STATE OF NEW JERSEY v. SHAWN MORELLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN MORELLO,

Defendant-Appellant.

July 24, 2013

 

Argued May 21, 2013 Decided

 

Before Judges Fisher, Alvarez and St. John.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-07-0260.

 

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

 

Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Mr. Mosco, of counsel and on the brief).

 

PER CURIAM

Tried by a jury, defendant Shawn Morello was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).1 On March 16, 2011, defendant was sentenced to an aggregate term of five years imprisonment subject to three years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).2 Defendant appeals, and we reverse.

The facts developed during the trial require only brief summary. On January 10, 2008, at approximately 3:00 p.m., Phillipsburg Police Department Patrolman Josh Beers was dispatched to defendant's home because his mother reported he was armed and threatening to commit suicide. Beers arrived at the scene immediately, as did Lieutenant Richard Kisselbach and several patrolmen: Robert Marino, James McDonald, and William Vine. As no one responded to their knock, the officers let themselves in to the home. They looked around the first floor of the residence and announced their presence several times. When they began to climb the stairs to the second floor, someone, later determined to be defendant, shouted down "I know who the f--- you are, and if you come up here I'll blow your f---ing head off."

The officers attempted to reason with defendant, whom they said spoke clearly. They saw him at the top of the stairs holding a long gun across his body, at which point they immediately called for him to drop his weapon. He responded with "F--- you" and similar comments, again going out of sight.

A few minutes later, after alternating periods of shouting and silence, defendant came running down the steps, unarmed, towards the officers, who took him to a crisis center at a local hospital. He could not be evaluated because he was so intoxicated; his blood alcohol content (BAC) was determined to be at 0.354.

Defendant's wife Carol testified that defendant, who is an alcoholic, had been drinking heavily since the day before. This testimony was corroborated by Phillipsburg Patrolman Ralph Reppert, presented as a defense witness, who observed defendant to be visibly intoxicated at 3:30 a.m. that same day when he responded to a domestic violence call at the home. Reppert had no doubt, based on defendant's appearance, speech, and demeanor, that he was intoxicated. During the call, defendant's wife told the officers she wanted her husband to go to the hospital because he was complaining of chest pains, but that he refused. Eventually, the officers assisted defendant's wife in getting him to go back to bed.

When defendant testified, he acknowledged he had a "drinking problem," and that when his wife left to go to work that morning, he "drank and drank and drank and drank" because he feared she was going to leave him. He could only remember some of the several hundred phone calls he made to her that day. Defendant described himself as "delirious."

Defendant also denied that the incident police described had occurred at all. He only recalled saying "I'll blow my f---ing head off," and he denied threatening the officers. Defendant explained that he was certain he had not behaved as the officers described because

I've never done a bad thing in my whole life. I would never do that. There ain't no way. I knew what I said. I think I do. But I know I would never threaten nobody. I don't recall everything, but I do remember the door coming down and I do remember saying if you come upstairs I'll blow my F'g head off. That's what I do know. I never threatened nobody.

 

Defendant also admitted having "a little glass" of vodka before testifying "to take the shakes away."

In his opening statement, trial counsel said:

the basis for being at [defendant's home] was a radio report of an intoxicated male who was threatening to kill himself.

. . . .

 

We will show that when [defendant] was apprehended, rather than taking him directly to jail, the officers took him to the hospital. . . . He was incapable. In this state, [defendant] in the condition that he was in, could not sign a lease. He could not purchase a car. He couldn't buy a house. He couldn't even stand in this court to plead guilty, not in the condition that he was in. The Judge could not accept his plea. He was visibly, he was intoxicated way beyond the legal limits, way beyond. We are not asserting that as an excuse, but those are part of the facts. His inability to do anything legally responsible because of the condition that he was in. And so, therefore, the allegations that he threatened police officers, they're probably true. My client was out of his mind. He doesn't remember. He doesn't know. And again I'm not trying to excuse anything, but those are part of the facts.

 

. . . His condition was such he was so impaired. They didn't even bother with [Miranda3 warnings]. They didn't bother to ask a statement from him because of the excessive alcohol that he had consumed on that particular day as well as the preceding night.

In closing arguments trial counsel added:

There was disputed testimony with regards to whether or not [defendant] slurred his words. [Defendant's father] testified that when he spoke to him he was slurring his words. The officer spoke that his words were clearly distinct. . . . You have to make a determination with regards as to even if you take the State's evidence for what it is, that they said that, if you assume rather, that the State evidence should be taken for what it is. . . .

 

. . . .

 

Obviously, the excessive drinking, they were having some marital difficulties, who doesn't, all right. . . .

 

. . . .

 

. . . She told you she went out and purchased Vodka for him the night before. She contributed to it, all right. She told you the truth.

 

. . . .

