STATE OF NEW JERSEY v. ISAIAH M. KINNEY, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3141-07T43141-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISAIAH M. KINNEY, JR.,

Defendant-Appellant.

_____________________________

 

Submitted October 27, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2017.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On June 26, 2006, an Essex County Grand Jury charged defendant Isaiah Kinney and co-defendant Gloria Jones with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count three); fourth-degree unlawful possession of a weapon (a blunt object), N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five). The Grand Jury also charged Jones with second-degree eluding, N.J.S.A. 2C:29-2b (count six).

Following indictment, Jones entered into a plea agreement with the State, pleading guilty to conspiracy to commit aggravated assault and second-degree aggravated assault in exchange for the State recommending that she be sentenced to an eight-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissal of the remaining charges. A condition of the plea agreement required Jones to testify truthfully at defendant's trial.

A jury convicted defendant of second-degree conspiracy to commit aggravated assault as a lesser-included offense on count one and of second-degree aggravated assault on count two. The jury acquitted defendant of the remaining charges. On October 15, 2007, the court denied defendant's motion for a new trial and granted the State's motion to sentence defendant to a discretionary extended term, pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(1), (3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count two to a twenty-year extended term of imprisonment with an 85% period of parole ineligibility, pursuant to NERA, and to a three-year term of parole supervision upon release. The court merged the conviction on count one with the conviction on count two. The court also imposed all mandatory fines and penalties.

On appeal, defendant argues:

POINT I.

THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED ASSAULT.

A. THE DEFENDANT WAS ENTITLED TO THE LESSER-INCLUDED OFFENSES BECAUSE THE FACTS INDICATED THAT [DEFENDANT] DID NOT SHARE THE SAME INTENT AS [CO-DEFENDANT].

B. THE FAILURE TO CHARGE LESSER-INCLUDED OFFENSES RESULTED IN THIS JURY NOT BEING CLEARLY ADVISED AS TO THE SHARED INTENT REQUIREMENT OF ACCOMPLICE LIABILITY.

POINT II.

THE INSTRUCTION DEALING WITH THE CO-DEFENDANT'S TESTIMONY WAS EVISCERATED WHEN THE COURT STATED THAT HER PENDING SENTENCE DID NOT BEAR ON HER CREDIBILITY. (NOT RAISED BELOW).

POINT III.

THE COURT ERRED IN GIVING THE JURY WRITTEN SECTIONS OF THE INSTRUCTIONS RATHER THAN ANSWERING THEIR QUESTIONS IN PLAIN LANGUAGE. (NOT RAISED BELOW).

POINT IV.

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 20 YEARS WITH A[N] 85% PAROLE BAR UNDER NERA. THE SENTENCE MUST BE REDUCED.

Defendant presents the following arguments pro se:

POINT I.

ALL CONVICTIONS MUST BE VACATED FOR THE CUMULATIVE EFFECT OF THE ERRORS, REVERSAL IS WARRANTED.

POINT II.

DEFENDANT WAS DENIED DUE PROCESS, AT SENTENCING, THEREFORE THE NERA ASPECT OF HIS SENTENCE MUST BE VACATED, WARRANTS REVERSAL.

We affirm.

I.

Jackie Kinney, the former wife of defendant and a former friend of Jones, is the girlfriend of Floyd Simmons. Jones, Jackie Kinney and Simmons resided together in Jackie Kinney's home on Prospect Street, East Orange.

On the evening of January 28, 2006, Jones and defendant visited the medical office where Jackie Kinney worked. Jones had also taken her dog with them to the office. Because Jackie Kinney did not allow the dog in the office, defendant and Jones proceeded to Kinney's residence, intending to leave the dog there. Upon their arrival at Kinney's house, Simmons opened the door but refused Jones entry into the house with the dog. The two began to argue, and Simmons pushed Jones. A struggle ensued.

Defendant followed Jones into the house. On observing the altercation between Jones and Simmons, defendant attacked Simmons. The two men fell onto a table in the living room, breaking it. Jones picked up one of the table legs, striking Simmons repeatedly in the head and face with it while defendant pinned him down on the living room floor. During the attack, Simmons lost consciousness.

Defendant and Jones dragged Simmons into the kitchen. The kitchen oven was on with its door left open to heat the house. Jones pulled the hot oven racks out of the oven with a towel to prevent being burned, and placed them on the floor. Defendant and Jones then lifted Simmons up and shoved him head first into the oven, up to his waist.

