STATE OF NEW JERSEY v. TERRENCE CULPEPPER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6070-02-T36070-02T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERENCE J. CULPEPPER,

Defendant-Appellant.

__________________________________

 

Argued February 1, 2006 - Decided June 20, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Bergen

County, Indictment No. 02-02-296.

Leslie Stolbof Sinemus argued the

cause for appellant.

Deepa S. Y. Jacobs, Assistant Prosecutor,

argued the cause for respondent (John L.

Molinelli, Bergen County Prosecutor,

attorney; Ms. Jacobs, of counsel and on

the brief).

PER CURIAM

Defendant Terence J. Culpepper was tried before a jury and convicted of one count of third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3b. He was sentenced to a two-year term of probation, fined $500, and ordered to pay the mandatory penalties. We gather the following facts from the evidence presented at trial.

Defendant and the complaining witness, Mary Jean Culpepper, are brother and sister. Their parents, who are now deceased, had a total of eight children. Prior to the incident that gave rise to this criminal case, defendant had been residing in his parents' house in Oakland, New Jersey for a number of years. When the father died, (the mother had predeceased her husband), defendant and Mary Jean were named co-executors of his will, which directed that the house be sold immediately.

Defendant was interested in purchasing the house, and discussed the idea with Mary Jean, who reminded him that the purchase price would have to be fair market value. Despite these discussions, Mary Jean decided to move forward with placing the house on the market. When she began cleaning and arranging for the removal of the parents' personal property, defendant objected, and the two argued about it.

As a result of these arguments, defendant sent his sister a certified letter demanding that she give him twenty-four-hours advance notice before coming to the house. In response, Mary Jean retained an attorney to probate her late father's will, and obtained a certificate from the Surrogate's office indicating that she was a co-executor of his estate.

On June 22, 2001, Mary Jean went to the house in order to continue her efforts to prepare the house for sale. She did not give defendant the twenty-four-hours notice he had demanded. As a precaution, Mary Jean asked the Oakland Police Department for a police escort. Accompanied by Oakland police officers, Mary Jean arrived at the house intending to come inside. Defendant met his sister and the police officers outside the house. After speaking with the police officers for approximately ten minutes, defendant agreed to permit his sister to enter the house.

Once inside, the situation deteriorated quickly. Defendant and Mary Jean argued about financial matters, while Mary Jean attempted to organize and pack some of her parents' personal items. According to Mary Jean, defendant made a number of disparaging remarks about her, and threatened to kill her. She gave the following description of defendant's threat:

I went back in my mother's room and I -- and [defendant] walked in there behind me and I said, [addressing defendant], you better get used to the fact that I'm going to be coming over here any time whenever I feel like it to get this house ready for sale.

And he said if you do, I'll shoot you. And I said are you going to kill me and he said yes. And I said you have a gun and he said yes. And I immediately walked to the phone and called the police.

Q. When he said that he was going to shoot you and he had a gun, how did you feel?

A. Scared.

Q. Is that why you went to the phone?

A. That's why I called the police, yes.

Q. And where did you have to go to get to the phone?

A. Through the living room to the kitchen.

Q. Now when [defendant] said these things to you, where was he standing?

A. He was standing in my mother's room.

Q. And that's where that -- that's where it took place?

A. That's where it took place, yeah.

Q. As you walked to the kitchen to get to the phone -- is that the only extension there was in the house?

A. Yes.

Q. As you walked to the kitchen to get to the phone do you know where [defendant] was?

A. Well, when I turned around from dialing the phone he was coming out of his bedroom with two cases, which is -- and his bedroom is, again, catty-corner -- if you're standing in the kitchen doorway it's catty-corner past the front door, his bedroom door was behind that. And he was coming straight at me with the two cases.

Q. Were you still on the phone with the Oakland Police at that time?

A. Yes. I told [the police dispatcher] what was happening.

Q. What did you say to the Oakland Police Department?

A. I said he's coming out with two cases. And she asked me if they were guns.

Q. What did you tell her?

A. I said -- well, I was looking at them, at first I thought, you know, because I played an instrument, I thought that maybe he was just trying to scare me, that they were musical instrument cases. And then -- this was all going through my mind. And then I realized those weren't any cases -- any musical cases I've ever seen before, but I've never seen guns before either.

Q. You've never physically seen a gun?

A. No, only on T.V. actually.

Q. Have you ever -- prior to June 22nd, 2001, had you ever seen a gun case?

A. No.

Q. Prior to June 22nd, 2001, did you have any knowledge of whether [defendant] owned any weapons?

A. I did not know that he owned guns, no, or had them in the house, no.

Q. As he came out of the bedroom and you observed him with these two cases, were you still on the phone with the dispatcher?

A. Yes.

Q. What did the dispatcher say? What did you do while on the phone with the dispatcher?

A. Well, I explained to him that he was coming out of his room with these two cases. And she told me to get out of the house.

