STATE OF NEW JERSEY v. EDWARD BRYANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1656-04T41656-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD BRYANT,

Defendant-Appellant.

__________________________________________________

 

Submitted January 18, 2007 - Decided July 30, 2007

Before Judges Stern, Collester and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 01-05-1003.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Russell J. Curley, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant was convicted of purposeful and knowing murder and other crimes and, following merger, received concurrent sentences aggregating fifty years with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On this appeal he argues:

POINT I THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTIONS FOR ACQUITTAL

POINT II THE TRIAL COURT ERRED IN PERMITTING

THE STATE TO ADVISE THE JURY THAT

DIONNE BURSE, THE VICTIM, WAS

CARRYING A 15 OR 16 WEEK BABY AT

THE TIME OF HER DEATH

POINT III THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTION TO SEVER COUNTS

9 AND 10 OF THE INDICTMENT BECAUSE

OF PREJUDICIAL JOINDER OF CLAIMS

POINT IV THE TRIAL COURT ERRED IN PERMITTING

NATASHA WILLIAMS TO TELL THE JURY

THAT DEFENDANT THREATENED TO KILL HER

POINT V THE TRIAL COURT ERRED IN PERMITTING

UNDULY PREJUDICIAL EVIDENCE REGARDING

AN ALLEGED EARLIER VERBAL DISPUTE

BETWEEN DEFENDANT AND DIONNE BURSE

POINT VI THE PROSECUTOR'S COMMENTS DURING

TRIAL DENIED DEFENDANT A FAIR TRIAL

(Plain Error)

POINT VII THE TRIAL COURT ERRED IN REFUSING

TO SUPPRESS DEFENDANT'S STATEMENT

TO DETECTIVE APPLEYARD

POINT VIII THE TRIAL COURT ERRED IN PERMITTING

INTO EVIDENCE UNECESSARY [SIC] AND PRE-

JUDICIAL AUTOPSY AND OTHER PHOTOGRAPHS

POINT IX THE TRIAL COURT'S JURY CHARGES WERE

INSUFFICIENT (Partially Raised Below)

POINT X THE SENTENCE IMPOSED BY THE TRIAL

COURT IS EXCESSIVE

The first eight counts of the indictment relate to offenses against the homicide victim, Dionne Burse, and related weapon charges, while counts nine and ten relate to offenses involving Natasha Williams, defendant's live-in girlfriend at the time.

Except for the sentence imposed, we find no merit to these arguments and that only the following discussion is warranted in a written opinion. See R. 2:11-3(e)(2).

I.

The trial proofs reveal the following.

The victim, Dionne Burse, was found dead in her apartment on June 6, 2000. A window screen missing from the kitchen window and a pit bull terrier and puppies were found in the apartment, but no drugs or drug paraphernalia were found at the scene. Burse was fifteen to sixteen weeks pregnant at the time of her death and she had been stabbed fifty-six or fifty-seven times. The pit bull puppies were apparently sired by the male pit bull owned by Natasha Williams, but Williams, who was pregnant with defendant's child, and defendant differed as to whether they wanted one of the litter. Defendant wanted one and told Williams that he went to the Burse apartment "to get the puppies." When defendant returned, his clothes and shoes had blood on them, and he told Williams "he killed somebody." When she asked "who," "[h]e said Dionne." According to Williams:

Q You said then that he told you what happened. What exactly did he tell you as far as you remember?

A He was going in there to get the puppies and somebody was there. So he waited. The person left. He went to go open the door. She heard the door open. She was like who's that? Who's that? She came, she had a knife in her hand. She didn't know who it was and she was coming towards him with the knife, and he was swinging his arm to keep her away from him and it hit her.

Q And did he tell you anything else?

A She fell. He went to go move the knife and she jumped back up and they started tussling with the knife.

Q Did he tell you anything else?

A And he said he stabbed her. That was it.

Q Now, did he tell you how he got into the house?

A From one of the back windows.

Defendant again acknowledged responsibility when he and Williams heard a report about the killing on the news.

