STATE OF NEW JERSEY v. ANNA MIZINSKA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5478-04T15478-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNA MIZINSKA,

Defendant-Appellant.

________________________________________________

 

Submitted May 24, 2006 - Decided

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 2258-1-2002.

De Luca & Taite, attorneys for appellant

(Samuel De Luca and George T. Taite, on

the brief).

Edward J. Defazio, Hudson County Prosecutor,

attorney for respondent (Kelley Lavery,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)), as a lesser included offense to murder, after a jury trial, and from a ten year sentence with 85% to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant argues: (1) "the submission of the lesser included charge of manslaughter violated the defendant's constitutional right to indictment by grand jury," (2) "the evidence was insufficient to justify murder and no lesser included offense could be charged," and (3) "the trial court erred permitting the expert witness to testify the death was a homicide." We find no merit to these contentions, and only the following discussion is warranted. R. 2:11-3(e)(2).

Andrzej Mizinska died as a result of a stab wound imposed by defendant, his wife. The only eyewitness was Kamil Mizinska, the son of defendant and the victim. Kamil testified that his father had been drinking on the day in question and that he heard his parents arguing. According to Kamil's testimony:

Q When you heard this, what, if anything, did you do?

A I just stayed in the room, sir. It was basically common for the arguing, sir.

Q How long does this argument go on?

A It was maybe ten minutes, ten or five minutes, sir.

Q Did the tone change at any time?

A No, sir.

Q Never got angrier?

A Well, the screaming and yelling, sir.

Q So it was just steady screaming and yelling.

A Yes, sir.

Q Who was screaming at who?

A It was back and forth, sir.

Q Then what happened?

A I heard my mom scream, sir.

Q You heard your mom scream?

A Yes, sir.

Q What kind of scream?

. . . .

A It was just a loud scream, like "aahh," sir.

Q Then what did you do?

A I walked out of my room, sir.

Q You walked.

A. Well, as soon as I got up the door's right there, so I take one step I'm already out the door, sir.

Q And what did you see?

A I seen [sic] my dad holding my mom's head by the back, sir.

. . . .

Q Just so I understand, your mother was seated with her back to you, your father was standing facing you with a hand, you don't know which hand, holding your mother's hair.

A Yes, sir.

Q Was he saying anything to your mother at this point?

A No, sir.

Q Was she saying anything to him?

A No, sir.

Q What did you see happen next?

A I seen [sic] my mom push my father away, sir.

Q Okay. And what, if anything, did you see next?

THE COURT: Can you describe the push?

THE WITNESS: It was all one motion, it was like this, sir.

THE COURT: Indicating both hands going forward.

THE WITNESS: Yes, sir.

. . . .

Q And what did you see happen next?

A It was all one motion, sir. It was the push and it was my dad had the hair, and it was all one push, it was-- my mom was sitting down, when she pushed she stood up, sir.

Q And what, if anything, did your father do?

A My father like stumbled, sir.

Q In what direction?

A On my mom, sir.

Q And then what happened?

A And then the knife just dropped, sir, and my mom screamed, sir.

Q Now, when your mother pushed him like this, and that's how you described it, right, with this kind of motion?

A Yes, sir.

Q Indicating fists upright at the temple level forward?

A I wouldn't --

Q Or was it like this?

A It wasn't this motion, sir, it was just a push, sir.

Q Just a push like this.

A Yes, sir.

Q A thrusting.

THE COURT: Moving forward with fists. You have your fists clenched. Were the fists clenched or open palms?

THE WITNESS: I can't recall, sir.

Q All right. When did you see the knife?

A The knife, sir?

Q Yes.

A When it dropped, sir.

Q Did you see from where it dropped?

A No, sir. Well, the right hand, sir.

Q Whose right hand?

A My mom's hand, sir.

Q Did that right hand strike your father in the chest?

A Yes, sir.

Q And that was the hand that held the knife?

A Yes, sir.

Q You indicated then that your father stumbled forward. Is that correct?

A No, sir, it was all one motion, sir.

Q Up, stumble?

A No, up, stumble, and it was like -- and then they were like that.

THE COURT: Indicating going forward.

THE WITNESS: Going forward, yes, sir.

Q At what point did you see the knife drop?

