STATE OF NEW JERSEY v. RICHARD SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0752-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD SMITH a/k/a JOHN D. REEVES,

RICHARD WINSTON SMITH,

Defendant-Appellant.

___________________________________

November 20, 2012

 

Argued May 1, 2012 - Decided

 

Before Judges Fisher, Baxter and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1267.

 

Robert L. Guido argued the cause for appellant.

 

Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor; Ms. Friedman, of counsel and on the brief).

PER CURIAM

Following a five-day trial on a three-count indictment, a jury convicted defendant Richard Smith of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one), unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). The court merged count three into count one and sentenced defendant to thirty years in prison with thirty years of parole ineligibility on count one, and to a concurrent eighteen-month prison term on count two. The court also imposed mandatory fines and penalties. On appeal, defendant raises the following points for our consideration:

POINT I: A mistrial should have been granted when the Defendant's Fifth Amendment privilege against self-incrimination was irremediably violated during Detective David Rubin's testimony.

 

POINT II: Defendant was deprived of his right TO confrontation when the Court refused to allow defense counsel to cross-examine Christopher Barrett on his sentencing exposure on the serious charges pending against him.

 

POINTIII: Carlton Beckford's photo identification of Richard Smith on January 16, 2007, when Beckford knew the defendant only as "Shrimpy," gave rise to the inference that the defendant had a criminal or unsavory background, severely prejudicing the defendant and denying him a fair trial.

 

POINT IV: The jury should have been instructed on the lesser included offense of passion/provocation manslaughter (Not raised below).

 

POINT V: Under the doctrine of cumulative error, a new trial should be ordered pursuant to State v. Orecchio, 16 N.J. 125, 129 (1954).

 

Having considered defendant's contentions in light of the record and the applicable law, we affirm his convictions.

I.

The State presented the following evidence at trial. Carlton Beckford was working "security" with three other bouncers at a reggae party at St. John's Hall in East Orange on the night Charles Mathis was killed. According to Beckford, people started to arrive around 11:00 p.m. on Sunday, December 17, 2006. At least 150 people eventually attended the party. Mathis arrived with four friends between 2:30 and 3:30 Monday morning. While making his rounds during the party, Beckford saw Mathis and his friends flashing gang signs and bouncing into each other while a song called "One Blood" was playing, so he told them to "calm it down a little bit." Because the crowd's energy level was high, Beckford also walked to the disc jockey's booth and told the DJ to "calm down the music some."

Shortly after speaking to the DJ, Beckford walked to the bar area where the bartender directed Beckford's attention to a confrontation near the bathroom. Beckford looked toward the bathroom, which was approximately ten feet away at the top of several stairs, and saw a shoving match. Although the lighting was dim, Beckford could see Mathis, who he had seen at other parties, facing defendant, who he knew as "Shrimpy." Mathis and defendant appeared to be "squaring off" while Mathis's friends "seem[ed] like they were trying to separate everybody." Beckford ultimately observed "something shiny being retracted . . . back from the victim's chest."

Beckford testified that Shrimpy was the person who retracted the object from Mathis's chest, and afterwards, Mathis's "hands were up in say like a defensive [way] -- they was trying to push each other off . . . . There was guys pulling and tugging . . . almost like a small melee going on up there in that tight space."

Beckford thought that the victim and his friends likely had a "beef" with defendant and others, so he started to go upstairs. Mathis and his friends came down the stairs, passed Beckford, and walked into the hallway that led to the exit. Defendant and his friends returned to the dance floor. Beckford walked toward the exit and found Mathis lying on the hallway floor, unable to talk, breathing shallowly and clutching his chest, where small droplets of blood were visible. Another bouncer called for an ambulance. Paramedics arrived, attempted to revive Mathis, and then carried him out on a stretcher. Mathis subsequently died. According to the assistant county medical examiner who performed the autopsy, Mathis was stabbed twice: once in the right side of his neck and once in his right upper chest. The stab wound to his chest, which penetrated a major vein, was fatal.

Because he did not want to get involved, Beckford did not identify defendant when he gave a statement to Essex County homicide detective David Rubin on the morning of the homicide. He reconsidered, however, and a month later, on January 16, 2008, gave Rubin a second statement naming "Shrimpy" as the person who had struck Mathis in the chest. The same day, at Rubin's request, homicide Detective Michael Recktenwald showed Beckford six photographs. Beckford identified defendant. Beckford, Recktenwald, and Rubin all testified at trial about Beckford identifying the photograph of defendant.

Rubin also testified about a statement defendant made:1

[Prosecutor]: Now, Detective, during the course of your investigation, did you have an opportunity to speak with [defendant]?