After their son was born, defendant and Williams fought a lot, and she threatened to report his admission. He threatened to "kill" her in response, and there were a number of physical confrontations. Williams ultimately obtained a restraining order against defendant, but at the trial under review he was found not guilty of the indictable charges related to threatening and assaulting Williams, and convicted only of the petty disorderly person's offense of fighting as a lesser included offense. In any event, defendant was arrested after she reported the attacks on her and reported to the police that defendant killed Burse.

In his statement to Detective John Appleyard of the Hudson County Prosecutor's Office, defendant stated that he and the victim were having an affair, and that he acted in self-defense when she attacked him with a knife or knives for stealing her cocaine. According to Appleyard who went to obtain hair and bucal samples from defendant:

Well, we initially had an interview with him in the infirmary. He basically gave us a brief account of what happened at the actual incident. He indicated - as a result of the discussion with him, we learned that he had a sexual relationship with the deceased. They had gotten into an argument over a couple vials of cocaine, $20 worth of Cocaine.

After having had relations all evening in her apartment, a struggle resulted. She scratched him a couple times, ran to a kitchen, kitchen area, grabbed two knives and went back after Mr. Bryant. He claimed he managed to get hold of a clothing iron, wrapped the cord around his hand, swung it at the deceased hitting her in her head twice. The second time made her a little, you know, dizzy. They then started to roll around. He gets a hold of a knife. He doesn't remember what happened then.

A detailed tape recorded statement to that effect was taken by the police.

A forensic scientist testified that a sperm cell found inside Burse's vagina matched the sample obtained from defendant. There was also testimony about prior confrontations between defendant and the victim. Defendant's brother testified that on one occasion Burse had threatened "to get someone to beat [him up]."

Defendant introduced testimony through medical experts Matthew Johnson and Jonathan Mack that defendant suffered from post-traumatic stress disorder (PTSD) and an organic brain disorder which caused him to have an honest fear of being stabbed and which resulted in his resulting conduct being the product of diminished capacity.

Johnson, a licensed psychologist, considered Burse's psychological history as well as defendant's personal and family history, including his father's abusive conduct. The fact that defendant had been the victim of a shooting and life threatening stabbings, had a dysfunctional family history, and had a history of mental illness, including blackouts, contributed to Johnson's conclusion that defendant suffered from PTSD at the time of the incident. Williams confirmed that he suffered blackouts. Johnson concluded that defendant's PTSD coupled with his cognitive impairments caused him to have "an honest and reasonable fear of his own life." He may have blacked out during the fatal fight with Burse, and according to Johnson, defendant did not have the requisite culpability to act "purposely or knowingly" or to commit murder.

Dr. Mack, a neuro-psychologist, also tested and interviewed defendant and studied his medical and mental health background, including a traumatic head injury and suicide attempts. Mack concluded that while stabbing Burse, defendant thought he was "stabbing a lot of people" including his father and the woman who had stabbed him. Based on his interview of defendant, his hallucinations, and his history of mental health, Mack believed that defendant suffered PTSD and from "major depression with psychotic features." According to Mack, defendant was "in a dissociative state and defending himself against all of those other assaults by all of the other enemies in his life" at the time he killed Burse. Mack testified that defendant "did not know what he was doing" to Burse and "did not know what he was doing was wrong" because he was at the time reacting to the misconduct of others. In essence, defendant had "a disease of the mind" when he stabbed Burse, and suffered "from a mental disease of the mind that makes him criminally not responsible for his behavior."

The State's medical expert, Dr. David Greenfield, a psychiatrist, testified as to defendant's ability to act purposefully and knowingly. Based on what defendant reported during their interview and his mental history, Greenfield agreed, with reservations, that defendant suffered from PTSD and organic brain damage, but concluded that he was not cognitively impaired. Based on his review of defendant's history and medical record, his statement about the event and his report to and relations with Williams, and his interview of defendant, Dr. Greenfield concluded:

I think that the inference that he was not able to have acted in the way that he did, that is to say, he didn't know what he was doing is not correct. He did some complex and sophisticated things. He related, for example, using the weapon that he did and being confronted by a woman who he perceived was going to harm him, so basically, that in terms of all these elements, I felt he was acting knowing what he was doing.

. . . .