A After it was the push and the stumble, and then the knife dropped, and my mom screamed, sir.

Q And what did your father do?

A My father just grabbed his chest, sir, on his lift side, sir.

Kamil took his father into the living room to lay on a sofa, but his father walked back into the kitchen where defendant helped him lay down on the floor and administered first aid. Kamil called "911" and told the police his "father hurt himself with the knife." Kamil denied he was "protecting [his] mom."

In her statement to the police on the night in question, defendant said:

About four p.m. we finished dinner. My husband's cousin was there, too. My husband and his cousin took some alcohol with them and went into the living room to watch T.V. I started washing the dishes. About five p.m. my husband and cousin left because my husband was walking his cousin to the bus stop. I went out to look for him because he was missing for awhile. When I went outside he was out there, so we went back in the house. He had another drink, and went back in the room to watch T.V. I continued washing the dishes. He came back to the kitchen while I was doing the dishes, and he started arguing with me. He leaned over me while I was doing the dishes, and I told him to go away because he was drunk. He leaned over me, and I don't remember the rest. He said he wasn't feeling well and went into the other room. He came back in holding his chest, and I saw the blood. Then my son came out and called 911.

. . . .

Question: Have you ever physically assaulted one another before?

Answer: No.

Question: What did you do when Andrzej leaned over you?

Answer: I don't remember.

. . . .

Question: Do you recall having the knife in your hand when Andrzej leaned over you?

Answer: Yes, I remember that.

Question: What were you doing with the knife?

Answer: I was washing it.

Question: Do you recall where the knife was after Andrzej walked away from you?

Answer: It was still in my hand.

Question: What did you do with the knife next:

Answer: I panicked. After my son called 911, I threw the knife in the garbage. I don't know why I did it, I just panicked.

Question: How did you come to realize that your husband had been stabbed with the knife?

Answer: When I saw the blood coming out.

According to the Medical Examiner, the projection of the knife wound was "front to back and slightly downward," and the victim had a "blood ethanol alcohol level of .165 percent" in his system at the time of the autopsy. As to the cause of death, the Medical Examiner gave the following testimony:

Q Now, from a medical logical point of view only, do you have an opinion within a reasonable degree of scientific and medical certainty as to whether or not the injury that you just described, a stab wound to the chest with injury to the heart, is serious bodily injury?

A Yes, it is.

Q Doctor, did you also have the opportunity to reach an opinion concerning the manner of death?

A Yes.

Q In this case. Now, before you reach that opinion, are you required to either rule in or rule out certain aspects in making an opinion of this nature?

A Yes. You have, as I mentioned, six different choices, and you have to review all the circumstances, the autopsy findings, and then make a determination and choose one of the manners of death that are classified in the death certificate.

Q Well, what are those options?

A Natural death --

Q Let's take natural death for a minute. Did you consider whether or not Mr. Mizinsk[a]'s death was natural?

A Yes.

Q And do you have an opinion within a reasonable degree of scientific and medical certainty as to whether or not Mr. Mizinska died a natural death?

A Yes.

Q What is that?

A That it's not a natural death.

Q What is another of the options that are available to you in making a finding as to manner of death?

A Accidental.

Q Do you have an opinion within a reasonable degree of scientific and medical certainty as to whether, from a medical logical point of view, Mr. Mizinska's death was accidental?

. . . .

A Yes.

Q And what is that opinion?

A That it was not accidental.

Q Now, what is another option?

A The other option would be suicide.

Q And do you have an opinion, or did you make a finding within a reasonable degree of scientific certainty?

A Yes.

Q What is that opinion?

A That it's not a suicide.

Q Now, is there another option available to you?

A Yes. Actually, three more options.

Q Okay. Well, why don't you tell me one of the three.

A One is undetermined.

Q Well, does that apply in this case?

A No.

Q Do you hold that opinion within a reasonable degree of scientific and medical certainty?

A Yes.

Q And another?

A Other is pending investigation, which is another manner that we use temporarily until we can make another determination and finally classify the case.

Q Do you have an opinion within a reasonable degree of medical certainty whether or not that option applies in this case?

A Yes.

Q And what is it?

A That it does not apply.

Q And what is the final option available to you?

A The final option is homicide.

