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State of New Jersey v. Derell Pritchett

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERELL PRITCHETT, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-2557.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012

Before Judges Lihotz and St. John.

Defendant Derell Pritchett appeals from the December 16, 2010 order denying his motion to withdraw his guilty plea, filed prior to sentencing. Alternatively, defendant challenges his sentence as excessive.

Defendant was charged, in the death of Jeannine Darby, with murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); two counts of fourth-degree unlawful possession of a weapon, for unlawful purposes, N.J.S.A. 2C:39-5d (counts two and four); and third-degree possession of a weapon, a knife, for unlawful purposes, N.J.S.A. 2C:39-4d (count three). He pled guilty to the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4, in exchange for the State's recommendation of an eighteen-year term of imprisonment, subject to the parole ineligibility requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the dismissal of the remaining counts of the indictment.

Prior to sentencing, defendant fired his appointed counsel, hired private counsel, and moved to vacate the previously entered guilty plea. Defendant argued his conduct was a result of passion/provocation and not intentional. The trial judge considered the application, denied the motion, and sentenced defendant to eighteen years in prison, subject to NERA.

On appeal, defendant maintains:

POINT ONE

THE COURT ABUSED ITS DISCRETION BY FAILING TO PERMIT THE PRE-SENTENCE WITHDRAWAL OF THE GUILTY PLEA.

POINT TWO

THE COURT'S SENTENCE FAILED TO CONSIDER NUMEROUS MITIGATING FACTORS APPLICABLE TO THIS OFFENSE RESULTING IN EXCESSIVE SENTENCING.

Following our review, we agree the trial judge misapplied his discretion in denying defendant's motion to withdraw his plea. We reverse the December 16, 2010 order, vacate the guilty plea, and remand this matter for trial.

I.

A.

The charges in the indictment were based on a deadly altercation, which occurred on September 13, 2007. At that time, defendant was a sixteen-year-old high school junior, living with his elderly father, Philbert Thomas. At seventy-three years old, Thomas suffered from dementia and Alzheimer's disease. Darby had a sexual relationship with Thomas and often stayed in his home.

Defendant's confession and documents attached to his motion revealed he experienced repeated instances of abuse by and conflict with Darby since she moved into the residence. Defendant and Thomas independently reported Darby abused crack cocaine, which she regularly used in the home. Further, she invited other addicts to the residence where they: got high; monopolized the television to watch pornographic movies; "[ate] all the food," emptying the refrigerator and freezer; and generally took over the premises. Darby reportedly hit Thomas and stole money and items from defendant and Thomas, including defendant's cell phone, clothing, and money to obtain drugs. Darby also repeatedly threatened defendant, suggesting he "would get hurt" and she had "brothers" who would "murder" him. In response, defendant slept with a stick next to his bed for protection.

Defendant's and Thomas' statements to police described the altercation on the day Darby was killed. Defendant was on his way to school and realized he did not have his cell phone. He returned home, but, after searching, could not locate the phone and suspected Darby had taken it. Defendant became angry and confronted Thomas, who was in bed along with Darby. Defendant demanded Thomas get Darby to leave. During the argument, defendant broke a nightlight and when Thomas got angry, defendant said, "do something about it." The argument continued to escalate. Thomas asked defendant what was his problem. Defendant responded, "Do you want to know what my problem is?" When Thomas did not react, defendant again asked this question. As defendant was speaking, he raised the stick he had retrieved from his bedroom and began hitting Darby on the head. He struck her three times before the stick broke. Darby began "getting up, out of the bed. . . . [Defendant] went to the living room. . . . And then there was a serious [sic] -- several blows to the head that [defendant] exchanged with her."*fn1 He admits he grabbed a knife from the kitchen, returned to the bedroom and stabbed Darby five times in the face, head, and back. Defendant left the residence. Thomas removed the knife from Darby's back and called the police. Darby died as a result of the injuries inflicted by defendant. Defendant surrendered to the police, was taken into custody, and issued a recorded confession.

B.

On the date scheduled for jury selection, a plea agreement was reached. We recite the colloquy which took place:

THE COURT: If you're found guilty --Mr. Pritchett, I want you to concentrate, because what I'm about to say affects the rest of your life. Do you understand?

THE DEFENDANT: (No verbal response given)

THE COURT: Do you understand?

