STATE OF NEW JERSEY v. BRIAN T. NEILSEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2821-04T42821-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BRIAN T. NEILSEN,

Defendant-Appellant.

__________________________________

 

Submitted: September 13, 2006 - Decided October 25, 2006

Before Judges Cuff, Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-09-1149.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Missy Piccioni, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Brian T. Neilsen was convicted of second degree burglary, contrary to N.J.S.A. 2C:18-2a(1) (Count Five); two counts of second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (Counts Six and Eight); two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (Counts Seven and Nine); and one count of third degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (Count Ten). At sentencing, the judge merged Counts Seven and Nine with Count Eight. He then sentenced defendant on Count Five (burglary) to a seven-year term of imprisonment with a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count Six (second degree aggravated assault), the judge imposed a seven-year term of imprisonment subject to a NERA parole disqualification term. This term is to be served concurrently with the term imposed for Count Five and the terms imposed on Count Eight and Ten. On Count Eight, the judge imposed a seven-year term of imprisonment subject to a NERA parole disqualification term and on Count Ten, a four-year term of imprisonment. The sentence imposed on Count Eight is to be served consecutive to the term imposed on Count Five and concurrent to the terms imposed on Counts Six and Ten. The aggregate term is fourteen years, eighty-five percent of which must be served before parole consideration. The appropriate fines, penalties, and assessments were also imposed.

The charges stem from a beating inflicted on an African-American couple in their home. The State contended that defendant participated in the beating with Henry Baird; defendant admitted he was present but denied his participation. In fact, defendant testified that he tried to intervene to stop the attack.

On July 30, 2001, after spending several hours drinking and playing pool at Flynn's Pub in Southampton, Burlington County, defendant and co-defendant Baird went to Matthew McCann's house in Browns Mills. According to McCann, a co-worker of defendant, he cracked the door in response to a knock, and the men forced their way into his house. McCann testified that Baird pointed a gun at his chest. Defendant called McCann a "nigger lover" and asked where the "niggers live" because they wanted to go "whoop their asses." McCann pointed in the direction of Donald and Kara Butler's home, the only African-American family that lived near him.

Baird and defendant both testified that McCann invited them into his house. Once inside, the three men talked of work and other topics. Eventually, McCann told Baird of an incident that occurred a couple of weeks earlier in which defendant splashed Donald Butler, an African-American neighbor, with muddy water. Butler rebuked defendant, and defendant yelled racial epithets at Butler. According to Baird, McCann expressed concern that Butler would seek revenge against him. Baird resolved to address the situation that night.

Defendant and Baird left McCann's house with their faces masked. According to Butler and his wife, two men forced their way into their house. The men kicked open the door of the Butler home, and entered carrying bats and screaming "nigger and . . . stuff." Butler was hit with a bat and thrown into a glass table. While her husband was being attacked, Kara Butler was struck approximately four times with what she believed was a bat.

Baird and defendant both testified and both asserted that only Baird attacked the Butlers. Both admitted that defendant was present. Baird testified that he was annoyed with defendant for not participating in the assault. He also stated that he offered to show defendant how to beat someone, but defendant urged him to leave.

Several minutes later, the men ran out of the house and fled by car. As a result of the attack, Butler suffered two broken fingers and a chipped bone in his foot and was forced to miss work. Kara Butler required stitches near her eye and fractured her hand. She was out of work for six months.

After arriving at the scene and speaking to McCann, the police went to 15 Chicory Street, where defendant resided with his girlfriend. The police discovered Baird in the bushes in the backyard and arrested him. Within minutes of Baird's arrest, defendant walked out of the house and was also arrested. Items recovered from defendant's residence and his girlfriend's car included a pair of black boots with red laces; various flags; three bats - one black and red, the other made of wood with the words "nigger beater" on it; 45-caliber live rounds; red suspenders; a face covering; a flag with the words "white power" on it; and books entitled "The White Man's Bible", "RAHOWA!", "Nature is Eternal Religion", "Mein Kampf"; a police baton; a Confederate flag; a door sign indicating separate restrooms for "whites and coloreds"; a poster depicting a hanged black man with the words "This Nigger Raped a White Woman. He's Not Eligible for Parole."; a military helmet with a swastika on one side and a red lightening bolt on the other; empty shotgun shells; a recipe box with a sticker with the words "white race help preserve it"; a Glock .45 handgun with a loaded magazine inside; and a photo album with pictures of the couple at a Halloween party where some guests were dressed as Klu Klux Klan members and in Nazi garb. One officer observed a swastika burned or carved into the trunk of a tree in the couple's yard.

