STATE OF NEW JERSEY v. RICHARD DEBOW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0378-03T40378-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD M. DEBOW,

Defendant-Appellant.

_________________________________

 

Submitted: April 26, 2005 - Decided January 25, 2006

Before Judges Kestin, Lefelt and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 00-07-1482.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Richard M. DeBow, and co-defendant, Susan Kay Gigliotti, were charged with purposeful and knowing murder in violation of N.J.S.A. 2C:11-3a(1) and (2); two counts of conspiracy to commit murder (first degree, N.J.S.A. 2C:5-4) in violation of N.J.S.A. 2C:5-2 and 2C:11-3; second degree possession of a handgun for unlawful purposes in violation of N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b.

Gigliotti was tried first. She was convicted of all the foregoing crimes as well as third degree receiving stolen property charged against her alone, and was sentenced to an aggregate prison term of life plus ten years, thirty years without parole. In an unpublished opinion dated October 23, 2003, under docket no. A-5453-01, we affirmed her convictions. The Supreme Court denied certification. 179 N.J. 309 (2004).

Some nine months after Gigliotti's trial, DeBow was tried before a jury and convicted on all counts charged against him. The murder conviction, into which the related conspiracy and weapons crimes had merged, resulted in a forty-year prison term with thirty years of parole ineligibility. The trial court also imposed a concurrent fifteen-year term for the independent conspiracy conviction.

DeBow appeals from both the convictions and the sentence, raising the following issues:

POINT I THE INCONSISTENT POSITIONS THAT THE PROSECUTOR TOOK REGARDING THE DEFENDANT'S MENTAL CAPACITY IN THIS TRIAL AND THE PRIOR TRIAL OF THE CO-DEFENDANT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS, AND THE TRIAL COURT'S REFUSAL TO ADMIT PORTIONS OF THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS IN THE PRIOR TRIAL, AS AN ADOPTIVE ADMISSION, WAS PREJUDICIAL ERROR.

POINT II THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH A COMPLETE AND ACCURATE INSTRUCTION ON DIMINISHED CAPACITY DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT III THE IMPOSITION OF A BASE TERM ABOVE THIRTY YEAR IMPRISONMENT IS UNSUPPORTED BY THE RECORD AND VIOLATES THE DICTATES OF THE RECENT UNITED STATES SUPREME COURT DECISION IN BLAKELY v. WASHINGTON.

The two related arguments DeBow advances in his first point are based upon a faulty premise. The jury in this matter was required to determine whether defendant had the capacity to act purposefully or knowingly in killing the deceased victim. The basic fact that DeBow had shot and killed Gigliotti's estranged husband was well supported by the evidence, including DeBow's confession. DeBow has contended throughout that he lacked the mental capacity to justify a finding of culpability. He contends on appeal, as well, that the trial court's refusal to permit use of portions of the State's opening and closing statements in Gigliotti's trial as adoptive admissions prejudiced him in his ability to persuade the jury that he was not culpable. In rejecting the proffer, the trial judge applied the relevancy criterion of N.J.R.E. 401 and the probative-value/prejudicial-effect balance of N.J.R.E. 403.

We set aside considerations regarding the poor timing of defendant's initial request, coming as it did as defense counsel was about to deliver his opening statement. On the merits, there is no substance to the argument defendant makes. We are in substantial agreement with the trial judge's rationale.

In Gigliotti's trial, the State had taken the approach that Gigliotti was culpable for DeBow's acts because she had planned the crimes charged and had manipulated DeBow into acting on her plan. DeBow, in his trial, sought to depict the State's position on Gigliotti's involvement as support for his contention that, because of his limited mental capacity, he could not be held responsible for his conduct.

DeBow and Gigliotti began living together shortly after Gigliotti and her husband separated in the spring of 1998. In the ensuing year, Gigliotti developed a relationship with another man, and told DeBow that their involvement was over. DeBow claims to have been "devastated sad, upset and very depressed." He said "he did not want to lose [Gigliotti], and would do anything to get her back."

The diminished capacity defense, as summarized in defendant's brief on appeal, was "that, because of [defendant's] borderline mental retardation and frontal lobe dysfunction, he was unable to form the requisite intent to commit first-degree murder." Evaluations had been conducted by experts on both sides of the issue, and their extensive testimony was presented to the jury.

The prosecutor's opening and closing statements in the Gigliotti trial, which defendant sought to introduce via videotape, had included the following as an effort to persuade that jury that Gigliotti was guilty of the murder of her husband and of devising a plan, with DeBow, to kill the wife of the man with whom she was then involved:

[Gigliotti] had manipulated and convinced Richard DeBow, who's a very simple man with some intellectual dysfunctions, that he was going to kill [the victim].

* * *

[S]he was the master mind of this plan.

* * *

Richard DeBow was intellectually limited. Anybody who talks to him can tell that. He's not mentally retarded, . . . he's not too bright[.]

* * *

She dominated that relationship when they were together.

* * *

He's a simple guy.

* * *

[H]is thought processes aren't 100 percent there. He can be manipulated, which he was in this case.

DeBow testified for the State in Gigliotti's trial. In his closing argument therein, the prosecutor made the following statements, which are also among those DeBow sought to have received in his trial as adoptive admissions:

Richard DeBow is her puppet and she's playing with the strings.

* * *

[C]ommon sense and Richard DeBow don't necessarily go together. The guy's intellectually limited. He's not very bright and things he . . . does, normal people with normal intelligence wouldn't do. . . .

* * *

He's willing to do anything for her . . . .