Q Do you have an opinion within a reasonable degree of medical certainty --

A Yes.

Q -- From a medical logical point of

view --

A Yes.

Q -- Whether or not this is a homicide?

A Yes.

Q What is that opinion?

A That it is a homicide.

The first two arguments advanced by defendant overlap: first, defendant contends that when a case is presented to a grand jury it must return the charges against defendant and here the defendant cannot be convicted of the lesser included offense of aggravated manslaughter because the grand jury did not indict her for that offense. She further contends that there was insufficient evidence to convict her of murder, so she is entitled to a judgment of acquittal.

We are satisfied that, upon giving the State all the legitimate inferences which flow from the evidence, a jury question was presented on the murder count. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The jury could find the purposeful or knowing causing of death, or serious bodily injury resulting in death, after an argument of five minutes or more. See N.J.S.A. 2C:11-3(a)(1),(2). The angle of the entry wound supports the inference.

Moreover, without detailing the development of the law of lesser included offenses, we note that a trial judge has an independent obligation to charge lesser included offenses warranted by the evidence, particularly in a murder case. See State v. Powell, 84 N.J. 305, 318-19 (1980). The principle now applies to all crimes. Suffice it to quote what Justice Albin said in State v. Garron:

We take this occasion to remind trial courts that their primary obligation is to see that justice is done, and that a jury is instructed properly on the law and on all clearly indicated lesser-included offenses, even if at odds with the strategic considerations of counsel. We reaffirm that the integrity of the justice system and the fact-finding process is not subordinate to the singular interests of the parties. State v. Powell, 84 N.J. 305, 319, 419 A.2d 406 (1980). The public interest in a correct verdict based on the evidence must trump the partisan strategic maneuvering of both the State and defendant. In that regard, the words of Chief Justice Wilentz in Powell are quite fitting:

Very simply, where the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest. . . . The judge is more than a referee between contestants. He is the law's representative, and it is his duty to see that the will of the law is done. The real function of the adversary system is to help him fulfill that duty.

[Id. at 319, 419 A.2d 406.]

No defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record. In view of this ruling, parties, generally, should not be "surprised" by a court instructing a jury on such a lesser-included offense. Moreover, we cannot foresee specific circumstances that will make defending against a lesser-included offense more unfair or burdensome than defending only against the greater offense, even in those cases in which the defense is alibi or a general denial, "I did not do it." Of course, counsel is still free to argue that the evidence does not support a rational basis for giving a lesser-included jury charge. Nevertheless, in a case in which instructing a jury on a lesser-included offense would be so unanticipated by either party as to cause complete surprise, or so inconsistent with the defense as to undermine the fairness of the proceedings, the trial court may depart from this general rule, but must place its reasons for doing so on the record. State v. Perry, 124 N.J. 128, 158-64, 590 A.2d 624 (1991); State v. Choice, 98 N.J. 295, 300-01, 486 A.2d 833 (1985).

[177 N.J. at 147, 180-81 (2003) (footnote omitted).]

In this case, defendant urged the court to dismiss the murder charge in the absence of sufficient evidence on which to convict and not to charge lesser-included offenses because defendant was not indicted therefor. The judge denied both requests, and we affirm his determinations substantially for the reasons expressed in his oral opinion at the trial. We add only that we have not been presented with a transcript of the grand jury minutes, but the judge was, and he noted that aggravated and reckless manslaughter were not presented for a determination by the grand jury, so it did not determine not to indict on those charges. Moreover, there is no constitutional notice issue as aggravated manslaughter is clearly an elemental lesser-included offense to murder. See State v. Powell, supra, 84 N.J. at 314. See also, e.g., State v. Garron, supra; State v. Dixon, 125 N.J. 223, 257-58 (1991); State v. LeFuerge, 101 N.J. 404, 418-19 (1986).

Finally, the Medical Examiner could give his expert opinion on the cause of death. He did not assert any comment on defendant's guilt or innocence. See, e.g., State v. Odom, 116 N.J. 65, 77 (1989); State v. Baluch, 341 N.J. Super. 141, 185 (App. Div.), certif. denied, 170 N.J. 89 (2001) (expert could testify "this was 'a case of homicide'").

The judgment of conviction is affirmed.

 

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A-5478-04T1

July 27, 2006