THE DEFENDANT: Yes.

THE COURT: If you're found guilty of these charges, you face life in prison. The estimate for calculating parole eligibility of life in prison is 75 years and you have to serve at least 85 percent of that before you become eligible for parole, and I think that works out to about 62 years and 6 months. . . .

THE COURT: How old are you now?

THE DEFENDANT: 18.

THE COURT: So that means you'd be about 80 years old when you're eligible for parole, do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: Now, the State I'm told has a confession, your audio statement, that would be played before the jury because Judge Vazquez has already decided that it . . . can be heard [by] the jury. Do you understand that?

THE DEFENDANT: I understand.

THE COURT: And they're going to hear that this woman was beaten to death and stabbed to death. Now, I haven't heard the tape, the audio-recording. You have, correct?

THE DEFENDANT: (No verbal response given)

THE COURT: You have, haven't you?

THE DEFENDANT: Huh?

THE COURT: You've heard it, haven't you?

THE DEFENDANT: No.

THE COURT: Were you not in court when they played it?

THE DEFENDANT: Yes.

THE COURT: So did you hear it? THE DEFENDANT: Yes, I did.

THE COURT: And you know they're going to hear the medical examiner say that she was murdered, right?

THE DEFENDANT: Yes.

THE COURT: Now, I'm told right now that the State is offering to recommend 18 years in prison

THE DEFENDANT: 18?

THE COURT: Do you understand that?

THE DEFENDANT: Yes.

THE COURT: So you'd probably be about 29 years old, maybe 30, 31, I haven't calculated it exactly, but based on you being 18 and having two years in it'd be in that range, do you understand that?

THE DEFENDANT: I understand.

THE COURT: Instead of 80. Now I don't know what your defense is, and you don't have to tell me, as a matter of fact . . . I don't want you to say anything, but I want you to think about the difference between coming out at 30 or 31 and coming out at 80 or 81, it's a 50-year difference. Now, I'm a lot older than you and I can tell you that I lived the years between 30 and almost 70 and they're good years, they're good years if you don't have to live them in prison. Now, you know what the circumstances are here.

THE DEFENDANT: Is that a question?

The COURT: Okay. The point I'm trying to make to you is that right now, you know, if somebody talked about a pension and retirement, that would seem like something you don't want to talk about, it ain't worth it to you because you're still a young man. And you'll still be a relatively young man at 30 or 31, but you won't be at 80. And in today's society, if you're careful and you take care of your health, you've got a good chance of getting there. An awful lot of men are living to 80.

Now, it doesn't look like you had a very good start, but that doesn't mean you can't correct it. But you have to understand that if you go to trial and you get found guilty of murder, the lowest sentence you could get is 30 years. And with this kind of conduct, if this is proved, you'll get an awful lot more time than that. Now, you must have inquired about me before you came here. You know who I am, right?

THE DEFENDANT: I don't know.

THE COURT: You don't need my glasses -- your glasses or mine to know who I am do you?

THE DEFENDANT: I don't know.

THE COURT: Well, so what you need to do is really come to grips with where you stand, because there's another case that I'm about to pick a jury with, but if that case doesn't resolve and this case doesn't resolve, I'll pick a jury in your case because yours is an important case. The other case is important, too, but there's a very good chance I'm going to release that man. And if I release him, then your case will go to trial because he won't be in custody anymore. And between the two, I'll pick the case where somebody's in custody.

But what I want you to understand is that you really need to make a decision that truly affects your future. On the one hand, some 16 or 18 years, that's really not that big a difference. On the other hand, being almost 80 years old when you get out. That's the distinction you have to make. I urge you to talk with [defense counsel] about that, because your entire life hangs in the balance. I don't think I can be clearer about this, can I? Please speak with him. Do you have family here?

THE DEFENDANT: (No verbal response given)

THE COURT: Does he have any family here?

[DEFENSE COUNSEL]: Yes, he does have support.

THE COURT: I don't know how you --MAN IN AUDIENCE: I'm part of the prison ministry at the Essex (inaudible).

THE COURT: All right. [DEFENSE COUNSEL]: And he's come in support of [defendant].

THE COURT: Well, you understand all I've said, don't you?

MAN IN AUDIENCE: Absolutely.