Q. Did you at some point in time hang up the phone?

A. Yes. She [the police dispatcher] told me to get out of the house immediately and I hung up the phone. And she --

Q. After you were instructed to do that, what, if anything, occurred next?

A. Well, he was standing right in front of me in front of the front door.

Q. How far away from you was he at that point in time?

A. About maybe six feet, maybe eight feet, the most. I would say maybe from here to the -- the --

Q. The rail of the bar?

A. Right -- there.

Q. And did he still have the gun cases with him?

A. Yeah. And he -- I believe he sat on the -- he sat on the edge of the -- the couch or the arm of the couch. And he put the gun cases down. And I walked up to him and I said are those real guns and he said yes.

And I said are you going to kill me and he just started laughing. And he -- and he ran out the door. Well, he didn't run, he walked fast out the door.

[Emphasis added.]

Following this exchange, the police dispatcher summoned the officers who had earlier accompanied Mary Jean to return to defendant's house and transmitted a general alert authorizing defendant's detention. Defendant was thereafter stopped a short distance from his house. In the back seat of defendant's car the police found two gun cases containing a nine millimeter semi-automatic pistol and a long semiautomatic rifle. The weapons were not loaded.

At trial, Mary Jean admitted that prior to this incident, she had left several messages on defendant's telephone answering machine angrily denouncing her brother's behavior. In these messages Mary Jean, using abusive language peppered with expletives, accused defendant of being mentally ill. She attributed her actions to being frustrated with defendant's selfish attitude. She believed defendant was intentionally disregarding their father's wishes, which would end up costing her thousands of dollars in attorneys' fees to resolve the dispute over the sale of their father's house.

Against this factual backdrop, defendant now raises the following arguments.

POINT ONE

THE DEFENDANT'S MOTION AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED; THE THREAT AS TESTIFIED TO WAS CONDITIONAL AND INSUFFICIENT TO CAUSE A REASONABLE PERSON TO BELIEVE THAT THEY WERE IN IMMINENT DANGER.

POINT TWO

IT WAS PLAIN ERROR TO ADMIT TESTIMONY OF THE DETAILS SURROUNDING TERRY CULPEPPER'S ARREST.

A. Officer Fiore Should Not Have Been Permitted To Testify As To The Out-Of-Court Statements Of The Police Dispatcher Prior To Defendant's Arrest.

B. The Police Should Not Have Been Permitted To Testify As To The Nature Of The Stop.

C. It Was Plain Error To Have Allowed The Jury To Have Heard Testimony That Guns Were Inside The Cases Taken From Terry Culpepper's Vehicle.

POINT THREE

THE DEFENSE WAS IMPERMISSIBLY DENIED THE ABILITY TO PRESENT A DEFENSE.

A. Tapes Of Phone Messages Left By Complainant Should Have Been Admitted Into Evidence.

B. Defendant Should Have Been Allowed To Elicit Testimony About Complainant's Failure To Sign A Complaint Against Her Other Brother.

We reject these arguments and affirm. We conclude that defendant's arguments in Points Two and Three lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Although we are equally satisfied that defendant's argument in Point One is without merit, we will nevertheless briefly address it here.

Defendant argues that the trial court erred when it denied his motion to dismiss at the end of the State's case based on insufficiency of evidence. It is well settled that the test to be applied in determining such a motion is:

[W]hether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)) (citation omitted); R. 3:18]

Defendant was convicted of the third-degree offense of making terroristic threats against his sister. Under N.J.S.A. 2C:12-3b, a person is guilty of the crime of terroristic threats "if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." The proofs submitted by the State in support of this charge must be measured through an objective standard. State v. Smith, 262 N.J. Super. 487, 515 (App. Div.), certif. denied, 134 N.J. 476 (1993). The State must establish that: (1) defendant in fact threatened his sister; (2) defendant intended to so threaten her; and (3) "a reasonable person would have believed the threat." Cesare v. Cesare, 154 N.J. 394, 402 (1998).

Here, Mary Jean's testimony provided sufficient evidence to meet this three-prong test. Mary Jean testified that defendant made an explicit threat to kill her and followed up this verbal communication with specific conduct that objectively conveyed and reinforced his intention to place her in immediate fear for her life.

After making the verbal threats, defendant left the room, came back with the two cases and, according to Mary Jean, admitted that the cases contained guns. Defendant's threats prompted her to make the 9-1-1 call. From this evidence, a rational jury can, and in this case did in fact find, that a reasonable person in Mary Jean's circumstances would consider defendant's words and actions as conveying "the serious promise of death." Id. at 403 (quoting State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985).

We conclude by noting the obvious. This case is not about a random act of violence committed by a depraved individual against a victim who had the misfortune of being in the wrong place at the wrong time. Nor does this involve an act of domestic violence perpetrated as part of an ongoing pattern of spousal abuse. The actors here are brother and sister, embroiled in a family crisis that had its roots long before the death of their last surviving parent. It is truly tragic that along with their childhood home, their parent's legacy will also include defendant's criminal conviction.

Affirmed.

 

It is undisputed that the weapons were being transported in accordance with New Jersey law.

(continued)

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A-6070-02T3

June 20, 2006