 

Note that when [defendant] was actually taken into custody he was taken to a crisis center at Warren Hospital as opposed to taken to jail. I said to you in my opening that [defendant]'s condition was such that he couldn't sign a lease. He couldn't buy a car. He couldn't buy a house. He couldn't do any of those things. He couldn't sign a will. They were taken there because it seems to me that they were treating this as here is a person who is really off because of the amount of alcohol that he consumed.

 

He needs help as opposed to taking him to jail. All right. I think it was Captain [Kenneth] Decker's account that he actually rode along with him. Here is a Captain, all right. Here is a man who is responsible for Lieutenant Kisselbach and the other officers there, but at that point it seems that his efforts was towards getting this man some help. Let's get him to the hospital. All right. He's not a criminal. He's not a bad guy. All right. He needs to deal with these issues here. So we have to do our job as far as placing him in custody and so forth, but let's turn him over not to the jail keeper, but turn him over to the doctors, to the medical authorities so he could begin to get the help that he needs. All right. No evaluation took place at that particular time because of the condition that he was in. All right. But they testified, Captain Decker and some of the other officers, that they took him to Warren Hospital to the crisis center. All right. And that's what [defendant] needs. He needs help. All right. He's dealing with those issues. Some days, as my mother used to say, he has his good days and he has his bad days.

 

[The prosecutor] was able to elicit from him, [that] he was drinking yesterday.

 

At the charge conference, the judge and counsel engaged in the following discussion:

THE COURT: Okay, gentlemen, have a seat a second.

 

I want the record to indicate I took the charge home last night. I did some further review analysis, and as I told you in chambers, I interjected the language. My law clerk [wrote] up the charge for me and I interjected the language about clear and convincing, whatever.

 

On further review it appears under 2C:2-8b, intoxication, which is not self-induced or pathological, is an affirmative defense. Then you have to raise that and you have to prove that by clear and convincing evidence. That's not the situation here. Obviously, it was self-induced and the defendant did not make any claim that it was pathological. Basically, he's saying his defense is that he did not point the gun at the officers, that he was trying to take his own life, and at no time did he put the gun at the officer. I don't find that under 2C:2-8a. and b. Therefore, I revised the charge and gave you a copy of it this morning. And it's my understanding if you look at the comment to the rule it says in order for intoxication to negate an element of the offense within the meaning of subsection a., must be a prostration of the facilities test must be applied. There must be a showing that such causation of facilities

 

[DEFENSE COUNSEL]: Judge, its faculties.

 

THE COURT: Saying what?

 

[DEFENSE COUNSEL]: You are saying facilities.

 

THE COURT: I'm saying faculties. Thank you. Faculties was able to perform such a purpose. Basically, what I found in reviewing the evidence, that in the absence of evidence which can be said that the defendant's faculties were so prostrated as to render the defendant incapable of purposely and knowing conduct, the jury should not be given an instruction regarding the defense of intoxication. I feel I have to give them some instruction because it's in the case and, therefore, I'm going to give them the instruction which I gave you this morning.

 

Defense counsel, do you have any comment on that, that you want to put on the record?

 

[DEFENSE COUNSEL]: Your Honor, we have no objection to that.

THE COURT: Okay, Mr. Prosecutor.

 

[PROSECUTOR]: No objection, Judge.

When charging the jury, the trial judge said:

Now there was evidence in this case concerning the use by defendant of alcohol on the day in question. Generally, a defendant will not be relieved of criminal responsibility because he was under the influence of intoxicants or drugs voluntarily taken. The general assumption is that every person is normal and is possessed of ordinary faculties. The State need not prove that the defendant was sober. Voluntary intoxication is a defense in a criminal case that contains essential element[s] of proof that the defendant acted purposely or knowingly. In this case, however, every defendant who has had a few drinks may successfully urge that defense. To successfully invoke this defense the defense must show that the defendant was so intoxicated that he did not have the intent to commit an offense and that degree of intoxication was such that to bring about so great a prostration of the faculties, that the requisite mental state was totally lacking.

 

I made this finding that the evidence has not shown in this case that the defendant was so intoxicated that his faculties were prostrated. Therefore, you are not to consider evidence concerning the defendant's consumption of alcohol beverages in determining whether he committed the crimes charged. However, the burden of proof remains on the State. If the State has proven all the elements of the crime previously defined for you beyond a reasonable doubt, then you must find the defendant guilty.

