STATE OF NEW JERSEY v. HENRY L. WRIGHT III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6531-05T46531-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY WRIGHT,

Defendant-Appellant.

_________________________________

 

Submitted October 1, 2007 - Decided October 19, 2007

Before Judges Lintner, Graves and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Salem County,

05-04-0129.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Designated Counsel, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Greg G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Henry L. Wright, III, was convicted by a jury of first-degree purposeful murder (Count One), N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon for an unlawful purpose (Count Two), N.J.S.A. 2C:39-4; third-degree possession of a handgun without a permit (Count Three), N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b; and second-degree certain persons not to have a weapon (Count Four), N.J.S.A. 2C:39-7.

The judge imposed a thirty-year term of incarceration with a thirty-year parole bar on the murder conviction. He merged the second count and fourth count convictions with the third count conviction for which he imposed a twenty-year term with a ten-year period of parole ineligibility to run concurrently with the sentence imposed on the murder conviction. Defendant appeals and we affirm.

In the early morning hours of January 9, 2004, defendant and his friend, Shareef Clayton, engaged in a dispute with Sholomo David at Whispering Waters, a local housing project, over the right to sell drugs. At that time, defendant and David threw punches at each other. Sometime around midnight on January 10, at the Foxhole Bar in Salem, David snuck up on Clayton, punched him in the mouth, splitting Clayton's lip, and ran out of the bar, accompanied by his girlfriend, Sharon Washington. Clayton remained at the bar where he washed his face. Shortly thereafter, defendant and Sarah Perry arrived at the Foxhole. Defendant became furious when he saw Clayton was injured. Defendant, Clayton, and Perry then left the bar. Perry drove them to the Westside Court apartment complex where David lived. On their way to Westside Court, defendant and Clayton had a discussion about which of them would confront David. When they arrived at the complex, however, defendant announced that he would confront David. He left the car and headed toward the building where apartment number 42 was located. A few minutes later, Clayton and Perry heard gunshots. Defendant returned to the car, saying, "I got him, I got him." Defendant, who had a handgun, told Perry to drive away. She complied and dropped both Clayton and defendant off in front of Whispering Waters.

The same morning, Lucillia Caudle arrived home from work to discover that the doors of her apartment at 40 Westside Court were locked from the inside and that her sons were not answering when she knocked. In addition, she noticed what looked like bullet holes through her front window. Caudle went a few blocks to a local deli where she saw Sergeant Vanaman of the Salem City Police Department and asked for his help. After calling for backup, Vanaman accompanied Caudle back to her apartment where they met Officer Smith. Smith cut a hole in the back screen door, allowing Caudle to use her key to open the door. Caudle, followed by the two officers, entered the apartment.

In the living room, they found the body of Caudle's fourteen-year-old son, Cordero. He had been dead for some time from an apparent gunshot wound to the head. The officers then secured the scene for crime scene investigators. The wall across the room from the front window had four bullet holes in it. The shell casings retrieved from outside the front window were from a 9mm pistol. There were no fingerprints obtained from the bullets or shell casings.

Thereafter, the police canvassed the neighborhood looking for witnesses. David and Washington lived in the apartment at 42 Westside Court, which shares its front steps with the victim's apartment. When interviewed by the police the next day, Washington told the police that she thought the bullets had been meant for her boyfriend, David, and not for Cordero Caudle. She indicated that her boyfriend had had an altercation with defendant and Clayton. The police began to investigate the homicide in light of Washington's statement and looked for suspects connected with David, as opposed to Cordero Caudle.

Meanwhile, defendant met with Perry the day after the shooting, and gave her a story to tell police if she was questioned. Perry voluntarily appeared at the Salem police headquarters on January 16, 2004, and gave two statements to the police. The first statement was the version defendant had asked her to give. In a second statement, she related the events of January 9 and 10, 2004, including information about the physical altercations and the shooting at Westside Court. In yet a third statement given two years later, she mentioned the gun.

Clayton confronted defendant within a day of the shooting to inform him that David was not dead, and that, in fact, a fourteen-year-old boy had been shot and killed at Westside Court. Defendant's response was that "it was a mistake." Clayton appeared at headquarters for questioning on January 11, 2004. Clayton's statement to police on that date left out several key facts, including that he saw defendant or Perry, or that he was present at Westside Court in the early morning of January 10, 2004. A few days after the shooting, defendant's girlfriend, Brittney Pitts, saw defendant throw out his hat and gloves. When she confronted him, he began to cry and said, "[i]t wasn't supposed to happen."