The victims' testified that this was not their first racial incident. Two weeks prior, defendant, then a guest of McCann, had called Mrs. Butler a "jigaboo" and her husband a "nigger." Mr. Butler also related that he was splashed with muddy water as defendant drove away and defendant hurled racial epithets at him.

Defendant testified that he first met Baird in a bar on the Lower East Side of New York. In February 2001, Baird appeared at defendant's house and defendant did not recognize him at first. During Baird's stay in February 2001, defendant realized that Baird was a "hard core hater." Baird had some material from the World Church of the Creator, a group that advocates white supremacy and racial purity. Between February and July 2001, defendant and Baird had sporadic contact. Defendant believed that Baird was working in a carnival in Nevada.

When he appeared again in July, Baird was in the process of moving and had all his belongings with him, including a membership manual of the World Church of the Creator and "a big stack of propaganda." According to defendant, Baird's stuff was all over defendant's house and that most of the objectionable material found at defendant's house belonged to Baird.

At trial, defendant admitted that most people would consider him a skinhead and he considers himself a skinhead. Defendant also stated that his political views lean to Libertarian. Defendant admitted that he has tattoos of swastikas but denied that the tattoos are a Nazi swastika. He admitted that a nightstick and a blackjack found in his house after the assault on the Butlers belonged to him. He also admitted that he taped to the door in his bedroom the poster of an African-American man chained to a tree.

Defendant admitted that a confederate flag, a segregated restroom sign, and a journal belonged to him. The journal contained some of his thoughts but also lyrics from songs composed by others and used by the shock rock band in which he played. Defendant emphasized that some but not all skinhead music is racist and hateful music. The journal also contained lyrics from songs that he wrote and he admitted that some people would find the lyrics offensive, although he did not find the lyrics offensive.

As to his attitudes to African-Americans, he testified that people should be able to live where ever they want. In response to a question whether he believed that Philadelphia was a "nigger infested jungle," he replied "overly, no."

Baird admitted he was a white supremacist. He was a member of the World Church of the Creator and carried with him a large amount of white supremacist reading material and paraphernalia. He had tried to recruit defendant, but eventually realized that defendant was "not really in agreement with my racial ideology and religious beliefs."

On appeal, defendant raises the following arguments:

POINT ONE

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE 404(B) EVIDENCE WITHIN THE CONTEXT OF THIS CASE. (Not Raised Below).

POINT TWO

PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT THREE

THE COURT'S DECISION GRANTING THE PROSECUTOR'S MOTION TO AMEND THE INDICTMENT TO CHARGE A NEW OFFENSE WAS A VIOLATION OF DEFENDANT'S RIGHTS TO AN INDICTMENT, TO NOTICE OF THE CHARGES AGAINST HIM, AND TO DUE PROCESS OF LAW.

POINT FOUR

THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO SEVEN-YEAR TERMS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We are satisfied that the arguments raised in Points I and II present sufficient grounds to warrant a new trial.

The limiting instruction delivered by the trial judge regarding the use by the jury of the considerable testimony of defendant's beliefs and the paraphernalia found in his home coupled with the comments of the prosecutor at the commencement of his summation and in the midst of his summation had the clear capacity to mislead and inflame the jury. The combination of these factors require a new trial.

For the first time on appeal, defendant complains that the trial judge's limiting instructions failed to explain to the jury the permissible use of the racist materials admitted in evidence. Also, raised for the first time on appeal are defendant's objections to certain comments in the summation delivered by the prosecutor. The limiting instruction was required once the judge determined that the content of some of defendant's writings and items found in defendant's home after the assault on the Butlers could be admitted in evidence as evidence of defendant's motive or intent.

