STATE OF NEW JERSEY v. ALBERT BOWSER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4890-05T44890-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT BOWSER,

Defendant-Appellant.

______________________________________________________________

 

Argued September 19, 2007 - Decided October 19, 2007

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1326.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, on the brief).

LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Cunningham, on the brief).

PER CURIAM

Defendant Albert Bowser was indicted by the Essex County grand jury and charged with felony murder, N.J.S.A. 2C:11-3a(3), purposeful and knowing murder, N.J.S.A. 2C:11-3a(1)(2), and robbery, N.J.S.A. 2C:15-1. At trial, the judge submitted the lesser-included offenses of aggravated manslaughter, reckless manslaughter, aggravated assault, and simple assault to the jury, which found defendant guilty of a single count - the second-degree reckless manslaughter of Fred Bush. Defendant was sentenced to a sixteen-year extended term of imprisonment, eighty-five percent of which was to be served prior to parole eligibility pursuant to NERA.

On appeal, defendant raises two issues for our consideration.

POINT I

UNDER THESE FACTS, THE JURY INSTRUCTION ON SELF-DEFENSE SHOULD NOT HAVE INFORMED THE JURY THAT MERELY BRANDISHING A DEADLY WEAPON IS NOT DEADLY FORCE; THAT INSTRUCTION SHOULD NOT BE GIVEN WHEN, AS HERE, THE DEFENDANT IS UNARMED AND THE EVIDENCE SHOWS HE MAY HAVE RESORTED TO DEADLY FORCE (A DEADLY PUNCH) IN RESPONSE TO THE VICTIM'S HAVING BRANDISHED AND "C[O]ME AT" THE DEFENDANT WITH A KNIFE; MOREOVER, THE JURY SHOULD HAVE BEEN INSTRUCTED THAT WHEN THE VICTIM "CAME AT" THE DEFENDANT WITH A DEADLY WEAPON, THE JURY COULD INFER THAT THE VICTIM HAD AN INTENT TO KILL. (Not Raised Below).

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL IN LIGHT OF STATE V. NATALE AND STATE V. PIERCE.

After consideration of these contentions in light of the record and applicable legal standards, we affirm defendant's conviction, but remand the matter to the trial court for re-sentencing.

The testimony at trial revealed that on October 24, 2004, at approximately 8:00 p.m., as he walked through Newark's Green Acres Park, Burl Gary Gordon was approached by defendant. Gordon stated that defendant asked him if he wanted to buy some drugs, but Gordon declined and continued on his way. As he was leaving the park to go to a store, Gordon noticed defendant had approached another individual, later identified as Fred Bush.

After completing his business at the store, Gordon walked back through the park and noticed Bush lying on the ground near a park bench and defendant "walking fast" out of the park. Gordon heard someone yell, "He whacked the shit out of him," and noticed that Bush was apparently not breathing. Gordon later identified defendant from a photo array prepared by the police.

Officers who responded to the scene testified that they found Bush lying on his back with a "hawk bill type knife" in his right hand. They observed injuries to his face, some blood on the ground near his head, and a vial of crack cocaine in his left hand.

Bush was pronounced dead at the scene, and the Essex County Medical Examiner, Dr. Nobby Mambo, testified that the cause of his death were injuries to the head. Mambo described the injuries as an "abrasion on the back of the head, a fractured skull, and a hemorrhage over the lobes and base of the brain." Because his dentures were broken, Mambo opined that Bush was most likely struck in the face, and noted the absence of any defensive wounds on Bush's body. Toxicological results indicated that Bush had recently ingested cocaine at the time of his death.

Michael Smith testified that the next day, October 25, defendant sold him a cell phone claiming someone had given it to him as a gift. Smith acknowledged making several calls on the cell phone and this enabled the police to identify the phone's approximate location. On November 1, 2004, they arrested Smith in possession of the cell phone which had belonged to Bush.

Smith selected defendant's photo from an array prepared by the police as the man who sold him the phone. He also explained the significant variation in the description of defendant he gave to the police, and defendant's actual appearance at trial, by noting that defendant was much heavier now.

The police attempted to interview defendant, and based upon an open arrest warrant, arrived at his Newark apartment that he shared with his mother and sister, Pamela Bowser. They were permitted entry and found defendant outside on a ledge under the apartment's bathroom window. Defendant fled and the police pursued him on foot, on fire escapes, and over roof tops, but were unable to catch him. Defendant was apprehended when he called home and the police were able to identify the phone booth he was using.

Both Pamela Bowser, and her boyfriend Anthony Robinson who was also in the apartment, were arrested and charged with hindering the police in their apprehension of defendant. Both were called as witnesses by the State, however, neither gave testimony that was consistent with earlier statements given to the police. The substance of Pamela Bowser's earlier written statement was eventually admitted through the testimony of a police detective who took the statements. In that statement, she told police that defendant came to the apartment with a cell phone and a wallet he claimed to have obtained in a robbery. Defendant also claimed that the police were looking for him because the man he robbed must have died.

