STATE OF NEW JERSEY v. HASSAN DOSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2628-05T4A-2628-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN DOSS,

Defendant-Appellant.

__________________________________

 

Submitted September 24, 2007 - Decided October 23, 2007

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-0854.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jodi L. Ferguson, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief)

PER CURIAM

Defendant, Hassan Doss, appeals his convictions of murder and third-degree possession of a weapon for an unlawful purpose. The convictions arise out of proofs establishing that defendant beat to death a fellow inmate at East Jersey State Prison. We affirm.

I.

During the five-day trial of this case, defendant did not dispute that he killed another inmate, Alexander Bernstein, on May 5, 2004, in the East Jersey State Prison ("East Jersey") mess hall. His defenses at trial concerned his state of mind at the time he took the victim's life. The manner in which Bernstein was killed, as shown by the State's proofs, was particularly brutal.

Because East Jersey was built in 1896, the mess hall is a large space, akin to a cafeteria. Nearly 250 inmates at a time eat meals there. Breakfast typically lasts from about 6:30 to 7:45 in the morning. Each inmate is allowed thirty minutes to eat.

Before entering the mess hall, each inmate must go through a metal detector. An inmate is only allowed to bring in a plastic spoon and a plastic bowl or cup. Corrections officers conduct sporadic pat downs before the prisoners enter. Once inside the mess hall, the inmates are allowed to sit wherever they choose. There are no corrections officers physically present in the mess hall. However, there are several corrections officers nearby and cameras monitoring the area. The inmates are aware of and can see the cameras. The officers observe the inmates from cages about ten to twelve feet above the floor.

Several officers testified for the prosecution. The State's first eyewitness was Lieutenant John Cunningham, who provided the most detailed narrative of the events. He was assigned as the "movement sergeant," overseeing inmate movements to and from the mess hall and the prison shop on the day of the killing. At breakfast that morning, Lieutenant Cunningham was in the sergeant's observation cage with one other officer. There was another cage with a third officer on the other side of the mess hall.

There are two lines (referred to as lines "one" and "two") in the mess hall, from which inmates may serve themselves breakfast. Lieutenant Cunningham testified that he could see the center aisle of the mess hall directly from his perch. Shortly before the attack on Bernstein, Lieutenant Cunningham saw defendant sitting at a table on the "line one" side of the mess hall. He observed Bernstein walk up the center aisle from "line two" carrying a food tray. Lieutenant Cunningham then saw defendant stand up from his table and punch Bernstein, knocking him to the floor.

At that point, Lieutenant Cunningham sounded the alarm for the riot activation system, to alert the rest of the institution. The riot alarm secures the prison, locking down all areas, with officers responding to a central area with protective equipment. In order to enter the cafeteria, there must be an assembly of one supervisor and twelve corrections officers with protective vests, helmets and batons.

After sounding the alarm, Lieutenant Cunningham used a bullhorn to order defendant to stop what he was doing. He also directed other inmates to move away from the area. Defendant, however, continued to attack Bernstein, who was by then half under one of the dining tables. Defendant then grabbed Bernstein by the collar. He dragged him over to one of two forty-gallon steam-heated coffee urns. Defendant then put Bernstein underneath it and turned the spigot on him.

At this point, Lieutenant Cunningham observed defendant clear off a dining table, stand on it, raise his arms in the air, and proclaim something that Cunningham couldn't quite hear. While defendant was doing this, one of the other inmates turned off the spigot. Defendant then turned the spigot back on. About twenty to thirty seconds later, Lieutenant Cunningham saw defendant pull Bernstein out from under the coffee urn. Defendant urinated on Bernstein, kicked him, and punched him. Then, while Bernstein was lying face down, defendant grabbed his ankles and bent them up and leaned into them. It appeared to Lieutenant Cunningham that defendant was bending Bernstein "in half backwards." Defendant then kicked him a few more times.

