Opinion
DOCKET NO. A-1027-13T4
04-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LATION JENSEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-06-1506. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Lation Jensen, then a juvenile, voluntarily waived the jurisdiction of the Family Part, and was charged as an adult in Indictment No. 12-06-1506, with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2(a) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). Following a jury trial, defendant was found guilty on all charges. The trial judge merged counts two, three, and four into count one, and sentenced defendant to the minimum five years in prison on the second-degree robbery conviction. Defendant appeals from his conviction and sentence, arguing:
POINT I
BY REFUSING TO INSTRUCT THE JURY ON INVOLUNTARY INTOXICATION, DEFENDANT'S ONLY DEFENSE TO THE CRIME, AND BY FORBIDDING THE JURY FROM CONSIDERING THE DEFENSE OR ANY RELATED EVIDENCE FOR ANY PURPOSE, THE TRIAL COURT ERRONEOUSLY DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. U.S. CONST. AMENDS. VI, XIV, N.J. CONST. ART. I, PAR. 1, 10.
POINT II
THE TRIAL COURT ERRED BY FAILING TO NOTIFY THE JURY THAT THE TWO IRRELEVANT AND PREJUDICIAL KNIVES THEY SAW AND HEARD TESTIMONY ABOUT WERE SUBSEQUENTLY WITHDRAWN FROM EVIDENCE, AND BY FAILING TO ISSUE A CURATIVE INSTRUCTION, THEREBY DEPRIV[ED] DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, PAR. 1, 10.
We have considered the arguments on appeal, in light of the record and applicable law. We affirm.
The facts are taken from evidence presented at trial. We need not recite the entirety of the State's proofs, but limit our discussion to those facts implicated by defendant's arguments raised on appeal.
Generally, the criminal conduct charged arose from a scheme devised by defendant, his sister, and older brother, to rob his sister's classmate. The plan, discussed on December 24, 2011, entailed luring the victim to a nearby park the next day. Defendant's sister texted the victim asking "if he wanted to hang out" and suggested he "bring money" so the two could "do stuff." Defendant maintained his older brother instructed him to bring a knife to the meeting at the park. As defendant's sister sat on a park bench kissing the victim, defendant approached, pushed the victim to the ground, punched him, and with the knife in hand, took the victim's headphones and cell phone. Defendant told the victim to go home and not tell anyone what happened. Defendant and his brother, who was drug dependent, then traveled to Atlantic City to purchase narcotics.
Defendant was arrested at his home and shortly after midnight gave custodial statements to police. After defendant was again given his Miranda rights, defendant was asked a series of questions to be sure he was not impaired. He was specifically asked whether he was under the influence of any narcotic, pills legal or illegal, pain medication, like Vicodin, alcohol, or any other substance that would impair his abilities. Defendant replied "no" to each question. He first stated he was protecting his sister from her classmate's unwanted advances, then defendant ultimately confessed his role in the robbery.
Juvenile complaints were issued. During a May 7, 2012 hearing, defendant voluntarily waived jurisdiction of the Family Part in favor of having the matter transferred to the Criminal Part.
Trial was held on April 2 through 4, 2013. The State presented testimony from the victim, his aunt, the investigating police officers, and defendant's sister. The defense presented testimony from defendant's father, mother, and older brother. Defendant also testified in his own behalf.
Defendant explained he had a headache on December 24, 2011. His older brother gave him a pill, which he believed was a brand of aspirin. He noted his brother had previously given him this pill when he had a headache. The next morning, defendant's memory of events was "very foggy" as he recalled "bits and pieces" or "a flash" of an event. Defendant described his recollection as "a very dreamlike state." That evening, the plan to rob his sister's friend was discussed by the three siblings in defendant's bedroom. He recalled his sister telephoning the victim; his older brother giving him a knife to "use it as a threat"; going to the park with his sister; and afterwards going to Atlantic City with his brother to purchase drugs. Approximately one week after his arrest, defendant explained he "came out of his fog" and learned the pill his older brother gave him was Klonopin.
Trial testimony by defendant and his brother included phonetic pronunciations of the ingested medication. We believe the reference is to Klonopin, (also known as clonazepam), a benzodiazepine, which "is a medicine used alone or in combination with other medicines to treat certain types of seizures. Klonopin is also used to treat panic disorder." PDRHealth http://www.pdrhealth.com/drugs/klonopin. One identified side-effect is memory problems. Ibid.