THE COURT: This is a very important time in your life. You need to make a right decision now, all right? Do you need to talk with this gentleman? You can turn around and speak with him, if you'd like.

The trial judge adjourned the plea hearing to allow defendant to seek advice from a man in the audience, Daryll Clark, a volunteer with the youth ministry with which defendant participated, and defense counsel.

The hearing continued the following day. The State recited the proposed plea agreement, stating it would amend count one of the indictment to first-degree aggravated assault, recommend an eighteen-year sentence subject to NERA, and dismiss the remaining charges. The trial judge reviewed the penal consequences of conviction following trial as well as pursuant to the plea agreement. The judge also reviewed the constitutionally protected rights defendant would waive if he pled guilty. Finally, the judge questioned defendant regarding the voluntariness of his plea. This colloquy took place:

Q: Anybody . . . make any promise to get you to plead guilty?

A: No.

Q: Anybody make any threat to get you to plead guilty?

A: No.

Q: Anybody forcing you to plead guilty? A: Yes.

Q: Well, I can't accept your plea if you feel forced to plead guilty. Do you want to talk to [defense counsel] more or do you want to get ready for trial.

A: I don't want to talk to him.

Q: I can't hear you.

A: I don't want to talk to him.

Q: I'm not going to accept your plea if you say you're forced to plead guilty. Who's forcing you?

A: I just feels like, I'm just so done being pushed to be - -.

Q: You're being encouraged to plead guilty?

A: Pushed against just - - just to plead guilty.

Q: Well, you can have a trial if that's what you want. I can send for a jury tomorrow morning. It's up to you. I know you feel pressure because you're caught between having a trial or having to plead guilty. That's up to you, but it's got to be your choice. The difference is on the one side, you're facing exposure. As we talked about yesterday, if you go to trial and you get found guilty, the other side is you're facing 18 years, but you've got to make the choice. I can't make it for you, nobody can. But if that is what you mean by being forced, that's not being forced, that's just feeling the pressure of the situation. But whatever you want to do, tell me what you want to do and we'll do it.

A: I want to - -Q: I can't hear you. I'm having a hard time hearing you.

A: No one has forced me to plead.

Q: So you choose to plead guilty now?

A: Yes.

Defendant entered his guilty plea. Following questions eliciting the factual basis of the plea, the judge inquired regarding the services rendered by counsel, asking:

Q: Are you satisfied with the services you received from [defense counsel]?

A: During this whole trial thing?

Q: During the whole process.

A: No.

Q: Do you need some other services?

A: I would like to.

Q: Do you want to [talk to] him about something else?

A: Not to him.

Q: Well, who do you want to talk to?

A: I don't know.

Q: I can't hear you A: I don't know.

Q: About what?

A: About either a change of counsel or something.

Q: I don't know how you can proceed with a different attorney. This is the attorney the Public Defender gave you. What are you saying is wrong with his services?

c

A: (No verbal response)

Q: Has he come . . . to see you?

A: No.

Q: Wasn't he here with you yesterday all day?

A: That's because he was in court.

Q: And has he talked to you about your case?

A: He didn't see me down at the juvenile facility, no.

Q: What other service would you want from him that he hasn't given you? I'm trying to find out.

A: Forget it.

Q: . . . [T]hen are you satisfied that he gave you the services you could expect? I mean . . . you say forget it, I can't just forget it, I got to know what you mean.

A: I appreciate it.

Q: Are you satisfied with his services? A: Yes.

Q: Do you want me to accept the plea of guilty you're offering?

A: Yes.

The judge accepted defendant's guilty plea and scheduled a date for sentencing.

Sentencing was adjourned several times. Defendant discharged his assigned counsel and engaged a new attorney. Defendant's new attorney filed a motion to withdraw defendant's guilty plea. Attached to the motion were three uncertified letters by individuals relating their interactions with defendant and records from an intervention by the Division Of Youth and Family Services (the Division) resulting in defendant's mental health crisis hospitalization on June 14, 2007.

In analyzing defendant's application, the trial judge concluded that at the time the guilty plea was accepted, defendant was competent to enter a plea pursuant to the terms of the negotiated agreement, understood his rights, and provided a factual basis to support his plea. Additionally, the trial judge anchored his conclusion to deny defendant's motion on a finding that defendant had not "asserted a colorable claim of innocence." Accordingly, he denied defendant's motion and entered a sentence in accordance with the terms of the plea agreement. This appeal ensued.