At that point the officers' response team entered the mess hall. Defendant stopped attacking Bernstein immediately. He came up the center aisle to meet the team. Defendant then knelt down and put his hands behind his back, so that the officers could handcuff him.

Another corrections officer, Gabriel Baez, testified that on the day in question he worked behind a window in the mess hall on serving line two, collecting meal tickets and giving out trays to inmates. When the riot bell went off, Officer Baez looked out the window and saw defendant about fifteen feet away. He observed defendant on top of Bernstein, straddling him and punching him in the head. Officer Baez then saw defendant stand up and start kicking Bernstein. Bernstein initially blocked the blows, but after a few kicks he dropped his hands. Bernstein appeared to Officer Baez to be unconscious. Defendant them stomped on Bernstein's head and dragged him down the center aisle, walking right past Officer Baez's window. At that point he was out of view. Officer Baez issued several orders for defendant to stop. However, no officer at that point intervened until the response team arrived.

Another witness for the State, Lieutenant James Mattia, described for the jury his operation of five security cameras overlooking the mess hall. These cameras are constantly recording, but have no microphones. After Lieutenant Mattia heard the riot bell on May 5, he sounded the alarm for the response team to assemble. Lieutenant Mattia observed the rest of the attack on camera.

The supervisor for the response team summoned to the mess hall was Lieutenant Robert Mikulik, who had the rank of disciplinary sergeant in May of 2004. Mikulik testified that as he was entering with the response team, he saw defendant kicking someone. All of the other inmates were on the other side of the hall. The response team then entered and went up the middle aisle of the mess hall. According to Lieutenant Mikulik, when defendant saw them, he just walked straight towards the team, not saying anything or gesturing. Lieutenant Mikulik testified that he was in the process of ordering defendant to stop when defendant "just stopped on his own, turned, kneeled down on the ground, [and] put his hands behind his back." At that point Lieutenant Mikulik handcuffed defendant and he was brought out to the exit cage. Lieutenant Mikulik then went to locate the victim and had no further contact with defendant.

Lieutenant Robert Lapenta, who was a sergeant at East Jersey at the time, testified that he also was part of the response team. Following the attack and the team's apprehension of defendant, Lieutenant Lapenta confiscated defendant's gloves. He inspected the gloves for weapons before defendant was admitted to the hospital for a medical exam.

The State also presented testimony from three investigators: Jeffrey Poling, Albert McBride, Jr., and Anthony Aversano. The investigators were all sent to the crime scene to take photographs and collect evidence, including blood samples. Poling testified that in the mess hall near the coffee urns he found the victim's ear that had been severed during the attack. Poling supplied the ear to the Office of the Middlesex County Medical Examiner. Aversano and Poling both attended the victim's autopsy. During the autopsy, part of a lead pencil was found in Bernstein's tongue. Investigator McBride was sent to find the other part of the pencil at the crime scene, which had been sealed for the investigation. Once there, McBride found a piece of a number two pencil, lying next to one of the tables in the front left part of the mess hall.

Geetha Natarajan, M.D., Middlesex County's Chief Medical Examiner, testified as an expert for the State. As part of her examination, Dr. Natarajan first examined Bernstein's body at the scene. She then looked up the victim's medical records and spoke with various medical personnel at the prison. Based on her examination Dr. Natarajan found two sets of injuries to Bernstein: (1) blunt trauma to the face and head resulting from the punching and kicking, and (2) scalding injuries all over Bernstein's head, except where it had been in direct contact with the floor. Dr. Natarajan opined that the lack of swelling of Bernstein's non-scalded skin indicated that he had not been alive for a long period of time after being scalded under the coffee urn. A pencil was also found stuck through Bernstein's tongue, with evidence of a fresh break.

In addition to the testimony of these witnesses for the State, the jury watched the security videotape depicting defendant's attack on Bernstein. They also viewed several autopsy photos.

On this evidence, the State rested. The defense then moved for judgment of acquittal, which was denied.