* * *

[W]hile [the plan] . . . might not make sense to a person of normal intelligence, DeBow thinks, hey, I did . . . her this great favor. * * * And, she's going to recognize that and she's going to come back to me and we're going to be together. In his childlike mind that's what he thought would happen.

* * *

But clearly from looking at Richard DeBow, he's not a man of any [sic] words. If . . . he's not asked a specific question, he doesn't give a specific answer.

We discern nothing in the prosecutor's opening or summation in Gigliotti's trial that bears upon DeBow's capacity to act purposefully or knowingly in causing the victim's death. Even accepting DeBow's limited mental capacity as a premise, even allowing that DeBow may have been susceptible to Gigliotti's influences and may have acted to curry her favor, and even taking as a given that she dominated their relationship, none of these factors had any bearing upon DeBow's capacity to act culpably, i.e., to deprive him of the ability to make conscious and willing choices with full appreciation for the wrongness of his acts, independent of the qualities and assessments referred to by the experts in opining on the issue of diminished capacity. Thus, with the factual scenario that had been developed, even without the State's opening and summation in Gigliotti's trial, the jury had before it all the relevant and probative evidence necessary to evaluate DeBow's guilt.

The State cannot reasonably be seen to have taken any position in the Gigliotti trial that bore upon DeBow's culpability for his own acts. Therefore, even if we were to accept the more permissive approach to adoptive admissions outlined in United States v. Bakshinian, 65 F. Supp. 2d 1104 (C.D. Cal. 1999), advanced by DeBow as applicable here, which we need not and do not address, the principle could not be seen to affect the result in this case. See also United States v. DeLoach, 34 F.3d 1001, 1005-06 (11th Cir. 1994); United States v. Salerno, 937 F.2d 797, 811-12 (2d Cir. 1991); U.S. v. McKeon, 738 F.2d 26, 30 (2d Cir. 1984).

As concerns the only other issue bearing upon the convictions, our review of the record in the light of the arguments advanced by the parties discloses no error in the trial court's instruction on diminished capacity. DeBow argues that the guidance the jury received from the instruction given was inadequate especially when compared to Model Jury Charge requirements in allocating the burden of proof, and that it misinformed the jury as to how to go about evaluating the evidence.

Considering the jury charge as a whole, and its "overall effect," we discern no departure from established requirements. See State v. Wilbely, 63 N.J. 420, 422 (1973). No defendant is entitled to a charge in particular words. See State v. Thompson, 59 N.J. 396, 411 (1971). All that is necessary is that the charge given accurately inform the jury on the elements of the crimes charged, defenses, burden of proof, and the like. Ibid. Our review of the charge delivered here discloses that it was adequate in every required substantive particular. And, the trial judge repeatedly and emphatically instructed the jury that the State had the burden of proving, in addition to every element of every crime charged, the question of defendant's mental capacity sufficient to support a finding that he was capable of acting with the requisite degree of volition and responsibility. Viewed in its entirety, the judge's charge clearly instructed the jury that it was obliged to acquit DeBow if the State had not proved beyond a reasonable doubt that he possessed no mental defect sufficient to deprive him of the ability to form the requisite purpose and knowledge.

The last point raised on appeal challenges the sentence imposed. Although we discern no violation of the principles of Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), in respect of the sentence imposed on the murder conviction, see State v. Abdullah, 184 N.J. 497, 507-08 (2005); see also State v. Natale, 184 N.J. 458 (2005), as DeBow proposes, we agree with his argument that a forty-year term of imprisonment was excessive in the light of the factors available for consideration in this case.

At sentencing the State conceded that mitigating factor 12 applied, "The willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1b(12). The court found, as well, mitigating factor 7, "no history of prior criminal activity[,]" see N.J.S.A. 2C:44-1b(7); and also found "that we are dealing with an individual who with little prodding accepted responsibility, has demonstrated some remorse, although [he] is unable to do so here today from what I've seen, and readily admitted his role in the proceeding." The court went on to note:

[I]t is clear that Susan Gigliotti is the primary culprit here and used her wiles to induce this defendant to commit the homicide. Mitigating factor 13 doesn't squarely fit, but when we deal with relative abilities, relative culpabilities, relative ability to induce and persuade, clearly those aspects apply with respect to what Susan Gigliotti did to this defendant. With little persuasion this defendant confessed and with no plea agreement, he gave important testimony at the trial of the plotter of this, Susan Gigliotti. His cooperation and remorse, coupled with the mitigating factors, caused the Court to impose a sentence at the low end of the required range.

The only aggravating factor the court identified was the "absolute need to deter the defendant and others." See N.J.S.A. 2C:44-1a(9).

The recitation and other observations of the trial court do not justify a sentence higher than the minimum for murder, thirty years without parole. See N.J.S.A. 2C:11-3b(1). We discern nothing in the quality of the aggravating and mitigating factors, or in the general evaluative balancing judgment called for, or in the assessment of case-specific circumstances, that warranted a higher level of punishment, especially given the sentencing judge's articulated determination "to impose a sentence at the low end of the required range." For the same reasons, the separate prison term for the independent first degree conspiracy conviction should be ten years; to be served, as the trial court provided, concurrently with the sentence for murder and the merged convictions.

Accordingly, while affirming the convictions, we remand for the entry of an amended judgment of conviction modified to reflect sentences of thirty years without parole for murder and the merged convictions, and a concurrent ten-year term for the unrelated first degree conspiracy conviction.

 

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A-0378-03T4

January 25, 2006