Defendant gave a voluntary statement on January 14, 2004, indicating that he feared that someone was out to get him. Both defendant and Clayton were later arrested on murder charges. Clayton eventually pled guilty to conspiracy to commit aggravated assault, for which he received a flat five-year term and he agreed to testify truthfully for the State against defendant.

On appeal, defendant raises the following points:

POINT I

THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below.)

POINT II

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY THE ALLEGED ACCOMPLICE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)

Defendant asserts, for the first time on appeal, that the judge erred in failing to sua sponte charge the jury on the lesser-included offense of passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2). Under N.J.S.A. 2C:11-4b(2), a criminal homicide constitutes manslaughter, a second-degree offense, when it "is committed in the heat of passion resulting from a reasonable provocation."

Generally, where a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser" charge. State v. Brent, 137 N.J. 107, 116 (1994) (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8e (1993)); see also State v. Denofa, 187 N.J. 24, 42 (2006). Moreover, where the evidence reasonably supports defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give it is reversible error. Ibid.

By contrast, "[a]n unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge need not "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.'" Brent, supra, 137 N.J. at 118 (quoting State v. Sloane, 111 N.J. 293, 302 (1988)); see Choice, supra, 98 N.J. at 299 (stating the trial court does not "have the obligation on its own meticulously to sift through the entire record" to find appropriate charges). However, where the evidence supporting the lesser-included offense "is jumping off the page," an instruction is required, notwithstanding the failure on the part of a defendant to make the request. Denofa, supra, 187 N.J. 42 (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 123 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)); Choice, supra, 98 N.J. at 299.)

"Passion-provocation manslaughter mitigates a murder conviction to manslaughter" where the homicide is "'committed in the heat of passion resulting from a reasonable provocation.'" State v. Copling, 326 N.J. Super. 417, 428 (App. Div. 1999) (quoting N.J.S.A. 2C:11-4b(2)), certif. denied, 164 N.J. 189 (2000). The four elements of passion/provocation manslaughter are:

1) the provocation was adequate to inflame a reasonable person;

2) the defendant did not have time to cool off between the provocation and the killing;

3) the provocation actually impassioned the defendant; and

4) the defendant did not, in fact, cool off before the killing.

[Ibid.]

The first two elements are objective in nature. That is to say, that the provoking event, along with the time between said event and the slaying, are not examined in terms of the defendant's perception and action, but instead in terms of the perceptions of an ordinary, reasonable person. Id. at 429-31. The third and fourth elements are subjective, based upon a determination whether "the provocation . . . actually . . . impassioned the perpetrator" and "whether the perpetrator actually did cool off." State v. Mauricio, 117 N.J. 402, 413 (1990).

If the court finds from the evidence that the provocation was "'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control,'" Id. at 412 (quoting State v. King, 37 N.J. 285, 301-02 (1962)) (alterations in original), or the cooling-off period was undeniably reasonable, then the court should instruct the jury on the lesser-included offense passion/provocation manslaughter. Id. at 413. The court should avoid instructing the jury on this lesser-included offense "if the evidence is 'so weak as to preclude jury consideration.'" Copling, supra, 326 N.J. Super. at 428 (quoting State v. Crisantos, 102 N.J. 265, 275 (1986)). In making its determination, the "trial court should view the situation in the light most favorable to the defendant." Id. at 429 (quoting Mauricio, supra, 117 N.J. at 412).

Within this analytical framework, we are convinced that the evidence did not provide a clear indication that a charge on passion/provocation murder was required, much less a rational basis for that charge. Defendant contends that his earlier physical altercation with David and David's assault on his friend a short time prior to the shooting, both of which were spurred by a continued rivalry over drug turf, provided sufficient evidence to clearly indicate a reasonable provocation and a lack of a cooling-off period. We disagree. It is at best disingenuous to claim that a continuing rivalry over selling drugs can create an objectively reasonable provocation to commit murder.

Defendant argues that the fistfight that occurred in the early morning hours of January 9 was sufficient provocation for the shooting, as was the punch assault on Clayton approximately thirty minutes before the shooting. In our view, neither of the two asserted events rose to the level of provocation necessary to render defendant's violent response objectively reasonable.

