STATE OF NEW JERSEY v. MICHELET GLAUDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHELET GLAUDE,

Defendant-Appellant.

__________________________

November 25, 2014

Submitted September 30, 2014 Decided

Before Judges Reisner, Haas and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0213.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant Michelet Glaude was accused of kidnapping his former girlfriend1 in her own car, beating her and biting off her nipples, threatening to kill her, and pushing her in front of a truck in highway traffic. A jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3, first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), second-degree aggravated assault causing serious injury, N.J.S.A. 2C:12-1(b)(1), third-degree terroristic threats, N.J.S.A. 2C:12-3(b), third-degree criminal restraint, N.J.S.A. 2C:13-2, and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(c). He appeals from the conviction and from the aggregate sentence of twenty-five years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

Defendant raises the following appellate issues for our consideration

Point I

The trial judge prevented the defendant from offering relevant testimony, challenged his credibility in front of the jury, and questioned the viability of his defense, and in this way, deprived him of a fair trial.

Point II

The trial court erroneously denied defendant's request for an attempted passion/provocation charge to the jury.

Point III

The trial court referenced facts not on the record, failed to weigh mitigating factors, and imposed an excessive sentence.

Having reviewed the record in light of the applicable law, we find no merit in any of those arguments. We affirm the conviction and the sentence.

I

In light of the limited legal issues raised, the relevant trial evidence can be summarized as follows. On July 7, 2009, the police responded to several 911 calls from motorists reporting that a man was assaulting and chasing a woman across Route 78 and into the woods. The first officer on the scene saw an empty vehicle which had apparently crashed into the barrier separating the east and westbound lanes of the highway. He detained and handcuffed defendant after observing defendant emerge from the woods. Defendant smelled of alcohol. A few moments later, a woman emerged from the woods, appearing dazed and disoriented, with bloodstains high on the front chest area of her blouse. She sat on the curb with her head down and vomited several times. The officer called an ambulance for her.

The victim testified that she and defendant had a dating relationship for two and one-half to three years, but she had broken up with him in April 2009, before she took a trip out of the country. On July 7, 2009, a friend drove the victim and defendant to a cell phone store so that she could change her cell phone plan. Then defendant and his friend dropped her off at her sister's house, where she met her new boyfriend.

At about 10:00 p.m., the victim and her new boyfriend left the sister's house together. The boyfriend departed for his house, and the victim was about to walk home when she saw defendant sitting in her car parked outside the house. She had not given him permission to drive her car and he had no driver's license. The victim approached defendant, who appeared to be quite intoxicated, and asked him why he was driving her car. He responded that her brother had given him the car keys. After some conversation about whether the victim would get into the car with him, defendant forced her into the car and started hitting her in the face.

Defendant told the victim that he would take her home, but after he drove past her street, he told her that "we were going to the Belt Parkway in New York so that the both of us can die there." He also told her he was going to kill her because she had a new boyfriend.2 Defendant began driving faster, while restraining the victim with one hand and driving with the other hand on the wheel. As he turned onto the Garden State Parkway, the victim promised to "go back to him" but defendant told her "it was too late now." At some point defendant hit the victim in the head and she lost consciousness or her mind "went blank." She testified that she did not fully regain consciousness until she woke up in the ambulance. At that point, she realized that her lip was bitten and her nipples had been removed; her breasts hurt and were "bleeding a lot."

According to the victim, defendant drank alcohol on a daily basis. She testified that the entire time she had known defendant he was often drunk, but he was able to work and otherwise function in his daily life despite his drinking habit. On cross-examination, the victim admitted signing an affidavit stating that defendant assaulted her because of a "temporary loss of control." She asserted that those were not her words, and that defendant's friends had coerced her into signing the document.

The State presented medical evidence corroborating the victim's injuries, including a badly bitten lip and the loss of her nipples. The State presented testimony that the police found what appeared to be two severed nipples inside the victim's car. The medical examiner confirmed that the two pieces of tissue were nipples.

