STATE OF NEW JERSEY v. JAYSON S. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2724-04T5

A-3939-04T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAYSON S. WILLIAMS,

Defendant-Respondent.

____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent, A-2725-04T5

A-2726-04T5

v. A-2727-04T5

JAYSON S. WILLIAMS,

Defendant-Appellant.

____________________________

 

Argued October 18, 2005 - Decided April 21, 2006

Before Judges Kestin, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County,

03-03-00044-I.

Katherine L. Errickson, Assistant Prosecutor, argued the cause for appellant in A-2724-04T5; and Steven C. Lember, First Assistant Prosecutor, argued the cause for appellant in A-3939-04T5 (J. Patrick Barnes, Hunterdon County Prosecutor, attorney for appellant; Ms. Errickson and Mr. Lember, on the brief).

Joseph A. Hayden, Jr. argued the cause for appellant in A-2725-04T5, A-2726-04T5, and A-2727-04T5 (Walder Hayden and Brogan, and William R. Martin (Blank Rome) of the District of Columbia bar, admitted pro hac vice, attorneys; Mr. Hayden and Mr. Martin, of counsel, and on the joint brief; and Shawn M. Wright and Christopher D. Adams, on the joint brief).

Joseph A. Hayden, Jr., argued the cause for respondent in A-2724-04T5; and William R. Martin (Blank Rome) of the District of Columbia bar, admitted pro hac vice, argued the cause for respondent in A-3939-04T5 (Walder Hayden and Brogan and Mr. Martin, attorneys; Mr. Hayden and Mr. Martin, of counsel, and on the joint brief; and Shawn M. Wright and Christopher D. Adams, on the joint brief).

Steven C. Lember, First Assistant Prosecutor, argued the cause for respondent in A-2725-04T5, A-2726-04T5, and A-2727-04T5 (J. Patrick Barnes, Hunterdon County Prosecutor, attorney; (Mr. Lember and Katharine L. Errickson, on the brief).

PER CURIAM

This opinion considers an appeal by defendant from orders denying his motion (1) to dismiss charges on which he is scheduled to be retried and, if a retrial is necessary, (2) to apply the doctrine of collateral estoppel at the retrial. It also considers the State's appeal from orders precluding the use of "other crimes" evidence at the retrial. We affirm each of the orders.

On March 5, 2003, in Hunterdon County Indictment No. 03-03-00044-I, defendant was charged with aggravated manslaughter, N.J.S.A. 2C:11-4a(1) (Count I); manslaughter, N.J.S.A. 2C:11-4b(1) (Count II); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count III); aggravated assault by knowingly pointing a firearm at or in the direction of another, N.J.S.A. 2C:12-1b(4) (Count IV); hindering apprehension, N.J.S.A. 2C:29-3(b) (Count V); tampering with a witness, N.J.S.A. 2C:28-5(a) (Count VI); tampering with evidence, N.J.S.A. 2C:28-6(1) (Count VII); and fabricating physical evidence, N.J.S.A. 2C:28-6(2) (Count VIII). The parties have referred to the first four counts as the "shooting counts" and the last four counts as the "post-shooting counts."

After a trial extending from January 13, 2004, to April 30, 2004, a jury found defendant guilty of all post-shooting counts and acquitted him of all shooting counts other than manslaughter (Count II), as to which it was unable to reach a verdict. Judge Edward M. Coleman declared a mistrial as to Count II; and accepted the "not guilty" verdicts on Counts I, III and IV, and the "guilty" verdicts on the remaining four counts. The State elected to retry defendant on Count II, leading to the motions resulting in the orders that are the subject of this appeal.

We recount briefly the circumstances that gave rise to the indictment. On February 14, 2002, Costas (Gus) Christofi died as a result of a gunshot wound sustained in defendant's home. The evidence at trial established that defendant had been entertaining acquaintances and friends at his home and was showing them a shotgun that he had taken from a cabinet. The shotgun discharged, under circumstances that would be the focus of the trial, killing Mr. Christofi.

Immediately after the shooting, as the jury ultimately found, defendant sought to hide his involvement in the incident by attempting to destroy fingerprints on the shotgun, attempting to destroy evidence on defendant's body (including the clothes he was then wearing), repositioning the shotgun, and attempting to induce witnesses to lie to the police.

