STATE OF NEW JERSEY v. RASHAN CAPERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2225-07T42225-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAN CAPERS,

Defendant-Appellant.

________________________________

 

Submitted: January 27, 2010 - Decided:

Before Judges Cuff, C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1043.

Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rashan Capers appeals from a judgment convicting him of first-degree murder, contrary to N.J.S.A. 2C:11-3a; first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3; two counts of third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. Defendant also appeals from the sentence imposed on June 15, 2007, of forty years in prison on the murder conviction, eighty-five percent to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and a consecutive twelve-year term on the attempted-murder conviction, also subject to an eighty-five percent NERA parole disqualifier. The remaining convictions were merged into the murder and attempted-murder convictions for sentencing purposes. We now affirm.

Around 2:00 a.m. on Saturday, March 25, 2005, Raheem Pickens, age 17, and his friend Dayshawn Smith, age 20, purchased a bottle of rum at a liquor store in Paterson. Pickens had been drinking heavily, and he planned to share the bottle with Smith. Pickens and Smith were on their way to Pickens's house on Broadway when a Lexus pulled into a parking spot in front of a Kentucky Fried Chicken and broke the bottle of rum. The driver of the car was Shamar Ward, the boyfriend of Pickens's sister, and the other occupants were Kezmar Washington, defendant, and defendant's cousin, Quashon Capers.

Either Pickens or Smith demanded that the men in the car pay for the broken bottle. Pickens, who is almost six feet tall, admitted that he was drunk and aggressive and that he and defendant "got into it." Defendant, who is about five feet, six inches tall, landed a single punch that knocked Pickens to the ground, leaving him with a light cut on his lip. Pickens wanted to pursue defendant, but Smith restrained him. By then, Ward and Washington, who had gone into Kentucky Fried Chicken, returned. Pickens testified that, as the four men got back into the car, he warned defendant that "when I catch him I'm going to get him . . . ."

Around midnight Saturday night, Pickens, Smith, and the occupants of the Lexus found themselves at the same party. Pickens was still angry about the broken bottle, and he started an argument with defendant about it. The argument, which became "heated," involved four or five of Pickens's friends and was directed at defendant and his cousin.

Pickens testified that when he confronted defendant at the party, defendant tried to assure him that "everything was squashed," which Pickens understood to mean that any issues between them were settled. But Pickens, who was still drinking, testified that despite defendant's attempt at peacemaking, he "had plans" and "wanted to fight [defendant]."

Washington believed Pickens was looking for "payback," and he ushered defendant and his cousin out of the party. Defendant was upset and asked Washington to take him home, but Washington persuaded him not to end the evening, and they went to another spot. Later, Ward drove Washington and the Capers cousins to an after-hours club.

Sometime after 3:00 a.m. Sunday, Pickens and Smith went to the same after-hours club in Paterson. They did not enter the club, which charged a fee, and instead hung out, with dozens of others, on the street in front of the club. Pickens testified that he was drunk and wanted to fight.

Pickens's older sister, Kanasha Moore, and her friend were on their way home from a late-night party when they drove past the after-hours club. Moore saw Pickens in the crowd in front of the club with, among others, Smith, Ward, and Washington, along with defendant and his cousin Quashon. Pickens "seemed more hyper than usual," "as if he was about to fight." He and Quashon were cursing at each other and seemed eager to fight. Moore noted that Pickens "was actually . . . the rowdier one." Although Quashon was "a smaller guy" and "[n]othing for [Pickens] to be afraid of," Moore decided to stop and talk to Pickens.

Moore testified Pickens was arguing about an incident concerning a broken bottle that had occurred twenty-four hours earlier. She said Pickens "wanted to fight somebody. Like, basically, [he was] just calling somebody out to fight[.]" And "people running off at their mouth . . . provoked him to get even angrier . . . ." Moore tried, without success, to get Pickens to leave with her.

