NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-07-0260.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).
Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Mr. Mosco, of counsel and on the brief).
Before Judges Fisher, Alvarez and St. John.
Tried by a jury, defendant Shawn Morello was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On March 16, 2011, defendant was sentenced to an aggregate term of five years imprisonment subject to three years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Defendant appeals, and we reverse.
The facts developed during the trial require only brief summary. On January 10, 2008, at approximately 3:00 p.m., Phillipsburg Police Department Patrolman Josh Beers was dispatched to defendant's home because his mother reported he was armed and threatening to commit suicide. Beers arrived at the scene immediately, as did Lieutenant Richard Kisselbach and several patrolmen: Robert Marino, James McDonald, and William Vine. As no one responded to their knock, the officers let themselves in to the home. They looked around the first floor of the residence and announced their presence several times. When they began to climb the stairs to the second floor, someone, later determined to be defendant, shouted down "I know who the f--- you are, and if you come up here I'll blow your f---ing head off."
The officers attempted to reason with defendant, whom they said spoke clearly. They saw him at the top of the stairs holding a long gun across his body, at which point they immediately called for him to drop his weapon. He responded with "F--- you" and similar comments, again going out of sight.
A few minutes later, after alternating periods of shouting and silence, defendant came running down the steps, unarmed, towards the officers, who took him to a crisis center at a local hospital. He could not be evaluated because he was so intoxicated; his blood alcohol content (BAC) was determined to be at 0.354.
Defendant's wife Carol testified that defendant, who is an alcoholic, had been drinking heavily since the day before. This testimony was corroborated by Phillipsburg Patrolman Ralph Reppert, presented as a defense witness, who observed defendant to be visibly intoxicated at 3:30 a.m. that same day when he responded to a domestic violence call at the home. Reppert had no doubt, based on defendant's appearance, speech, and demeanor, that he was intoxicated. During the call, defendant's wife told the officers she wanted her husband to go to the hospital because he was complaining of chest pains, but that he refused. Eventually, the officers assisted defendant's wife in getting him to go back to bed.
When defendant testified, he acknowledged he had a "drinking problem, " and that when his wife left to go to work that morning, he "drank and drank and drank and drank" because he feared she was going to leave him. He could only remember some of the several hundred phone calls he made to her that day. Defendant described himself as "delirious."
Defendant also denied that the incident police described had occurred at all. He only recalled saying "I'll blow my f---ing head off, " and he denied threatening the officers. Defendant explained that he was certain he had not behaved as the officers described because
I've never done a bad thing in my whole life. I would never do that. There ain't no way. I knew what I said. I think I do. But I know I would never threaten nobody. I don't recall everything, but I do remember the door coming down and I do remember saying if you come upstairs I'll blow my F'g head off. That's what I do know. I never threatened nobody.
Defendant also admitted having "a little glass" of vodka before testifying "to take the shakes away."
In his opening statement, trial counsel said:
the basis for being at [defendant's home] was a radio report of an intoxicated male who was ...