As far as the idea of a blackout, somehow being responsible for something that occurred some time ago, it just isn't true. It doesn't make sense. The literature doesn't support it and the idea that a person engaged in particular behaviors, specific behaviors that he or she doesn't remember afterwards, not remembering afterwards doesn't have anything to do with behaviors themselves, in my opinion. So I disagree with Dr. Johnson's idea that blackouts somehow attributed to Mr. Bryant's not knowing what he was doing at the time.

. . . .

. . . The fact of the matter is, he did engage in some resourceful goal-directed behavior and he described it to me afterwards. And in my view, in terms of what forensic psychiatrist and psychologist call forensic criminal responsibility reducing defenses, I don't agree with Dr. Mack that diminished capacity is true. So I disagreed with him in that conclusion of his.

. . . .

. . . He was aware of the past. He developed a plan. He's formulated the plan. He carried out the plan. He knew that he had done something wrong. He left. That's the difference. I think their approach is deductive. Mine is inductive.

. . . .

As I said before, my opinion is, behavior speak for themselves. My opinion is, he was able to [perform] the act knowingly and purposefully and he did.

On cross-examination, Dr. Greenfield also noted:

In my opinion through these behaviors that he engaged in, tell me that he was clever enough to have done what he did, so he was not actively symptomatic with regard to organic brain syndrome or cognitive impairment at that time.

Q How do you know?

A Based on his behaviors. Based on what he told me, and what the history that he also gave to the Detective afterward.

II.

Defendant argues that "the State did not introduce sufficient evidence to disprove defendant's self-defense and diminished capacity evidence." The judge charged on both subjects. Under the Reyes test, there was enough evidence to sustain the convictions, irrespective of whether defendant cut the screen and entered though the screened window to steal a pit bull or fought with Ms. Burse over cocaine or their sexual relationship. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The testimony of Williams, independent of defendant's statement to the police, provided sufficient evidence on which to convict. The jury could reject some or all of defendant's statement to Williams and the police. The victim was stabbed fifty-six or fifty-seven times. Defendant made no motion for a new trial, and even if we were to consider his "weight of the evidence" argument, we find it has no merit. See R. 2:10-1. In essence, there was evidence of unauthorized entry through the screen to the Burse apartment that was cut with intent to steal, an armed confrontation and stabbings, and the State's expert testified that defendant could form the requisite culpability for all crimes. The proofs were more than adequate.

The judge instructed the jury to disregard and "not to infer anything" from the medical examiner's passing reference to his finding that Burse was fifteen to sixteen weeks pregnant. We do not see how it could have affected the result given the issues which were before the jury, particularly because defendant's medical experts both mentioned that the victim was pregnant.

The evidence of allegations of defendant's conduct against Williams was relevant to her reports to the police and statements concerning what defendant told her. The trial judge did not abuse his discretion in declining to sever counts nine and ten involving the allegations with respect to Williams, see R. 3:15-2(b), and the judge carefully instructed that each count had to be evaluated on its own proofs. The acquittals of threatening and indictable assault against her show no undue prejudice.

Similarly, there was no abuse of discretion in permitting testimony that about two weeks before her death defendant threatened Burse. Even if not part of the res gestae because of the alleged prior threat to kill, proof of the threats against Williams were admissible under N.J.R.E. 404(b) in response to the claim of self-defense. Moreover, the testimony of a prior threat and confrontation was relevant to whether defendant would have entered the victim's home by consent to continue a sexual relationship or to enter without consent for other purposes, including to carry out a prior threat. In any event, the judge instructed the jury on the limited relevance of the testimony concerning the prior acts and that they were relevant only to defendant's "motive or intent" and not "for any other purpose."

With respect to defendant's confession, there is no dispute he was in custody and the police were at the jail for the withdrawal of hair samples and a bucal swab when defendant volunteered that he wanted to tell them "what really happened." The judge found at a N.J.R.E. 104 hearing that Detective Appleyard then read defendant his Miranda rights and defendant waived them before a formal statement was taken. Miranda warnings were again administered before the statement was recorded. Under our scope of review, the admission of the "volunteered" and formal statements must be sustained. State v. Knight, 183 N.J. 449, 461-63 (2005); State v. Cabrera, 387 N.J. Super. 81, 99-100 (App. Div. 2006).