 

[Rubin]: Yes.

 

[Prosecutor]: And when you spoke to [defendant], did you introduce yourself?

 

[Rubin]: Yes, I did.

 

[Prosecutor]: How did you introduce yourself?

 

[Rubin]: I introduced myself by saying, "I'm Detective Dave Rubin from [the] Prosecutor's Office Homicide Squad."

 

[Prosecutor]: And what, if anything, . . . did [defendant] say to you in response to your introduction?

 

[Rubin]: He said, "I know what you're here to talk to me about. I was at the St. John's club when I saw that kid get stabbed in a rumble up by the bathroom." I said, "[w]ould you like to give me a statement to that?" He said, "No."

 

[Prosecutor]: Okay. So that was the extent of the conversation that you had with [defendant]; [c]orrect?

 

[Rubin]: And -- oh, I'm sorry, he --

 

Rubin did not finish his answer. Defense counsel promptly requested a sidebar and asked for a mistrial. The court denied the motion for a mistrial and instructed the jury:

Ladies and Gentlemen of the Jury, I'm ordering you to disregard the last part of Detective Rubin's testimony about a statement not being made. That testimony was inappropriate.

 

By disregarding, I mean that it shouldn't enter into your discussions or your deliberations at any time or for any purpose. As I previously told you, the defendant sits here presumed to be innocent, and that presumption remains with him unless and until the jury is convinced that the State has proven all of the elements of a charge beyond a reasonable doubt.

 

The defendant is entitled to have a jury consider only the evidence that's presented in the case. He's presumed to be innocent whether or not he chooses to give a statement.

After Rubin finished testifying, the State called Christopher Barrett. Barrett had testified before a grand jury that he was present when the homicide occurred and saw defendant stab the victim with a weapon that looked like a folding knife with a wooden handle. At trial, he recanted his grand jury testimony. The State examined him about it and had a detective read the transcript of the grand jury testimony to the jury. During cross-examination, defense counsel questioned Barrett about charges that were pending against him.

Q. And you get arrested on some pretty serious charges; isn't that correct?

 

A. That's correct.

 

Q. I mean, you're charged with kidnapping; correct?

 

A. Yes, that's correct.

 

Q. You have a lawyer on that charge; correct?

 

A. Yes, that's correct.

 

Q. And when you were arrested on that, you were aware you're looking at 15 to 30 years --

 

[Prosecutor]: Judge, objection.

 

. . . .

 

THE COURT: Sustained.

 

No.

In response to the court sustaining the prosecutor's objection, defense counsel requested a conference. During the ensuing sidebar discussion, defense counsel said that he would withdraw and rephrase the question. He then continued to cross-examine Barrett about the pending indictment and he suggested through his questioning, among other things, that Barrett had contacted law enforcement authorities about the Mathis homicide in an attempt to obtain "favorable treatment" with the charges pending against him.

The jury convicted defendant of murdering Mathis. The trial court denied defendant's motion for a new trial. Following sentencing, defendant filed this appeal.

II.

Defendant first contends the court erred by not granting a mistrial when Rubin testified that defendant declined to make a statement. Indisputably, Rubin's comment was improper. The Fifth Amendment to the United States Constitution provides, in part, that "[n]o person shall . . . be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. "New Jersey's privilege against self-incrimination, although not enshrined in the State Constitution, is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J.551, 567 (2005). See also, N.J.S.A.2A:84A-19; N.J.R.E.503. "It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J.442, 456 (2008) (citations omitted).

Although Rubin's testimony -- that defendant declined to give a statement as to what he told Rubin -- was improper, we do not find that the trial court erred by refusing to grant defendant's motion for a mistrial. The prosecutor did not elicit the testimony. In fact, the prosecutor had asked another detective to inform Rubin not to mention anything about defendant asking to speak with an attorney. Defendant does not contest the admissibility of his oral statement to Rubin, which Rubin essentially asked defendant to put in writing. More significantly, the court gave a timely and thorough, curative instruction; the court told the jurors that Rubin's comment was inappropriate, that they should disregard it, and that they should not consider it during their deliberations.

The decision to grant or deny a mistrial rests within the sound discretion of the trial court. State v. DiRienzo, 53 N.J.360, 383 (1969). A trial court "should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J.117, 205 (1997). Our review of a trial court's discretionary decision to deny a mistrial motion is limited:

An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. Thus, an appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice.

 

[Ibid. (internal citations omitted).]

