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State of New Jersey v. Lucius Wilkerson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LUCIUS WILKERSON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-00472.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Defendant Lucius Wilkerson was tried before a jury and convicted of second degree aggravated assault, N.J.S.A. 12-1(b)(1), as a lesser-included offense of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, and third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39- 4(d). After merging the two convictions, the court sentenced defendant to a term of ten years, with an eighty-five percent period of parole ineligibility and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed the mandatory fines and penalties.

In this appeal, defendant raises a number of arguments critical of the trial court: (1) the manner in which the court responded to questions posed by the jury; (2) attacking certain evidential rulings; (3) alleging reversible error in the manner the court instructed the jury on the law; (4) claiming the State failed to disclose exculpatory evidence; (5) suggesting the cumulative effect of these errors requires the reversal of his conviction; and, in the event these arguments do not prevail,

(6) asking us to vacate the sentence imposed by the court as excessive, requiring the case to be remanded for re-sentencing.

We affirm defendant's conviction but remand the matter for re-sentencing. We derive the following facts from the record developed before the trial court.

I

From 1997 to May 2008, defendant's stepdaughter Fanny Benjamin and her four children rented a single family house in Franklin Township, Somerset County, owned by defendant.

Benjamin had known defendant for thirty-seven years and considered him a father to her and a grandfather to her children. At the time of the incident that gave rise to this criminal case, Benjamin had been romantically involved with Reginald Walker for ten years, and he had fathered two of Benjamin's children, including a five-year-old boy.

By the end of May 2008, Benjamin had moved most of her personal items out of defendant's house and into her new residence in South Bound Brook. The only items remaining were a telephone and a disabled car parked in the driveway. The car was a source of tension between Benjamin and defendant, who had asked her twice to move it.

On Saturday, May 31, 2008, Benjamin's sister called her and told her to go to defendant's house and remove the car. Defendant was at the house when Benjamin arrived. According to Benjamin, defendant appeared "calm." They both soon left to find the man Benjamin claimed had agreed to take the car. Unfortunately, they were unable to locate this man.

Defendant told Benjamin to stay at the house while he went to get his son Rodney Wilkerson to help move the car. Benjamin testified that when defendant and Rodney returned, defendant started "raising his voice" and "cursing" at her. He told her "that he wanted [her] to move the damn car out of his yard now, just move the shit." According to Rodney, however, defendant's demeanor was "very, very calm." Rodney and defendant were able to push the car onto the neighbor's driveway without further incident. Rodney testified that when he left, the disagreement between Benjamin and defendant appeared settled.

Benjamin testified that Walker arrived a short time later with their five-year-old son whom defendant regarded as his grandson. Walker stopped his truck directly behind Benjamin's car that was parked in the driveway of the house. Benjamin stated that, by this point, defendant was standing in the street yelling at her. Walker got out of the truck, asked defendant why he was yelling, and told him not to talk to Benjamin in that manner. According to Benjamin, defendant "said okay[,] and he walked to [defendant's] car." Before defendant reached his car, however, defendant turned around, pulled out a small red-handled pocket knife, and headed towards Walker. Defendant pushed Benjamin out of the way when she tried to stop him. At this point, the five-year-old boy got out of Walker's truck, causing Benjamin to rush over to stop him from running into the street.

Walker then said to defendant: "[O]h, you want to cut me now," and put up his fists. The two men then swung at each other. Benjamin testified that "[defendant was] swinging with a knife, [and Walker was] swinging with punches." Walker was thirty-six years old, six-feet one-inch tall, and weighed 350 pounds; he was an elementary school teacher and a high school football coach. Defendant was sixty-one years old, five-feet eleven-inches tall, and weighed 217 pounds.

Defendant stabbed Walker in the right arm, but Walker kept "throwing punches." It was raining and both men fell onto the street. Defendant then stabbed Walker in the stomach and in the chest. When they both got up, Walker kept punching defendant until defendant fell again. Defendant rose, went to his car, and got a bat from the trunk. At this point, Benjamin saw Walker was bleeding and told him he needed to go to a hospital.