The circumstances in Copling, supra, 326 N.J. Super. 417, are somewhat analogous to the facts here. In Copling, the defendant was convicted of first-degree conspiracy to commit murder, first-degree murder, and aggravated manslaughter for the shooting deaths of two individuals, one of whom had attacked the defendant's brother. Id. at 422. The defendant did not learn of the attack on his brother until the day after it occurred. The defendant also knew before he confronted the attacker that, although his brother had been punched, kicked, choked, and hit with a bottle, he was not otherwise injured in the attack. Still, nearly two and one-half hours after learning of the attack, the defendant confronted attacker with an automatic pistol and shot him and a bystander to death. Id. at 424-25, 431.

In Copling, the defendant did not request and the judge did not sua sponte charge passion/provocation manslaughter. On appeal, we concluded that, objectively, there was not adequate provocation to sustain a jury charge on passion/provocation manslaughter. Id. at 429. Noting that a person may be provoked by conduct that injures a relative and occurs outside that person's presence, the circumstances surrounding the event in question did not rise to the level of provocation necessary to deem the defendant's violent response objectively reasonable. We pointed out that the common law theory of mutual combat, which under certain circumstances could constitute adequate provocation, did not apply where the perpetrator joins the fray on significantly unequal terms. See Crisantos, supra, 102 N.J. at 274-75. We pointed out that had the defendant "joined the fist fight with a gun, it would not be characterized as mutual combat," and we therefore concluded that the provoking incident "was insufficient to cause a reasonable person to lose self-control so as to reduce the murder to manslaughter." Copling, supra, 326 N.J. Super. at 430.

So too, here, neither the fistfight between defendant and David almost one day prior nor the single punch incident between Clayton and David met the objective criteria of reasonable provocation to establish the first element necessary for charging passion/provocation manslaughter for the intended shooting of David.

We are equally convinced that there was an adequate cooling-off period between both events. The January 9 incident, which occurred almost a full day prior to the shooting, afforded a reasonable cooling-off period. Moreover, although much closer in time to the shooting, the circumstance following the second incident with Clayton presented evidence of an adequate cooling- off period. Defendant arrived at the bar one-half hour after Clayton was punched by David. After learning of the altercation, he and Clayton then got into Perry's car, instructed Perry to drive to David's apartment complex, all the while planning who would "take care of" David once they arrived. While temporally, the trip took less than five minutes, defendant nevertheless left the scene to pursue David with a sufficient period of time to give him an opportunity to actually plan his confrontation. Those circumstances militate against a finding that, as a reasonable person, defendant acted upon lost "mastery of his understanding," by acting upon a passion "before a time sufficient to permit reason to resume." State v. Pratt, 226 N.J. Super. 307, 317, certif. denied, 114 N.J. 314 (1988). The judge's failure to charge the lesser-included offense of passion/provocation manslaughter was not error.

We turn next to defendant's contention challenging, for the first time on appeal, the judge's failure to sua sponte instruct the jury that Clayton's guilty pleas could be used only to assess credibility and not as substantive evidence of defendant's guilt. Defendant places heavy reliance on State v. Stefanelli, 78 N.J. 418 (1979), and State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005). Defendant's reliance is misplaced. We conclude that any error here was harmless.

During direct examination, the State introduced Clayton's plea agreement and his plea to conspiracy to commit aggravated assault. Defendant did not ask the judge to give a limiting instruction regarding the use of the guilty plea. On cross-examination, defense counsel questioned Clayton extensively on his plea agreement, as to whether it was contingent on his testifying against defendant and whether, if he did not testify, the deal would be called off. Defendant's counsel also elicited from Clayton that he had been convicted previously of drug offenses, and the reduced jail time was "a tremendous benefit" to him in return for testifying for the State. He then brought out inconsistencies in Clayton's statements to the police. During summation, the defense attacked Clayton's credibility, pointing out that, by taking the plea deal, Clayton gained a significant benefit in reduced jail time given his time served, notwithstanding his prior drug convictions and probation violation.

The prosecutor refrained during summation from arguing Clayton's guilty plea as substantive evidence of defendant's guilt. Instead, he argued that notwithstanding Clayton's guilty plea and prior record his testimony was consistent with that given by Perry and Pitts.

[A] guilty plea of one person . . . cannot be considered satisfactory or worthy evidence of the guilt of others even though similarly circumstanced and is properly excludable under the axiom that a defendant on trial is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has

happened with regard to a criminal prosecution against someone else."

[Stefanelli, supra, 78 N.J. at 433 (quoting United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949)).]

A trial court has an independent obligation "to give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes, even in the absence of a specification of reasons by the prosecutor or a request therefor[e] by defendants." Id. at 434.