In anticipation of the retrial, defendant sought an order dismissing the indictment on the grounds of double jeopardy and, if unsuccessful on that motion, precluding evidence relating to defendant's conduct immediately before the discharge of the shotgun by application of the doctrine of collateral estoppel. Defendant believed that the inability of the State to produce that evidence would necessitate a dismissal. Those applications were denied in separate orders and are the subject of defendant's appeal. Defendant also sought to preclude the State from introducing evidence relating to the post-shooting conduct of defendant. That motion was granted. Finally, the State sought an order permitting it to introduce, at the retrial, evidence of two incidents involving the discharge of a gun held by defendant. That motion was denied. The State appeals from those decisions. Judge Coleman, in comprehensive opinions, provided the rationale supporting the orders resolving the motions. The matter is before us on leave granted and we deal with each issue in turn.

I

Defendant was accused of both aggravated manslaughter and manslaughter. Aggravated manslaughter requires proof that defendant "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). Manslaughter, commonly referred to as "reckless manslaughter," requires only that the defendant act "recklessly." N.J.S.A. 2C:11-4b(1). Both charges require proof of "reckless" behavior. Such behavior, in this context, involves a conscious disregard "of a substantial and unjustifiable risk", that death will result from defendant's actions. N.J.S.A. 2C:2-2b(3).

The difference between the two charges is the requirement that the State demonstrate defendant acted "under circumstances manifesting extreme indifference to human life" to prove aggravated manslaughter while no such requirement is necessary to establish reckless manslaughter. The proof of extreme indifference to human life requires a showing of "a probability, rather than a possibility, that death would have resulted from the defendant's actions." State v. Bowens, 108 N.J. 622, 638 (1987). Manslaughter is, therefore, a lesser included crime of aggravated manslaughter. State v. Simon, 161 N.J. 416, 507 (1999) (citing State v. Pridgen, 245 N.J. Super. 239, 246

(App. Div.), certif. denied, 126 N.J. 327 (1991)).

Defendant argues initially that the constitutional prohibition against double jeopardy bars a retrial of the issue of reckless manslaughter (the charge under which the State would not be required to prove extreme indifference to human life) because the same evidence presented at the first trial would, of necessity, be presented at the retrial. We reject that argument, as did Judge Coleman. Our law is clear that "[t]he double jeopardy clauses of the federal and state Constitutions

. . . do not prohibit retrial of a defendant when a prior prosecution for the same offense has ended in mistrial attributable to the inability of the jury to agree on a verdict." State v. Abbati, 99 N.J. 418, 425-26 (1985). The principle operates, as well, when the inability to reach a verdict relates to a lesser included crime and an acquittal has been rendered on the greater crime. In such circumstances, a retrial of the lesser included change is not barred. Judge Coleman recognized this principle, citing U.S. v. Larkin, 605 F.2d 1360, 1368 (5th Cir. 1979), cert. denied, 446 U.S. 939, 100 S. Ct. 2160, 64 L. Ed. 2d 793 (1980); U.S. v. Gooday, 714 F.2d 80, 83 (9th Cir. 1983), cert. denied, 468 U.S. 1217, 104 S. Ct. 3587, 82 L. Ed. 2d 884 (1984); and U.S. v. Chestaro, 197 F.3d 600, 608 (2d Cir. 1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000). As Judge Coleman accurately observed, "[T]his isn't really a second prosecution, it is a continuation of the same prosecution. There was never a termination in the first trial. So, we don't have a double jeopardy situation."

Nor, is a retrial barred by principles of collateral estoppel. Collateral estoppel provides "that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit." State v. Redinger, 64 N.J. 41, 45 (1973). When a criminal defendant asserts the doctrine on the basis of a prior acquittal, the doctrine complements the constitutional protection against double jeopardy. State v. Gonzalez, 75 N.J. 181, 192 (1977). The burden is on the defendant "to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Dowling v. U.S., 493 U.S. 342, 350, 110 S. Ct. 668, 673, 107 L. Ed. 2d 708, 719 (1990).

Clearly, the first jury rejected the proposition that the evidence demonstrated defendant's action was both "reckless" and "under circumstances manifesting extreme indifference to human life." Collateral estoppel will bar the retrial only if the jury determined, in the acquittal of the aggravated manslaughter charge, that defendant had not acted "recklessly" - the only element necessary for the State to prove at the retrial. The acquittal on Count I, however, cannot support such a conclusion. Indeed, were that the case, a verdict of "not guilty" might have been expected on Count II.

It is simply not possible in this case to determine which portions of the evidence the jury relied on to support its verdict of acquittal on Count I. That verdict may well be seen as the result of a disagreement between jurors, some of whom accepted some of the evidence and concluded that defendant had not acted recklessly and others of whom accepted either the same or other evidence and concluded that defendant had acted recklessly, but all of whom agreed that, whatever evidence was accepted, defendant had not acted under circumstances manifesting extreme indifference to human life.