Over time, the argument expanded and escalated. Pickens and defendant began "argu[ing] . . . over [Ward] and who he was going to hang with." Smith joined Pickens in his argument with defendant. Defendant "was upset" about Ward and took a swing at Pickens. Defendant missed Pickens, after which Smith "followed up and punched [defendant]." Then, Pickens "hit [defendant] again, and he fell." At that point, Moore again pressed Pickens and Smith to leave with her. Washington and defendant's cousin helped defendant to his feet, and the three left the scene.

According to Pickens, after he knocked defendant down, he and Smith were heading, at Moore's urging, towards her car when they noticed that defendant was returning, "coming around the corner." Moore got back in her car; Pickens and Smith remained on the street and Pickens "was telling people . . . [that he] just beat this nigger up."

Moore said that when defendant returned after the first fight, defendant held his hands in front of him. Moore and her friend, who had remained in the car when Moore stopped in front of the club, thought they saw something in defendant's hand that caused a "shiny glare."

Defendant was walking quickly, but not running. Pickens aimed the first blow at defendant, and then both men were swinging at each other. At some point Pickens retreated, holding his shoulder because defendant had stabbed him in the upper arm. Smith then stepped in and swung at defendant. Defendant stabbed Smith and then "stabbed [Pickens] again in almost the same spot." Pickens did not realize he had been stabbed until Moore noticed he was bleeding. He also did not initially realize that Smith had been injured.

After the fight, Moore saw defendant with what looked like a kitchen knife. Moore generally confirmed Pickens's statement to the effect that defendant headed for Pickens, they tangled, and Pickens stepped back, apparently injured. Smith then interceded and "swung on [defendant]"; Smith landed a second blow against defendant. Pickens tried to connect with defendant again; defendant seemed to stab Pickens a second time; then defendant managed to stab Smith.

Washington saw part of the second fight which ended in the stabbing. Washington was in the crowd in front of the club, at some distance from the combatants, when he noticed that Pickens was "fighting [defendant] and . . . [Smith] appear[ed] to be in the midst of it also." Pickens and defendant were "swinging at each other." Washington agreed with Pickens that when Pickens retreated, Smith interceded and "tr[ied] to grab [defendant]"; "they were kind of wrestling" and "tossing [each other] around."

Pickens said that when defendant left after the second fight, he tried to pursue him. However, he could not find defendant. Pickens was stopped a block or two away by a police officer who responded to a 9-1-1 call placed after the fight. The policeman, dispatched at 3:47 a.m., estimated that there were between fifty and eighty people in front of the club.

Smith had been stabbed on the left side of his chest. Of the three wounds, two damaged the heart and lungs and proved fatal. Pickens was stabbed twice in the upper arm. He received stitches at the hospital, after which the police took him to the stationhouse.

The jury returned a verdict of guilty as to all counts, and defendant was sentenced thereafter. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE INSTRUCTION ON PASSION-PROVOCATION MANSLAUGHTER MISSTATED THE LAW (Not Raised Below).

POINT II - THE INSTRUCTION ON PASSION-PROVOCATION MANSLAUGHTER DIRECTLY CONFLICTED WITH THE INSTRUCTION ON LESSER-INCLUDED OFFENSES (Not Raised Below).

POINT III - THE INSTRUCTIONS ON THE LESSER-INCLUDED OFFENSES CONTAINED NUMEROUS ERRORS ALL OF WHICH SERVED TO DIMINISH THE SIGNIFICANCE OF THE LETTER OFFENSES (Not Raised Below).

POINT IV - THE CUMULATIVE EFFECT OF THE ERRORS IN THE INSTRUCTIONS ON THE LESSER-INCLUDED OFFENSES DENIED DEFENDANT HIS DEFENSES AND WARRANTS REVERSAL (Not Raised Below).

POINT V - THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT (Not Raised Below).

POINT VI - THE SENTENCE OF 52 YEARS, 85% WITHOUT PAROLE, IS GROSSLY EXCESSIVE.