The State also presented testimony from three highway motorists, one of whom saw a speeding car pass him, turn across the express lanes of Route 78 and crash into the concrete median. A second witness saw a man chase a woman across the highway and tackle her. He saw the woman break free and the man catch up with her again and try to push her into oncoming traffic. A third witness testified that as he drove his truck down Route 78, he saw a man push a woman in front of the truck. This motorist swerved and narrowly avoided hitting the woman. All of the motorists pulled onto the side of the road and waited for the police to arrive.

In his testimony, defendant did not deny any of the charges. In fact, he admitted that he must have done what he was accused of doing, including pushing the victim into the car, biting off her nipples, and trying to kill her. However, he claimed that he was very drunk at the time and was distraught after learning that the victim was seeing another man. Defendant admitted that for two or three days prior to the assault, he had been hearing rumors that the victim had a new boyfriend. He testified that after she was inside the car, he asked her if the rumors were true. He asserted that when she confirmed that she had a new boyfriend he went "crazy," but he claimed that due to his intoxicated state he did not recall what he did to her.

However, on direct and cross-examination, defendant remembered many details of what occurred that day, including events that occurred right before he encountered the victim and events that occurred after he began driving with the victim in the car. He claimed that his recollection only failed concerning the events that happened after she told him she had a new boyfriend.

One of the arresting officers, Trooper Brumer, testified that defendant told him he had consumed "five beers" that evening between 7:30 p.m. and 8:30 p.m. A contemporaneous police report indicated that defendant's breath smelled of alcohol, his eyes were very watery, and his speech was slurred. He swayed somewhat when he walked, but was not falling down. The trooper testified that defendant was able to complete the Drinking Driver Operator Questionnaire, which was propounded to him in English. When asked how the accident occurred, defendant told the trooper: "I was driving and lost it." Trooper Brumer concluded that defendant "had a little too much to drink" and was unfit to drive. He issued him a summons for driving while intoxicated.

An Alcotest administered later, about three hours after the incident, did not show that defendant was legally intoxicated for purposes of the driving-while-intoxicated (DWI) statute, N.J.S.A. 39:4-50. The test showed that defendant had a blood alcohol content (BAC) of either .062 or .064. Trooper Palshakov, who administered the test, stated that the legal limit for driving while intoxicated is .08. However, he also admitted that alcohol can dissipate in the bloodstream at the rate of between .01 and .02 per hour. Neither side presented expert testimony concerning the probable effect on defendant of alcohol consumption or of any particular BAC. Palshakov testified that defendant was calm and appeared to understand the instructions for taking the test. No one who observed defendant at the time of the incident or immediately afterwards testified that he was prostrate with drink. See State v. R.T., 205 N.J. 493, 508 (2011). He was able to drive a car through city streets to the highway, a route he recalled at trial, and he explained to the victim why he was about to kill her.

Several members of defendant's family testified about his long history of alcohol abuse, and their unsuccessful efforts to help him overcome his alcohol problem. None of those individuals saw defendant on July 7, 2009, or observed any of the relevant incidents that occurred on that day.

The judge charged the jury on intoxication as a defense to all of the charges except aggravated assault, to which that defense does not apply. However, he declined to charge the jury as to passion/provocation manslaughter, finding that the evidence could not support that charge.

II

On this appeal, defendant argues that the trial judge improperly interjected himself into the case by questioning witnesses and cutting off testimony. Pursuant to N.J.R.E. 614, a judge may question a trial witness. "Under our case law, it is entirely proper for judges to ask witnesses questions to clarify their testimony. Similarly, when a witness is in severe distress, it may be appropriate for a judge to pose questions to help elicit facts." State v. Taffaro, 195 N.J. 442, 450-51 (2008) (citations omitted).