II.

Our Supreme Court has noted:

Last minute motions to withdraw guilty pleas present often contradictory concerns, the motivations for which are difficult to discern: some may be tactical maneuvers that bear no relation to the initial propriety of the plea, but instead arise from fear of the consequences of one's acts, buyer's remorse, a realization of certain and perhaps lengthy imprisonment, or other, like sources, while others may be grounded on solid, proper bases. For that reason, the task confronting a trial court when determining a motion to withdraw a guilty plea is neither simple nor easy. [State v. Hayes, 205 N.J. 522, 526 (2011).]

This case is no exception.

To assure justice is served, the Supreme Court "'distill[ed] common principles from [the earlier defined] body of law in an effort to help trial courts assess plea withdrawal motions.'" Id. at 541 n. 7 (quoting State v. Slater, 198 N.J. 145, 157 (2009)) (alterations in original). In Slater, the Court set forth four factors a trial judge must "consider and balance" when called upon to perform the fact sensitive analysis required when evaluating motions to withdraw a guilty plea:

(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Supra, 198 N.J. at 157-58.]

This multi-faceted test applies to motions filed either before or after sentencing. When a motion is filed after the imposition of a sentence, Rule 3:21-1 reflects relief should be granted to prevent a "manifest injustice." See State v. Fischer, 38 N.J. 40, 48 (1962). However, when a motion is filed prior to sentencing, such as the motion under review, it is governed by the more liberal "interest of justice" standard, set forth in Rule 3:9-3(e). "Before sentencing, courts are to exercise their discretion liberally to allow plea withdrawals." Slater, supra, 198 N.J. at 156 (citing State v. Smullen, 118 N.J. 408, 416 (1990)). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Regardless of timing, "'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Ibid. (quoting Smullen, supra, 118 N.J. at 416). In meeting this burden a defendant "must show more than a change of heart." Id. at 157.

Our review of a judge's decision on a motion to vacate a guilty plea considers whether the trial judge abused his or her discretion.

"[T]here are two conditions which must exist to warrant an appellate court in nullifying a ruling of the trial court made in the exercise of a conceded discretion. The first is that the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances, and the second condition is that the ruling must have resulted prejudicially to the rights of the party complaining." [Hayes, supra, 205 N.J. at 539 (quoting Smith v. Smith, 17 N.J. Super. 128, 132-33 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).]

We will reverse the trial court's decision only if it is "clearly erroneous[.]" State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Ibid. (citing Slater, supra, 198 N.J. at 164). Guided by these principles, we turn to our review of this matter.

III.

Without entertaining oral argument, the trial judge rendered his disposition on defendant's motion. After setting forth the four-part Slater test, the judge determined defendant did not have a colorable claim of innocence and the evidence supported the crime to which he pled guilty. Further, the trial judge found the asserted basis for withdrawal was insufficient as defendant did not demonstrate he suffered from mental illness or defect, and offered no expert testimony showing the psychiatric opinion relied upon by the State would have been materially altered. The judge noted his extensive questioning prior to accepting defendant's plea. He considered the plea colloquy and found defendant was "not pushed to enter his guilty plea" and did so voluntarily. Finally, no prejudice to the State was identified.

In moving to vacate his guilty plea, defendant did not deny he stabbed Darby or that she died as a result of the stabbing. Rather, his motion posited that his plea was coerced and he had a defense to the first-degree charges to which he pled. In light of the facts submitted in support of defendant's assertions, many of which had not been investigated by prior counsel or disclosed to the court, defendant argues his conduct did not manifest extreme indifference to human life and could only support the second-degree offense of reckless manslaughter. Defendant's first argument challenges the trial court's compliance with the requisites of Rule 3:9-2 prior to accepting his plea. The second suggests the court misinterpreted the proofs necessary to show a colorable claim of innocence in support of his motion to withdraw. We examine these issues separately.

A.

"A guilty plea violates due process and is, thus, constitutionally defective if it is not voluntary and knowing." State v. Barboza, 115 N.J. 415, 421 n.1 (1989) (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 425 (1969)). The standard is clear. When a defendant offers to plead guilty, a trial court cannot accept the plea unless it addresses the defendant personally and determines, by inquiry, that the plea is made with an understanding of the charge and the consequences of the plea.