The police recovered many items of physical evidence, including clothing, flags, books and brochures, signs and posters, a gun and ammunition, a journal, a photo album and other paraphernalia. All of the items were racist in nature. Over defendant's objection, the trial judge determined that the evidence was prejudicial to defendant but was relevant to the issues of motive and intent. Defendant does not contest the decision to admit the evidence. Rather, he contends that the limiting instruction was inadequate.

Evidence of the white supremacist literature and paraphernalia, as well as photos of tattoos, photos of defendant and others at white supremacist gatherings, and defendant's personal journal were first admitted during the testimony of Philip Yansak, a Pemberton Township detective sergeant. Walter Stewart, a Pemberton Township detective, cataloged the physical evidence found at defendant's residence. Finally, David Patriarca, a Pemberton Township police detective described at length the items found in the house. At the conclusion of Patriarca's testimony, the trial judge provided the following limiting instruction to the jury:

Ladies and gentlemen, I am going to read to you an instruction at this point as to how you are to view certain evidence that has been recently presented to you.

The state has introduced evidence of passages from a diary and various other evidence of a racial nature. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude such evidence, when it is offered only to show that he has a disposition or a tendency to do wrong and therefore must be guilty of the charged offenses. Before you give any weight to this evidence, you must be satisfied that the defendant said or wrote this evidence. If you are not so satisfied, you may not consider it for any purpose.

However, our rules do permit such evidence when the evidence is used for certain specific narrow purposes. In this case, the evidence was introduced to show the defendant's motive and intent at the time of the offense. Whether this evidence does, in fact, demonstrate motive or intent is for you to decide. You may decide that the evidence does not demonstrate motive and intent and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate motive or intent and use it for that specific purpose.

However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. I have admitted the evidence only to help you decide the specific question of motive or intent. You may not consider it for any other purpose and may not find the defendant guilty now, simply because he -- because the state has offered such evidence.

This evidence was also referred to during the testimony of Baird and defendant. At the conclusion of the trial, the judge reminded the jury of the limited use of the evidence. He stated:

The state has introduced evidence of passages from a diary and various other evidence of a racial nature. Normally, such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude such evidence when it is offered only to show that a defendant has a disposition or a tendency to do wrong and therefore must be guilty of the charges -- of the charged offenses. Before you give any weight to this evidence, you must be satisfied that the defendant said or wrote this evidence. If you are not so satisfied, you may not consider it for any purpose.

However, our rules do permit such evidence when the evidence is used for certain specific and narrow purposes. In this case, the evidence was introduced to show that -- to show the defendant's -- the motive and intent at the time of the offense. Whether the evidence does in fact demonstrate motive and intent is for you to decide. You may decide that the evidence does not demonstrate motive or intent and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate motive or intent and use it for that specific purpose.

However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. I have admitted the evidence only to help you decide the specific questions of motive or intent. You may not consider it for any other purpose and may not find the defendant guilty now, simply because the state has offered such evidence.

We apply the plain error standard of review to this argument due to the absence of timely objections at trial. R. 2:10-2. We will reverse only if any error has the clear capacity to produce an unjust result. Ibid.; State v. Macon, 57 N.J. 325, 333 (1971).

Evidence of other crimes, wrongs, or acts is generally inadmissible to show propensity to commit a crime, but such evidence may be admitted for other purposes, such as proof of motive or intent, when relevant to a material issue in dispute. N.J.R.E. 404(b). See also State v. Stevens, 115 N.J. 289, 300 (1989). The purpose of this rule is to prevent the prosecution from introducing evidence that would invite the jury to convict a defendant simply because of his poor character rather than on an objective analysis of the facts. State v. Cofield, 127 N.J. 328, 335-36 (1992). See also State v. Gibbons, 105 N.J. 67, 77 (1987). The rule seeks to correct the "unique tendency" that such evidence has "to turn a jury against the defendant." Stevens, supra, 115 N.J. at 302.