The defense case started with the testimony of Donald R. Reeves, M.D., a psychiatrist with University Correctional Health Care, which provides mental health care to prisons in the state. As of May 5, 2004, Dr. Reeves had been assigned to East Jersey State Prison as a staff psychiatrist. Dr. Reeves was part of defendant's treatment team, which also included Valarie Yorker, a social worker, and a Dr. Christine Fernback, a psychologist.

Dr. Reeves had followed defendant as a patient at East Jersey for eleven months, starting in June 2003. Dr. Reeves ceased seeing him after Bernstein's killing. He diagnosed defendant with several mental health conditions, including a psychotic disorder, not otherwise specified ("psychosis NOS"); a history of polysubstance dependence; and antisocial personality disorder. According to Dr. Reeves, defendant likely had suffered from psychosis NOS for at least two years prior to commencing treatment.

Dr. Reeves had prescribed anti-psychotic medication for defendant, specifically Risperdal. Originally, the medication was to be taken orally by defendant to treat delusions, hallucinations, disorganized behavior, and disorganized speech. Dr. Reeves also prescribed Desyrel as an antidepressant, to help defendant sleep. Additionally, he prescribed Cogentin to address the side effects of tremors caused by Risperdal.

On March 9, 2004, Dr. Reeves took a blood sample from defendant. The sample revealed that defendant had not been taking his medications. Consequently, Dr. Reeves ordered involuntary medication. This was an injection of Risperdal, equivalent to what defendant was supposed to be taking orally. The first such injection was administered to defendant on April 9, 2004. The second was given on April 23, 2004. Defendant was due for a third dose on May 6, 2004, a day after Bernstein was killed. Because the injected version of Risperdal takes effect more gradually than its oral form, Dr. Reeves was aware that defendant's symptoms would diminish slowly.

On cross examination, Dr. Reeves testified that he saw defendant in detention on May 5, 2004, hours after he had killed Bernstein. At that time, defendant appeared "enthusiastic" and "excited." Defendant told Dr. Reeves that he did not recall what had happened in the mess hall, and that he went to bed the night before and woke up in that cell knowing nothing of what occurred in between. Dr. Reeves discredited this assertion because defendant had never demonstrated any memory impairment before and, in fact, knew that his scheduled medication was imminent. Further, defendant knew what he had done on May 4, the day before. Consequently, Dr. Reeves testified that

it was obvious what [defendant] was doing[;] he was making up a bogus excuse of amnesia as an excuse to some sort of mental illness in his own mind[;] he was conjuring up as an excuse to exculpate himself from what he did.

As Dr. Reeves left defendant, he heard defendant yell out, so that other prisoners could hear, "they say I've got a body."

Dr. Reeves denied on cross-examination that defendant suffered from any mental defect or disease that impaired his cognitive capacity to act knowingly and purposefully. Dr. Reeves opined that most people in prison would qualify for a diagnosis of antisocial personality disorder, which he explained to the jury simply means acting criminally and irresponsibly in general. In Dr. Reeves's opinion, what happened in the mess hall suggests "that [defendant] planned this and that he was out to get Mr. Bernstein. I don't know why." Dr. Reeves also testified that his clinical interview of defendant after the killing convinced him that defendant had no amnesia.

Valarie L. Yorker, the licensed social worker on defendant's treatment team, also was called in the defense case. Yorker was defendant's primary therapist. She met once a week with defendant, for a period of about one and a half to two years. Yorker testified that initially defendant was "very friendly" and "child-like," and that she had no problems with him. However, in March or April of 2004, Yorker perceived that defendant had changed. He was not as friendly, and he started carrying around a newspaper clipping that referred to his missing sister. Defendant also seemed in a rush to get out of his therapy sessions. He also told Yorker that he no longer trusted her after the injections prescribed by Dr. Reeves had started.

According to Yorker, the drug injections did not succeed in curbing defendant's aggression. Shortly prior to Bernstein's killing, defendant's treatment team was considering having him committed to a mental health facility. In fact, they were scheduled to meet on the subject on the day of the killing.

