February 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS T. GRAHAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-12-1637.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 7, 2011 - Decided Before Judges Lisa and Reisner.
Defendant, Marcus T. Graham, was charged with knowing or purposeful murder. His first trial ended in a mistrial because a witness revealed that defendant had previously been in prison. In his second trial, the jury found defendant not guilty of murder, or the lesser-included offenses of passion/provocation manslaughter or aggravated manslaughter, but found him guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). The judge sentenced defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1b (the so-called "Three Strikes Law") of sixteen years imprisonment, subject to an 85% parole disqualifier and three years parole supervision, under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant argues on appeal:
THE JUDGE ERRED IN ORDERING THE MISTRIAL WHICH DEFENDANT PERSONALLY DID NOT WANT AND DEFEN[S]E COUNSEL WAS WRONG IN NOT SUPPORTING MR. GRAHAM'S DECISION TO WAIVE ANY OBJECTION TO THE INFORMATION IMPROPERLY BEFORE THE JURY. (Partially raised below). POINT II
THE JUDGE'S FAILURE TO EXPLAIN DEFENDANT'S THEORY OF CAUSATION AND TO CLEARLY DISTINGUISH BETWEEN CAUSATION AS APPLIED TO PURPOSEFUL OR KNOWING CONDUCT AND CAUSATION AS APPLIED TO RECKLESS CONDUCT MAY HAVE CAUSED THE JURY TO NOT CONSIDER CAUSATION AS TO RECKLESS CONDUCT. (Not Raised Below).
THE 16-YEAR EXTENDED TERM SENTENCE IMPOSED ON MR. GRAHAM WAS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
We reject these arguments and affirm.
On August 19, 2003, at about 1:00 a.m., defendant and Thomas Jackson argued outside defendant's home in Mount Holly. Several other individuals were present. According to one witness, one of the other individuals possessed a knife. Defendant went over to that individual, who handed defendant something. Defendant then turned toward Jackson, who began to run but fell over and was lying on his back. Defendant stood at Jackson's feet. Jackson kicked at defendant from the ground, and defendant made several striking motions toward Jackson's legs. Jackson was stabbed twice in the thigh, just above the knee. One of the wounds severed a major artery.
Emergency responders arrived. Because of the severity of the injury, they decided it would be advisable to call for a helicopter to airlift Jackson to Cooper Hospital in Camden. However, while waiting for the helicopter, the emergency responders determined that Jackson's condition was deteriorating and he had gone into cardiac arrest. As a result, the emergency responders canceled the helicopter and transported Jackson to a nearby local hospital, where he was pronounced dead at about 2:15 a.m. He had bled to death as a result of the severance of the artery.
At defendant's first trial, which began on March 20, 2007, the State called as one of its witnesses Jackson's sister, Carol Reed. During cross-examination, defense counsel asked Reed whether, over the last twenty years, she had heard defendant referred to by the nickname "Knowledge." She responded: "When [defendant] got out of prison, that's when I heard other people call him Knowledge. Growing up, I never heard nobody call him Knowledge."
Defense counsel immediately asked for a sidebar conference and moved for a mistrial. The prosecutor objected, urging the court to give the jury a curative instruction and continue with the trial. The judge excused the jury and heard further argument, after which she took a recess for about twenty minutes. When the judge returned to the bench, she announced her decision. She agreed with defense counsel's position, namely that a curative instruction could not effectively eliminate the prejudice to defendant and that defendant could not receive a fair trial before the empanelled jury. She therefore granted defendant's mistrial motion.
Defense counsel then advised the court that defendant did not want a mistrial. More particularly, counsel said this:
Obviously, I brought the motion. I thought it was an appropriate motion. Mr. Graham is telling me he's objecting to me bringing the motion. I think based on Your Honor's ruling obviously there's so much prejudice it would affect the fairness of the trial, I don't know whether he, his not wanting the motion to be pursued is something that should be considered.
The judge declined to change her ruling, stating that she adhered to the extensive reasons she had just expressed for ordering a mistrial.
Prior to commencement of the second trial on April 8, 2008,*fn1 the court considered defendant's motion to dismiss the indictment on double jeopardy grounds. The judge was satisfied that Reed's statement revealing that defendant had been in prison was non-responsive to the question posed to her, and was not elicited by or within the reasonable contemplation of counsel for either side. Accordingly, there was no basis for dismissal. A second jury was empanelled and the trial proceeded. Evidence was produced establishing the facts that we have summarized, and defendant was found guilty of reckless manslaughter.
Defendant now argues that the court erred by declaring a mistrial when defendant wanted to continue with the trial before the first jury. He now contends that the decision whether to seek a mistrial was his alone, not his attorney's, and the judge should have honored his request to not declare a mistrial. We find this argument unpersuasive.
"Where the court finds a sufficient legal reason and manifest necessity to terminate a trial, the defendant's right to have his initial trial completed is subordinated to the public's interest in fair trials and reliable judgments." State v. Loyal, 164 N.J. 418, 435 (2000) (citing Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974, 978 (1949)). Determining whether manifest necessity or the ends of public justice require the court to declare a mistrial depends on the unique facts of the case and the sound discretion of the court. Ibid. As the United States Supreme Court noted, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165 (1824).
Accordingly, a trial court has wide discretion in granting a mistrial. Loyal, supra, 164 N.J. at 436. "Where a trial court declares a mistrial because of a substantial concern that the trial's result may be tainted, 'the trial judge's determination is entitled to special respect.'" Ibid. (quoting Arizona v. Washington, 434 U.S. 497, 510, 98 S. Ct. 824, 833, 54 L. Ed. 2d 717, 731 (1978)). In State v. Rechtschaffer, 70 N.J. 395 (1976), our Supreme Court discussed federal precedent that established standards to determine whether declaration of mistrial was proper:
The common threads that run through the [U.S.] Supreme Court cases are centered about the propriety of the trial court's granting sua sponte the mistrial and its cause. Did the trial court properly exercise its discretion so that a mistrial was justified? Did it have a viable alternative? If justified, what circumstances created the situation? Was it due to prosecutorial or defense misconduct?
