October 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
WAKIR BYRANT, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-6-1696.
John J. McMahon, Chief Trial Attorney, argued the cause on behalf of the appellant (Joseph E. Krakora, Public Defender, attorney; Mr. McMahon, of counsel and on the brief).
Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause on behalf of the respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, on the brief).
Before Judges Fisher and O'Connor.
Defendant was indicted and charged with second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b), as well as other offenses. The trial judge denied defendant's motion for, among other things, dismissal of the reckless manslaughter count, and we granted defendant's motion for leave to appeal. Defendant argues the evidence placed before the grand jury did not present a prima facie case of reckless manslaughter; he also contends the grand jury was not instructed on the law governing causation. We reject these arguments and affirm.
The grand jury's role in our criminal justice system is to determine whether "a basis exists for subjecting the accused to a trial." Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487 (1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972); see also State v. Hogan, 144 N.J. 216, 227 (1996). To withstand a motion to dismiss, the State need only present "some evidence" as to each element of the charged offense. State v. Schenkolewski, 301 N.J.Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997). The State is afforded every reasonable inference. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984). As a result, an indictment may be dismissed only on the clearest and plainest ground, that is, when it is manifestly deficient or palpably defective. Hogan, supra, 144 N.J. at 228-29. The decision rests in the trial judge's sound discretion, which will not be disturbed on appeal unless clearly abused. State v. Weleck, 10 N.J. 355, 364 (1952); State v. Warmbrun, 277 N.J.Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). In that vein, we have recognized that dismissal of an indictment is a "last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake"; these rights strongly suggest that "criminal cases should ordinarily be decided on the merits after a full and impartial trial." State v. Ruffin, 371 N.J.Super. 371, 384-85 (App. Div. 2004). As we have said, dismissal of an indictment is a "draconian remedy." Id. at 385.
Defendant first argues there was insufficient evidence to support the reckless manslaughter charge. As relevant here, to avoid dismissal, the State was required to produce for the grand jury "some evidence" that defendant acted "recklessly, " N.J.S.A. 2C:11-4(b)(1), meaning defendant's conduct constituted a "conscious disregard" of "a substantial and unjustifiable risk, " N.J.S.A. 2C:2-2(b)(3); see State v. Williams, 190 N.J. 114, 124 (2007).
The grand jury heard evidence that, on December 30, 2011, the two-and-one-half-year old victim was killed by a gunshot from defendant's handgun; the bullet entered through the child's mouth and exited the back of his head. An autopsy revealed the gun was held within the child's mouth at the time of its discharge. The child was approximately three feet tall and weighed forty-seven pounds.
The death occurred in the bedroom of the child's mother's apartment. Defendant had met the child's mother three weeks earlier, and they had gone out together a couple of times. Both adults were in the bedroom where the death occurred that morning, at approximately 9:30 a.m. Defendant had arrived between 2:00 and 3:00 a.m., and, about forty minutes after defendant arrived, he and the child's mother went to sleep on a mattress on the bedroom floor on which the child was also sleeping.
The child's mother testified before the grand jury that she was awoken by the sound of a gunshot. She immediately "smelled the gun smoke" and saw her son on the floor with the gun a few inches from his feet. She testified that defendant was still sleeping, and she woke defendant "[b]y shaking him and calling his name." She then dialed 9-1-1.
Defendant left the apartment approximately four minutes later but returned in five or ten minutes; after defendant departed, the child's mother noticed the handgun was gone. Upon defendant's return, the child's mother was still on the telephone with the police. Defendant told her "to tell the police that the baby was standing at the window [when she] heard a shot, " otherwise "both could get locked up." She did not tell the police this story.
Defendant drove both the child and the child's mother to Beth Israel Hospital. When they arrived at the hospital, the child's mother got out of the car with the child. Defendant, however, "sped off."
Neither a handgun nor a shell casing was recovered from the apartment. A bullet was found on the floor. Testing determined that the bullet had taken a downward trajectory. No gunshot residue was found on the victim's hands.
The grand jury also viewed defendant's police interview by videotape. Defendant stated he was drunk when he arrived at the apartment. He acknowledged bringing a .45 caliber handgun into the apartment; it was in an inside pocket of his coat which he claimed was hung on a door. Defendant also admitted he had no permit to carry a gun, he knew the gun was stolen by the person from whom he purchased it for $150, and he threw the gun away after he took the child and his mother to the hospital. He denied shooting the victim and claimed he was asleep when the shooting occurred.
In light of this evidence and the applicable legal standards to which we have alluded, Judge Peter J. Vazquez properly denied defendant's motion to dismiss. Although various suppositions may be proposed as to how the child was fatally shot, the evidence permits an assumption that the child somehow obtained the gun from defendant's coat and shot himself. Defendant's own statement provides evidence from which the grand jury could conclude it was defendant's handgun that fired the fatal bullet and that defendant brought the loaded handgun into the vicinity of a child who, as the judge observed, "was old enough to walk around and could readily access defendant's jacket, which was [on] the floor of the room."
We reject defendant's forceful contention, in referencing the language of N.J.S.A. 2C:2-3(b), that his conduct was "too remote, too accidental or too dependent" on the child's "volitional act, " and agree, substantially for the reasons set forth by Judge Vazquez in his thoughtful written opinion, that the evidence placed before the grand jury, and the inferences that might be reasonably drawn from that evidence, militated against a dismissal of the reckless manslaughter charge.
Defendant also argues that the prosecutor failed to instruct the grand jury on the definition of causation contained in N.J.S.A. 2C:2-3(b), an omission – he claims – is akin to withholding exculpatory evidence. We find no merit in this argument and conclude that the prosecutor sufficiently instructed the grand jury when he accurately described the elements of the charged offense and the meaning of recklessness.