The defense also presented two character witnesses. The first was Corrections Officer Frank DeLisa. DeLisa knew defendant from approximately 1995 to 2000 as an inmate in his housing unit. At that time defendant had served as a porter, which meant that he cleaned up the unit at the end of the night. In DeLisa's opinion, defendant appeared to be an honest individual. DeLisa, however, had not observed the attack in the mess hall, and had no personal knowledge of defendant's statements denying recollection of the attack.

The second character witness, Dalulu Troutman, had been incarcerated in Northern State Prison for a 1996 conviction for attempted murder and armed robbery. Troutman shared a cell with defendant in or about 1997 for a little over a year. The two were reunited in a cell again when defendant returned to prison in 2001. Troutman knew defendant for ten years and found him to be always honest. He had no problems with him as a cellmate. After 2004, defendant and Troutman were no longer cellmates, but were still housed in the same prison. According to Troutman, when defendant came back to prison in 2001, he "wasn't the same as he was before he left. . . . [H]e wouldn't remember a lot of things, he would do certain things and he wouldn't remember doing them." On the day of the killing, Troutman did not make it to the mess hall before the alarm went off.

Defendant chose not to testify in his own behalf. Following summations, the judge issued jury instructions, which included pertinent charges for murder, N.J.S.A. 2C:11-3a(1) and (2), and for the possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The jury returned guilty verdicts on both counts of the indictment later that afternoon.

The trial judge sentenced defendant on the murder conviction to a term of fifty years, with an 85% period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a concurrent four-year term on the weapons offense.

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JUDGE DECIDED TO PROCEED WITH THE SECOND DAY OF TRIAL WITHOUT DEFENDANT, AND WITHOUT FIRST OBTAINING AN EXPRESS WAIVER OF HIS RIGHT TO BE PRESENT AT TRIAL, EVEN THOUGH DEFENDANT WAS IN THE CUSTODY OF THE STATE AT THE TIME.

POINT II

NO EVIDENCE WAS PRESENTED TO SHOW THAT A PENCIL CAN BE CONSIDEED A "DEADLY WEAPON," EITHER GENERALLY OR AS USED HERE. THUS, WHEN THE TRIAL COURT INSTRUCTED THE JURY THAT IT MAY INFER MENS REA FOR MURDER, FROM THE USE OF A PENCIL, IT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947) ART I, PAR. 10.

POINT III

[DEFENDANT'S] CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

POINT IV

THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION OF MURDER WAS EXCESSIVE.

We have thoroughly considered these arguments and find them all without merit.

II.

The first contention raised by defendant is that the judge improperly proceeded with the second day of trial in defendant's absence. We disagree.

The pertinent facts on this issue are as follows. Defendant was present in court on the first day of trial, September 20, 2005, at which time counsel presented their opening statements. However, defendant failed to appear in court the next day, September 21, at which time witness testimony was scheduled to begin. The judge was advised that morning by the Department of Corrections that defendant did not want to come in because he felt that he had no appropriate clothes, even though civilian clothes had been provided to him. The judge consequently delayed trial for about an hour to see if the prison officials could obtain a formal waiver of defendant's presence. However, when no such waiver was provided, the judge elected to proceed with the testimony for that day.

Defendant's counsel did not object to the court proceeding with the trial in his client's absence, and, in fact, stated on the record that he "obviously" could not object, as long as defendant was notified that the trial would go on without him. The judge did offer defendant the option of observing the day's proceedings through a video connection, but defendant declined that offer.

Following the testimony that morning of Cunningham, LaPenta, Baez, and Mattia, the court received a three-page fax transmission from the Department of Corrections concerning defendant's failure to appear in court that morning. The court placed on the record an exchange appearing on the fax, in which a corrections officer had asked defendant "Are you waiving your rights to attend court?" Defendant's reply was "no, I am not waiving my rights[;] I am sick today so I don't want to come out of my cell."