R. 3:9-2. Moreover, the judge must determine that there is a factual basis for the plea. Barboza, supra, 115 N.J. at 420-21. Where the plea is part of a knowing and voluntary plea agreement, defendant's "burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). A voluntary plea should not generally be vacated absent "some plausible showing of a [colorable] defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).

Here, the trial court found defendant entered the plea agreement with the knowledge of the nature of the charges and the consequences of pleading guilty. Although defendant responded affirmatively when asked whether he understood the questions posed by the judge and written in the plea form, his confusion, disagreement, and hesitance in entering the guilty plea are also reflected. When the hearing commenced, defendant was not able to focus and gave conflicting answers to the same questions posed by the judge. The trial judge recognized this and adjourned to allow defendant more time to discuss the issues with Clark and counsel.*fn2 The following day, defendant's responses reflect more clarity. He affirmatively told the court he was forced to plead guilty. He also stated he did not want to consult with his attorney and expressed he was being pressured to plead. Defendant attempted to express his position to the judge, stating "I just feels like, I'm just so done being pushed to be - - . . . [p]ushed against just - - just to plead guilty."

The trial judge responded, noting the circumstances were pressure-filled because defendant had to decide whether to plead guilty or commence trial the next day. Rather than exploring this response, the judge interjected he could not hear defendant, who thereafter affirmed he would plead guilty.

As the hearing progressed, it also became clear defendant had no confidence in counsel's representation. Defendant stated he was dissatisfied with counsel's representation, desired services from another attorney, and wanted to speak to someone about a change of counsel. When asked by the judge, defendant stated counsel had only spoken to him the day before "because he was in court," and said counsel had not talked to him while confined in the juvenile detention facility for twenty-seven months. Defendant then deflected the court's question regarding his satisfaction with counsel's services by stating "Up to you, the judge." When pressed again, defendant responded, "Forget it."

Our reading of the entirety of the record raises concerns of coercion. Defendant was only eighteen, had no family support, and articulated counsel's failure to consult with him to prepare his case, expressing he only saw him the day before. He also stated his dissatisfaction with counsel's limited services and informed the judge he was being "pushed" to plead guilty.

Additionally, we are troubled by the trial judge's remarks made on the first day of the hearing. Emphasizing the possibility of receiving a lengthy sentence if convicted by the jury of murder, telling the defendant he was facing eighteen years or sixty years. Specifically, the judge said: "And with this kind of conduct, if this is proved, you'll get an awful lot more time than that. Now, you must have inquired about me before you came here. You know who I am, right?" We understand the trial judge's responsibility to advise defendant of the maximum exposure faced if convicted of the offenses charged. See R. 3:9-1(e). However, the court's comments do not discharge this responsibility. Rather, it conveyed the message that if a trial was sought and conviction rendered, defendant should expect the judge to impose the longest of available sentences. The remark was inappropriate and could only have contributed to defendant's sense of futility, leading to his final resignation, "Forget it."

Individually, these items are insufficient to support revocation of defendant's plea. However, when viewed as a whole, along with defendant's proffered defense to the first-degree charge discussed below, we conclude defendant's motion evinced more than a change of heart, or "buyer's remorse[.]" Hayes, supra, 205 N.J. at 526. In this "close case, the 'scales should . . . tip in favor of defendant.'" Slater, supra, 198 N.J. at 156 (quoting Taylor, supra, 80 N.J. at 365).

B.

Defendant's proofs supporting his "colorable claim of innocence," aim at rebutting the mental state of a first-degree charge. While admitting he stabbed Darby, defendant maintains his conduct was the result of provocation brought on by years of Darby's abuse, including her prior threats of physical violence against defendant, stealing his belongings, causing him to go hungry, abusing his elderly, mentally impaired father, and a physical altercation on the evening of her death.

