STATE OF NEW JERSEY v. NATHANIEL BROADNAX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2479-04T42479-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHANIEL BROADNAX,

Defendant-Appellant.

___________________________________________________________

 

Submitted May 31, 2006 - Decided June 21, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, I-02-01-0230.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated Counsel,

of counsel and on the brief).

Paul T. Dow, Essex County Prosecutor, attorney

for respondent (Barbara A. Rosenkrans, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant, Nathanial Broadnax, guilty of second degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser included offense of murder, N.J.S.A. 2C:11-3; possession of a weapon under inappropriate circumstances, N.J.S.A. 2C:39-5d; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge merged the last offense into the first, and sentenced defendant for manslaughter to nine years imprisonment subject to a No Early Release Act eighty-five percent parole disqualifier. The judge also sentenced defendant to a concurrent term of eighteen months imprisonment for the possession of the weapon under inappropriate circumstances.

Defendant appeals based on the following arguments:

POINT I

THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE CONCEPT OF CAUSATION WITH RESPECT TO COUNT III.

(NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE CHARGE OF MURDER EMBODIED IN COUNT III, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER ARISING THEREFROM.

POINT III

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON UNDER MANIFESTLY INAPPROPRIATE CIRCUMSTANCES INTO COUNT V CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VI

ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

The State concedes Point IV. Therefore, on remand the judgment shall be amended to reflect the required merger. Although the State contends that the sentence imposed on the manslaughter was proper, we are satisfied that a remand is required under State v. Natale, 184 N.J. 458 (2005), because in going above the presumptive term, the judge relied on an aggravating factor having nothing to do with defendant's criminal record; namely, that the victim, as the judge put it, was "particularly vulnerable or incapable of resistance," which is statutory aggravating factor N.J.S.A. 2C:44-1a(2).

With respect to defendant's remaining points, after careful consideration of the record and briefs, we are satisfied that they are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, after describing the critical facts, we will comment briefly.

I

On September 15, 2001, at approximately 1:00 a.m., Quawee Shubrick was beaten and stabbed near his home on South 12th Street in Newark. He died at the hospital approximately one hour later.

The State presented the testimony of Ora Hinton, her daughter, Keihana, and her niece, Dazjeanine, who all lived across the street from where Shubrick typically sold drugs, and who had witnessed the attack. They testified that between 11:00 p.m. and midnight on September 15, 2001, Shubrick joined them on the corner for a candlelight vigil for the victims of the September 11, 2001, attacks. After the vigil, the women returned to their home.

Around 1:00 a.m., they heard noises outside and went to see what was happening. When they looked outside, they saw a group of people "beating up someone." Keihana said she and her cousin, Dazjeanine, ran out onto the porch and saw Shubrick lying on the ground with a group of boys around him, "[j]umping him, . . . hitting him, stomping on his head and stuff." Keihana and Ora said they heard someone telling the boys to stop and saying "that [it] was enough." All three women also heard someone ask Shubrick "where his money at" and if he was part of the Crips gang. Dazjeanine heard Shubrick say, "No." Keihana and Dazjeanine also heard someone say, "Eat his food" or "Eat him," which Keihana said meant to cut him. None of the women could identify any of Shubrick's attackers except to say that one had "dreads" and another wore light blue jeans, a white t-shirt, and a blue jean jacket.

Ora Hinton testified that when she saw "about five guys" kicking and punching Shubrick, she called the police, but after five minutes, they had not shown up and since the men were still outside beating Shubrick, she called again. The two younger girls testified that before the police arrived, they saw Shubrick "get up and . . . stumbl[e] down the street." They ran down the street and found Shubrick "laying on the ground."

Newark Police Officers Shawn Johnson and Robert Dwight responded to the Hintons' house on South 12th Street at approximately 1:16 a.m., and they saw Ora standing on the porch. The officers walked around the area to find Shubrick, but when they could not, they returned to speak with Ora. At that point, they saw Shubrick "staggering" up the street, then take "several more steps and [fall] down to the ground." They called for medical help and walked over to where Shubrick had fallen. They saw that his face was bruised and swollen and that "he'd been beaten up badly." They also noted that Shubrick had multiple stab wounds around his chest and abdomen. The emergency medical workers took Shubrick to the hospital, where doctors pronounced him dead at 2:07 a.m.

Duane Crosby, who was indicted along with defendant, but not charged with murder, testified. His prior inconsistent statement, admitted at trial, indicated among other things that he participated in the attack, that defendant stabbed the victim and admitted doing it because of the victim's membership in a particular gang. He also said he expected to be paid for committing the murder.

When defendant was arrested, he gave a voluntary statement to the police admitting the fight but claiming that he only stabbed Shubrick once in the back and had not intended to kill him. He claimed that he saw other people stab Shubrick but he could not identify any of them.

Dr. Janaid Shaikh, the medical examiner, testified that he performed an autopsy on Shubrick's body which revealed that Shubrick died from "multiple stab wounds." He said Shubrick suffered a total of five stab wounds -- in the left side of his chest, the right side of his chest, his abdomen, his right thigh, and the right side of his back. Shaikh testified that most of the wounds were "superficial" except for the one inflicted in the left side of his chest, which Shaikh opined "was the most serious wound that the decedent had sustained." That wound penetrated into Shubrick's heart and caused "bleeding within the chest cavity itself," which resulted in Shubrick's death.

Under Point I, defendant argues that the judge committed plain error by failing to adequately instruct the jury on the concept of causation. However, defendant concedes that the judge provided a proper charge on this subject when explaining the law with respect to murder. When the judge charged on aggravated manslaughter and reckless manslaughter, he told the jury that he incorporated by reference the causation charge. The plain error rule, R. 1:7-2, requires reversal only if, considering the charge as a whole, there is reason to believe "the jury was confused or misled." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). When plain error is relied upon, the defendant must show that the error "possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Considering the charge as a whole, there was no possibility of an unjust result occurring simply because the judge did not repeat the same charge more than once.

Under Point II, defendant argued that he was entitled to an acquittal on the murder charge and the failure to grant that relief tainted the verdict of reckless manslaughter. When considering a motion for a judgment of acquittal under Rule 3:18-1, the trial court must view "the State's evidence in its entirety" and give "the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn" and based on that approach decide if "a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). The same test is applied on appeal. State v. Josephs, 174 N.J. 44, 81 (2002). Given the eyewitness testimony about the viciousness of the attack, defendant's statements to Crosby, and his admission to the police that he had stabbed the victim, a reasonable jury could have found that he caused the victim's death purposely or knowingly, which would have made him guilty of murder instead of reckless manslaughter.

Under Point III, defendant complains for the first time on appeal about statements made by the prosecutor during summation which he says constituted impermissible comment on defendant's Fifth Amendment privilege. We have carefully reviewed those statements, noting as defendant concedes, that none of them are direct comments bringing attention to defendant's failure to testify. For the most part, they consist of rhetorical questions such as this:

You have got a knife in your hand and this guy is going to get us because he's going to shoot you. All you are going to do is take that knife and hit him one time. One time in the head and he would be beaten up badly for being kicked and stomped. What was the reason for pulling the knife out? The guy is laying on the ground and he's outnumbered. Why pull a knife out? When you pull out a deadly weapon the judge will give you the definition of a deadly weapon, a knife like that and plunge it into somebody, what was his intention?

Such argument is well within the prosecutor's right to summarize testimony graphically. State v. Smith, 167 N.J. 158, 181-82 (2001).

The conviction is affirmed, but the case is remanded for resentencing in accordance with State v. Natale, supra, and for the required merger.

Affirmed and remanded.

 

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A-2479-04T4

June 21, 2006