Defendant argues his testimony, along with that of the other defense witnesses, confirmed he ingested medication given to him by his older brother and serves as the foundation for the affirmative defense of involuntary intoxication. At the charge conference, he requested the jury be instructed on the defense. The State objected because defendant had not provided written notice of the asserted defense; but for defense counsel orally advising he was investigating a possible affirmative defense. See R. 3:12-1 (requiring defendant to serve written notice of affirmative defenses, including intoxication). The State also maintained the exact drug taken and its effects were not discussed, making the evidence, as presented, insufficient to satisfy the defense.
The trial judge denied defendant's request for the charge, agreeing defendant failed to present "clear and convincing evidence" supporting an assertion his taking the pill from his brother resulted in an inability to know right from wrong or discern the quality of his actions. The judge found defendant's videotaped custodial statement made shortly after the robbery reflected "he was . . . cogent, coherent, responsive, [and displayed] consciousness of guilt . . . through his efforts to deflect wrongdoing on the part of his brother, so he certainly had his wits about him . . . ." The judge also observed "we don't have an expert telling us about the pharmaceutical effects or pathological effects of this drug." Although the judge understood an expert was not required as a matter of law, defendant was required to present "something to carry the day on the clear and convincing aspect of the statute . . . ."
The judge denied the State's request to strike intoxication testimony, allowing the jury to weigh defendant's statements and ascribe credibility to them "on [its] own." In his final charge he instructed the jury it may not consider as "a defense, excuse, or mitigation to the offenses charged," any evidence that defendant was possibly under the influence of drugs at the time of the robbery.
On appeal, defendant argues the denial of the requested charge and the inclusion of an instruction not to consider evidence of intoxication as a defense represent reversible error, which deprived him of a fair trial and the opportunity to present a meaningful defense. He requests his conviction be vacated and that he be granted a new trial. We disagree.
"Appropriate and proper charges to a jury are essential [to] a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Jury instructions must give "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. If a defendant objects to a proposed charge, the trial judge may deliver the charge only if the facts "clearly indicate" that the proposed charge is appropriate. State v. Choice, 98 N.J. 295, 298 (1985).
"The most critical part of any jury instruction is an explanation of the [applicable] law, which," in a criminal trial, "includes an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt." State v. Walker, 322 N.J. Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999).
An accused, aided by counsel, must decide which of the potential justifications, excuses, and defenses, set forth in the Criminal Code to present before the trier of fact. State v Handy, 421 N.J. Super. 559, 582 (App. Div. 2011), aff'd, modified, and remanded, 215 N.J. 334 (2013). "Although it is axiomatic that a defendant has a right to establish a defense, he [or she] may only establish a legally cognizable defense." State v. Carey, 263 N.J. Super. 377, 381 (App. Div. 1993), certif. denied, 134 N.J. 475 (1993). "In other words, where counsel requests a charge on a defense, it will be given if there is a rational basis in the evidence to do so." State v. R.T., 205 N.J. 493, 509 (2011).
Intoxication as a defense to criminal conduct is addressed in N.J.S.A. 2C:2-8. The statute provides generally, "intoxication of the actor is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). However,
[i]ntoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
[N.J.S.A. 2C:2-8(d).]See also R.T., supra, 205 N.J. at 507-508 (discussing parameters of intoxication defense).
"Involuntary intoxication in the classic sense occurs when another person tricks or coerces a defendant into ingesting intoxicants which cause the defendant to lose control of his capacity to form the requisite mental state . . . ." State v. Sette, 259 N.J. Super. 156, 174 (App. Div.), certif. denied, 130 N.J. 597 (1992). "[A] defendant is relieved of criminal responsibility when his intoxication was not his fault." Id. at 176. "Involuntary intoxication is a complete defense if the level of intoxication is so high that the defendant is not aware of the nature and quality of his acts or is not aware that those acts are wrong." State v. Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997), certif. denied, 150 N.J. 25 (1997).
"Intoxication from drug use has the same legal consequence[] as intoxication from alcohol . . . ." Id. at 173. "'In accordance with this view, courts have allowed the defense of involuntary intoxication based on the ingestion of an unlawful drug where the defendant reasonably believed he was consuming a lawful substance . . . .'" Id. at 178 (quoting People v. Velez, 175 Cal. App.3d 785, 796 (1985)).