 

On appeal, defendant raises the following points:

POINT I

THE JURY INSTRUCTION GIVEN HERE REGARDING INTOXICATION HAD NO BASIS IN LAW AND WAS PLAIN ERROR. MOREOVER, THE JUDGE SHOULD HAVE GIVEN THE PROPER MODEL JURY INSTRUCTION FOR INTOXICATION BECAUSE THERE WAS AMPLE EVIDENCE AT TRIAL TO SUPPORT AN INTOXICATION DEFENSE IN THIS MATTER. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 1, 9, 10

 

POINT II

THE JURY INSTRUCTION FOR COUNT ONE FAILED TO INFORM THE JURY OF ALL THE ELEMENTS OF THE CRIME AND WAS PLAIN ERROR. ALSO, THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE THE IMMEDIACY OF THE THREAT AND THE LIKELI[]HOOD THAT IT WILL BE CARRIED OUT. U.S. Const. Amends. XIV; N.J. Const. Art. I, 1

 

POINT III

THE THREE-YEAR NERA PAROLE TERM OF DEFENDANT'S SENTENCE WAS ILLEGAL AND SHOULD BE VACATED. U.S. Const. Amend. XIV; N.J. Const. Art. I, 1

 

Because we reverse the conviction based on the trial court's charge on intoxication, we will only reach defendant's first claim of error.

Defendant "fail[ed] to object contemporaneously to [the] jury charge," therefore the "'plain error standard applies.'" See State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Plain error "requires demonstration of '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.'" Chapland, supra, 187 N.J. at 289 (quoting 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)). The appellate court must examine "the totality of the entire charge" and not view the alleged error "in isolation." Ibid. Moreover, "any finding of plain error depends on an evaluation of the overall strength of the State's case." Ibid.

The State contends that defendant's flat denial of the conduct with which he was charged means he chose to pursue a defense incompatible with intoxication, and hence cannot be heard to object to the judge's charge because he himself made the intoxication defense irrelevant. In the alternative, the State asserts that, regardless of defendant's BAC and the testimony of his family and Reppert regarding his heavy drinking before the incident, the officers' observations that he was steady on his feet and speaking clearly, refute any supposed intoxication, in support of which he presented no expert testimony. The State also argues that defendant was essentially a functioning alcoholic, whose habitual drunkenness made him capable of formulating the necessary intent regardless of his BAC.

N.J.S.A. 2C:2-8 permits evidence of intoxication "caused by substances which the actor knowingly introduces into his body to be admitted to establish a defense to criminal conduct requiring a knowing and purposeful state of mind." State v.R.T., 205 N.J. 493, 508 (2011). This defense permits evidence of intoxication for crimes that "requir[e] either 'purposeful' or 'knowing' mental states but it excludes evidence of intoxication as a defense to crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986). Both offenses of which defendant stands convicted require knowing or purposeful conduct. See N.J.S.A. 2C:12-3(b); N.J.S.A. 2C:39-4(a).

In determining whether the voluntary intoxication rises to the requisite level of prostration of the faculties, the following factors must be considered:

[1] the quantity of intoxicant consumed, [2] the period of time involved, [3] the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), [4] any odor of alcohol or other intoxicating substance, [5] the results of any tests to determine blood-alcohol content, [6] and the actor's ability to recall significant events.

 

[Cameron, supra, 104 N.J. at 56.]

 

The jury must be instructed as to these elements when sufficient evidence in support of the defense is presented. Ibid.

In this case there was ample proof of defendant's extremely intoxicated state, including the undisputed BAC reading of 0.354. But it does not support the State's suggestion that defendant's ability to walk and speak when confronted by police, given his BAC, proves he was a functioning alcoholic who formulated the necessary intent. "Functioning alcoholic" is not a scientific term and would, for example, certainly fail to legally excuse drunken driving. Whether defendant's intoxication rose to "prostration of the faculties" is a question that should have been left to the jury.

The trial judge found as a fact that defendant's level of intoxication did not reach prostration of the faculties, thereby effectively directing a verdict for the State, relieving it of the obligation to prove each and every element of the offense, including defendant's mental state, beyond a reasonable doubt. This decision should have been left to jurors. See State v. Grenci, 197 N.J. 604, 622 (2009); State v. Pelham, 176 N.J. 448, 467-68, cert. denied, 540 U.S. 909, 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003). The issue of defendant's intoxication permeated the entire case, and the witnesses, including a police officer, testified that he had been extremely intoxicated since at least the prior day.

Defendant's testimony, given while he was under the influence of alcohol, that he would never have engaged in the conduct with which he was charged is not the clear election of the defense the State suggests. In fact, defendant's attorney argued in both opening and closing statements that intoxication was a defense. But once the judge instructed the jury that he had "made this finding that the evidence has not shown in this case that the defendant was so intoxicated that his faculties were prostrated," the jury could not consider the question and defendant was deprived of a viable defense.

The State also argues that Cameron supports the contention that the record was insufficient to prove intoxication. In that case, however, the defendant said she was "very intoxicated" and offered little more as evidence. The proofs demonstrated that she had shared a pint of wine with several other people. Cameron, supra, 104 N.J. at 56-57. In this case, contrary to Cameron, the proofs were abundant that defendant was severely intoxicated at the time the incident occurred and had been so for many hours before.

Reversed.

1 After trial, for reasons unrelated to this appeal, the judge dismissed defendant's conviction of third-degree unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(c).

2 The judgment of conviction erroneously indicates defendant was placed on three years of parole supervision after release. This error is made moot by virtue of our reversal.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).