Similarly, the admission of crime scene and autopsy photos was not an abuse of discretion, particularly because the judge gave reasons to the effect that they were relevant to the evaluation of both the defendant's state of mind and whether the wounds were defensive.

Defendant makes a series of arguments related to the jury instructions including the fact the judge did not explain the relevance and significance of the expert testimony in evaluating the issues and in relating the evidence to the defenses. However, we must evaluate the contentions under the plain error standard as there was no objection to the charge by the defense (except for the prior denied request to charge the insanity defense), and there is no claim the elements of the crimes were not properly explored. Moreover, the judge placed the burden on the State to prove defendant's required culpability:

Evidence that the Defendant suffered from a mental disease or defect has been produced. You must consider all of the evidence of the Defendant's mental state, including that offered as evidence of mental disease or defect, in determining whether or not the State has proven beyond a reasonable doubt that Edward Bryant acted purposely or knowingly, which are elements of the charge of murder.

You may likewise consider the Defendant's mental state as it applies to any of the other crimes that I have explained the elements to you, which require the formation of a purposeful or knowing mental state.

In considering this evidence, you must decide first, whether the State has proven beyond a reasonable doubt that the Defendant did not suffer from a mental disease or defect that can affect a person's capacity to act.

If you find that the State has not met its burden of proof on that first question, then you must decide a second question, whether the State has proven beyond a reasonable doubt that the disease or defect did not affect the Defendant's ability to form those mental states.

In other words, you must determine whether, despite the evidence of mental disease or defect, the State has proven beyond a reasonable doubt that the Defendant acted purposely or knowingly.

If, after considering the evidence of mental disease or defect or any other evidence or lack of evidence in the case, you find that the State has failed to prove beyond a reasonable doubt that the Defendant acted purposely or knowingly, then you must find the Defendant not guilty.

Defendant further asserts that an insanity defense charge should have been given. As noted above, when Dr. Mack testified, he said that defendant:

did not know what he was doing was wrong. He did not know what he was doing was wrong because in his mind, he was in that back room defending himself from all these other people, not just the victim. He did not know what he was doing was wrong which is one of the two legs of insanity defense which is a close relative of the diminished capacity defense."

So in my opinion, as stated within a reasonable degree of professional forensic psychology and forensic neuro-psychological certainty, Mr. Bryant did not know what he was doing was wrong when he stabbed the victim because he thought he was defending himself. And he did not formulate the criminal intent because he thought he was defending himself, and because his brain damage was kicking in and he was perseverating.

Further, Dr. Mack was asked:

Q: [Then,] the fact that Mr. Bryant did not know what he was doing, and he did, in fact, have a disease of the mind that existed when the acts were committed?

A: Yes. I agree.

Q: And lastly, that's why your opinion is that he was, in fact, suffering from a mental disease of the mind that makes him criminally not responsible for his behavior?

A: Yes, correct.

Assuming that there was sufficient evidence to raise an insanity defense, we find no basis for reversal. Defendant provided no notice of an insanity defense, see R. 3:12-1, and did not raise the subject until the charge conference. While defendant did raise a diminished capacity defense, the State was not alerted that defendant was asserting an insanity defense, so as to permit the State even the opportunity to seek an adjournment and obtain expert testimony on that issue. The trial judge declined to charge insanity after reviewing both the Rules concerning affirmative defenses and the proceedings in the case. Moreover, defense counsel clearly consulted with, and presented testimony of forensic experts as to defendant's mental disease and defect so we have to assume he had the opportunity to earlier consider whether an insanity defense was appropriate and, if so, to give notice thereof. In any event, given the burden of proof on an insanity defense is on the defendant, and Dr. Greenfield's testimony that, while defendant had organic brain damage it did not impair his cognitive ability, we cannot assume an insanity defense would have been successful, particularly where the diminished capacity was not. This is especially so given the fact that the jury found that the State sustained its burden on the diminished capacity defense.