 

Here, the trial court determined that it could cure any prejudice occasioned by Rubin's comment by giving the jury a curative instruction. Jurors are presumed to follow such instructions. See State v. Manley, 54 N.J. 259, 270 (1969). The trial court implicitly determined that granting a mistrial was not required to prevent an obvious failure of justice. We find no reason to disturb the trial court's discretionary ruling denying defendant's motion for a mistrial. Cf., State v. Elkwisni, 190 N.J. 169, 181, (2007) (finding the prosecutor's brief transgressions in questioning a witness about a defendant's silence at or near the time of defendant's arrest were harmless error).

III.

In Point II, defendant argues that his Sixth Amendment right to meaningfully cross-examine the State's witness, Barrett, was violated when his attorney asked Barrett if Barrett knew he was facing fifteen to thirty years on a kidnapping charge, and the court sustained the prosecutor's objection to the question.

A defendant's right to cross-examine witnesses is an essential element of the right to confront witnesses protected by the United States and New Jersey constitutions. U.S. Const. amend. VI; N.J. Const. Art. I, 10; State v. Messino, 378 N.J. Super. 559, 582 (App. Div.), certif. denied, 185 N.J. 297 (2005). Nevertheless "[t]he scope of cross-examination rests within the sound discretion of the trial judge." Id. at 583.

Defendant's argument warrants little discussion. First, the transcript reflects that Barrett answered the question; he said "no." Next, defense counsel withdrew the question during an ensuing sidebar conference. During the conference, the prosecutor argued that no facts in evidence indicated Barrett knew, when arrested, either of the charges that would be lodged against him or "the amount of time he would be facing." The court started to make a comment, but was interrupted by defense counsel, who stated, "Judge, I'll withdraw, and I'll relay -- ." Defense counsel then represented that he would rephrase the question. Lastly, following the sidebar conference, defense counsel cross-examined Barrett extensively about Barrett's arrest, whether he had seen the indictment and whether he tried to obtain favorable treatment by giving them adverse information about defendant. Contrary to defendant's assertion, the court neither restricted defendant's cross-examination of Barrett, nor abused its discretionary right to control the scope of cross-examination.

IV.

Defendant contends in Point III that he was deprived of a fair trial because Beckford's testimony about identifying defendant from photographs suggested defendant had been convicted of other crimes. Defendant asserts that the jury was particularly likely to draw that inference because detectives displayed the photographs to Beckford shortly after Beckford told them the victim, Mathis, had been assaulted by a man named "Shrimpy."

Following Beckford's testimony about identifying defendant's photograph, the court instructed the jury:

Ladies and Gentlemen of the Jury, you should not consider the fact that law enforcement was able to obtain a picture of the defendant as prejudicing him in any way. Photographs aren't evidence that the defendant had ever been arrested, convicted of any crime. Please understand that law enforcement are able to obtain photographs from a variety of sources having absolutely nothing to do with violations of the law, things such as: Motor vehicles, driver's licenses, passport applications, Alcohol Beverage Commission identification cards, forms of government employment, private employment, any employment that requires state regulation, applications, things like security guard applications, and from a variety of other sources that are totally unconnected with criminal activity in any way, so do not infer anything from the fact that they were able to obtain a picture.

 

Defense counsel objected to the admission into evidence of defendant's photograph because of the implication that defendant had been arrested for other crimes. Defense counsel explained that the police were able to obtain defendant's photo after Beckford identified defendant by a "street name." Counsel argued,

I don't think the police can get a picture from DMV by going up, do you know a guy named Shrimpy, and get the picture. That's the problem I have. Didn't identify him as Richard Smith or - - any regular legal name as you can derive it. I think this jury is far from stupid and that they're going to surmise these pictures did come from the police, which they did, and that they knew him by a street name, which they used in their investigation. That's the problem I have. I didn't expect him to identify him by his street name.

 

In other words, defense counsel's objection was "that that street name is then used to derive the picture."

We are unpersuaded by defendant's argument. The trial court specifically instructed the jury that the photographs were not evidence that defendant had ever been arrested or convicted of a crime, and that the jury should infer nothing from the fact that the detectives were able to obtain defendant's "picture." Barrett's identification of defendant by the nickname, Shrimpy, is of no moment.

We have explained that "'[t]he principal objection to the use of an alias in a criminal proceeding is that an alias impli[es] that the defendant belongs to the criminal class and thereby prejudices the jury.'" State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004) (quoting State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988)), certif. denied, 185 N.J. 266 (2005). "However, the majority of decisions involving this issue hold that the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Salaam, supra, 225 N.J. Super. at 73.