After the assault, Jones drove defendant in her red Chevrolet Cavalier to a single-family dwelling on Washington Terrace where defendant rented a room on the second floor. At that time, Sergeant Larry Martin of the East Orange Police Department was on patrol in a marked patrol car when he observed the red Chevrolet traveling north on Prospect Street. The Chevrolet entered the intersection of Park Avenue and made an illegal left turn in front of the patrol car. Martin immediately activated his emergency lights and siren, and pursued the car west on Prospect Street. However, Jones did not stop.

Jones pulled over at the intersection of Washington Terrace and Morton Place. As defendant exited the passenger side car door, Martin ordered him to step back into the car. Defendant leaned toward the passenger window, gazed at the sergeant for a minute, and then walked away, saying, "I got to go in the house, I will be back." Defendant climbed the front stairs of the Washington Terrace residence, and Jones pulled away.

Martin decided to follow Jones, believing that he would have been unable to reach the front porch before defendant entered the house. During the pursuit, Jones turned onto Brighton Avenue, lost control of the car, and crashed.

Martin next ordered Jones who had exited the car to the ground. Jones appeared "extremely agitated," "irate" and "upset," and was sweating profusely. Although Jones's white pants legs were blood-soaked, Martin did not observe any injuries. Based on a statement made by Jones, Martin directed Police Officers Oceola Fair and Lakia Hale to respond to the home on Prospect Street. He also directed other officers to the Washington Terrace residence to detain defendant. A pair of blue and white men's boxer-style underwear with bloodstains was found in Jones's car.

Patrolman Gillyard and two detectives proceeded to the Washington Terrace residence to arrest defendant. On their arrival, defendant was just leaving the shower. The officers detained defendant in his second floor bedroom. While there, the officers recovered a bloodstained, white thermal tee shirt with a large bloodstain on the chest from defendant's bedroom floor, and a bloodstained pair of blue jeans from the hallway just outside the bedroom. Officer Gillyard collected the clothing and requested Martin to respond to the apartment. Once there, Martin identified defendant as the individual he saw exit the Chevrolet and climb the stairs to the residence. At the time of defendant's arrest, the officers did not observe any injuries on him other than minor scratches on his forehead.

In the interim, Fair and Hale had responded to the home on Prospect Street. Officer Fair, observing blood on the floor through the partially open front door, pushed the door open and yelled into the house, but received no response. The living room was in disarray, and a significant amount of blood was splattered throughout the room. An end table with a shattered glass top and broken legs laid on the floor. One of the table's legs was missing. Bloody drag marks led from the broken end table to the kitchen.

On entering the kitchen, the officers noticed that the oven was set to its highest temperature, the oven door was open and the oven racks were on the floor. Simmons laid motionless on the kitchen floor in a pool of blood with severe head injuries. He was naked from the waist down, lying on top of an oven rack. The top of his body was partially covered by a pulled-up, bloody shirt and his blood-soaked pants were underneath him. Simmons had fresh, burn marks from the oven racks on his back, and one large burn in the middle of his back. His body was resting about one and one-half feet from the oven with his head facing toward the oven door. Officer Fair called for an emergency response unit.

Due to the severity of his head injuries, Simmons, who at the time of trial was 47 years-old, could not recall the attack and had difficulty understanding the prosecutor's questions on direct examination. However, he was able to testify as to his injuries. Simmons testified that he was hospitalized for four months, part of that time in a coma. He underwent several surgeries, including one to remove part of his skull and brain on the left side of his head. He suffered burns to his back; underwent a tracheotomy; required a respirator to breathe; and received nourishment via a stomach tube. As a result of his injuries, Simmons temporarily lost his ability to walk, suffers from headaches and neck problems, and has difficulty breathing. He has not worked since the assault and continues to see a doctor on a monthly basis.

The medical records outlining the nature, extent and severity of Simmons' injuries were admitted in evidence. Those records showed that Simmons suffered an open skull fracture, severe traumatic brain injury, multiple facial, head and back burns, respiratory failure and burns to his lungs. He sustained multiple head and facial fractures: two fractures of the right parietal bone; fractures of the left nasal bone; a fracture through the interior wall of the right external auditory canal; and a fracture of the right temporal bone.

II.