Defendant testified in his own behalf. Admitting that he supported himself by cutting hair and dealing drugs, defendant testified that Bush did not have enough money to buy drugs from him so he, Bush, offered his cell phone instead. Defendant testified at trial that during the course of the drug deal, an argument ensued and Bush pulled out a knife and "came at" him. Acting in self-defense, defendant punched Bush once in the face, saw Bush fall to the ground, and then fled the scene.

The defense rested after this testimony. Before summations, the judge noted that defendant had never served the State with a written notice of his intention to rely upon self-defense. The judge offered the State some relief by permitting a continuance; however, the prosecutor declined this offer and the trial continued with a charge conference. Defendant requested that instructions be given on the lesser-included offenses, but did not request any other specific charges.

At the beginning of the next day, outside the presence of the jury, the judge confirmed with defense counsel that defendant did not wish certain charges be given as a matter of strategy. The judge also noted that defense counsel had reviewed the proposed charge in chambers and that "both sides were satisfied with the charge . . . ." Neither side lodged any objection to the charge after it was given to the jury.

Defendant acknowledges the judge did not commit any error in his recitation of the model jury charge. Instead, he argues that under the facts of this case, the trial judge's use of the model instructions was confusing and misleading. Specifically, defendant argues that the judge should have "tailored" the model charge in two important respects.

First, he contends that the judge's use of a portion of the model charge was a mistake because while it was "technically correct," it injected a "highly confusing" and "unnecessary" aspect of the law of self defense - "that the brandishing and threat[ened] [] use [of] a deadly weapon is not itself deadly force." Because the State conceded that defendant was unarmed, and because the jury could infer that Bush, who was found at the scene with a knife in his hand, was armed with a deadly weapon, defendant argues the model instruction confused the jury and led to an unjust result.

These unusual facts, defendant contends, are the opposite of those we considered in State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998). In Bilek, we concluded that reversal was warranted, despite the fact that the charge as given was legally correct, because "[t]he inclusion of the general self-defense charge, not tailored to the defense of one's dwelling, could only have been confusing at best, totally misleading at worst." Id. at 11. We noted that "without tailoring the charge to the facts here and telling the jury that defendant's pointing of the handgun at or in the direction of the 'victims' was the use of force that could be justified under N.J.S.A. 2C:3-4c, the jury instructions could have unfairly led to a premature rejection of self-defense . . . ." Id. at 13.

Defendant argues the facts presented here were the reverse of those considered in Bilek. Acknowledging that the charge was legally accurate, defendant nevertheless argues that by instructing the jury in only general principles, the judge injected something "utterly irrelevant" in the case. He contends the question for the jury was not whether Bush was using deadly force by brandishing the knife - defendant admits he was not - but rather whether defendant's response to the threatened use of deadly force against him was reasonable and justified.

In order to properly consider defendant's contention, we review the judge's instruction at length.

If the force [used] by the defendant was not immediately necessary for the defendant's protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self defense claim fails.

There are different levels of force that a person may use in his own defense to prevent unlawful harm. The defendant can only use[] that amount or degree of force that he reasonably believes is necessary to protect himself against harm if the defendant is attempting to protect himself against exposure to death or the substantial danger of serious bodily harm, he may resort to the use of deadly force. In other words he may only resort to none (sic) deadly force.

The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant believed that such force is necessary to protect himself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.

After defining "serious bodily harm," the judge continued,

For example, if one were to purposely fire a fire arm in the direction of another person, that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the victim of the threat believe that the defendant will use the firearm if necessary, is not an example of deadly force. One cannot respond with deadly force to a threat of or even an actual minor attack. For example, a slap or an eminent threat of being pushed in a crowd would not ordinarily justify the use of deadly force to defend against such unlawful conduct[.] Therefor[e], you must first determine whether the defendant used deadly force.

If you find that the defendant used deadly force then you must determine that the defendant reasonably believed that he had to use deadly force to defend against the lawful (sic) conduct of another.

(Emphasis added.)

The judge then completed the instructions by defining the duty to retreat, and the use of non-deadly force in self-defense.

Defendant's argument, therefore, is essentially limited to that brief portion of the charge we emphasize above. We consider this point by utilizing well-established legal standards that inform our decision. While "clear and correct jury instructions are essential for a fair trial," State v. Nelson, 173 N.J. 417, 446 (2002) (quoting State v. Brown, 138 N.J. 481, 522 (1994)), if an error has not been brought to the trial court's attention, we will not reverse unless the appellant shows that the instruction amounted to plain error. R. 2:10-2. We have noted "[i]t is not plain error when jury instructions are not incorrect but merely capable of being improved." State v. Tierney, 356 N.J. Super. 468, 481 (App. Div.), certif. denied, 176 N.J. 72 (2003). Rather, the faulty instruction must have been "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

We conclude that the judge's inclusion of the above-cited language, and his failure to otherwise "tailor" the model charge to the facts of the case, did not amount to plain error. Initially, we note that in reviewing any claim of error in the jury charge, the instructions must be examined as a whole to "determine [their] overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). We must evaluate the alleged error "in the context of the entire charge to determine whether the challenged language was misleading or ambiguous." State v. Simon, 161 N.J. 416, 477 (1999).