Invariably, there is a tension between probative value and prejudicial effect whenever evidence of other crimes or bad acts is presented at trial. State v. G.S., 145 N.J. 460, 468 (1996). Therefore, once admitted, the judge must deliver an appropriate limiting instruction. State v. Marrero, 148 N.J. 469, 495 (1997); Cofield, supra, 127 N.J. at 340-41; see also N.J.R.E. 105. The jury instructions must be both carefully crafted and comprehensive in describing both the permitted and prohibited uses of the evidence. Stevens, supra, 115 N.J. at 309. The instructions cannot simply recite the language of N.J.R.E. 404(b). State v. Hernandez, 170 N.J. 106, 131 (2001). Instead, it should include references to the relevant facts and issues as necessary to provide an adequate explanation to the jury. Stevens, supra, 115 N.J. at 304. There must be an explicit statement that the evidence cannot be used to demonstrate the defendant's propensity to commit a crime of a given nature. State v. Reddish, 181 N.J. 553, 611 (2004).

The limiting instruction must also be delivered at critical times in the trial to maximize the efficacy of the instruction. Thus, in State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000), we expressed our preference for the delivery of the limiting instruction, not only in the final jury charge, but also "before, simultaneously with, or immediately after, the admission of other crimes evidence."

The physical evidence found at defendant's residence was highly prejudicial to defendant and inflammatory in nature. The requisite limiting instruction needed to be crafted with precision to restrict the jury's consideration of this evidence to its proper and limited purpose. The jury was informed that it could use the evidence to deduce defendant's motive and intent, and the jury was also informed that it could not consider the material as evidence of any predisposition to commit the charged acts. Without more than a general direction that it could use the evidence to determine motive and intent, we cannot discern how this jury could distinguish between predisposition and motive given the nature of the evidence.

Under the facts of this case, the line between predisposition and motive is thin. The State contends that, given defendant's beliefs and lifestyle, defendant would not turn his back on an opportunity to beat a defenseless African-American couple because the man had objected to being splashed and the woman had taken offense at being referred to as a "jigaboo" and they had the temerity to live in a neighborhood otherwise populated by Caucasians. Once the judge allowed this highly prejudicial and inflammatory physical evidence, it was incumbent on the trial judge to precisely instruct the jury on the permissible use of this evidence. That was not done in this case. This instruction, however, fell short of the precision required in this sensitive case. The error was compounded by the prosecutor's summation.

The prosecutor structured a two-part argument. In the first part of the summation, the prosecutor canvassed the evidence that supported the State's case. The prosecutor commenced his summation with the following remarks:

There are many people who would want to be in your place today. Anybody who has ever thrown down their newspaper in disgust, shut off their T.V. at some atrocity going on around the world; anybody who has ever wept for a victim of senseless violence, whose life has been altered forever would want to be here; anybody who has ever cried out in righteous indignation that this is wrong and somebody should do something about it would want to be here.

You're not to be pitied, you are to be envied. How many times in your life do you see such filth, such wrong, such bad things and know who it is and know who is responsible and have an opportunity to do something about it? Very rare, indeed.

The issue in this case is very narrowly drawn. Did Brian Nielsen, a man who lives the way he does, who thinks the way he does, who acts the way he does, at the moment of truth, back away and not participate in this beating? That's the issue. That is the issue. Identification is not an issue. What happened is not an issue. One issue. Did Brian Nielsen back away?

You know, shallow people talk about circumstance, they talk about bad luck, they talk about, well, if it was a different day, it would have been something different. Strong people talk about cause and effect. Cause and effect. This is the cause. What happened to the Butlers is the effect. We need strong men. We need strong women. 14 people from the community, the conscious of this community are going to tell us what we believe in and what's right and what's wrong. Cause and effect. (emphasis supplied.)

This theme was repeated at the end of the summation.

In the second part of his closing argument, the prosecutor commented on Baird's and defendant's testimony that defendant was no more than a bystander. As a prelude to this part of his summation, the prosecutor stated:

The world hasn't changed. But sometimes you wonder, you know, when did it happen that we stopped believing in the truth. I mean, when did it happen that we just lost our way and lost our will and they're so afraid of everything, they're afraid to make decisions? I mean, when did that happen? When did the world change about that?

I mean, in your heart, do you really believe that Mr. Nielsen got on the witness stand yesterday and told you the truth? I mean, do you really -- I mean, really, do you really believe that he got on there and told you the truth? Or do you really believe that he lied to you? And if he lied to you, why did he lie to you? I mean, why are we so damn afraid all the time?

