STATE OF NEW JERSEY v. CARL H. HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4266-04T44266-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL H. HARRIS,

Defendant-Appellant.

________________________________________

 

Submitted January 10, 2007 - Decided March 19, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County,

Ind. No. 02-08-1046.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

On July 29, 2004, a jury convicted defendant Carl Harris of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). Defendant was thereafter sentenced to life imprisonment with a thirty-year parole disqualifier. Defendant claims reversible error was committed when the trial judge failed to give appropriate jury instructions on the credibility of two jailhouse witnesses and permitted the jury, without any limiting instruction, to hear testimony that prior to his arrest in connection with the underlying murder charge, defendant had been incarcerated on two separate occasions. We disagree and affirm.

Defendant raises the following points for our consideration:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO PROVIDE THE "FALSE IN ONE, FALSE IN ALL" CHARGE, AND THIS PREJUDICED THE DEFENDANT BECAUSE HIS CONVICTION LARGELY TURNED ON EVIDENCE PROVIDED BY JAILHOUSE INFORMANTS.

POINT II

THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO PROVIDE THE JURORS WITH A LIMITING INSTRUCTION THAT THEY WERE NOT TO CONSIDER THAT THE DEFENDANT HAD BEEN INCARCERATED IN 1 991 AND 2002 AS PROOF OF HIS PROPENSITY TO COMMIT THE CRIME AT BAR. (Not Raised Below).

We have carefully considered defendant's arguments and conclude that they are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only the following.

To place the issues in context, we summarize the State's case. The State contended that during the evening of April 27, 1989, sixty-eight-year-old Matilda Hammock was stabbed multiple times in her residence, a two-story home. Hammock lived on the first floor and rented out three bedrooms on the second level. Her body was found the next day by a friend who had unsuccessfully attempted to reach Hammock earlier in the day. Defendant was one of her tenants. Defendant was among those persons questioned by investigators. He indicated that he had seen the victim the night before her body was discovered when he went to pay the rent. During the interview, the investigator noticed a large Band-Aid on defendant's left index finger with dried blood protruding through the bandage. Defendant's cut finger had also been noticed by a neighbor, Esther Smith, who reported to investigators that she had gone to defendant's room on the night of the murder between 11:00 p.m. and 11:30 p.m. and noticed that the first and middle fingers on defendant's left hand were taped but bleeding. Defendant told Smith that he had injured his finger at work. Defendant also told his supervisor at work that he had found Smith's body in a pool of blood. On May 1, 1989, luminal testing was conducted at the premises which revealed blood throughout the first floor, up the stairs to the second floor hallway, down to defendant's room, at the foot of his bed, near his dresser, and at his closet door. Blood was also discovered on a gate, a latch, and a curtain. A knife was located the next day, but no blood or fingerprints were discovered. Defendant was not charged with the murder at that time.

Defendant was charged with Hammock's murder in 2002 after physical items recovered from the scene of the homicide were resubmitted for DNA analysis. The results did not exclude defendant as a source of the DNA found on the physical evidence. In addition to DNA evidence, Robert Rutan and David Lemmon, who separately had been confined with defendant in the county jail on two different occasions, contacted the Union County Prosecutor's Office to report that defendant had admitted to killing Hammock.

I.

Defendant contends a "false in one, false in all" jury instruction was necessitated by inconsistencies in the testimony of these two witnesses. The inconsistencies included Rutan's denial that he assaulted a police officer, despite a guilty plea to aggravated assault upon a law enforcement officer; and, minimizing the circumstances surrounding a prior robbery conviction. With respect to the charge against defendant, Rutan initially testified that he remembered defendant's exact words, that he "stabbed the bitch," although no such characterization of the victim was included in Rutan's written statement to the prosecutor.