Judge Coleman recognized these principles and concluded

[The] [c]ollateral estoppel component precludes the government from retrying the defendant where the jury's verdict in the initial trial necessarily determined in the defendant's favor an issue that would be an element of the offense to be proven at the second trial.

. . .

The court finds the defendant has not met [his] burden with regard to this collateral estoppel argument.

An independent review of the record convinces us that Judge Coleman appropriately analyzed the issue. Since the jury's acquittal on aggravated manslaughter does not compel a finding that the jury decided defendant had not acted recklessly, the State is not precluded from proceeding with the retrial.

Defendant also argues that the acquittal on the aggravated assault charge (Count IV), alleging that defendant knowingly pointed the shotgun at the victim or in his direction, prevents the State from introducing evidence of a knowing pointing at the retrial. We understand that there is no such bar. Count IV required, as Judge Coleman recognized, the State to prove (1) that defendant knowingly pointed the shotgun at Christofi and (2) did so under circumstances manifesting extreme indifference to the value of human life. The acquittal on Count IV could well have been predicated on a finding either (1) that defendant did not knowingly point the gun at Christofi (in which case the State might have been collaterally estopped from producing evidence that defendant did knowingly point the gun at Christofi at the second trial) or (2) that defendant did knowingly point the gun at Christofi but did not do so under circumstances manifesting extreme indifference to the value of human life (in which case there would be no bar to producing evidence of the knowing pointing at the retrial).

Judge Coleman properly determined that the verdict did not reveal the factual foundation. Defendant, therefore, had failed to meet his burden to show the first jury had concluded that there was a knowing pointing. The judge's conclusions with respect to the application of the doctrines of double jeopardy and collateral estoppel were both well-reasoned and correct.

At argument before us, defendant also suggested that it is fundamentally unfair to allow a retrial. We see no such unfairness. This is, after all, not a situation in which successive juries have failed to reach a verdict and the chance of conviction is low. See State v. Simmons, 331 N.J. Super. 512 (App. Div. 2000). Absent some similar circumstance, not suggested to us, this claim is without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

II.

The State appeals from Judge Coleman's decision to bar evidence of two prior acts. The first incident occurred on January 15, 1994, at 2:00 a.m. and involved the discharge of a gun at the Meadowlands. The prosecutor asserted that: "the defendant admitted that he was showing this pistol to a friend and that the pistol accidentally fired, hitting the hubcap of the security vehicle." The second incident occurred in early August 2001, and involved defendant's friend, Dwayne Schnitzius, who was living at defendant's home. Schnitzius and defendant entered into a bet requiring Schnitzius to drag defendant's rottweiler outside the home, approximately twenty feet away. When Schnitzius won the bet, defendant returned with a shotgun which he used to kill his dog and threaten Schnitzius.

Judge Coleman recognized the evidence would be admissible, if at all, under N.J.R.E. 404(b) after consideration of the factors set out in State v. Cofield, 127 N.J. 328, 338 (1992). Those factors are:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must be outweighed by its apparent prejudice.

[Ibid.]

The judge determined that the evidence of both incidents was inadmissible. He said

To me, this really has a propensity flavor to it. Neither the Meadowlands incident or this Schnitzius incident are relevant to proving the defendant's state of mind as to the present shooting death, whether it was reckless.

. . . .

The remoteness of what occurred seven or eight years ago is not really informative to the jury as to a state of mind at the time Mr. Christofi was shot. His intentional acts of threatening Schnitzius or shooting the dog are not reflective of whether or not he acted in a reckless manner with regard to shooting Mr. Christofi.

. . . .

The fourth prong of Cofield requires the court to balance the probative value of the other acts with the prejudicial impact [of the evidence]. . . . There is other evidence that is available to the State that doesn't have any prejudicial flavor to it that is perfectly admissible to demonstrate his knowledge about operating a gun and what happens when you pull the trigger.

Finally, the court considered the possibility of sanitizing the evidence and concluded that it was "impossible" to do so.

"Determinations on the admissibility of other-crime evidence are left to the discretion of the trial court: 'The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'"

[State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).]

Here, Judge Coleman engaged in the appropriate analysis and determined to exclude the evidence. We have no warrant to disturb his conclusions.

III.