Generally, a defendant waives the right to contest the charge on appeal when the defendant fails to object to the charge at trial as required by Rule 1:7-2. Because the first five points on appeal were not presented to the trial judge as an objection to the charge, we may review the charge for plain error. R. 2:10-2. Plain error is error that is "'clearly capable of producing an unjust result'" and must be of sufficient magnitude "'to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971)); see also State v. Kemp, 195 N.J. 136, 149-50 (2008); State v. Whitaker, 402 N.J. Super. 495, 512 (App. Div. 2008), aff'd, 200 N.J. 444 (2009); State v. Chen, 402 N.J. Super. 62, 86 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009).

Plain error in the charge is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969) (citing State v. Corby, 28 N.J. 106, 108 (1958), overruled on other grounds, State v. Lanzo, 44 N.J. 560 (1965)), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); see also State v. Nero, 195 N.J. 397, 407 (2008); State v. Burns, 192 N.J. 312, 341 (2007); State v. Baker, 400 N.J. Super. 28, 46-47 (App. Div. 2008), aff'd, 198 N.J. 189 (2009).

Erroneous jury instructions in a criminal case are generally presumed to constitute plain error and are regarded as "'poor candidates for rehabilitation under the harmless error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif. denied, 188 N.J. 489 (2006). However, an error that is clearly harmless and could not have affected the jury's deliberations does not require reversal. State v. Docaj, 407 N.J. Super. 352, 369-71 (App. Div.), certif. denied, 200 N.J. 370 (2009). We review the charge as a whole and the context of the alleged error. State v. R.B., 183 N.J. 308, 324-25 (2005). Even if not perfectly clear, the charge as a whole may be deemed adequate. State v. Harris, 141 N.J. 525, 556-57 (1995).

Defendant asserts, quite correctly, that the judge erred in giving the model charge on murder and passion/provocation manslaughter when he instructed the jury on the third factor under State v. Mauricio, 117 N.J. 402, 411 (1990), as follows:

The third factor you must consider is whether the State has proven beyond a reasonable doubt that defendant had a reasonable time to cool off. In other words, you must determine whether the State has proven that the time between the provoking events and the acts which caused death [were] inadequate for the return of a reasonable person's self-control.

[(Emphasis added.)]

Before giving this particular portion of the charge, the judge had explained that a person was guilty of passion/ provocation manslaughter if "he did act in the heat of passion resulting from a reasonable provocation" and that to find a person guilty of murder the State was required to prove that the actor "did not act in the heat of passion resulting from a reasonable provocation." He further elaborated:

The third element [of murder] that the State must prove beyond a doubt to find the defendant guilty of murder i[s] that the defendant did not act in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter has four factors which distinguish it from murder. In order for you to find the defendant guilty of murder, the State need only prove the absence of any one of them beyond a reasonable doubt. The four factors are:

1. There was adequate provocation.

2. The provocation actually impassioned defendant.

3. Defendant did not have a reasonable time to cool off between the provocation and the act which caused death; and

4. Defendant did not actually cool off before committing the act which caused death.

It was only at this point that the judge gave the charge to which defendant now objects. After giving the erroneous charge, the judge continued:

If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation, or that the provocation did not actually impassion the defendant, or that defendant had a reasonable time to cool off, or that defendant actually cooled off, and, in addition to proving one of those four factors, you determine that the State has proven beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death, you must find the defendant guilty of murder.

If, on the other hand, you determine the State has not disproved at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State has proven beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death, then you must find him guilty of passion/provocation manslaughter.

If, however, the State has failed to prove beyond a reasonable doubt that the defendant acted purposely or knowingly, or that the defendant's conduct actually caused death or serious bodily injury resulting in death, you must acquit defendant of murder and passion/provocation manslaughter, and go on to consider whether the defendant should be convicted of the crimes of aggravated or reckless manslaughter.

[(Emphasis added.)]