Defendant argues in Point I that the trial court erred in failing to provide the jury on the charge of second-degree aggravated assault with instructions on the lesser-included offenses of: 1) third-degree aggravated assault by "[attempting] to cause or purposely or knowingly causes bodily to another with a deadly weapon," N.J.S.A. 2C:12-1b(2); 2) third-degree aggravated assault by "[attempting] to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury," N.J.S.A. 2C:12-1b(7); and 3) fourth-degree aggravated assault by "[recklessly causing] bodily injury to another with a deadly weapon," N.J.S.A. 2C:12-1b(3). Defendant contends that a jury could have reasonably found that he "only aided Jones in the assault by helping to place Simmons in the oven, or by engaging Simmons in hand-to-hand fighting," citing as an example that "[he] might have pinned Simmons down trying to end the fight when Jones decided to seize the opportunity to bash the victim's head."

Defendant also argues that the trial court's failure to charge the lesser-included aggravated assault offenses rendered the accomplice liability charge improper. Defendant contends that the court should have provided the jury with the model jury instruction on accomplice liability that encompasses lesser-included offenses rather than the model instruction that omits them. See Model Jury Charge (Criminal), "Liability For Another's Conduct" N.J.S.A. 2C:2-6, Accomplice, Charges #One and #Two (1995).

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008).

When 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. Id. at 116 (quoting Cannel, New Jersey Criminal Code Annotated (the Code), comment 13 on N.J.S.A. 2C:1-8 (1993)). 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. State v. Crisantos, 102 N.J. 265, 276 (1986).

Lesser-included offenses are those that are "established by proof of the same or less than all the facts required to establish the commission of the offense charged," N.J.S.A. 2C:1-8d(1), or "[they] consist[] of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein," N.J.S.A. 2C:1-8d(2), or "differ[] from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish [their] commission," N.J.S.A. 2C:1-8d(3). State v. Thomas, 187 N.J. 119, 130-31 (2006).

What is more, lesser-included offenses should only be charged to the jury if a rational basis exists in the evidence for the jury to convict the defendant of the included offense. N.J.S.A. 2C:1-8e; Thomas, supra, 187 N.J. at 131; State v. Brent, 137 N.J. 107, 117 (1994). Simply stated, there must be a rational basis to "find[] the defendant not guilty of the greater offense, as well as guilty of the lesser offense." State v. Pantusco, 330 N.J. Super. 424, 445 (App. Div.), certif. denied, 165 N.J. 527 (2000).

While "the 'rational basis' test . . . 'imposes a low threshold,'" State v. Scherzer, 301 N.J. Super. 363, 480 (App. Div. 1997) (quoting Crisantos, supra, 102 N.J. at 278), the requirement must be more than an abstract reason for believing that the jury may acquit the defendant on the greater charge and return a guilty verdict on the lesser charge. "'[S]heer speculation does not constitute a rational basis.'" Thomas, supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118).

"Bodily injury" constitutes "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. "Serious bodily injury," as used in N.J.S.A. 2C:12-1b(1), is defined as "bodily 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." N.J.S.A. 2C:11-1b. "'Significant bodily injury' means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d.

We have considered defendant's argument in light of the record and applicable law. We conclude that the trial court properly instructed the jury on the aggravated assault offense. The evidence did not provide a rational basis for the jury to have acquitted defendant of the charged offenses and found him guilty of the lesser-included offenses. Defendant's contentions that a jury could have reasonably inferred from the facts that he was only trying to break up the fight between Jones and Simmons, that he was protecting Jones by pinning Simmons down, and that Simmons' burns were the result of Simmons falling on the oven racks are not supported by the evidence.

Rather, the evidence indicates that defendant immediately attacked Simmons when he had observed that Jones and Simmons were involved in an altercation. Defendant then pinned Simmons down and allowed Jones to savagely beat him about the head and face with a broken table leg until Simmons lost consciousness. Defendant and Jones next dragged Simmons into the kitchen, where Jones removed the hot oven racks before both shoved Simmons head first into the oven, up to his waist. The record is devoid of any evidence indicating that defendant terminated his complicity in the assault.

What is more, the only reasonable finding the jury could have reached based on the evidence was that Simmons had suffered "serious bodily injuries" as a result of the horrific assault and not merely "significant bodily injury" or "bodily injury" as those terms are defined in the Code.

