November 20, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NICOLE GUYETTE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0166.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).
Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).
Before Judges Simonelli, Fasciale and Haas.
Defendant appeals from her convictions for first-degree aggravated manslaughter of S.O., N.J.S.A. 2C:11-4a; simple assault of J.P., N.J.S.A. 2C:12-1a; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirm.
On June 27, 2008, at approximately midnight, defendant walked past the home of S.O. S.O. exited the house with several other girls and one of the girls called defendant a "trick." An argument between defendant and S.O. ensued and defendant said, "I'll be back." Defendant went home, retrieved a loaded gun, and went back outside holding up the gun and saying, "[W]ho's calling me a trick now?"
S.O. said, "[L]et's shoot the fair, " meaning "let's fight one-on-one, " and stepped toward defendant. Defendant swung the gun at S.O. In the process, the gun discharged and a bullet struck S.O. The bullet passed through S.O.'s neck and hit J.P. in the collarbone. Defendant ran away and hid the gun under a garbage can, but turned herself in to the police the next day. S.O. died of the gunshot wound; J.P. sustained a fractured collarbone.
The jury found defendant guilty of these violent crimes and weapons-related offenses and, after the appropriate mergers, the judge imposed an aggregate prison term of twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant raises the following points:
THE COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY ON THE THEORY OF SELF-DEFENSE DEPRIVED [DEFENDANT] OF HER RIGHT TO DUE PROCESS AND A FAIR TRIAL, REQUIRING REVERSAL. (Partially Raised Below).
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO ADD PASSION PROVOCATION AS A LESSER-INCLUDED OFFENSE OF MURDER. (Not raised below).
THE TRIAL JUDGE'S FAILURE TO CHARGE ON CAUSATION WITHIN THE MURDER/AGGRAVATED MANSLAUGHTER/RECKLESS MANSLAUGHTER
INSTRUCTION, WHERE THE DEFENSE PRESENTED A THEORY OF ACCIDENTAL DEATH, CONSTITUTES REVERSIBLE ERROR. (Not Raised Below).
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON MISTAKE OF FACT WHERE DEFENSE COUNSEL'S CENTRAL ARGUMENT WAS THAT [DEFENDANT] LACKED REQUISITE MENS REA TO BE GUILTY OF MURDER OR AGGRAVATED/RECKLESS MANSLAUGHTER BECAUSE SHE BELIEVED THE GUN WAS INOPERABLE. (Not Raised Below).
DEFENSE COUNSEL WAS INEFFECTIVE IN ADMITTING THAT [DEFENDANT] POSSESSED THE GUN FOR AN UNLAWFUL PURPOSE AND IN FAILING TO REQUEST THAT THE SELF-DEFENSE PORTION OF THE INSTRUCTION ON THAT OFFENSE. (Not Raised Below).
THE TRIAL JUDGE'S ANSWER TO THE JURY'S QUESTION ON THE DIFFERENCE BETWEEN POSSIBILITY AND PROBABILITY WAS SO VAGUE, THAT IT FAILED TO PROVIDE AN ADEQUATE ROADMAP FOR THE JURY TO DETERMINE WHETHER [DEFENDANT] WAS GUILTY OF AGGRAVATED OR RECKLESS MANSLAUGHTER. (Not Raised Below).
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL. (Not Raised Below).
THE TRIAL JUDGE IMPROPERLY FOUND AGGRAVATING FACTORS TWO AND NINE, FAILED TO CONDUCT A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS AND CONSDIERED IMPROPER FACTORS, RESULTING IN AN EXCESSIVE TWENTY-YEAR SENTENCE WITH EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY.
A. The trial judge improperly double counted the victim's death in finding aggravating factor number two (N.J.S.A. 2C:44-1a(2) – "the gravity and seriousness of the harm inflicted on the victim.")
B. Although it was clear that deterrence would have been sufficiently served by the minimum ten-year NERA sentence, the trial judge nevertheless found aggravating factor number nine (2C:44-1a(9) – Deterrence), based on improper considerations.
