State v. Bass

• Decision Date: 22 September 1987
• Citation: 221 N.J.Super. 466,535 A.2d 1
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Allen BASS, Defendant-Appellant. Superior Court of New Jersey, Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 466

221 N.J.Super. 466

535 A.2d 1

STATE of New Jersey, Plaintiff-Respondent, v. Allen BASS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued June 2, 1987.

Decided Sept. 22, 1987.

Michele A. Adubato, Designated Counsel, Bayonne, for defendant-appellant (Alfred A. Slocum, Public Defender of New Jersey, atty.; Michele A. Adubato, of counsel and on brief).

Janet Berberian, Asst. Pros., for plaintiff-respondent (George L. Schneider, Essex County Pros., atty.; Janet Berberian, of counsel and on brief).

Before Judges MICHELS, O'BRIEN and SKILLMAN.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Defendant appeals from his conviction of aggravated manslaughter ( N.J.S.A. 2C:11-4a), ¹ upon which he was sentenced to a term of 20 years with a ten-year period of parole ineligibility, and third degree endangering the welfare of a child ( N.J.S.A. 2C:24-4a), upon which he was sentenced to a concurrent term of five years with a two and one-half year period of parole ineligibility. A penalty of $1,025 payable to the Violent Crimes Compensation Board was also imposed. We affirm.

Defendant is 25 years of age. He met codefendant Renee Nicely (Nicely) when they were both about 14 years of age. Although unmarried, they had an ongoing relationship which produced five children. Their first child, Davell, was born in December 1977, and their second, Shawn, was born on February 19, 1979. ² On September 26, 1982, Shawn was brutally beaten to death. Defendant and Nicely ³ were charged with his murder. In addition, defendant was charged with having, on or about September 26, 1982, caused Shawn harm that would make him an abused or neglected child, defendant having a legal duty to care for him ( N.J.S.A. 2C:24-4a).

Testimony at the joint trial of defendant and Nicely revealed a variety of acts of mistreatment of Shawn by Nicely. During a period when Nicely and her two children were residing with defendant's mother, Nicely conceived the idea, upon the suggestion of defendant's mother, that Shawn was not her child. It was suggested that the wrong child had been delivered to her by the Division of Youth & Family Services (DYFS). There was substantial testimony from friends and neighbors that Nicely abused Shawn and had a conception that she could treat him as she saw fit. However, the friends and neighbors also indicated that, before the murder, defendant treated Shawn as he did the other children and was not cruel or abusive to him. One exception was testimony ⁴ that defendant burned Shawn on his buttocks sometime between April and July 1982. In addition, Davell testified that defendant killed his brother. He said:

He (defendant) took him (Shawn) by his hand and jumped on him and then stepped on his back with 2 feet. He took one foot then put his other foot, stepped on him.

Davell also testified that defendant punched Shawn in the eye and "then he throwed him in the tub with full of water trying to drown him." Davell further testified that defendant had injured Shawn on a prior occasion when pushing him through a door on "a little horsey" with wheels. Furthermore, according to Davell, defendant got Shawn drunk on occasions by giving him liquor and beer.

On the day of his death, Shawn was beaten unmercifully. The extensive injuries which he suffered were testified to by the medical examiner and included subcutaneous hemorrhage on the back of the head, hemorrhage on both sides of the head, ecchymosis of the left eye, lacerations and cuts involving both ears and subcutaneous hemorrhage involving the chin. Shawn's brain was swollen as a result of concussion. There was hemorrhage on both sides of his buttocks, recent injuries of his left shoulder and left upper back, right middle back, lesions of the exterior chest, left shoulder, middle area of the chest, right upper chest, abrasions of the right side of the abdomen, bruise of the anterior portion of the left thigh, contusion and abrasion of the left genital, three burn marks on the chest and a burn mark on the left shoulder. He had sustained a painful fracture of the distal end of the elbow, between six days and 24 hours before his death. There were many internal injuries, as well as a recent fracture of the eighth rib. Due to the substantial number of injuries Shawn sustained, it was impossible to accurately pinpoint the particular blow that caused his death. The medical examiner described it as a homicide by assault.

After defendant's indictment on December 20, 1982, a number of proceedings were conducted by the trial judge, productive of an extensive record. ⁵ It is only necessary for us to refer to those proceedings involving the issues raised on this appeal, which are as follows:

POINT I THE DEFENDANT'S MOTION TO PROHIBIT DEATH QUALIFICATION OF PROSPECTIVE JURORS AS VIOLATIVE OF THE CONSTITUTION SHOULD HAVE BEEN GRANTED BY THE COURT.