Will a second trial accord with the ends of public justice and with proper judicial administration? Will the defendant be prejudiced by a second trial, and if so, to what extent? [Id. at 410-11 (citation omitted).]
These broad principles guide our analysis of what transpired in this case. When evidence is presented at trial establishing that a defendant has a prior conviction, there is a danger that the evidence will prejudice the defendant and taint a jury's verdict. See State v. Brunson, 132 N.J. 377, 384 (1993). Brunson noted that evidence of other crimes has the tendency to turn a jury against a defendant. Ibid. "The prejudice inherent in other-crimes evidence, even when it is probative of a fact in issue, is that a jury, on hearing that evidence, may be influenced to return a guilty verdict because it considers the defendant to be a criminal." Ibid. And, although courts try to limit the prejudicial impact of prior convictions by the use of limiting instructions, knowing that their criminal record will be revealed if they testify, "criminal defendants often choose not to testify in order to keep the prior-conviction evidence from the jury." Id. at 385.
The trial court's exercise of discretion in granting the mistrial in this case is unassailable. Defendant does not argue otherwise. Carrying defendant's argument to its logical conclusion would require that the trial judge, after making a thorough and reasoned decision that defendant could not receive a fair trial before this jury, should have allowed defendant to receive an unfair trial. Indeed, in informing the court that defendant did not want a mistrial, defendant's counsel made clear that he did not agree and was not advancing his client's ill-advised position. It does not escape our attention that the court was not informed of defendant's position until after she announced her decision, which followed a twenty-minute recess. There was no error in granting the mistrial.
We next address defendant's argument that the jury instructions on causation were deficient. In his summation, defense counsel argued that the State failed to prove beyond a reasonable doubt that it was defendant, and not someone else at the scene, who stabbed Jackson. Counsel also argued that, even if defendant did inflict the stab wounds, the jury should consider other alternatives as to causation within the framework of criminal culpability. Defense counsel had foreshadowed these arguments in his opening statement when he suggested that the jurors ask themselves whether "an injury about four inches above the knee to the thigh [is one] that you would normally consider to be life threatening."
Then, in summation, defense counsel addressed his causation arguments more extensively. He suggested that the inappropriate medical treatment rendered at the scene and the delay in getting the victim to the hospital was the true cause of the victim's death. He further urged that because the victim had cocaine in his system it caused him to bleed more rapidly than normal, and that was the true cause of death. Finally, making reference to a phrase from the old cowboy movies, he suggested that whoever stabbed Jackson in the leg only meant to "wing him," and that "a reasonable person wouldn't think that they could kill somebody by stabbing them in the leg."
Defendant now argues, for the first time, that the jury instructions on causation were inadequate and constitute plain error. He contends that the judge did not sufficiently distinguish between the causation principles dealing with knowing or purposeful conduct and reckless conduct. He further argues that the judge erred by not providing the jury a summary of the contrasting factual theories urged by each side with respect to causation. We do not agree.
The judge gave the expanded charges, following the model jury instructions, as to causation with respect to knowing or purposeful conduct and with respect to reckless conduct. More specifically, as to murder, the judge instructed the jury as follows:
Causation has a special meaning under the law. To establish causation the State must prove two elements, each beyond a reasonable doubt: first, that but for defendant's conduct Thomas Jackson would not have died, second, Thomas Jackson's death must have been within the design or contemplation of the defendant; if not, it must involve the same kind of injury or harm as that designed or contemplated and must also not be too remote, to[o] accidental in its occurrence or too dependant on another's volitional act to have a just bearing on defendant's liability or on the gravity of his offense. In other words, the State must prove beyond a reasonable doubt that Mr. Jackson's death was not so unexpected or unusual that it would be unjust to find the defendant guilty of murder. [Emphasis added.]
With respect to aggravated manslaughter and manslaughter, the judge charged as follows:
Causation, as I have explained, has a special meaning under the law. To establish causation the State must prove two elements beyond a reasonable doubt; first, that but for the defendant's conduct Mr. Jackson would not have died, second, Mr. Jackson's death must have been within the risk of which defendant was aware; if not, it must involve the same kind of injury or harm as the probable result of defendant's conduct and must also not be too remote, to[o] accidental in its occurrence or too dependent upon another's volitional act to have a just bearing on defendant's liability or on the gravity of his offense. In other words, the State must prove beyond a reasonable doubt that Mr. Jackson's death was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated manslaughter. [Emphasis added.]
Where an error has not been brought to the trial court's attention, the reviewing court will not reverse on the ground of such error unless the appellant shows plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. In considering a jury charge, plain error is legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. [State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]
We find no error, let alone plain error, in the instructions given. The instructions correctly set forth the controlling legal principles on causation as required by State v. Martin,119 N.J. 2, 15 (1990). Further, this was not a lengthy trial, nor did it involve a complex fact pattern. There was no need for the judge to remind the jurors of the arguments they had just heard on the issue of causation. We are satisfied there was no deficiency in the jury instructions.
Finally, we address defendant's excessive sentence argument. Defendant concedes that he was subject to a mandatory extended term. The judge articulated extensive findings in support of the aggravating and mitigating factors found and the reasons for the sentence imposed. We are satisfied that the aggravating and mitigating factors found were based on competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines enunciated in the Code of Criminal Justice, and that the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215- 16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).