C. The trial judge failed to find mitigating factors that were supported by ample evidence in the record.
D. The trial judge failed to conduct a qualitative weighing of the aggravating and mitigating factors.
We begin by addressing defendant's contentions that the judge erred by giving flawed jury charges. Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). The judge must instruct the jury as to each element of the offense. State v. Vick, 117 N.J. 288, 290-91 (1989). If, like here, defense counsel did not object to the jury charge at trial, the plain error standard applies. State v. Singleton, 211 N.J. 157, 182 (2012). We reverse only if the error was "clearly capable of producing an unjust result, " id. at 182-83 (quoting R. 2:10-2), and consider the totality of the circumstances when making this determination, State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2D 694 (1993). We examine the jury charge "as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Against these standards, we conclude that there was no error, let alone plain error.
We reject defendant's argument in Point I that the judge erred by failing to charge the jury on self-defense. Here, defendant did not request such a charge. "A trial judge must sua sponte charge self-defense . . . 'if there exists evidence . . . sufficient to provide a rational basis for its applicability.'" State v. Galicia, 210 N.J. 364, 390 (2012) (citation and internal quotation marks omitted). When making this determination, a court must consider the evidence in the light most favorable to the defendant. See State v. Galloway, 133 N.J. 631, 649 (1993). Using this standard, we conclude that there was no error.
Pursuant to N.J.S.A. 2C:3-4a, "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." The justification of self-defense is not available when a defendant uses deadly force, meaning "'force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm, '" N.J.S.A. 2C:3-11b, unless the actor (1) "reasonably believes that such force is necessary to protect himself against death or serious bodily harm"; (2) did not provoke the use of force in the same encounter; and (3) cannot retreat or use non-deadly force. N.J.S.A. 2C:3-4b; see also Galicia, supra, 210 N.J. at 390. Defendant's act of swinging the gun at S.O. created a substantial risk of causing death or serious bodily harm, and therefore constituted deadly force. See State v. Rodriguez, 392 N.J.Super. 101, 112-13 (App. Div. 2007) (suggesting that "hitting" a victim with a knife, without intending to stab the victim, is deadly force), aff'd, 195 N.J. 165 (2008). Acting in a way that recklessly endangers innocent third parties may render the use of force unreasonable. State v. Rodriguez, 195 N.J. 165, 172-73 (2008).
Here, defendant left the scene of the verbal altercation to retrieve her gun and went back outside waving the gun. Defendant testified at trial that the girls were not surrounding her. There is no evidence that the girls possessed a weapon, and defendant had the opportunity to retreat. Therefore, the court was not required to instruct the jury on self-defense sua sponte.
Defendant contends in Point II that the judge erred by failing to charge the lesser-included offense of passion provocation manslaughter. Generally, a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e. Here, defense counsel did not request the lesser-included charge of passion provocation manslaughter. "An unrequested charge on a lesser[-]included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990). Applying this standard, we see no error.
Passion provocation manslaughter occurs when a crime that "would otherwise would be murder . . . is 'committed in the heat of passion resulting from a reasonable provocation.'" Galicia, supra, 210 N.J. at 378-79 (quoting N.J.S.A. 2C:11-4(b)(2)). For passion provocation manslaughter to apply, there must be (1) reasonable and adequate provocation; (2) a lack of time for the defendant to cool off between the provocation and the killing; (3) actual provocation of the defendant; and (4) the defendant must not have cooled off before committing the act. Id. at 379-80. A trial court is required to instruct a jury on passion provocation murder if the evidence supports the first two elements, which are objective. Id. at 380. The jury decides the last two, subjective, elements. Ibid.
There are insufficient facts in the record to show defendant was reasonably or adequately provoked. An "adequate provocation" is one in which the "'loss of self-control is a reasonable reaction' to the provocation." State v. Docaj, 407 N.J.Super. 352, 366 (App. Div.) (quoting Mauricio, supra, 117 N.J. at 412), certif. denied, 200 N.J. 370 (2009). Generally, "words alone" will not satisfy the adequate provocation requirement. State v. Chrisantos, 102 N.J. 265, 273-74 (1986) (holding that an instruction of passion provocation manslaughter was not warranted where the victim used racial slurs and profanity). Defendant argues that "words may be sufficient when they convey a significant threat." State v. Vigilante, 257 N.J.Super. 296, 302-03 (App. Div. 1992) (discussing State v. Erazo, 126 N.J. 112, 122, 124 (1991), where the court found that the threat of making a false accusation to get the defendant's parole revoked constituted adequate provocation).