No one disputes Darby's death was a homicide. The indictment charged defendant with murder, "defined by relevant provisions of the New Jersey Code of Criminal Justice (Code), [as] when an actor 'purposely . . . [or] knowingly causes the death or serious bodily injury resulting in death[.]" State v. Jenkins, 178 N.J. 347, 361 (2004) (quoting N.J.S.A. 2C:11-3(a)). The plea agreement reduced the charge to aggravated manslaughter, also a first-degree offense, which results when an "'actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]'" Ibid. (quoting N.J.S.A. 2C:11-4(a)). Defendant's motion to withdraw his plea argued Darby's death constituted manslaughter, N.J.S.A. 2C:11-4(b), defined as a homicide "committed recklessly[,]" which is a second-degree offense. N.J.S.A. 2C:11-4(c). "[T]he proper inquiry in distinguishing murder from the two degrees of manslaughter relates to defendant's state of mind as to the risk of death." Jenkins, supra, 178 N.J. at 363.

To prove purposeful non-capital serious bodily murder, the State must demonstrate "'defendant's conscious object [was] to cause serious bodily injury [(SBI)] that then resulted in the victim's death' and that defendant 'knew that the injury created a substantial risk of death and that it was highly probable that death would result.'" Id. at 362 (quoting State v. Cruz, 163 N.J. 403, 417-18 (2000)) (emphasis in original).

[T]o prevail on a charge of knowing non-capital SBI murder the State must prove that the defendant was aware that it was practically certain that his conduct would cause serious bodily injury that then resulted in the victim's death, knew that the injury created a substantial risk of death and that it was highly probable that death would result. [Cruz, supra, 163 N.J. at 418.]

"Aggravated manslaughter requires the State to prove that 'the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life.'" Jenkins, supra, 178 N.J. at 362 (emphasis in original) (quoting Cruz, supra, 163 N.J. at 417).

The difference between aggravated manslaughter and reckless manslaughter is a difference in the degree of risk that death will result from the defendant's conduct: that is, whether death is a probability or a mere possibility. State v. Curtis, 195 N.J. Super. 354, 363-64 (App. Div.), certif. denied, 99 N.J. 212 (1984). "In assessing whether a defendant has manifested extreme indifference to human life, the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2011). Accord State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005); Curtis, supra, 195 N.J. Super. at 364-65.

The Code also states a homicide "committed in the heat of passion resulting from a reasonable provocation" is reckless manslaughter. N.J.S.A. 2C:11-4b(2). Therefore, aggravated manslaughter requires a higher degree of recklessness than manslaughter, distinguished by the greater probability of death. State v. Bakka, 176 N.J. 533, 549-50 (2003). The Code defines recklessness as a conscious disregard of a "substantial and unjustifiable risk that the material element exists or will result from" the defendant's conduct. Moreover, "[t]he risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation." [Id. at 544-45 (quoting N.J.S.A. 2C:2-2b(3)).]

In Jenkins, the trial judge did not charge the lesser included offenses of aggravated and reckless manslaughter. Supra, 178 N.J. at 363. The State's case showed the defendant, in retaliation for the victim testifying against him in another matter, struck the victim in the head with a brick. Ibid. When hit on the back of the head, the victim fell down a flight of stairs, further striking his head on the pavement, a blow which resulted in death. Id. at 364. In limiting the charges to the jury to SBI murder, the trial court found "no evidence of anything other than an intentional act that ultimately resulted in death," and reasoned "a jury could not rationally find the existence of mere reckless conduct." Id. at 362.

In its review, the Supreme Court concurred with this court's opinion to reverse, finding "the trial court wrongly focused on the defendant's state of mind with respect to the act (striking someone in the head with a brick) rather than on the defendant's state of mind with regards to the risk of death." State v. Ramsey, 415 N.J. Super. 257, 267 (App. Div. 2010) (citing Jenkins, supra, 178 N.J. at 363), certif. denied, 205 N.J. 77 (2011). The Court gleaned from the record, the jury "could have concluded that defendant hit the victim without conscious knowledge that death was a high probability but, instead, with reckless disregard of the possibility or probability that death would occur." Jenkins, supra, 178 N.J. at 363. The conclusion resulted from the expert testimony that the second head trauma caused death. Id. at 364. "Furthermore, the jurors 'could have rationally concluded that defendant struck the victim not knowing serious bodily injury would result in the victim's death, or not knowing that the injury created a substantial risk of death and it was highly probable that death would result.'" Ramsey, supra, 415 N.J. Super. at 268 (quoting Jenkins, supra, 178 N.J. at 363-64).