Likewise, Lemmon, who had forty-seven adult upper court convictions, testified that defendant indicated that he had used a "decent-sized knife" to kill Hammock, then later testified that defendant stated that "[i]t was a pretty big knife," and finally admitted that he was only speculating as to the size of the knife defendant used based upon defendant's description of the injuries. Further, defendant contends Lemmon gave inconsistent testimony about his plea agreement as well, first stating that his negotiated plea agreement called for a thirteen-year sentence with a five-year parole disqualifier and, upon cross-examination, indicating that the sentence was actually a ten-year sentence with a five-year parole disqualifier.

Appropriate and proper charges to a jury are essential for a fair trial. State v. Green, 86 N.J. 281, 287 (1981) (citing Gabriel v. Auf Der Heide-Aragona, Inc., 14 N.J. Super. 558, 563-64 (App. Div. 1951)). A defendant, however, is not entitled to the jury instruction of his choice. See id. at 290-91. As long as the subject matter of the request, namely, the legal and factual issues that have been properly raised in the proceedings, are otherwise covered in the charge, a trial court's refusal to adopt the language as proposed by a defendant will not be reversed. State v. Thompson, 59 N.J. 396, 411 (1971).

Ordinarily, a "false in one, false in all" charge is not required absent evidence that a witness deliberately testifies falsely about a material fact. Capell v. Capell, 358 N.J. Super. 107, 111 n. 1 (App. Div.), certif. denied, 177 N.J. 220 (2003); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960). Here, while the record revealed inconsistencies in the testimony of the two witnesses, defendant presented no evidence suggesting that either Rutan's or Lemmon's testimony was deliberately false about a material fact.

Moreover, the trial judge thoroughly instructed the jury on how to evaluate the credibility of the witnesses, which included specific instructions regarding inconsistent statements. Additionally, consistent with State v. Sands, 76 N.J. 127, 145 (1978), the judge also instructed the jury that it was free to consider the impact of Rutan's and Lemmon's prior convictions in judging their credibility. We therefore find no abuse of discretion in the trial judge's refusal to give a "false in one, false in all" charge. See State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961).

II.

Defendant urges that he was entitled to a limiting instruction to the jury stating that they were not to consider defendant's incarceration as evidence that he had a bad character and/or criminal propensity. Defendant did not request such a limiting instruction at trial. Because this issue was not raised below, we review defendant's contention under a plain error standard, namely, whether the failure to give the limiting instruction was clearly capable of producing an unjust result. R. 2:10-2. See also R. 1:7-2.

In this case, the fact of defendant's incarceration was not highlighted by the State in its questioning of the witnesses and was not the focus of the testimony. Rather, the direct and cross-examination of the two witnesses centered on the substance of what defendant allegedly told each of them. In not seeking a limiting instruction, it is likely that defense counsel made a strategic decision not to highlight defendant's status. State v. Brown, 138 N.J. 481, 535 (1994); State v. Macon, 57 N.J. 325, 337 (1971). In any event, the reference to defendant's incarceration was fleeting in both instances and simply provided the framework during which the statements attributed to defendant were given. State v. Childs, 204 N.J. Super. 639, 651 (App. Div. 1985). Nor, on these facts, do we discern a basis for the trial court sua sponte to have given such an instruction. See e.g., State v. Morton, 155 N.J. 383, 452-53 (1998) (no plain error in court's failure to give limiting instruction regarding defendant's stated plans to commit robbery), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); Brown, supra, 138 N.J. 481, 535 (1994) (no limiting instruction required if affected party waives right to have it given); State v. Nelson, 318 N.J. Super. 242, 254 (App. Div.) (no plain error found where limiting instruction should have been given even though not requested), certif. denied, 158 N.J. 687 (1999); State v. Montesano, 298 N.J. Super. 597, 617-18 (App. Div.) (failure of court, sua sponte, to give limiting instruction regarding statement of co-defendant not reversible error), certif. denied, 150 N.J. 27 (1997). Hence, we find no plain error in the judge's failure to provide a limiting instruction relative to defendant's previous incarcerations.

 
Affirmed.

(continued)

(continued)

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A-4266-04T4

March 19, 2007