However, when a judge questions witnesses during a jury trial, there is always a risk that by doing so, the judge will unintentionally influence the jury.

Trial courts have an obligation to insure that trials proceed fairly, and judges may question witnesses to clarify testimony, expedite a case, and otherwise protect the proceedings. But in exercising their discretionary power, judges must take care not to influence the jury by signaling doubt about a witness's credibility. To do otherwise might place the court's impartiality in question and affect the trial's outcome.

[Id. at 445.]

Judges must exercise "great restraint" in conducting questioning. Id. at 451. It is particularly important for a judge to avoid showing bias when a criminal defendant is testifying, "and a judge must scrupulously insure that his questions do not evidence disbelief." State v. O'Brien, 200 N.J. 520, 535 (2009).

After reviewing the entire trial transcript, we find that the judge did not question any witness at length, and he primarily asked questions for the proper purpose of making sure that the record was clear. Because the victim and defendant both testified through interpreters, and at times each seemed to be rambling or giving non-responsive answers, the judge occasionally asked questions to focus the witnesses on the questions asked of them. For example, defendant answered many questions by stating that he was "drunk," regardless of whether that statement was responsive to the question asked. The judge attempted to redirect defendant to answer the questions posed to him.

At another point, the judge helped defendant to clarify his contention that he was living with the victim until the day of the incident. The judge also at various points gave each attorney some guidance so that they could effectively focus their questioning of witnesses without undue consumption of time. See N.J.R.E. 611 (A trial judge "shall exercise reasonable control over the mode . . . of interrogating witnesses . . . so as to . . . avoid needless consumption of time.").

Contrary to defendant's argument, the judge's questions to defendant were aimed at clarifying, not contradicting, his testimony, and trying to keep him from rambling. The judge's brief questions to defendant's relatives made clear their position that defendant was a long-time alcoholic who refused their efforts to get him into a rehabilitation program.

In questioning Trooper Palshakov, who administered the Alcotest, the judge came close to crossing the line, when he asked the trooper questions about a report prepared by Trooper Brumer. Defense counsel had asked Trooper Palshakov a series of questions implying that Brumer's report concluded that defendant was "intoxicated." Evidently believing that counsel was misrepresenting the contents of the report, the judge asked a few questions to clarify that such a conclusion was not stated in Brumer's report.

When Palshakov was testifying to the BAC revealed by the Alcotest, the prosecutor asked him "what the legal limit for intoxication is in New Jersey?" The trooper responded that it was .08 and confirmed that .06 was "below that level." The judge then asked, "He wasn't intoxicated under the statute?" and the witness responded, "correct." We conclude that the judge was not communicating that defendant was not intoxicated, but was trying to clarify that "legal limit" meant a standard contained in a statute, and the jury would have understood that. Over the State's objection, the judge then permitted defense counsel to ask Palshakov a series of questions designed to show that defendant might have had a higher BAC at the time of the accident than he had three hours later when the Alcotest was administered.

While the judge might have been more limited in questioning witnesses, on this record we cannot find a reasonable doubt as to whether the judge's questioning caused the jury to convict defendant when it otherwise might have acquitted him. R. 2:10-2; Taffaro, supra, 195 N.J. at 454; State v. Macon, 57 N.J. 325, 336 (1971). Further, in his final charge to the jury, the judge included this instruction

The fact that I may have asked questions of a witness in this case must not influence you in any way in your deliberations.

The fact that I asked questions does not indicate that I hold any opinion one way or the other as to the testimony given by a witness.

Any remarks by me to counsel or by counsel to me or between counsel are not evidence and may not affect or play any part in your deliberations.

In an egregious case, such an instruction may be insufficient to counterbalance the prejudicial effect of improper questioning by the court. Taffaro, supra, 195 N.J. at 448, 454. On this record, we can fairly presume that the jury followed the judge's instructions. State v. Nelson, 173 N.J. 417, 469 (2002). We conclude that defendant received a fair trial.