Turning to the facts here, we conclude, as did the trial judge, there was no rational basis to support inclusion of an involuntary intoxication charge. We do note the question of whether defendant's conduct was voluntary would require examination, which was not explored below or in the briefs on appeal. Nevertheless, we can conclude from this record that an instruction on involuntary intoxication was not warranted.
We also agree with defendant's assertion the judge misspoke when stating the evidence was not clear and convincing. However, the judge's other remarks reflect he understood his role was to determine whether the evidence presented a rational basis for the defense.
Here, defendant testified he ingested a pill given to him by his brother on December 24, 2011, after requesting something for his headache. He ingested one pill. Also, defendant spoke of experiencing a foggy state, clouding his recollection of events. His mother and father described him as excitable and agitated during Christmas Day. However, no witness offered testimony suggesting defendant seemed unaware of what he was doing or unable to comprehend events as they occurred.
On direct examination, the first time defendant said "no" when asked whether he received more pills from his brother on Christmas Day; when asked a second time, he replied "yes," without more. On cross-examination, defendant could not explain these inconsistent answers.
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The arresting officer, who conducted the custodial interviews, described defendant as "very fluid" and responsive. Based on his observation, he stated defendant was not under the influence of drugs or alcohol. The officer explained defendant had no difficulty walking, did not stagger or trip; and his speech was neither slurred nor slow. When asked a series of questions regarding use of drugs or alcohol, defendant emphatically said he had not taken anything.
We also viewed the DVD of defendant's interrogation. See State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012) (holding appellate courts "may consider the recording of the event itself" and are "not confined to a review of a transcript nor obliged to defer to the trial court's findings" when evaluating a videotaped interrogation). Defendant presented as calm, displayed comprehension, and was not confused. Neither his thoughts nor his actions were chaotic. The trial judge's aptly described defendant, as having "his wits about him[]."
The trial judge also noted defendant's demeanor while interrogated reflected a recognition of the weight and consequences of what was happening. In the initial interrogation, his comments were designed to exculpate his older brother. In doing so, he omitted and added events, insisting his brother was not involved and attempted to justify his conduct by accusing the victim of making unwanted sexual advances toward his sister.
Examining the record, we find no rational basis to support the affirmative defense of involuntary intoxication. Although denying the defense, the judge allowed testimony of defendant's ingesting the pill, believing it was aspirin. He specifically denied the State's request to strike all testimony suggesting intoxication. Therefore, the judge allowed defendant to fully present his theory of the case and give the jury an opportunity to assess the credibility of defendant and his family, who asserted his conduct was affected by the drug.
Defendant also argues error resulted because the judge admitted evidence over his objection, then later excluded the evidence, but failed to so advise the jury or sua sponte issue a limiting instruction. When evidence is admitted in error "an appellate court must determine whether the error impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). Accordingly, our review requires a determination of whether this error "was clearly capable of producing an unjust result." R. 2:10-2.
"The harmless error standard 'requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012) (alterations in original) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). After considering the State's case, we cannot conclude this error impacted the jury's verdict.
When arrested, defendant gave police three knives, suggesting he was unsure which one was used to threaten the victim. The three knives were presented at trial through the arresting officer's testimony and admitted into evidence over defendant's objection. Later, the judge recognized two knives should not be in evidence and excluded them. Thereafter, defendant testified. In his testimony, even though the two knives had been excluded, he discussed turning over three knives to police.
The State's case included testimony from the victim, who knew defendant from school and easily identified him, and defendant's sister, who implicated defendant and recounted the details of the plan in which she too participated. Further, the items taken from the victim were found in defendant's possession when he was arrested shortly after the incident and while in custody, defendant confessed. These statements were taped and presented to the jury at trial. The State's case against defendant did not turn on the inadvertent and brief admission of the knives into evidence. Consequently, we cannot conclude the jury was confused by this error, or that it otherwise led to an unjust result.
"[D]evised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one." Weaver, supra, 219 N.J. 155 (alteration in original) (citations and internal quotation marks omitted). Following our review, we conclude defendant's trial met this standard and the error did not render his trial unfair.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION