Argued October 21, 2014
Approved for Publication January 13, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 09-02-0094.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).
Gregory R. Mueller, First Assistant Prosecutor, argued the cause for respondent ( Francis A. Koch, Sussex County Prosecutor, attorney; Mr. Mueller and Daniel Bajger, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges REISNER, KOBLITZ and HIGBEE. The opinion of the court was delivered by REISNER, P.J.A.D.
[439 N.J.Super. 60] OPINION
Defendant Jacob R. Gentry appeals from his September 20, 2011 conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2, and from the sentence of thirty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On this appeal, defendant raises the following points for our consideration:
THE STATE'S USE, OVER DEFENSE OBJECTION, OF THE CO-DEFENDANT'S STATEMENT TO POLICE -- BOTH WHEN CROSS-EXAMINING THE DEFENDANT, AND IN THE PROSECUTOR'S SUMMATION -- WAS A BLATANT VIOLATION OF DEFENDANT'S RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO DUE PROCESS.
THE TRIAL JUDGE IMPROPERLY PRECLUDED DEFENSE COUNSEL FROM OFFERING EVIDENCE ABOUT DAVID HAULMARK REGARDING BOTH: (1) HIS REPUTATION FOR AGGRESSIVENESS UNDER N.J.R.E. 404(A)(2) AND (2) HIS PRIOR BAD ACT OF TRYING TO BITE HIS WIFE DURING A FIGHT, PURSUANT TO N.J.R.E. 404(B).
[439 N.J.Super. 61] THE JURY INSTRUCTION ON SELF-DEFENSE: (1) IMPROPERLY LIMITED SELF-DEFENSE TO THE CRIME OF MURDER; (2) FAILED TO EXPLAIN TO THE JURY THAT,
IF THE FIGHT WERE, INDEED, " MUTUAL COMBAT," SELF-DEFENSE WOULD NEVERTHELESS BE AVAILABLE TO DEFENDANT IF DAVID HAULMARK ESCALATED THE MATTER BEYOND A NORMAL FISTFIGHT; AND (3) FAILED TO EXPLAIN TO THE JURY THE EFFECT THAT A " COURSE OF PHYSICAL ABUSE" CAN HAVE ON THE DETERMINATION OF WHETHER A DEFENDANT ACTED REASONABLY IN SELF-DEFENSE. (Not Raised Below).
THE JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER IMPROPERLY FAILED TO ADDRESS THE ISSUES OF EITHER " MUTUAL COMBAT" AS A SOURCE OF ADEQUATE PROVOCATION, OR THE EFFECT THAT A " COURSE OF PHYSICAL ABUSE" CAN HAVE ON THE JURY'S DETERMINATION OF WHETHER THERE WAS ADEQUATE PROVOCATION. (Not Raised Below).
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
Defendant presents the following argument in a pro se supplemental brief:
THE TRIAL COURT ERRED BY FAILING TO ACT SUA SPONTE IN SUPPRESSING DEFENDANT'S CONFESSION AS FRUIT OF A POISONOUS TREE WHERE [THE] CONFESSION WAS NOT MADE IN A KNOWING AND INTELLIGENT FASHION AND WHERE [THE] CONFESSION WAS OBTAINED BY EXPLOITATION OF ILLEGAL SEIZURE OR DETENTION, I.E., ARREST WHERE DEFENDANT WAS NOT ADVISED OF HIS TRUE TARGET STATUS AS A SUSPECT IN THE MURDER INVESTIGATION OF DAVID HAULMARK IN ADDITION TO RECEIVING MIRANDA WARNINGS CONSTITUTES PLAIN ERROR AND DEFENDANT WAS DENIED OF [SIC] A FAIR TRIAL AND DUE PROCESS OF LAW ( U.S. CONST. IV, V, XIV; N.J. CONST. ART[.] I PARAS. 1, 10).
After thoroughly reviewing the voluminous record provided to us, we are constrained to reverse defendant's conviction due to prejudicial trial errors. We remand this matter for retrial on both counts. We summarize our reasons as follows.
Defendant was charged with murder, aggravated manslaughter and reckless manslaughter in the death of David Haulmark. The State's theory was that defendant, his girlfriend Emily Henry (Emily or the girlfriend), and his brother Jarrod Gentry (Jarrod or the brother) attacked Haulmark and beat him to death. Defendant [439 N.J.Super. 62] claimed self-defense and denied that the brother or the girlfriend participated in the incident. We find that defendant was denied a fair trial when the trial court erroneously failed to charge the jury that self-defense was a complete justification for aggravated manslaughter and manslaughter, in addition to being a defense to murder. The jury acquitted defendant of murder but convicted him of aggravated manslaughter. Because the evidence, viewed favorably to the defense, was sufficient to support a claim of self-defense, that error had the clear capacity to produce an unjust result. R. 2:10-2. Consequently, the aggravated manslaughter conviction must be reversed.
Other serious trial errors, viewed either separately or in combination with the charging error, also require reversal. Defendant, the brother, and the girlfriend
were each indicted in Haulmark's death, but defendant was tried separately. Neither the brother nor the girlfriend testified at his trial. However, during the trial, the prosecutor improperly cross-examined defendant about a statement the brother made to the police. The statement was hearsay and clearly inadmissible.
That error was compounded during summations when defense counsel tried to ameliorate the prejudicial impact of the prosecutor's improper tactic, and the trial court then erroneously permitted the prosecutor to tell the jury that the brother had made a statement that was kept from the jury due to the court's evidentiary rulings. Thus, the prosecution was first allowed to incriminate defendant with hearsay evidence from a co-defendant whom defendant had no opportunity to cross-examine. The State was then permitted to imply to the jurors that defense counsel had misrepresented the evidence and that the State had incriminating information [439 N.J.Super. 63] which the jury had not been allowed to hear. Those errors violated fundamental constitutional principles designed to guarantee every defendant the right to a fair trial and had a clear capacity to produce a miscarriage of justice. See R. ...