STATE OF NEW JERSEY v. KEITH PEARYER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3222-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH PEARYER,
Defendant-Appellant.
__________________________
Argued March 16, 2010 - Decided August 26, 2010
Before Judges Wefing, Messano and LeWinn.
On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Indictment No. 05-10-1101.
Alan Dexter Bowman argued the cause for
appellant.
Meredith L. Balo argued the cause for
respondent (Theodore J. Romankow, Union
County Prosecutor, attorney; Ms. Balo, of
counsel and on the brief).
PER CURIAM
Defendant was indicted for first-degree murder, N.J.S.A.
2C:11-3(a)(1) or (2); fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). His co-
defendant, Anthony Pearyer, who is also defendant's brother, was
charged in the same indictment with first-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1). Defendant and his brother were
tried together to a jury in March 2007. The jury convicted
defendant of the lesser-included offense of reckless
manslaughter and the two weapons charges. On July 20, 2007,
defendant was sentenced to an aggregate term of six years
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The pertinent trial evidence may be summarized as follows.
Bad blood existed between defendant and Dashaun Goines, the
victim of the homicide in question. Defendant's former
girlfriend, Kyra Johnson, was dating Goines and, according to
her testimony, defendant and Goines did not get along.
On the night of March 5, 2005, defendant, his brother and
several other individuals arrived at the Chez Maree nightclub in
Plainfield. As this group attempted to enter the club, another
entourage of men approached the entrance. Goines and his
friend, Al-Rahman Stembridge, were among the group.
Shawn Adams, the bouncer at the nightclub, testified that
he heard someone in Goines' group say "something" to defendant's
group "and they just started fighting." Adams testified that
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defendant threw the first punch; however, Stembridge testified
that "[s]omebody threw a punch over [defendant]."
A fracas broke out between the two groups. Adams testified
that one fight involved defendant and his brother and Goines,
adding that defendant and his brother were "just punching
[Goines] all over the place, punching him and kicking him."
Kurt Donnell, a security officer on duty at the nightclub
that night, observed the fight and testified that Goines "was
the one getting beat up." He could not recall how many people
were attacking Goines. Donnell interceded in the fight,
assisted Goines to his feet and stated that initially he seemed
alright. At that point, however, both Donnell and Adams
observed blood on the back of Goines' shirt in the same area
where Donnell had seen Goines being punched.
Goines refused medical attention. He shortly thereafter
collapsed and later died in the hospital. No witness saw anyone
stab Goines; nor did any witness describe any individual
wielding a knife or any similar object. Defendant was observed
running away after Donnell intervened and brought Goines to his
feet.
The medical examiner testified that the cause of Goines'
death was "[a] stab wound of his torso." She also observed a
stab wound on Goines' right arm, "just below the elbow" as well
A-3222-07T4
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as a "laceration, . . . an abrasion, and contusion on the top
area of his head[,]" in addition to "two lacerations of his
lower lip and a laceration on the inner aspect of his lower
hip." According to the medical examiner, the wound to Goines'
torso was consistent with a knife wound.
Following the arrest of defendant and his brother, forensic
tests were conducted which concluded that blood found on co-
defendant's jeans was that of Goines.
Defendant did not testify at trial; however, he presented
four character witnesses who attested to his reputation as a
law-abiding citizen in the community. Through defendant's
attorney, the jury was informed that his defense was that he was
not involved in the fight that led to Goines' death. Defense
counsel told the jury in summation:
His Honor when he reads you the
instructions, there's certain things if, as
a matter of law, if there is a factual basis
in the record, his Honor is constrained,
even if it appears to be inconsistent with
the defense, to give the legal instruction.
One such thing in this case is self-
I'm not arguing that [defendant]
defense.
acted in self-defense. My position is
[defendant] was not involved and did not do
it . . . but because Al-Rahman Stembridge
testified that Mr. Goines punched
[defendant], his Honor is constrained as a
matter of law for some other considerations
which he'll explain to instruct you with
respect to self-defense. So that you can
discount whether or not if anything happened
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in this case and you can attribute it to
him, that self-defense negates that . . . .
....
So [the judge] must give you full and
complete jury instruction[s] and many of
those jury instructions may seem to you to
be inconsistent with that which [defense
counsel] proposed as his defense, which is
we didn't do it. . . . [I]t is our position
[defendant] never had a knife, didn't stab
anybody and nobody said he did.
The prosecutor, in summation, made numerous remarks that
prompted objections by defense counsel. Regarding co-defendant,
the prosecutor stated to the jury: "here are . . . reasons that
you know that Anthony Pearyer was in that fight that night: was
there any explanation whatsoever as to how the victim's DNA
ended up on these jeans? No, none." The judge sustained
counsel's objection and told the jury: "There's no requirement
for a defendant to say anything at all or, obviously, to
testify. So the reference that there's no explanation is
improper. Therefore, it must be struck from the record and you
must disregard same."