Here, defendant suggests that S.O. provoked her by calling her a "trick, " but on its own, such a remark is insufficient to constitute adequate provocation. See Chrisantos, supra, 102 N.J. at 273-74. That insult was later followed by S.O. and the other girls approaching defendant, and S.O. saying "let's shoot the fair" and stepping forward. This does not "clearly indicate" a sufficient provocation such that the loss of control is a reasonable reaction. Docaj, supra, 407 N.J.Super. at 366; see also State v. Oglesby, 122 N.J. 522, 536 (1991) (holding that the unarmed victim striking defendant once was insufficient to warrant a passion provocation instruction).
Mutual combat may constitute adequate provocation when (1) the "contest [is] waged on equal terms and no unfair advantage is taken of the deceased"; (2) a defendant formed the intent to cause serious harm "in the heat of the encounter"; and (3) if the fight reaches a level of "actual physical contact" or serious threat "sufficient to arouse the passions" of a reasonable person. Chrisantos, supra, 102 N.J. at 274-75, 275 n.8. Here, mutual combat was not an adequate provocation because defendant, although she stated that she did not believe the gun worked, was the only person that was armed. Thus the fight was not on equal terms. Also, although there was a possibility that all the girls might "jump" defendant if she engaged in combat with S.O., that possibility does not "clearly indicate" a serious threat "sufficient to arouse the passions of a reasonable person."
Even if there was adequate provocation, which there was not, defendant had ample opportunity to "cool off." After S.O. called defendant a "trick, " defendant left the scene to retrieve the gun. Defendant testified that she could have locked herself inside her house. Defendant also admitted that she could have walked away from S.O. There is no evidence that the girls surrounded defendant, and defendant conceded that she could have gone to the police station just a few blocks away from the shooting.
Applying these standards, we conclude that the facts did not "clearly indicate" the charge of passion provocation manslaughter, and that even if such a charge had been requested, there was no rational basis to charge it.
Defendant argues in Point III that the court erred by not giving the jury an instruction on causation related to the death of S.O. regarding the "remoteness" of S.O.'s death from defendant's actions. Pursuant to N.J.S.A. 2C:2-3,
a. Conduct is the cause of a result when:
(1) It is an antecedent but for which the result in question would not have occurred; and
(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law defining the offense.
b. When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, as the case may be, of the actor, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.
c. When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.
A judge should instruct the jury explaining N.J.S.A. 2C:2-3(b), -3(c), or both when causation is a fundamental issue in the case. See Green, supra, 86 N.J. at 291-92.
When the actual result [of a defendant's conduct] is of the same character, but occurred in a different manner from that designed or contemplated, it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result.
[State v. Martin, 119 N.J. 2, 13 (1990)].
Here, the judge instructed the jury that "[w]hether the killing [was] committed purposely or knowingly, causing death, or serious bodily injury resulting in death, must be within the design or contemplation of [defendant], " that the State was required to prove that defendant "caused [S.O.'s] death, " and that S.O. "would not have died but for [defendant's] conduct." But the judge did not include instructions on N.J.S.A. 2C:2-3(b) or -3(c). Nevertheless, the jury was sufficiently aware, however, of the allegedly accidental nature of the incident, and the omission of the instruction was not plain error.
Defendant's testimony and defense counsel's statements to the jury explained the defense's theory that the gun discharged by accident. Defendant testified that she believed the gun was inoperable and that she intended to hit S.O. with the gun, not shoot her. Defense counsel argued, in the context of the recklessness requirement for aggravated manslaughter, that defendant "testified that she didn't know the gun was loaded, she testified that she thought the gun was jammed or broken, and she testified that she swung the gun at S.O. to hit her with it, not to kill her, but to hit her with it." And the judge included instructions that the killing must have been within defendant's "design or contemplation." Therefore, the omission of the extended instruction on causation was not "clearly capable of producing an unjust result" because the jury was thoroughly informed of defendant's theory. Singleton, supra, 211 N.J. at 182-83.
