396, 411 (1971). Focusing on just the portion alleged as error is not appropriate. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Walker, 322 N.J. Super. 535, 546-53 (App. Div.), certif. denied, 162 N.J. 487 (1999).
The judge instructed that the State was not obligated to prove a motive; and, that if the State has proved all of the elements of the offense, the jury must find defendant guilty: regardless of his motive or lack of motive.
But, . . . you may consider [evidence of motive] insofar as it gives meaning to other circumstances. On the other hand, you may consider the absence of motive in weighing whether or not [defendant] is guilty of the crime charged.
Defendant challenges this instruction without explaining why the instruction was misleading. Nor does defendant cite any resulting prejudice from the charge.
Use Of The Term "Perpetrator"
The judge used the term "perpetrator" in reviewing McMenemy's testimony. Defendant argues that this effectively negated defendant's alternate theory that even if McMenemy did see defendant walking into his home, it did not mean that he committed the murder.
We perceive no error with respect to the use of the neutral term "perpetrator" by the judge. That term does not translate into "the defendant in this case."
The Search Warrant Charge
The judge instructed the jury that "the fact that a search warrant was issued is not evidence of guilt . . . [nor] a lack of guilt. A search warrant is nothing more than an order from a judge allowing a search of a particular place for particular items." Defendant challenges this instruction, but does not explain the basis for his objection. He argues that the purpose of this charge is to "negate any improper inference of guilt;" and the extra phrase, regarding lack of guilt, "undermined the salutary purpose of those charges."
We conclude that the instruction did not prejudice defendant. The judge merely neutralized the evidence about the search warrant.
The Sexual Assault Charge
Defendant also argues that the judge "badly mismanaged" the sexual assault charge by including the word "attempt." After the charge, defendant objected to the judge's use of the word "attempted" because defendant was not charged with attempted aggravated assault. In response, the judge advised the jury that defendant was not charged with attempting to commit any offense; and that in order to prove aggravated sexual assault, the State must prove that defendant engaged in sexual penetration.
In our view, the supplementary instruction cured any misstatement by the judge. It conforms to N.J.S.A. 2C:14-2(a)(3), which sets out the elements of aggravated sexual assault. Moreover, defendant was acquitted of aggravated sexual assault at the second trial. ...