In Stefanelli, a co-defendant testified about his role in a conspiracy with the defendant to break and enter and to commit larceny. Id. at 423-25. The prosecutor told the jury during summation "that it was an insult to their collective intelligence to believe that" the co-defendant would have pled guilty if he had not been in a conspiracy with the defendant. Id. at 435. The trial judge gave no limiting instruction regarding the use of the co-defendant's guilty plea and no curative instruction regarding the prosecutor's improper summation comment. The Court held that the co-defendant's guilty plea was not admissible as substantive evidence of the defendant's guilt but was admissible for the limited purpose of affecting the co-defendant's credibility. Id. at 433-34. The Court declared that when a co-defendant's guilty plea is admitted into evidence, "a limiting instruction [should be given] to the jury restricting the use of a guilty plea to the issue of credibility." Id. at 435. Nevertheless, the Court in Stefanelli held that the absence of the limiting instruction was harmless error because the co-defendant's guilt "was established independently," and because he had been "thoroughly cross-examined and his credibility severely tested." Id. at 436. The Court found that, under those circumstances, the absence of a limiting instruction was "truly harmless" and added "nothing of substantive consequence." Ibid.

In Murphy, supra, 376 N.J. Super. at 122-25, we reversed the defendant's conviction, directing that there must be an instruction not only limiting use of the guilty pleas of co-defendants to credibility but also prohibiting their use as substantive evidence of the defendant's guilt. In Murphy, the co-defendants were the only witnesses to testify about a theft they committed with defendant. They also testified to their guilty pleas. When explaining a guilty plea, the judge enhanced the credibility of the co-defendants by telling the jury that the pleas could only have been accepted by a trial court if the judge was satisfied that the co-defendants were, "in fact, guilty of the offense." Id. at 121. The trial judge gave a Stefanelli limiting instruction. Thereafter, in his summation, the prosecutor also bolstered the co-defendants' credibility by using an analogy that prisoners who fool their captors get beaten while those that are truthful do not. Id. at 124. The Murphy panel concluded that, because the judge enhanced the co-defendants' credibility and the only evidence against defendant was presented by his co-defendants, a two-fold instruction adding the prohibition against using a guilty plea as substantive evidence of the defendant's guilt was necessary. Id. at 124-25.

Here, like Stefanelli, but unlike Murphy, Clayton's guilt was established by substantial independent evidence. More importantly, the prosecutor did not improperly argue that Clayton's guilty plea could be used as substantive evidence of defendant's guilt and there was no limiting instruction on that issue. Further, similar to the circumstances in Stefanelli, Clayton's favorable plea deal and prior record were relentlessly and thoroughly explored in cross-examination in such a way to severely test his credibility. Clayton's plea did not add any extra evidential weight to proofs of defendant's involvement.

Finally, although the judge did not give a limiting instruction that Clayton's guilty plea could not be used in considering defendant's substantive guilt, he did provide the following instruction regarding credibility:

Shareef Clayton and Sharon Washington testified in this trial as you know. Both of those persons have prior convictions, or conviction or convictions. On the subject of credibility, it is proper for evidence of prior convictions of anyone who takes the stand to be called to the jury's attention the fact that they, or he or she or they, have been previously convicted of a crime. When a person takes the stand to testify, the fact that they've been previously convicted is permitted to be placed into evidence before the jury - for the jury's consideration in determining the credibility of that witness.

Here, the evidence of the prior convictions can be considered by you in determining whether that witness was credible or not. However, you're not obliged or required to change your opinion of their credibility because they were convicted. You may use that fact to determine credibility if you choose, but you could also find the[m] credible notwithstanding the fact that there has been a prior conviction or indeed convictions.

Here, the significant independent factual evidence of defendant's guilt renders the admission of the guilty plea without a limiting instruction harmless. Accordingly, we are satisfied that any error in not providing the limiting instruction was harmless as it did not have a clear capacity to produce an unjust result nor did it affect the outcome of the trial. R. 2:10-2.

Affirmed.

The fourth count charge was tried separately to the jury after it returned its verdict on the first three counts.

Perry testified that defendant stated "I got him, I got him." However, Clayton testified that defendant "said that he handled it."

It is noteworthy that Clayton testified that he thought that there would be no more than a fistfight when they arrived at David's apartment. Although that testimony amounted to Clayton's subjective feelings and, therefore, does not form the basis for our decision, it is interesting that the direct subject of the alleged provoking event did not believe that anything more than a fistfight was necessary to deal with the problem.

(continued)

(continued)

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A-6531-05T4

October 19, 2007