There's no tough decision here. It's wrong what he did. It's wrong what he did and somebody should do something about it. These people's homes were invaded. They want to minimize it. Oh, the doors weren't locked, we just went in. They're minimizing it. It's wrong. The world hasn't changed. That has always been wrong. What they did was wrong, their motives for doing it were wrong. The way he lives is wrong. What he thinks is wrong. But most importantly what he did was wrong. The world hasn't changed, we have the same values we've always had. (emphasis supplied.)

At the conclusion of the prosecutor's summation, defense counsel lodged an objection to a single comment at the end of the summation. Counsel did not ask for any specific relief, such as a curative instruction or a mistrial. The trial judge noted the objection and recessed for lunch.

On appeal, defendant objects to the highlighted portions of the summation. He argues that the prosecutor repeatedly invited the jury to convict based on a general duty to society rather than on its analysis of the evidence. He emphasizes that the prosecutor issued a call to arms that was calculated to distract the jury from the evidence. Furthermore, the prosecutor condemned the manner in which defendant lives his life and what he thinks and believes.

We consider the highlighted portions of the summation error. The Supreme Court and this court have repeatedly held that it is improper for the prosecutor to suggest that the jury should convict to protect society or to send a message to those who commit crimes that this society will not tolerate their behavior. State v. Rose, 112 N.J. 454, 521 (1988); State v. Ramseur, 106 N.J. 123, 321 (1987); State v. Hawk, 327 N.J. Super. 276, 282-83 (App. Div. 2000). Here, the remarks by the assistant prosecutor were a clear call to action by the jury to decry the actions of defendant. Equally troubling was the prosecutor's condemnation of the way defendant lived and what he thought. Defendant was not on trial for his beliefs or his lifestyle; he was on trial for what the State alleged that he did to the Butlers on the evening of July 30, 2001. Furthermore, the statements by the prosecutor that he was bothered by the actions and dress of people like defendant had no place in this trial. These statements also suggest that people who dress like defendant, and who think like defendant have a predisposition to assault innocent people. As such, the statements undercut the limiting instruction that none of the physical evidence could be used to conclude that defendant was predisposed to commit these offenses.

Ultimately, the issue is whether these several improper statements had the capacity to distract the jury from the evidence of defendant's guilt. Admittedly, the State's case against defendant was strong, but it was not overwhelming. The jury's disposition of the charges involving McCann suggests that it questioned his credibility. In any event, egregious error in a summation will require a new trial, even in the face of overwhelming evidence of guilt. State v. Frost, 158 N.J. 76, 87 (1999).

We acknowledge that a prosecutor may and should argue the State's case with vigor. State v. Timmendequas, 161 N.J. 515, 582 (1999) (citing Rose, supra, 112 N.J. at 509), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The argument constructed by the prosecutor in the second portion of his summation required great delicacy. The line between predisposition and motive is a fine one. Once the prosecutor condemned how defendant lived and what he thought, he obliterated that line. Coupled with his call to arms in the preface to his summation, the summation had the clear capacity to inflame the jury and inhibit a dispassionate consideration of the evidence.

Given our disposition of the appeal, we need not consider the other issues. We note, however, that the contention that the amendment of the indictment at the commencement of trial requires a new trial because the amendment introduced a new charge in violation of defendant's rights to an indictment, notice of the charges against him, and due process of law is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The amendment was required to correct a scrivener's error. Defendant was on notice at all times that he was charged with aggravated assault against Donald and Kara Butler.

Furthermore, the sentence is unexceptional. The term of imprisonment was consistent with the then-presumptive term and the imposition of consecutive terms was consistent with State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Reversed and remanded for a new trial.

 

The Notice of Appeal and the Judgment of Conviction spell defendant's name as "Neilsen"; the indictment uses "Nielson" and the verdict sheet uses "Nielsen." For purposes of this opinion, we will use the spelling found in the Notice of Appeal and Judgment of Conviction.

Baird pled guilty shortly before the trial commenced and had not been sentenced when he testified on October 14, 2004.

The Butlers have since divorced and Mrs. Butler is now know as Kara Gidney. For simplicity, this opinion will use the name Butler.

Given the sensitivity of the evidence, the trial judge may have considered delivering the initial limiting instruction before or after Detective Yansak testified on October 7, rather than after the third detective concluded his testimony six days later.

(continued)

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A-2821-04T4

October 25, 2006