Walker drove himself and his son to St. Peter's Hospital, approximately six minutes away. Walker had been stabbed in his right shoulder, in the lower left side of his abdomen (which did not penetrate the abdomen itself), and in his upper abdomen just below his rib cage. This third wound pierced the right ventricle of his heart; it was deemed life-threatening and required surgery to repair. He also had smaller abrasions on his left arm. Despite his surgery, the injuries caused "anoxic brain damage" due to deprivation of oxygen. Walker is totally and permanently dependent on external medical devices for all of his bodily functions and responds only to pain.

II

Franklin Township Police Lieutenant Maurice Guglielmo responded to the scene of the altercation after Walker left to go to the hospital. Guglielmo saw defendant had a swollen and bruised lip, and his clothes were mussed and blood-stained. The injury to the lip required several stitches. Defendant told Guglielmo that Walker had punched him during an argument about rent. When Guglielmo advised defendant that Walker had been hospitalized, he responded: "I know I retaliated with a knife." Guglielmo removed "a small pocket knife" from defendant's person before taking him into custody. Defendant was calm and cooperative.

After informing defendant of his constitutional rights under Miranda*fn1 and obtaining a signed waiver of those rights, the police interrogated defendant about the incident. The interrogation was videotaped and transcribed; the court admitted both items into evidence at trial, and the videotaped statement was played to the jury. After describing the preliminary events that occurred between himself and Benjamin, defendant responded to questions concerning his altercation with Walker. Defendant gave the following account of what occurred:

POLICE INTERROGATOR: All right, you snapped.

DEFENDANT: I snapped I guess, that's all I know.

POLICE INTERROGATOR: He (Walker) was walking up on you; you're on your property, what happens then?

DEFENDANT: We went at it.

POLICE INTERROGATOR: You start swinging at each other?

DEFENDANT: Yeah.

POLICE INTERROGATOR: Or you grab a hold of each other; I wasn't there so you've got to tell me what happened.

DEFENDANT: I'll tell, I'll tell you the truth because you know, he's a big guy, I'm a big guy like I said I started walking away again and I snapped and then I reached in my pocket and I had a little work knife in my pocket a little knife like that.

POLICE INTERROGATOR: Like a Swiss army knife kind of thing?

DEFENDANT: Uh yeah, yes. I just grabbed it took it out and told him I wasn't playing and he put his dukes up like you know like Mohammad Ali or something and I wasn't playin[g] (inaudible) that's all I know. POLICE INTERROGATOR: All right. DEFENDANT: He was swinging at me and I was swinging at him, he hit me and I . . .

think the cops said he was in the hospital so I must have hit him.

POLICE INTERROGATOR: Okay, do you know how many times you hit him?

DEFENDANT: No I don't know I honestly don't.

POLICE INTERROGATOR: More than once? DEFENDANT: Honestly (Inaudible)

POLICE INTERROGATOR: And that's how you got the swollen lip [be]cause he punched you in the face?

DEFENDANT: He punched me; he punched me in the face yeah. (Inaudible) we were swinging he punched me and I was swinging at him so you know I connected the same time we connected.

POLICE INTERROGATOR: So you told him you weren't playing and he put his hands up like he was gonna fight you.

DEFENDANT: Yeah, yes.

POLICE INTERROGATOR: Did you guys say anything while you were fighting or was it just swinging at each other?

DEFENDANT: Just swinging, just swinging you know, just swinging (inaudible) say you know.

POLICE INTERROGATOR: Do you know where you hit him with the knife?

DEFENDANT: No, no I don't know I really don't because I guess you know (inaudible) he was swinging at me and I was swinging at him that's all I know. Did I hit him?

POLICE INTERROGATOR: Yeah you hit him with it.

DEFENDANT: Oh. So is he all right then? POLICE INTERROGATOR: Well yeah he went to the hospital . . . they admitted him, he's in a room you know they had to stitch him up a little bit.

DEFENDANT: Oh.

POLICE INTERROGATOR: But umm . . . DEFENDANT: We never had any problems or nothing like that.

POLICE INTERROGATOR: When you took the knife out what was your intention with taking the knife out that's what I'm really getting at here.