Defendant argues next that the trial court gave the jury an improper abbreviated accomplice liability charge by not instructing the jury that it should have considered whether defendant's intent to commit the crime was the same as that of Jones, or whether defendant may have intended to commit a lesser-degree offense of aggravated assault. Not so. Because there was no rationale basis in the evidence requiring the trial court to provide the jury with instructions on lesser-included aggravated assault charges, there was no need for the court to provide the alternate extended accomplice liability charge.

Moreover, here, the jury found defendant guilty of conspiracy to commit second-degree assault and of second-degree aggravated assault. Under the Code, "[c]onspirators . . . are guilty of the same substantive offense as the principal." State v. Curry, 109 N.J. 1, 9 (1987); N.J.S.A. 2C:2-6b(4). Thus, the jury must have concluded that defendant purposely promoted or facilitated the assault by aiding Jones in the commission of the crime. N.J.S.A. 2C:5-2a.

III.

Defendant argues in Point II that the trial court improperly instructed the jury on the facts it could consider in assessing Jones's credibility concerning defendant's participation in the assault. Defendant contends the court erroneously instructed the jury that it was not to consider Jones's status of awaiting sentence in assessing her credibility. Because defendant did not object to the instruction at trial, we consider the argument under the plain error rule. The court will reverse on the basis of unchallenged error only if the error "was clearly capable of producing an unjust result." R. 2:10-2. To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one 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).

When a defendant raises error in the jury charge, we examine the charge in its entirety, not just the isolated part challenged, to determine the overall effect of the instruction. State v. Robinson, 165 N.J. 32, 47 (2000). "[I]f on reading the charge as a whole, 'prejudicial error does not appear, then the verdict must stand.'" State v. Ramseur, 106 N.J. 123, 267 (1987) (quoting State v. Council, 49 N.J. 341, 342 (1967)).

In the context of accomplice testimony, the trial court should give a cautionary instruction "that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding." State v. Begyn, 34 N.J. 35, 55 (1961); see also State v. Spruill, 16 N.J. 73, 78-79 (1954); State v. Mangrella, 86 N.J. Super. 404, 408 (App. Div. 1965). "Ordinarily, the need to give 'careful scrutiny' to the testimony of an accomplice applies when he testifies for the State and can hope to gain some benefit for himself, such as a lighter penalty, if he has not already been sentenced, or a pardon, reduction in the sentence, or even a dismissal of a pending charge." State v. Kintner, 105 N.J. Super. 463, 465-66 (App. Div.), certif. denied, 54 N.J. 247 (1969) (quoting State v. Spruill, supra, 16 N.J. at 79-80). "[T]he potential for misuse is manifest" without an instruction guiding the jury's use of a co-defendant's guilty plea and pending sentence in its deliberations. State v. Stefanelli, 78 N.J. 418, 435 (1979).

Here, at time of trial, Jones had pled guilty but had not yet been sentenced. In instructing the jury concerning its evaluation of Jones's testimony, the court provided the jury, for the most part, with an instruction that mirrored the language contained in the Model Criminal Jury Charge, "Testimony of a Cooperating Co-defendant or Witness," (2006). However, at the end of the instruction, the court added the following statement: "Evidence has been introduced to show that Gloria Jones has yet to be sentenced for the crimes which she has pleaded guilty. This evidence of this witness's present status does not have any bearing on the credibility to be given her testimony, . . . ." (emphasis added).

We agree that the trial court erred in instructing the jury that Jones's pending sentencing was not a factor to be considered in assessing her credibility. However, we are satisfied that the error does not constitute plain error when the instructions are considered as a whole. The aforementioned additional instruction was immediately followed by the correct statement of law that:

[r]ather the evidence has been admitted to allow you to determine whether her testimony has been influenced by possible bias, prejudice, interest or ulterior motive. More specifically, this evidence [may be] relevant to the question of whether her testimony is influenced by a hope or expectation of favorable treatment.

IV.

 
We have considered defense counsel's remaining arguments and the arguments raised by defendant pro se. All of the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

Prior to trial, the court amended the charge on count one from first-degree conspiracy to commit murder to first-degree conspiracy to commit attempted murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3.

Defendant's pro se supplemental brief refers to the arguments therein as Point IV and Point V. Because the supplemental brief only contained two arguments, we renumbered the arguments as Point I and Point II, respectively.

(continued)

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A-3141-07T4

March 19, 2010