After the Department's fax was received and shared with counsel, the judge conducted an in-chambers conference call with a Sergeant Cardone from the Department of Corrections. Sergeant Cardone explained what had transpired at the prison that morning after defendant had refused to be transported to court. After consulting with the court, Sergeant Cardone explained to defendant that the trial would go on without him. At that point, defendant mentioned for the first time that he was feeling ill. A limited medical examination was then performed through the cell bars, because defendant refused to leave his cell to be examined. Defendant claimed to have hot flashes and that his kidney hurt. He declined to go to the prison clinic.

On defense counsel's motion, the trial was recessed for the remainder of that day. The judge arranged to have an expedited transcript of the day's proceedings from September 21 furnished to defendant for his review. The judge instructed that the trial would resume the next day, September 22, and would only be postponed with a doctor's note attesting that defendant was too ill to attend. Defense counsel agreed to transmit a message to that effect to his client. The explanatory message from his counsel was duly delivered to defendant, who responded: "I hear you loud and clear[;] I'll see how I feel tomorrow." Defendant was present on the following day, September 22, and for the rest of the trial.

We now consider these circumstances in light of the applicable law. Persons accused of a crime have a presumptive constitutional right to attend their trials. U.S. Const. amend. VI, N.J. Const. art. I, 10. However, that right to attend trial may be waived. See R. 3:16; see also State v. Hudson, 119 N.J. 165, 182 (1990).

The Supreme Court held in Hudson that where a defendant has been formally notified of the date of his trial and has been informed of the consequences flowing from his failure to attend it, his "knowing, voluntary, and unjustified absence before or after trial has commenced does not prevent trial from proceeding in absentia." Ibid. Once a defendant has knowledge of the trial's date of commencement, he or she has "the burden of proving [any] absence was justified," and that the trial should not have continued. State v. Finklea, 147 N.J. 211, 220 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997). Based upon these principles, the pertinent Rule of Court, R. 3:16, as amended, reads:

A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

[R. 3:16(b).]

In the present case, defendant clearly knew that he was supposed to appear for trial on September 21, 2005, because it had commenced on the previous day when defendant was present in court. Thus, the defendant had the burden to prove that his absence from trial was justified. Such justification is lacking here.

As we have noted, prior to hearing witnesses on September 21, the judge delayed the trial, only to learn that defendant did not wish to appear because he did not have appropriate clothing, even though civilian clothes had been made available to him. The judge duly advised personnel in the Department of Corrections to explain to defendant that the trial would go on without him, and that he could even choose to watch the trial through a video connection. Trial counsel did not object. The jury was simply told by the judge that defendant "wasn't feeling well" and that "[h]e has the right to be absent." Defendant does not assert that those explanatory statements to the jury were improper or unduly prejudicial.

As soon as the court was informed that defendant claimed he was not feeling well, the trial was stopped for the day, even though defendant refused to be taken to a doctor. Further, a note was delivered to him, explaining that in the absence of a "medical statement from a doctor," trial would resume the following morning. Defendant was given an opportunity to review transcripts of the four State witnesses presented that day. Defendant was granted the option of recalling the State's witnesses upon review of the transcript. He did not avail himself of that right of recall.

Given these circumstances as a whole, we are satisfied that the judge did not err in proceeding with the trial on the morning of September 21, 2005 in defendant's absence. The judge reasonably attempted to accommodate defendant, who was refusing to attend that day, despite the availability of civilian garb to wear in court and without any medical verification of his claimed illness. No relief was sought by his trial counsel beyond that and, indeed, none was warranted. Defendant simply did not meet his burden to justify his absence under R. 3:16 and the standards of Hudson. Although defendant did not sign a waiver of his right to be present the morning of September 21, his unjustified absence that day may be construed as a waiver. Moreover, we discern no appreciable prejudice flowing from defendant's interim absence. The proofs of guilt, including the security videotape of the mess hall scene, were overwhelming, and defense counsel capably cross-examined the State's witnesses on September 21 in his client's absence, both on matters of substance and credibility.