The prosecutor then stated, "there's nobody, nobody that
says that anybody else came up there and stuck a knife in
[Goines'] back." The trial judge overruled defendant's
objection to this statement.
A-3222-07T4
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The prosecutor told the jury, "[y]ou heard [defense
counsel] talk to you about self-defense[,]" whereupon defense
counsel objected, noting that he "didn't talk about that." The
prosecutor continued:
[T]he facts in this case, all of them,
prove that Anthony Pearyer had the victim's
blood on his pants and that he is guilty of
aggravated assault.
And then the same way that he had the
blood on his pants, Anthony had the blood on
his pants, this man, [defendant], still has
that man's blood not in a physical sense but
in a very literal sense.
Defense counsel objected; the judge sustained the objection and
"struck" that comment "from the record."
The prosecutor also told the jury that defendant and his
brother "fle[d]; one in [a] limousine toward Route 22, the other
one [defendant] back around into a parking lot and gone. Only
three days later he is arrested." Counsel objected; a sidebar
followed and the prosecutor then told the jury it could consider
flight as "consciousness of [defendant's] guilt."
At the conclusion of the State's summation, before
adjourning for the evening, the judge gave the following
curative instruction to the jury:
A few things before you go home.
....
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[T]here is no duty upon a defendant to make
any comment at all vis-à-vis statements as
to what they did or what they would have
done. I told you before that the
prosecutor's comment regarding you have not
heard a response to these inquiries is an
improper comment by him because everyone,
the two defendants here, you and me, have
the right to remain totally mum and say
nothing at all and we are presumed innocent
until the charges have been proven beyond a
reasonable doubt. There's no requirement
and you may not consider at all that the
defendants said anything about a particular
response.
We had a lot of discussion about what
the lawyers remember. They are not
controlling upon you at all. . . .
Ultimately, [twelve] who decide must decide
the case based on your recollection of the
facts that you think are true or not true on
the issue of identification and all other
issues before you.
The following morning, prior to the charge, the trial
judge, sua sponte, made several comments to the jury about the
objections defendant had raised to the State's summation. The
comments regarding
judge first addressed the prosecutor's
defendant's failure to explain where the blood on co-defendant's
jeans came from:
It was improper because it went into
two areas of constitutional rights that the
defendant has. One, the right to remain
silent which, of course, everyone has. He
cannot be compelled to say why or how or
that type of thing and, two, everyone, and
you have been told by me many times, is
presumed innocent and that presumption is
effective when the charges are brought and
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remains effective through the trial unless
the State proves the allegations beyond a
reasonable doubt.
In addition to that, the burden is only
upon the State in this arena. There is no
burden on the defense to do anything. They
are not required to ask a question, to
propound a particular witness before you or
anything of that type. So to the extent
that [the State] perhaps called upon the
defense to do something, it was an improper
comment and, again, you must disregard it
totally and pay no attention to it for your
deliberations at all.
The trial judge next addressed the prosecutor's reference
in summation to defendant's flight:
[T]he legal flight pertains to [defendant]
only at the scene of the crime. That is to
say, allegedly leaving the front where the
event occurred and running apparently around
allegedly to the back towards the cars.
There is nothing in the record before us to
say that he is trying to avoid the police
between the 6th of March until he was
arrested on the 9th.
To the extent there was a reference to
where he was, perhaps, that was an improper
reference and is struck from the record.
During its deliberations, the jury asked the judge to
After instructing the
explain the law on reckless manslaughter.
jury on this charge, the judge told it to "take these
instructions on . . . reckless manslaughter . . . together with
all the other instructions [the judge] gave [to]" the jury.
Defendant raised no objection to this instruction.
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The court re-instructed the jury on reckless manslaughter
on the following day and explained, "[w]hen applied to those
offenses in Count One, self-defense requires the defendant to
have an honest and reasonable belief in the need to use force."
On appeal, defendant raises the following issues for our
consideration:
POINT I
The Trial Court Committed Plain Error
Because It did Not Clearly Inform The Jury
That The Defense Of Self-Defense Applied To
Reckless Manslaughter (Not Raised Below)
i. The Defense of Self-
Protection
ii. General Law As To Jury
Instructions
iii. This Court Must Reverse
POINT II
The Prosecutor's Statements In His Summation
Denied Appellant A Fair Trial
A. Pertinent Facts
B. Applicable Law
i. Comment on Failure to Testify
And Transfer of the Burden of
Proof
ii. Appeal to Emotions and
Sympathy
iii. Call to Arms
C. This Court Must Reverse.
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Having reviewed these contentions in light of record, we
conclude that they do not warrant reversal of defendant's
convictions.