There is no presumptive sentence for murder. See State v. Abdullah, 184 N.J. 497, 507 (2005). The fifty year sentence for murder is unassailable, and the sentence for the other indictable convictions were the former presumptive terms. However, as the offense date was prior to June 29, 2001, the sentence for murder must be modified to fifty years with thirty years before parole eligibility. See State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd, 168 N.J. 113 (2001). See also L. 2001, c. 129, 2(d)(1) (enacted after this offense). Defendant may have received a term longer than fifty years if the trial judge did not incorrectly consider the parole eligibility under the NERA and actual time to be served, but the State does not assert that the specific term can be increased in light of the vacation of the NERA ineligibility term. See, e.g., State v. Young, 379 N.J. Super. 498 (App. Div. 2005), certif. granted and remanded on other grounds, 188 N.J. 349 (2006).

In summary, defendant raises a number of issues with respect to the conviction. We reject them all particularly because the evidentiary contentions pale in light of the lack of contest as to the fact defendant caused the victim's death. The critical issue dealt with defendant's culpability and state of mind. As to that, the jury rejected the defense expert testimony, but our affirmance of the conviction does not preclude a petition for post-conviction relief addressed to the presentation of the defense.

The judgment is affirmed, and the matter is remanded for an amended judgment to embody a corrected sentence for the murder conviction.

 

We do not have a transcript of the tape that was played to the jury for thirty-eight minutes on June 29, 2004. However, Applegate's seven page report of defendant's "taped confession" is appended to the presentence report.

The father was convicted of sexual assault and impregnation of defendant's sister.

As we affirm the murder conviction, we need not address the proofs on the felony murder count which was merged therein and the burglary and armed robbery convictions on which concurrent sentences were imposed. Suffice it to say, we find sufficient evidence to support each conviction under the Reyes test.

According to the evidence at the N.J.R.E. 104 hearing, defendant had been advised that the samples were to be taken, and he met with Appleyard in the jail's infirmary, along with several other officials. Defendant said he wanted to tell them "what really happened." Appleyard then read defendant his Miranda rights at 10:42 a.m. Defendant said that he understood his rights and would waive them.

Detective Appleyard asked, "Did you do this?" and defendant said, "Yes, but it's the wrong story. I'd like to explain myself." Defendant then gave a short version of what had happened, stating that he and the victim had sex that night, then they got into an argument about cocaine. She charged at him with two knives, and he got an iron and hit her with it twice. After a struggle, he then seized one of the knives, and after that, "he blacked out."

The samples were then taken from defendant, after which defendant was moved to an interview room in the jail. Sergeant James from the Hudson County Jail read the Miranda rights again; defendant then signed a waiver. James left, and Appleyard was joined by Detective Greg Tongring of the Hudson County Prosecutor's Office. Defendant gave a more detailed statement at 12:44 p.m. Then defendant gave a taped statement. On the tape, defendant was read his rights a third time, and he again acknowledged and waived them on tape. There was no defense testimony that defendant did not have the mental capacity or ability to voluntarily waive his rights.

After the hearing, the judge found that it was "abundantly clear" that defendant had been read his rights "on three different occasions." Therefore, the judge admitted the tape, and it was played for the jury.

Dr. Mack did not expressly state that defendant was insane, as defined in N.J.S.A. 2C:4-1.

Under the Rule, the notice must be given "no later than seven days before the arraignment/status conference."

We do not preclude a petition for post-conviction relief on the ineffective assistance of counsel for not raising the issue sooner. See State v. Preciose, 129 N.J. 451 (1992).

As noted by a distinguished commentator, "[i]t is important to distinguish the insanity defense, where the burden is on the defendant, from use of evidence of mental disease, to negate an element of an offense. In the latter case, the burden of proof beyond a reasonable doubt remains on the prosecution," and defendant does not claim the judge's charge suggested otherwise. In his summation, defense counsel focused on the testimony of his experts and defendant's state of mind and on its impact on the claim of self-defense.

In fact, neither party discusses Manzie or the NERA component in their initial brief. Defendant raised the issue in a supplementary letter and reply brief to which the State understandably did not respond.

(continued)

(continued)

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A-1656-04T4

July 30, 2007