The judge returned to this subject when he charged the jury on attempted murder and attempted passion/provocation manslaughter. He again advised the jury that to convict defendant of attempted murder, the State was required to prove beyond a reasonable doubt that defendant did not act in a heat of passion resulting from a reasonable provocation. Focusing on that particular element of attempted murder, the judge charged as follows:

If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation, or that the provocation did not actually impassion the defendant, or that the defendant had a reasonable time to cool off, or that the defendant actually cooled off, and in addition to proving one of . . . those four factors, you determine the State has proven beyond a reasonable doubt that the defendant purposely attempted to cause the death of Raheem Pickens, then you must find him guilty of attempted murder.

[(Emphasis added.)]

The judge then continued to instruct the jurors on finding defendant guilty of attempted passion/provocation manslaughter, failing which they were to consider certain lesser-included offenses. He did not repeat the erroneous charge of which defendant now complains.

We have previously considered the error in the model charge and have concluded that it was harmless. Docaj, supra, 407 N.J. Super. at 365. We noted that the third factor was correctly articulated three times and was conveyed incorrectly only in one isolated instance. Ibid. We found, "The isolated error's capacity to dispel that overall effect was minimal, at best." Ibid. Similarly, we are satisfied that the error here was harmless in light of the repetition of the correct burden of proof on four separate occasions.

Defendant next contends that the charge on passion/provocation manslaughter "cannot be reconciled" with the general model charge on lesser-included offenses. The latter charge was given toward the end of the judge's instructions and was read as follows:

The law requires that the [c]ourt instruct the jury with respect to what we describe as possible lesser-included offenses, even if they are not contained in the indictment. Just because the [c]ourt is instructing you concerning these offenses[] does not mean that the [c]ourt has any opinion one way or another about whether defendant committed these or any offenses. You should consider these offenses along with those in which the defendant is indicted. However, you are not to render a verdict on these offenses, or answer the questions on the verdict sheet, unless you find that the State has failed to meet its burden with regard to the offenses in the indictment.

The judge further observed, "You only consider the lesser-included offenses if you find the defendant not guilty of the offenses charged in the indictment." The judge then charged on aggravated assault causing serious bodily injury, aggravated assault causing bodily injury with a deadly weapon, and aggravated assault.

Defendant urges that because passion/provocation manslaughter is a lesser included offense of murder, the judge's instructions here contradicted his earlier instruction that the jury must first determine whether the State had met its burden to disprove passion/provocation manslaughter. We are not persuaded by this argument.

The general instruction on lesser-included offenses immediately preceded the substantive charge on the elements of three specific lesser-included offenses. No jury could have become confused by the language in the general instruction. It clearly applied only to the specific lesser-included offenses charged thereafter. Furthermore, the jury verdict sheet specifically required the jury to first determine whether defendant was guilty of passion/provocation manslaughter and, if not, then determine whether defendant was guilty of murder. Only if the jury did not convict defendant of murder would it consider the specific lesser-included offenses charged by the judge. The charge as a whole is not confusing, and defendant was not deprived of a fair trial. Cf. State v. Erazo, 126 N.J. 112, 125-26 (1991) (instruction that jury could find passion/provocation manslaughter only if it first acquitted the defendant of knowing or purposeful murder was "backwards").

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are contained in defendant's Points III to VI. With respect to the alleged errors in the charges on the lesser-included offenses, we note that the jury did not reach them and so defendant could not have been prejudiced by any error. With respect to defendant's sentence, we recognize Pickens was the aggressor at certain points during the twenty-four hours at issue here. However, defendant had multiple opportunities to retreat, but instead he left to obtain a knife, returned to the scene of the after-hours club, and used the knife to murder Smith and attempt to murder Pickens over a dispute about a broken bottle of rum. We do not find either term excessive, and the imposition of consecutive sentences was entirely appropriate under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), because there were two victims.

 
Affirmed.

This error in the model charge has been corrected. See Model Jury Charge (Criminal), Attempted Murder/Attempted Passion/Provocation Manslaughter (N.J.S.A. 2C:11-3) ("the time between the provoking events and the act which caused death was adequate for the return of a reasonable persons self-control").

(continued)

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A-2225-07T4

July 20, 2010