DEFENDANT: Well I was, I said I wanted the key and I wanted it today and he said a second time but I'm tired of you being mean to my (inaudible) and I said I know I raised this child you didn't raise her you know that was it I snapped, I started to walk away then I thought about it like I said, you're in front of my house.

POLICE INTERROGATOR: So you were [going to] walk away then you changed your mind. DEFENDANT: I changed my mind I guess [be]cause I was angry or whatever.

POLICE INTERROGATOR: You had the knife in your pants pocket?

DEFENDANT: (inaudible) you know, work with a knife on the job I just retired the first of this month.

POLICE INTERROGATOR: And we're talking abut that little red pocketknife.

DEFENDANT: (Inaudible) all it was. POLICE INTERROGATOR: So you say you snapped and took out the knife.

DEFENDANT: Yeah.

POLICE INTERROGATOR: Did you have it in your right hand, your left hand?

DEFENDANT: I'm right handed.

POLICE INTERROGATOR: And uh, do you know who swung first not that it makes much of a difference at this point but.[. .]

DEFENDANT: Umm he was motioned [sic] and I guess I went after him.

POLICE INTERROGATOR: You went after him. DEFENDANT: I guess, he made a motion like come on come on that's when I went after him.

III

Against this record, defendant now appeals, raising the following arguments:

POINT I

NUMEROUS DISCOVERY VIOLATIONS DENIED DEFENDANT THE ABILITY TO FULLY INVESTIGATE HIS CASE, THEREBY DENYING HIM DUE PROCESS AND A FAIR TRIAL.

POINT II THE TRIAL JUDGE ERRED IN ALLOWING CERTAIN PHOTOGRAPHS AND A "DAY IN THE LIFE" DVD INTO EVIDENCE TOGETHER WITH AN EPISODE WHERE A BAG MARKED "BLOODY VICTIM'S CLOTHING" WAS DISPLAYED IN FRONT OF THE JURY.

POINT III

THE TRIAL JUDGE ERRED IN NOT CHARGING THE LESSER INCLUDED OFFENSES OF FOURTH DEGREE AGGRAVATED ASSAULT AND SIMPLE ASSAULT.

POINT IV THE TRIAL JUDGE ERRED IN FAILING TO TAILOR THE MODEL JURY CHARGE FOR "JUSTIFICATION -SELF DEFENSE" TO THE FACTS OF THIS CASE, THEREBY RESULTING IN JURY CONFUSION AND BY FAILING TO INCLUDE A SPECIFIC QUESTION ON THE VERDICT SHEET FOR SELF DEFENSE.

POINT V THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN, IN RESPONSE TO A JURY QUESTION, HE ALLOWED THE PLAYING OF THE EYEWITNESS' STATEMENT TO THE POLICE, BUT CANCELLED THE READING OF HER TRIAL TESTIMONY.

POINT VI THE PROSECUTOR ACTED IMPROPERLY IN "VOUCHING" FOR THE ONLY EYEWITNESS DURING SUMMATION.

POINT VII THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT A REVERSAL AND A NEW TRIAL.

POINT VIII DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

We begin our discussion by addressing the alleged due process violations raised by defendant in Argument Point I. Benjamin was the first witness called by the State. Shortly after her direct examination began, Benjamin indicated that defendant's son Rodney had been at the house with her and defendant on the day of the incident. Defense counsel immediately objected and requested a mistrial, claiming that the prosecutor had never revealed Rodney's presence at the scene of the crime.*fn2

The prosecutor proffered to the court that Rodney had not witnessed the actual confrontation. Thus, the prosecutor argued, under Rule 3:13-3, the State was not obligated to disclose his name because he did not have information relevant to the case. Although the trial judge rejected the State's argument based on relevancy, he decided to conduct an N.J.R.E. 104 hearing to determine whether this discovery violation was prejudicial to defendant, and if so, what should be the appropriate remedy.