III

Defendant next argues that the judge erred in denying his request for a passion/provocation charge on attempted murder. We cannot agree. A criminal homicide which would otherwise qualify as murder constitutes manslaughter where the killing "is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4b(2) (emphasis added).

Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated.

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

Because the first two elements are objective, the court should decide whether they are sufficient. "[I]f they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury." State v. Galicia, 210 N.J. 364, 380 (2012) (citing State v. Robinson, 136 N.J. 476, 491 (1994)).

In Mauricio, the Court emphasized that the adequacy of the provocation is a purely objective standard. Supra, 117 N.J. at 411. Consequently, the adequacy of the provocation does not depend on whether a particular defendant is easily provoked because of psychological problems. State v. Abrams, 256 N.J. Super. 390, 398 (App. Div.), certif. denied, 130 N.J. 395 (1992).

[I]n drawing a line between murder and manslaughter, there was no purpose to subject others to harm at the hands of those easily provoked and subjectively prone to violence. On the contrary, the aim of the law was to protect the innocent from mortal attack by the psychologically sick or immature who are unable to exercise normal self-control as well as by those motivated by evil.

[State v. Pratt, 226 N.J. Super. 307, 317 (App. Div. 1988).]

Further, it is well established that mere words, even if offensive or upsetting, do not constitute adequate provocation for committing a homicide. State v. Crisantos, 102 N.J. 265, 274 (1986). The Court's description of the adequacy standard is illustrative

In addressing that question we are reminded that words alone do not constitute adequate provocation. State v. Crisantos, supra, 102 N.J. at 274. Nor do a bump and an insult by the victim. Nor does conduct that is alleged to have been sexually frustrating. On the other hand, the Court has held that a threat with a gun or knife might constitute adequate provocation.

[Mauricio, supra, 117 N.J. at 413-14 (additional citations omitted).]

Our Supreme Court recently confirmed that "words alone . . . are not sufficient to warrant this charge." State v. Weaver, 219 N.J. 131, 148 n. 5 (2014) (citing Mauricio, supra, 117 N.J. at 413-14).

In this case, defendant claimed that he went "crazy" because the victim told him she was seeing a new boyfriend. The judge found that words alone, of that type, were not sufficient provocation. We agree. The standard is objective, and hearing from the victim that she had a new boyfriend was not objectively sufficient provocation for attempting to kill her. See State v. Docaj, 407 N.J. Super. 352, 368 (App. Div.) (wife's "statements that she wanted a divorce and had 'another man lined up'" were insufficient to warrant passion/provocation charge), certif. denied, 200 N.J. 370 (2009); Abrams, supra, 256 N.J. Super. at 395-98 (sexual infidelity is not sufficient provocation for murder).

IV

Finally, defendant claims that the twenty-five year NERA sentence was excessive. We cannot agree. At the sentencing hearing on January 27, 2012, the trial judge issued a thorough statement of reasons for the sentence, and little more discussion is required here.

This was a crime of heinous brutality and cruelty, warranting a severe sentence. Yet, in a measured fashion, the judge appropriately weighed the applicable mitigating and aggravating factors, and imposed a sentence lower than the allowable thirty-year maximum term for first-degree kidnapping. See N.J.S.A. 2C:13-1(c). He also imposed all of the other sentences concurrent to that term when he could have imposed consecutive sentences. Our scope of review of the sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011); State v. Bieniek, 200 N.J. 601, 608-09 (2010). We find nothing conscience-shocking or otherwise erroneous in the sentence. State v. Roth, 95 N.J. 334, 365 (1984). Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 To protect the victim's privacy, we do not include her name in this opinion but rather refer to her as "the victim."

2 According to the victim, she did not tell defendant about the new boyfriend. She believed he learned that information by gaining access to her apartment and illicitly checking messages on her cell phone, at some point before he appeared outside her sister's house with the car.