The nickname, Shrimpy, does not connote membership in the criminal class; it connotes no affiliation with a gang or criminal organization, criminal activity, or propensity toward criminal activity. We see nothing in the record to suggest that the jurors were unable to comply with the court's instruction to infer nothing from the detectives' ability to obtain the photo. State v. Winter, 96 N.J. 640, 649 (1984).

V.

Defendant argues in Point IV that the court should have instructed the jury on manslaughter under N.J.S.A. 2C:11-4(b)(2). That statute provides that "[c]riminal homicide constitutes manslaughter when [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation."

We have recognized that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J.41, 54 (1997) (quoting State v. Alexander, 136 N.J.563, 571 (1994) (citation omitted)). Here, defendant was charged in the indictment with murder, that is, purposely or knowingly causing the death, or serious bodily injury resulting in death, of Charles Mathis. N.J.S.A.2C:11-3a(1) and (2). The court instructed the jury on the elements of murder, N.J.S.A.2C:11-3a(1) and (2), aggravated manslaughter, N.J.S.A.2C:11-4a(1), and reckless manslaughter, N.J.S.A.2C:11-4b(1). The court was not required to instruct the jury on the elements of passion/provocation manslaughter, N.J.S.A.2C:11-4b(2), "'unless there [was] a rational basis for a verdict convicting the defendant of the included offense.'" State v. Galicia, 210 N.J.364, 384 (2012) (quoting N.J.S.A.2C:1-8(e)) (citation omitted).

The elements of passion/provocation manslaughter are:

[1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.

 

[State v. Mauricio, 117 N.J.402, 411 (1990).]

We conclude there was no rational basis upon which a jury could have concluded that "provocation was adequate."

Defendant bases his argument on Beckford's testimony; specifically, Beckford's testimony that at least 150 people attended the party, the bartender directed his attention to a confrontation in the bathroom area, and he witnessed words being exchanged and a shoving match occurring near the bathroom. Beckford also testified that he observed an argument occurring between Mathis and defendant. In addition to testifying about the "shoving match," Beckford characterized the incident as a "small melee" and a "fight."

The provocation element of passion/provocation manslaughter is measured by an objective standard, that is, the provocation "'must be sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" State v. Foglia, 415 N.J. Super. 106, 126 (App. Div. 2010) (quoting Mauricio, supra, 117 N.J. at 412) (alterations in original). "Adequate provocation is not satisfied by 'words alone, no matter how offensive or insulting.'" State v. Docaj, 407 N.J. Super. 352, 368 (App. Div. 2009) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)). Minor physical force does not constitute adequate provocation. State v. Ogelsby, 122 N.J. 522, 536 (1991) (explaining that a single blow from an unarmed woman was inadequate provocation); Docaj, supra, 407 N.J. Super. at 368-69 ("evidence of an alleged slap was conceded to be insufficient to constitute adequate provocation"). In cases of mutual combat,

[t]he contest must have been waged on equal terms and no unfair advantage taken of the deceased . . . . The offense is not manslaughter but murder where the defendant alone was armed; and took an unfair advantage of the deceased. . . . [I]f a person under cover of fighting on equal terms, kills the other with a deadly weapon which he used from the beginning or concealed on his person from the beginning, the homicide constitutes murder.

 

[Id. at 369]

 

Here, the trial record is devoid of any evidence that Mathis employed words or force to provoke defendant. More significantly, there is no evidence that Mathis concealed or wielded a weapon. Thus, even if the altercation was an instance of mutual combat, defendant alone was armed and took unfair advantage of Mathis. In short, there was no rational basis for instructing the jury on the elements of passion/provocation manslaughter. Defendant did not request the charge and the trial court did not err by omitting it from its final jury instructions.

VI.

L

astly, in Point V, defendant argues that the doctrine of cumulative error requires a new trial. The doctrine of cumulative error requires reversal of a verdict when trial errors, individually harmless, cumulatively deprive a defendant of a fair trial. See State v. Orecchio, 16 N.J. 125, 134 (1954). Here, except for a testimonial reference to defendant's post-arrest silence, which was harmless, there was no error. Consequently, the doctrine of cumulative error does not apply in this case.

Affirmed.

1 The state presented the circumstances of defendant's arrest during a hearing conducted under N.J.R.E. 104 outside of the jury s presence. After a New Jersey State Police Detective arrested defendant during a narcotics investigation, defendant was transported to a station where he was informed of his Miranda rights. When Rubin, who had been notified of defendant's arrest, entered the room, defendant said he knew Rubin was there to ask about the stabbing at the St. John's club. When Rubin asked if defendant would give a statement, defendant declined.