Benjamin, Rodney, a number of staff members from the Somerset County Prosecutor's Office, and several police officers testified at this hearing. From their testimony, a record developed showing the State did not disclose to defense counsel that: (1) Rodney was at the house to help Benjamin and defendant move the car, but had left before Walker arrived; (2) Benjamin and defendant had received death threats against them from members of Walker's family; (3) the prosecutor's investigators had taken several photographs of the area where the altercation occurred; (4) police officers at the hospital interviewed at least two neighbors who had come out of their house after the incident; (5) police officers sent to investigate the scene did not visit other houses on the street or interview the neighbors because it was raining; and (6) a number of police officers, prosecutor's investigators, and other State employees involved with the case had not taken notes or produced any reports about their findings or investigation.

Based on these findings, the trial judge asked defense counsel if he wanted a continuance "to dispatch an investigator to canvass the neighborhood or do whatever else you might have done had this information been available to you prior to trial." Defense counsel declined and indicated his willingness to proceed absent the court granting his motion for a mistrial.

The court found the State had violated its discovery obligations under Rule 3:13-3, but did not find a basis to conclude this was done intentionally or in bad faith. The court also found any prejudice caused to defendant by a timely disclosure of this information could be counteracted through curative instructions and by permitting defense counsel greater latitude in summation. Toward that end, the court addressed the jury directly in the following fashion:

I owe you some explanation as to what the hold up has been.*fn3 And to that end, I tell you that the existence of a person with potentially relevant information as to the event in question was made known to the defense only yesterday. And I had to determine whether that late disclosure had any impact on our ability to proceed with the trial. I have made that determination and I have determined that we will go forward and I expect you may well hear from that person.

[His] name is Rodney Wilkerson. Now I mention that to you because Rodney Wilkerson did not appear on your witness list. So I ask you now if any of you ladies and gentlemen know a Rodney Wilkerson from Franklin Township, Somerset County?

THE JURORS: No.

THE COURT: All right. Very good. Now, I also remind you that what the attorneys said in opening statement and remind you in advance that what they say in summation is not evidence. But I also need to advise you that there may have been other things said to you by counsel, particularly by [defense counsel], had the existence of Rodney Wilkerson and his potentially relevant information been made known to him before he made his opening statement. Nonetheless, it is now known to him and us, and I am sure you will hear whatever information he has to offer during the course of this trial, and I am confident you will hear comment on it during counsel's summation. Okay. Now, because I have taken the time to explain that to you, you should not attach any extra significance to that bit of information.

When and if any witness gets on the stand they will all be judged by the same criteria which I will explain to you in my jury charge. But I thought as a courtesy to you I could and should let you know what it is we have been doing for the better part of today and a substantial part of yesterday.

Defendant argues the court erred in denying his motion for a mistrial because these measures did not adequately counteract the prejudice caused by the State's discovery violations. We disagree.

A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence material to either his guilt or punishment. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 420 (1984) (citation omitted). Our courts have also held that a defendant has a constitutionally protected privilege to obtain all evidence material to either his guilt or innocence. State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985). Thus, the withholding of evidence favorable to a defendant constitutes a denial of due process and a denial of the right to a fair trial.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Accord State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999); State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000). Such exculpatory evidence includes not only directly exculpatory evidence but also evidence that may impeach the credibility of a State's witness. Russo, supra, 333 N.J. Super. at 134. It includes any evidence contained in the prosecution's files, even if not directly known to the prosecutor. Nelson, supra, 155 N.J. at 498.

In order to establish a Brady violation, a defendant must show that: (1) the State suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material. State v. Martini, 160 N.J. 248, 268 (1999). Evidence is material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; a 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 269 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Our Supreme Court has focused the analysis on determining whether the discovery violation undermined the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976). The test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant. Id. at 433-34. We applied and amplified this standard in State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001):

This is essentially the same standard that we have traditionally applied in determining whether a defense attorney's errors are so egregious as to amount to a Sixth Amendment violation. In applying this test where a conviction has followed a full trial, we assess the strength of the State's case, and determine whether introduction of the suppressed evidence would probably have changed the jury's verdict. While we have characterized that analytical process as somewhat "speculative," it is not too distant from the determination we are often required to make in deciding whether a trial judge's error was so harmful as to compel vitiation of a conviction. [Id. at 455 (citations omitted).]