III.

Defendant next argues that the trial court erred in treating the pencil, which had been used to puncture Bernstein's tongue in the course of the fatal attack, as a potential "deadly weapon" for purposes of the murder statute. During the charge conference, defense counsel objected to the court allowing the jury to consider the pencil in this fashion. The court overruled that objection.

Thereafter, in connection with the murder count, the judge charged the jury that a pencil could qualify as a deadly weapon. The judge defined a deadly weapon as follows:

A deadly weapon is any firearm or weapon or material or substance which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury.

The judge also made clear to the jury that the stabbing of Bernstein with a pencil did not have to be the actual cause of his death in order to satisfy the murder statute, so long as the pencil-stabbing caused "serious bodily injury":

In your deliberations you may consider the weapon used and the manner and circumstances of the killing, and if you are satisfied beyond a reasonable doubt that the defendant stabbed or killed or caused serious bodily injury to Alexander Bernstein with a pencil, you may draw an inference from the weapon used, that is the pencil, and from the manner and circumstance of the killing as to the defendant's purpose or knowledge.

With respect to the second count, charging defendant with the possession of a weapon for an unlawful purpose, the judge explicitly instructed the jury that a pencil is "not normally considered a weapon." However, the court explained that under the law a pencil may qualify as a weapon, depending upon the jury's assessment of defendant's state of mind and the manner in which he made use of the pencil. As the judge instructed:

In order for you to find the defendant guilty of this charge the State has the burden of proving beyond a reasonable doubt each of the following four elements.

One, that exhibits fifteen and sixteen are weapons. Those are the pieces of the pencil [recovered from the mess hall and extracted from the victim during the autopsy].

Two, that the defendant possessed the weapon.

Three, that the defendant possessed the weapon with the purpose to use it against the person of another.

Four, that the defendant's purpose was to use the weapon unlawfully.

The first element the State must prove beyond a reasonable doubt is that exhibits fifteen and sixteen are weapons.

A weapon is anything readily capable of lethal use or of inflicting serious bodily injury.

Again, serious bodily injury is injury which creates a substantial risk of death or which causes serious, permanent, disfigurement or protracted loss or impairment of the function of any bodily member or organ.

It is possible that a pencil is not normally considered a weapon.

If, however, the State establishes beyond a reasonable doubt that the object is capable of being used to inflict serious bodily injury or death, it may be considered a weapon.

Defendant maintains that the court's instructions concerning the pencil were improper. He maintains that the murder charge in particular was misleading because the medical examiner, Dr. Natarajan, did not opine that defendant's piercing of Bernstein's tongue with a pencil caused the inmate's death. Dr. Natarajan did indicate that "roughly a half of a lead pencil" was embedded in the muscle of Bernstein's tongue, and that the victim's tongue had hemorrhaged "throughout the muscle." However, Dr. Natarajan attributed Bernstein's demise as more likely being caused by blunt force trauma, resulting from punching or kicking.

Defendant's arguments concerning the pencil's status as a potential weapon misconceive its bearing upon the murder charge. The State's theory was never that Bernstein died because defendant had jabbed a pencil through his tongue. Rather, the State used the pencil-stabbing as proof that defendant was purposefully attempting to inflict death or serious bodily injury upon the victim. Defendant kicked Bernstein, banged his head against a railing, scalded him with hot coffee, and stabbed him with a pencil, essentially using whatever weapons that were at his disposal. The pencil was one of several objects used by defendant to inflict serious or deadly harm. It is not inconceivable, given the surrounding circumstances, that defendant had intended to try to pierce Bernstein's palate and drive the pencil into his brain. The pencil surely had the capacity to kill Bernstein, even if that attempted means was unsuccessful.