Defendant's first argument respecting the jury charge is
raised as plain error as no objection was lodged at trial.
Having reviewed that charge in its entirety, we are satisfied
that this claimed error was not "clearly capable of producing an
unjust result . . . ." R. 2:10-2.
Plain error in the context of a jury
charge is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant 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." The charge
must be read as a whole in determining
whether there was any error.
[State v. Torres,
183 N.J. 554, 564 (2005)
(citation omitted).]
See also State v. Wilbely,
63 N.J. 420, 422 (1973) ("Portions of
a charge alleged to be erroneous cannot be dealt with in
isolation but the charge should be examined as a whole to
determine its overall effect").
We note initially the anomaly of defendant raising this
argument, since he expressly eschewed self-defense as a defense
at trial; defense counsel informed the jury of this on several
occasions in his summation.
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In any event, we are satisfied that the trial judge's
failure to charge the jury specifically regarding self-defense
when he re-instructed them on the lesser-included offense of
reckless manslaughter was not error. During his initial
instructions to the jury, the judge extensively discussed all of
the parameters pertinent to self-defense. In giving this
instruction, the judge referenced defense counsel's summation
comments to the effect that defendant "was not there[,]" but
advised the jury that he "ha[d] a duty to give the law that in
[his] view comes forward to you and you have the right to
consider same."
The judge's initial charge on self-defense started with his
reminder to the jury that "the indictment charges [defendant]
with the charge of obviously homicide." A thorough and
comprehensive explanation of self-defense followed this
statement.
Thereafter, on subsequent days as the jury deliberated and
sought re-instruction on the lesser-included offense of reckless
manslaughter, the trial judge reminded them to take those
instructions "together with all the other instructions" he had
given them. In fact, the judge reminded the jury during the
course of his re-instructions that he had "[e]arlier . . .
g[iven it] the law to self-defense as to Count One and lesser
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included charges." Clearly this served to remind the jury that
they were to consider self-defense with respect to all of the
"homicide" charges encompassed in the first count of the
indictment.
Under the circumstances, we find no merit to defendant's
contention that he "was convicted of reckless manslaughter only
because he was deprived of the jury's intelligent consideration
of the applicability of self-defense."
We briefly address defendant's contention respecting the
prosecutor's comments in summation. Even were we to concur with
defendant that some of the prosecutor's comments were "an
inappropriate 'call to arms' and . . . an appeal to the jurors'
emotions and sympathy[,]" as he contends, we are nonetheless
satisfied that the trial judge effectively mitigated any
prejudicial effect from such comments. The judge sustained most
of defendant's objections and gave the jury curative
instructions immediately at the conclusion of the prosecutor's
summation and then again the following morning before commencing
his instructions.
Our jurisprudence requires that
prosecutors act in accordance with certain
fundamental principles of fairness . . .
....
"[A] prosecutor . . . must ...
refrain from any conduct lacking in the
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essentials of fair play, and where his
conduct has crossed the line and resulted in
foul play, the reversal of the judgment
below will be ordered."
....
For those reasons, we gauge the
consequences of prosecutorial misconduct or
error differently. We "evaluat[e] the
severity of the misconduct and its
prejudicial effect on the defendant's right
to a fair trial" and conclude that
"prosecutorial misconduct is not grounds for
reversal of a criminal conviction unless the
conduct was so egregious as to deprive
defendant of a fair trial." . . . It is in
that context that we consider defendant's
prosecutorial misconduct or error claims.
[State v. Wakefield,
190 N.J. 397, 436-38
(2007), cert. denied,
552 U.S. 1146,
128 S.
Ct 1074,
169 L. Ed. 2d 817 (2008) (citations
omitted).]
In assessing whether the challenged comments meet this "so
egregious" standard, "a reviewing court must 'consider the tenor
of the trial and the responsiveness of counsel and the court to
the improprieties when they occurred.'" State v. Echols,
199 N.J. 344, 360 (2009).
Our review of the record convinces us that this was a hard-
fought trial on both sides. Defendant vigorously cross-examined
State witnesses and attacked their credibility in summation.
We are particularly impressed by the lengths to which the
trial judge went in mitigating the effects of the prosecutor's
summation upon the jury. Between the conclusion of the
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prosecutor's summation and the charge, the judge gave the jury
two substantive instructions explaining what was improper in the
summation and emphatically instructing them to ignore those
comments.
Under the circumstances, we are satisfied that the
prosecutor's summation comments did not deprive defendant of a
fair trial. That right was zealously guarded by the trial judge
in this case.
Affirmed.
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