Mindful of these principles, we conclude the measures taken by the trial court here adequately protected defendant's right to a fair trial. A great deal of the information withheld by the State was not material to defendant's case because the central issue here concerned the reasonableness of defendant's conduct. Other than defendant and Walker, Benjamin was the only person who witnessed the altercation and had direct competent evidence to offer on this subject. She was always available to defense counsel to interview before the trial commenced.

Defense counsel's ignorance of the nature and scope of her testimony before she took the witness stand was caused by his own failure to investigate the facts. Finally, defense counsel declined the court's invitation to adjourn the case to permit him to cure this deficiency. No denial of due process occurs when Brady material is disclosed in time for its effective use at trial by defense counsel. Martini, supra, 160 N.J. at 270 n.5; United States v. Higgs, 713 F.2d 39, 44 (3d. Cir. 1983), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984).

We next address defendant's argument challenging the court's admission of photographs depicting Walker post-confrontation, and videotape showing his current "lifeless" and "comatose" condition. Specifically, defense counsel objected to two photographs showing Walker with his eyes closed and videotape showing an investigator trying to get the non-responsive Walker to open his eyes. Overruling defense counsel's objection, the trial judge granted the State's motion in part, admitting the photographs and the video without the audio.

The court gave the following explanation in support of its ruling:

The evidence offered here will not demonstrate how the defendant committed the alleged crime, nor will it establish the injuries defendant allegedly inflicted, but it will only show the effect or effects of those injuries. The fact that the defendant committed serious bodily injury with a deadly weapon and that the defendant's conduct actually resulted in serious bodily injury may be used by the State to show that the defendant's conscious object was to cause the victim's death or to cause him serious bodily injury resulting in death. And even though the photographs of the victim depicted here are demonstrations of the results of the injury that the defendant inflicted and not the injuries themselves, that this attenuates the photograph[s'] probative value, it does not abrogate the probative value of this evidence.

And the photographs of this individual victim in a vegetative state are not particularly gruesome, and although the jury could erroneously infer the scars depicted were inflicted by defendant, presumably one or more witnesses at trial will explain these scars as being consequences of the surgical treatment of the defendant post event. And although there are other methods to show the victim's injuries that does not mean that the methods employed here or proposed here by the State to show the victim's injuries and to offer that evidence [is not] probative to the defendant's objective.

[I]t is the finding of the Court that [ ] the photographs here are not unduly prejudicial, and that finding includes the photographs objected to by the defendant and marked for identification as S-4 and S-7. Although they are of Mr. Walker with his eyes closed, and [defense counsel] suggests that that makes him look even worse than he is, that matter of degree is considered de minimis considering the vegetative state clearly depicted in these -- of Mr. Walker clearly depicted in these photos. So the State's motion as to the photographs will be granted.

As to the DVD, that video of the victim in the audio portion thereof is more than a depiction of Mr. Walker's current condition.

The inquiry made by the detectives and the comment thereon in regard to the victim's lack of response goes beyond a depiction of the victim and implicates matters beyond the means and methods employed by the state to establish its case and is unduly prejudicial. . . . If the audio is eliminated from the video the DVD does no more than the photographs do in terms of presentation of the State's proofs. In State versus Sanchez, the Appellate Division stated the fact that photographs may be cumulative evidence does not justify their exclusion.

Defense counsel did not respond when the trial judge asked him if he wanted the court to issue a limiting instruction before the photographs were published to the jury. These photographic exhibits were published to the jury on two separate days.

On appeal, defendant argues that the photographs and videotape were cumulative to the medical testimony from the physicians who treated Walker and described his current medical condition. Defendant also maintains this unfairly prejudiced his assertion of self-defense because it reinforced the State's theory that defendant was the initial aggressor because jurors are likely to have a visceral reaction against defendant based on the images depicted. Defendant also claims this prejudice was compounded when the prosecutor showed the jury the clothes Walker wore during the incident in an evidence bag labeled "bloody victim's clothing."

We address this issue mindful that "a trial court is afforded 'considerable latitude regarding the admission of evidence.'" State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). A trial court is vested with the discretionary authority to determine whether to admit photographs depicting the victim of a crime, and we will not interfere with the exercise of this discretion absent proof of palpable abuse thereof. State v. Thompson, 59 N.J. 396, 420 (1971). Stated differently, we will uphold a trial court's evidential rulings unless it is shown that the "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

That being said, photographs and videotapes "become inadmissible only when their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988); see also N.J.R.E. 403.