An object may be considered a deadly weapon when "possessed under manifestly inappropriate circumstances" to its lawful use. State v. Burford, 163 N.J. 16, 20 (2000). See also State v. Bowens, 108 N.J. 622, 638 (1987) (noting that the force with which a fatal injury was inflicted showed a "level of indifference and provide[d] ample basis for a [murder] conviction"); State v. Reddish, 181 N.J. 553, 623 (2004) (allowing an inference of purposeful or knowing murder if the jury determined that the defendant had suffocated the victim). The item in question must be used for some unlawful end in the perpetration of the crime.

As the judge properly instructed the jury here, a deadly weapon "is any firearm or weapon or material or substance which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury." See Model Jury Charges (Criminal), "Murder and Aggravated/Reckless Manslaughter" (2004), (emphasis added); see also N.J.S.A. 2C:11-1(c) (defining "[d]eadly weapon" as "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury").

Under the statutory definition, everyday objects such as golf clubs, baseball bats, pipes, or beer glasses may constitute deadly weapons, if they are deployed in such a manner as to be capable of producing death or serious injury. See, e.g., State v. Villar, 150 N.J. 503, 513 (1997) (beer glass), certif. denied, 155 N.J. 587 (1998); State v. Harmon, 104 N.J. 189, 210 (1986) (golf club or baseball bat); State v. Dishon, 222 N.J. Super. 58, 62 (App. Div. 1987) (pipe), certif. denied, 110 N.J. 508 (1988).

Although we agree that a pencil commonly is used to write or sketch, and not to hurt other people, a pencil surely has the capacity to be used to inflict serious bodily injury when it is jabbed into a mouth, an eye or a blood vessel. Courts in other jurisdictions have likewise recognized the lethal or near-lethal properties of a pencil, particularly in a prison setting. See, e.g., United States v. Vahovick, 160 F.3d 395, 397 (7th Cir. 1998) (holding that several sharpened pencils bound together with tape, in defendant's possession while he was in prison, constituted a deadly weapon); People v. Page, 20 Cal. Rptr. 3d 857, 862 (Ct. App. 2004) (deeming a pencil a deadly weapon, where the defendant had held it against the victim's neck and had threatened to stab him with it), review denied, No. S129971, 2 005 Cal. LEXIS 903, at *1 (Cal. Jan. 26, 2005); State v. Workman, 308 S.E.2d 264, 267 (N.C. 1983) (holding that whether or not a pencil was used as a deadly weapon presented a question for the jury); State v. Barragan, 9 P.3d 942, 945 (Wash. Ct. App. 2000) (treating a pencil as a deadly weapon).

Accordingly, we are satisfied that the trial judge properly allowed the jury to decide whether or not the pencil in this case had been used by defendant as a deadly weapon, in the course of his mess hall rampage against Bernstein. If the jury was persuaded that the pencil was so used, its use as a deadly weapon properly raised "an inference that there was an intent to kill . . . ." State v. Martini, 131 N.J. 176, 271 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995) (quoting State v. Thomas, 76 N.J. 344, 357 (1978)). We perceive no error in the judge's instructions. Consequently, defendant was not denied a fair trial on this issue. State v. Green, 86 N.J. 281, 287 (1981); see also State v. Torres, 183 N.J. 554, 564 (2005).

IV.

Defendant further argues that his convictions were against the weight of the evidence. On this point, defendant does not disavow that Bernstein died because of his actions in the prison mess hall. Instead, he emphasizes that he was suffering from a severe mental defect near the time of the attack, as evidenced by his psychiatric treatment within the prison and the anti-psychotic medications that he had been prescribed. Based on that pre-existing condition, defendant contends that the trial proofs manifestly showed that he lacked the requisite mens rea to be guilty beyond a reasonable doubt of the crimes of murder and the possession of a weapon for an unlawful purpose. He thus argues that the trial judge erred in denying his motion for judgment of acquittal, and that the proofs are insufficient to sustain his convictions on appeal.