In the limited record presented here, defendant argues he has shown a "rational basis" for a charge of manslaughter because he was tormented by Darby for years, his custodial statement describes the agitation created during the argument with his father, and the morning's events reflect some type of physical altercation with Darby immediately prior to the stabbing. At this stage of the proceeding, it is inappropriate to measure the weight of the evidence; however, liberally viewing defendant's presentation, we conclude he has shown a colorable claim of innocence to murder and aggravated manslaughter.

In deciding otherwise, the trial judge narrowed his view of the facts, concluding defendant's repeated use of a knife reflected conduct where the probability not the possibility of death would result. The court's skepticism ignored an analytical assessment of the proofs, which alternatively could support a finding of provocation.

In State v. Simon, 161 N.J. 416, 449 (1999), the defendant was within six feet of a police officer when he twice fired a gun killing the officer. The Court found the State sufficiently demonstrated the defendant was aware, at the time of the act, that firing two shots within six feet at the victim's upper body region was "practically certain" to cause death or serious bodily injury that would result in death. Id. at 449-50. Defendant's claims that he was unaware of the dire consequences from the conduct were rejected. Id. at 450.

[T]he circumstances under which [the] defendant shot the victim--at close range, two shots, not one, to the upper body region--manifested an indifference to whether the victim was killed instantly or eventually died from the infliction of serious bodily injury. Therefore, defendant's plea established that he had the requisite mens rea for purposeful or knowing murder pursuant to N.J.S.A. 2C:11-3(a)(1) and (2), and the trial court did not err in finding that defendant acknowledged a mental state required for capital murder. [Ibid. (emphasis removed).]

In Ramsey, supra, the defendant shot the victim, who died of the gunshot wounds. 415 N.J. Super. at 266. No fact evinced the defendant "fired the gun . . . because he was trying to prevent the victim from doing something, or during a fight or an emotional rage." Id. at 269 (emphasis added). We concluded the defendant's conduct did not support the lesser included charge of aggravated manslaughter. Id. at 271.

Here, defendant's claims are supported by "specific, credible facts," some of which are found in the record. Slater, supra, 198 N.J. at 158. If accepted by a jury, these facts reflect defendant's emotional rage, a fight that included Darby, and the use of a weapon, that although deadly, may not be certain to cause death in the hands of an inexperienced teenager, as would a gun in the hands of a man. They could lead to a conclusion that defendant's conduct was reckless, provoked by passion and provocation, rather than murder or aggravated manslaughter. See State v. Guido, 40 N.J. 191, 211 (1963) (holding a "course of ill treatment," the accused reasonably believed was likely to continue, may elicit a "homicidal response in a person of ordinary firmness" for a finding of reasonable provocation).

We conclude defendant's evidence, albeit limited, presents a colorable claim of innocence to the charge to which he pled, satisfying the first requirement of asserted innocence in the Slater test. The trial judge's contrary conclusion was error.*fn3

The review of the remaining Slater factors are also supported by defendant's motion. His plea colloquy reflect counsel did not investigate a passion provocation defense as counsel did not consult with defendant while he was confined in detention and only saw him during court appearances. Current counsel, stepping in at the eleventh hour, at the urging of Clark, has diligently gathered the evidence presented which was not previously asserted. "[D]defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense was 'forgotten or missed' at the time of the plea." Slater, supra, 198 N.J. at 160 (citing Gonzalez, supra, 254 N.J. Super. at 303).

The plea agreement shows the State's compromise on the charges in the indictment and defendant was afforded time to consult with counsel regarding the impact and consequence. Nevertheless, he has proffered facts supporting a viable defense to those charges. As the Court noted in Slater, a large number of criminal cases are concluded through plea bargains and that fact does "not suggest . . . this factor be given great weight in the balancing process." Id. at 161.

Finally, we find no prejudice to the State. The only witness no longer available is Thomas, who was in his mid-seventies, suffered from Alzheimer's disease, and whose competency to testify was challenged. More important, Thomas died five months before the plea hearings and would not have been available for trial.

Based on our review of the record and the applicable law, the balance of the evidence presented results in a conclusion that the trial judge's denial of defendant's request to vacate his guilty plea was unreasonable, prejudicial to his rights, and a misapplication of discretion. The order denying defendant's motion to withdraw his plea is reversed, his conviction is vacated, and the matter is remanded for trial.

Reversed and remanded.


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