Relying on State v. Smith, 32 N.J. 501 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961), the State argues the videotape was properly admitted to show "the severity and intensity of the attack," to corroborate that defendant acted purposefully, and to establish that Walker sustained "serious bodily injury," which our criminal code defines as "bodily injury which creates a substantial risk of death." N.J.S.A. 2C:11-1(b). On this record, we cannot conclude that the trial court abused its discretion in admitting this evidence. The photographic evidence, including the videotape, graphically illustrate defendant's injuries and resulting physical state, key elements of both attempted murder and the lesser included offense of aggravated assault. The jury can consider this evidence as tangible depictions of the medical testimony describing Walker's injuries.

Defendant's remaining arguments attacking his conviction lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Given the seriousness of defendant's injuries, there was no rational basis for the court to charge the jury on the lesser-included offenses of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(2). See State v. Cassady, 198 N.J. 165, 177-78 (2009). The court correctly instructed the jury on the elements of self-defense, and the verdict sheet was not otherwise defective because it did not contain a specific interrogatory on this issue. State v. Branch, 301 N.J. Super. 307, 328 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). There were also no grounds to question the propriety of the prosecutor's remarks during summation or in the manner the court responded to the jury's request for a read back of certain testimony.

IV

With respect to the sentence imposed by the court, however, we are compelled to remand this matter for re-sentencing.

After reviewing the pre-sentence investigation report and considering the arguments of counsel, including defendant's statement, the court found aggravating factors one, two, three, and nine applied. N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9).

Although the judge did not give an oral explanation for finding these aggravating factors applied, he attached a written statement of reasons to the judgment of conviction in which he indicated that aggravating factor one applied because defendant could have walked away, and the matter would have ended there.

Instead you stopped (saying you "just lost it"), pulled a knife from your pocket and repeatedly stabbed Mr. Walker, rendering him to a vegetative condition in which he cannot eat, breathe or eliminate waste on his own.

He cannot move or communicate. He is awake, but not in a conscious, knowing state.

The court did not provide any reasons explaining the applicability of the remaining aggravating factors. As to mitigating factors, the court only found mitigating factor seven applied: defendant did not have a previous record, and had lived a law-abiding life for a substantial period of time. N.J.S.A. 2C:44-1(b)(7). Against these findings, the court found the aggravating factors clearly and substantially outweighed the one mitigating factor and imposed the maximum ordinary term sentence for a second degree crime.

A trial judge "shall" state his or her reasons for imposing a sentence in a criminal case. N.J.S.A. 2C:43-2(e); R. 3:21-4(g). A mere enumeration of the aggravating and mitigating factors is insufficient. State v. Kruse, 105 N.J. 354, 363 (1987). We thus remand for the judge to comply with this statutory mandate. We also find no basis to conclude aggravating factors one and two apply. N.J.S.A. 2C:44-1(a)(1) and (2) provide:

(1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

(2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]

There is no evidence to support a finding that defendant's conduct in stabbing Walker in this altercation was "especially heinous, cruel or depraved," nor is there any evidence that Walker was vulnerable or incapable of resistance. Indeed, the victim was nearly half defendant's age and outweighed defendant by more than one hundred pounds. We nevertheless pause briefly to focus on the human dimension of this case.

By all indications, this was a family squabble that quickly escalated into a violent confrontation between defendant and his stepdaughter's romantic partner. As the trial judge aptly noted, the consequences that flowed from this seemingly banal event can best be characterized as a family tragedy. The victim was seriously injured at the hands of a man he regarded as his son's grandfather. As a result of these injuries, this thirty-six-year-old man is now incapable of speech and indefinitely dependent on medical devices to assist him in performing the most basic bodily functions. As one of the persons who actually saw what occurred, defendant's own stepdaughter became the State's key witness. At the end of it all, a sixty-two-year-old man, who up to this point had lived a law abiding life, was overwhelmed by a moment of uncontrolled rage and ended up destroying himself and his family.

Affirmed in part, and remanded in part. We do not retain jurisdiction.


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