Here, the alleged erroneous reference was brief, given by way of example, and did not offset the otherwise appropriate recitation of the law of self-defense. In an earlier portion of the charge, the judge clearly placed the essential issue for the jury to decide in its proper context when he said,

Self-defense is also the right of a person to defend against serious threatened and unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him of unlawful force.

(Emphasis added.)

Read as a whole, we are convinced the charge did not mislead the jury.

In summation, defense counsel vigorously argued the circumstances of the confrontation between Bush and defendant, reminding the jury that his client was unarmed, and that Bush had a knife. He urged the jury to consider the judge's instructions on felony-murder, murder, and reckless manslaughter, noting that defendant lacked the requisite mental states to have committed those crimes. He conceded, in discussing reckless manslaughter with the jurors, "[Y]ou may find that he may have been reckless in hitting the guy."

The Supreme Court has noted, "The argument of counsel, although not a substitute for a correct charge, can mitigate the prejudicial effect of an erroneous charge." State v. Morton, 155 N.J. 383, 423 (1998), certif. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). At oral argument before us, defense counsel conceded that the evidence presented clearly supported a conviction for reckless manslaughter. In sum, we are convinced that defendant suffered no prejudice from the instructions as given.

Defendant's second argument regarding the jury charge must also be evaluated against the plain error standard since defense counsel at trial agreed the charge should not be given. Prior to summations, the prosecutor noted that the judge's proposed instructions did not include any "State v. Martini language," which he summarized as

[I]f you find that the attacker, the aggressor used a deadly weapon in the course of the attack, you may infer his intent was to kill.

The judge responded, "There's no allegation he used a deadly weapon during the attack." The prosecutor agreed. Defense counsel did not object.

While it is unclear whether the judge completely comprehended the issue as it related to Bush's conduct, or whether he and defense counsel assumed that no charge was appropriate in light of defendant's lack of a weapon, the record discloses no further discussion of the point. Defendant now asserts before us that it was error not to have given such a charge in light of the evidence that Bush "came at" defendant with a knife.

In State v. Martini, 131 N.J. 176, 271-72 (1993), cert. denied, 516 U.S. 875, 116 S.Ct 203, 133 L.Ed 2d 137 (1995), the Supreme Court recognized the continued vitality of the common law inference that one may infer an intent to kill from the actor's use of a deadly weapon. Citing State v. Thomas, 76 N.J. 344, 357 (1978). However, contrary to defendant's assertion, if the judge had provided such an instruction, the jury's attention would have been diverted from what was properly at issue - whether defendant's belief that he needed to resort to force to defend himself honest and reasonable.

N.J.S.A. 2C:3-4a provides that the use of force is justified "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." "Assuming there is evidence that a defendant acted in self-defense, the jury decides whether his belief was honest and reasonable." State v. O'Carroll, 385 N.J. Super. 211, 236, (App. Div.), certif. denied, 188 N.J. 489 (2006) (citing State v. Burks, 208 N.J. Super 595, 604 (App. Div. 1986)).

The entire defense case focused the jury's attention on the claim that defendant did in fact act reasonably since Bush "came at" defendant armed with a knife. In his instructions, the judge properly focused the jury's consideration upon whether defendant acted reasonably in apprehending Bush's approach with the knife and responded appropriately. Whether Bush intended to cause death or serious bodily injury to defendant was extraneous to the issue, and, therefore, telling the jury that it could infer such a motive was irrelevant. In sum, we find no error and certainly not plain error.

Lastly, defendant contends the sentence imposed was excessive and violated the Supreme Court's holding in State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006). The trial judge sentenced defendant to a discretionary extended term of sixteen years, N.J.S.A. 2C:44-3a, and imposed the mandatory eighty-five percent NERA parole disqualifier.

The sentence was imposed after the Court's holding in Natale, but before its decision in Pierce, a case that applied Natale's holding to discretionary extended term sentences. Pierce, supra, 188 N.J. at 168. Since the sentence imposed upon defendant, sixteen years, exceeded the former presumptive term for a second-degree extended term, the State concedes that a remand is warranted for re-sentencing purposes. We agree.

Since we conclude that defendant's sentence must be vacated and that he must be re-sentenced in light of Pierce, we need not consider the other issues raised by defendant in this appeal regarding the sentence imposed.

Defendant's conviction is affirmed; the matter is remanded for re-sentencing in accordance with State v. Pierce. We do not retain jurisdiction.

The No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

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A-4890-05T4

October 19, 2007