As a preliminary matter, we note that defendant failed to make a motion for a new trial in the Law Division following the jury's verdict, and that his arguments concerning the weight of the evidence as a whole were not properly preserved for appeal. See R. 2:10-1. Even so, we shall address that claim as well in the interests of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993). In any event, the claim is without merit.

Our standard of review on such issues is limited. In deciding a motion for acquittal made at the close of the State's evidence, a trial judge must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996).

The trial court may also set aside a jury verdict where the verdict is against the weight of the evidence. R. 3:20-1. The jury verdict should only be set aside by the trial judge where it clearly and convincingly appears there was a manifest denial of justice. R. 3:20-1; State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). On review, appellate courts apply essentially the same standard. Dolson, supra, 55 N.J. at 7. Nonetheless, our review is limited and it should give due regard to the jury's assessment of witness credibility, based on its opportunity to have heard live testimony and to have gained a "feel for the case." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459 (1962) (Weintraub, C.J. dissenting)).

Having considered the proofs as a whole, we are satisfied that they overwhelmingly establish defendant's guilt. The jury had ample grounds, notwithstanding the testimony concerning defendant's ongoing mental health treatment during his incarceration, that he had sufficient mental capacity to have acted knowingly and purposefully in taking the life of a fellow inmate. As fact-finder, the jury had the prerogative to discount or disregard the testimony of the defense experts, to the modest extent that they were even helpful to defendant. The physical proofs showed that defendant procured a pencil, a bandage and a pair of gloves to carry out his attack. He brought the pencil, which could not be detected through a metal detector, into the mess hall. He methodically wrapped his wrists with the bandage and put on the gloves before attacking Bernstein. The jury was reasonably permitted to infer from defendant's conduct as a whole that he possessed a sufficient mental state to have acted deliberately and with the purpose of taking Bernstein's life.

Defendant's need for mental health treatment does not vitiate the jury's finding that at the time of the killing he had the ability to know and understand exactly what he was doing. On this question, Dr. Reeves, who was called by the defense, expressly opined that defendant did not suffer from any defect that would impair his ability to act knowingly or purposefully. Viewed in a light most favorable to the prosecution, the evidence more than suffices to sustain defendant's guilt beyond a reasonable doubt and the requisite mens rea.

V.

Defendant's final argument is that the fifty-year aggregate sentence imposed by the trial court was excessive. In particular, defendant claims that his history of mental disorder was not sufficiently taken into account by the sentencing judge as a mitigating factor. See N.J.S.A. 2C:44-1b(4).

These arguments of excessiveness do not require extended discussion. R. 2:11-3(e)(2). The sentencing transcript and the associated documents reflect that the trial judge was mindful of defendant's mental health issues and his medication history. The judge rightly took note of defendant's own voluntary conduct in refusing to take mediation designed to control his impulses, which had led to his forced injections. On the other hand, the judge was also appropriately cognizant of numerous extreme aggravating factors here, including defendant's six prior adult indictable convictions, the brutal nature of his repeated attacks on Bernstein in the mess hall, culminating with his gesture of triumph, and the need to defer such gruesome lethal behavior, in or out of a prison. N.J.S.A. 2C:44-1a(1), (6) and (9). The fifty-year sentence is appropriately severe and is clearly not excessive. See State v. Roth, 95 N.J. 334, 363-64 (1984).

The judgment of conviction and the corresponding sentences are affirmed in all respects.

A videotape of the events leading up to and including Bernstein's killing in the mess hall was filmed, which the jury observed at trial.

The phrase "have a body," as used in prison jargon, signifies that an inmate has killed somebody. This nuanced meaning was explained to the jury in the testimony of Investigator Poling.

Defendant does not separately challenge on appeal the propriety of the jury charge on the weapons count, which similarly allowed the jurors to consider whether defendant had used the pencil for an unlawful purpose to inflict serious bodily injury on Bernstein. Had such a challenge been raised, we would also find this parallel instruction to be sound.

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A-2628-05T4

October 23, 2007