Defendant argues in Point IV that the judge improperly failed to include a jury instruction on mistake of fact. Pursuant to N.J.S.A. 2C:2-4a, a mistake of fact "is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and [the mistake] negatives the culpable mental state required to establish the offense." Furthermore "a . . . merely careless mistake may negate" the mental state of recklessness. State v. Sexton, 160 N.J. 93, 106-07 (1999) (holding that mistake of fact is an available defense to recklessness crimes, but declining to "require the State to disprove beyond a reasonable doubt defendant's reasonable mistake of fact").
Here, the purported mistake of fact was that the gun was "jammed." Although there was no instruction on mistake of fact, the judge clearly explained the requisite mental state for each offense. See State v. Drew, 383 N.J.Super. 185, 196-97 (App. Div.), certif. denied, 187 N.J. 81 (2006). Defendant testified and defense counsel emphasized that defendant believed the gun was inoperable. Therefore, the jury was made aware of the possibility that the mistake could prevent defendant from possessing the requisite mental state, and the omission was not clearly capable of producing an unjust result. Cf. State v. Wickliff, 378 N.J.Super. 328, 338-39 (App. Div. 2005) (finding reversible error where counsel requested a charge on mistake and the judge incorrectly explained the law to the jury in a way that prevented the jury from finding that mistake applied).
Defendant argues in Point VI that that the judge's response to a juror question "was so vague it failed to provide the jury with an adequate roadmap to distinguish between aggravated and reckless manslaughter[, ] and thereby  deprived [defendant] of a fair trial." "When a jury requests clarification, the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J.Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). We apply the plain error standard because there was no objection. R. 2:10-2.
While deliberating, the jury sent a note to the judge asking for clarification on the definitions of "probability of death" and "mere possibility of death." The judge responded by stating that the definition was, "[W]hat a reasonable person would define . . . as a probability as opposed to what is a mere possibility. . . . What a reasonable person would believe is a probability, as opposed to a possibility."
As defendant correctly argues, the terms "possibility" and "probability" are not subject to a reasonable person standard. But the judge's explanation suggested that the jury consider the plain meaning of the words "probability" and "mere possibility, " under which a "probability" requires a higher likelihood than a "mere possibility." Therefore, looking at the jury charge as a whole, we conclude that the instruction was not clearly capable of producing an unjust result and did not constitute plain error.
Defendant contends in Point V that her trial counsel rendered ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant bears the onerous burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence"; and (2) "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)). Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Because defendant's claims rest upon evidence outside the record, they are not ripe for direct review.
Defendant argues in Point VIII that the judge erred by: (1) double counting aggravating factor number two (gravity of the harm); (2) finding aggravating factor number nine (need to deter); (3) failing to find mitigating factors numbers three (provocation) and eleven (hardship); and (4) not performing a qualitative weighing of the aggravating and mitigating factors. There is no reason to second-guess the application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
The sentencing transcript reflects that the judge considered and found that aggravating factors N.J.S.A. 2C:44-1a(2) (gravity of the harm inflicted) and (9) (need to deter defendant and others from violating the law) were in equipoise with mitigating factors N.J.S.A. 2C:44-1b(7) (lack of criminal record); (8) (conduct was the result of circumstances unlikely to recur); and (9) (character and attitude indicating that defendant is unlikely to commit another offense). Although the judge found aggravating factor number two, the judge essentially equated the "gravity and seriousness of the harm" with the use of a gun. In finding aggravating factor number two, the judge stated that "whatever your intentions were . . . you got a gun. You didn't get a stick, you didn't get a brick." Thus, the judge did not improperly "double count" S.O.'s death, as defendant contends. Defendant's contention that the judge did not consider mitigating factors three and eleven is belied by the record.
After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).