The same considerations support the judge's decision to exclude evidence of the post-shooting convictions. The State argues that evidence of those convictions and the underlying conduct of defendant should be allowed pursuant to N.J.R.E. 404(b). Before reviewing Judge Coleman's decision on that ground, we dispose of the State's contention, apparently not made to Judge Coleman, that the evidence should be admissible, without reference to that Rule, as res gestae evidence. Res gestae evidence relates "directly to the crime for which . . . [the] . . . defendant is being tried, rather than involving a separate crime." State v. L. P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001). The purpose of the evidence is to present to the jury a complete picture of the criminal transaction of which the proffered evidence is "part and parcel." State v. Martini, 131 N.J. 176, 240 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed 2d, 137 (1995), overruled on other grounds, State v. Fortin, 178 N.J. 540, 647 (2004). Such evidence is typified by evidence of a car stolen earlier in the day to be utilized in a later kidnapping. State v. Martini, supra.

We do not take this evidence to be "part and parcel" of the shooting. That crime, if it was a crime, was completed on the shooting of Christofi. What happened thereafter was not "part and parcel" of the event. Whatever evidential value it may have as to defendant's state of mind at the time of the commission of the crime derives not from its character as an integral part of the crime (it was not) but from other factors which we now discuss.

The Cofield factors require, first, that the proffered evidence be relevant to some fact in dispute. Here, the claim is that the evidence demonstrates a "consciousness of guilt." Judge Coleman rejected that claim concluding that "post-shooting conduct is not really probative of [defendant's] guilt or his consciousness of guilt as to reckless conduct." The prosecutor challenges this conclusion.

The vast majority of cases discussing the admissibility of "consciousness of guilt" evidence arise in the context of evidence that the defendant fled the scene of an incident. Nevertheless, we perceive no need to consider a different analysis when the consciousness of guilt is said, as here, to arise in the context of altering evidence.

[The] probative value of that evidence [of consciousness of guilt] depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

[State v. Mann, 132 N.J. 410, 420 (1993) (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).]

In the context of flight, our Supreme Court has noted the prejudicial potential of consciousness of guilt evidence and its marginal probative value. Accordingly, it has directed that trial courts faced with such evidence give "careful consideration of the nature of the evidence to be admitted and the manner in which it is presented." Ibid. Even when the consciousness of guilt evidence does not involve flight, the chain of inferences from the proffered testimony to the consciousness of guilt of the underlying crime must be "firmly supported." State v. Johnson, 287 N.J. Super. 247, 262 (App. Div.), certif. denied, 144 N.J. 587 (1996), (citing State v. Mann, supra, 132 N.J. at 422-423).

Consciousness of guilt is easily inferred from post-crime conduct when the crime involves intentional behavior, but is less easily inferred when the crime involves some lesser mental state. An attempt to prevent a witness from describing an intentional shooting, for example, has much more probative force than similar evidence relating to an accidental shooting. We have been unable to locate any reported decision allowing "consciousness of guilt" evidence when the requisite culpable mental state is less than "knowing." Indeed, none of the cases cited by the State in support of the proposition that post-crime conduct is evidential of consciousness of guilt involve crimes other than those requiring intentional actions. See e.g. State v. Rechtschaffer, 70 N.J. 395 (1976) (charge of possession of marijuana with intent to distribute); State v. Johnson, supra, (charge of murder).

We do not mean to suggest that consciousness of guilt may not, in any circumstance, be found from post-incident conduct where the culpable mental state is less than intentional. We hold only that Judge Coleman reasonably determined, in this case, that the confidence with which one could attribute the post-shooting conduct to a consciousness of guilt is so minimal as to require exclusion.

The refusal to admit the evidence is also justified on the independent ground, found by Judge Coleman, that the prejudicial effect of the evidence outweighs whatever probative value it might have. See N.J.R.E. 403. The decision to exclude evidence on the grounds of prejudice is a discretionary decision not to be disturbed absent palpable abuse of that discretion. State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Judge Coleman's decision to exclude evidence of the post-shooting convictions was appropriate. We add, however, the following caveat.

At oral argument of this appeal, all parties recognized that there might be circumstances under which this evidence would be permissible. The State might, for example, find it necessary to produce evidence of the post-shooting conduct in order to rebut an attempted impeachment of the State's witnesses. Defendant has assured us that, at the retrial, this area will be not broached but we believe it appropriate to allow the trial court, in discharge of its N.J.R.E. 611 responsibility, to permit this evidence if the course of conduct of the trial requires its admission.

Affirmed.

 

Defendant had also argued that evidence admitted in the first trial that defendant had "taunted" Christofi immediately before the shooting should be barred in the second trial. Taunting was never an element of any charge and there is simply no way of determining what the jury made of that evidence. There is no collateral estoppel bar to admitting similar evidence at the retrial.

(continued)

(continued)

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A-2724-04T5

April 21, 2006