POINT II THE DEFENDANT'S MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED BY THE COURT.

POINT III THE ADMISSION OF THE TESTIMONY OF A WITNESS TAKEN OUTSIDE THE PRESENCE OF THE DEFENDANT AND THE JURY DENIED THE DEFENDANT HIS RIGHT OF CONFRONTATION.

POINT IV IT WAS ERROR FOR THE COURT TO ADMIT THE TESTIMONY OF DOLORES MORTON AND LYNNE LEIBERMAN PURSUANT TO EVID.R. 63(4).

POINT V THE TESTIMONY OF JANIE BENNETT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

POINT VI THE TESTIMONY OF PROSECUTOR DETECTIVES CONCERNING PRIOR STATEMENTS OF DAVELL NICELY SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

POINT VII THE JURY CHARGE CONCERNING ACCOMPLICE LIABILITY AND OMISSION TO ACT WAS ERRONEOUS.

POINT VIII THE DEFENDANT'S MOTIONS FOR JUDGMENT N.O.V. AND FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BY THE COURT.

POINT IX THE FAILURE OF THE COURT TO MERGE THE OFFENSES OF AGGRAVATED MANSLAUGHTER AND ENDANGERING THE WELFARE OF A CHILD AT SENTENCING WAS ERROR.

POINT X DEFENDANT WAS INDICTED, TRIED AND CONVICTED BY A GRAND AND PETIT JURY SYSTEM IN ESSEX COUNTY WHICH WAS UNREPRESENTATIVE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS AND THE APPLICABLE NEW JERSEY STATUTES.

We address these issues separately.

A. COMPOSITION, DEATH QUALIFICATION AND SELECTION OF JURY

Initially, by order dated February 12, 1986, we suspended decision on the issues raised in Point I as to "death qualification" of prospective jurors and Point X concerning the alleged unrepresentative composition of juries in Essex County, pending resolution of those issues by the Supreme Court. However, by order of February 5, 1987, we vacated our order of February 12, 1986, and directed the State to file a responding brief as to those issues, which it has done.

Among the pretrial motions filed by defendant was an application to have the court preclude "death qualification" of prospective jurors. In a written opinion, the trial judge denied defendant's motion. State v. Bass, 189 N.J.Super. 461, 460 A.2d 223 (Law Div.1983). The issue has since been decided adversely to defendant's position by the New Jersey Supreme Court in State v. Ramseur, 106 N.J. 123, 248-261, 524 A.2d 188 (1987), see also Lockhart v. McCree, 476 U.S. 162, 163-65, 106 S.Ct. 1758, 1760, 90 L.Ed.2d 137, 142 (1986).

Defendant filed his notice of appeal on October 27, 1983. On his motion we remanded the case, by order dated August 8, 1984, for a ruling on his challenge to the jury composition. Defendant was one of 13 defendants who joined in Thomas Ramseur's motion challenging the jury selection system in Essex County. Defendant sought to reverse his conviction. After a lengthy evidentiary hearing, Judge Richard Newman denied the motions. State v. Ramseur, 197 N.J.Super. 565, 485 A.2d 708 (Law Div.1984). Defendant's motion to the Supreme Court for direct certification to join in the appeal in State v. Ramseur on the sole issue of jury selection was denied by the Supreme Court on March 5, 1985.

The Law Division decision in Ramseur was affirmed by the Supreme Court on March 5, 1987. State v. Ramseur, 106 N.J. at 212-239, 524 A.2d 188. There is no merit to defendant's contention concerning excuses to students and teachers which were based largely on statutory requirements. The decision of the Supreme Court in State v. Ramseur is dispositive of Points I and X urged by defendant on this appeal.

B. SEVERANCE

Defendant's motion for severance from prejudicial joinder under R. 3:15-2(b) was denied. Such a motion is entrusted to the sound discretion of the trial judge. See State v. Scioscia, 200 N.J.Super. 28, 42, 490 A.2d 327 (App.Div.1985), and the cases cited therein. We will not reverse the denial of such a motion unless there is a clear showing of abuse of discretion. See State v. Moriarty, 133 N.J.Super. 563, 569, 338 A.2d 14 (App.Div.1975), certif. den. 68 N.J. 172, 343 A.2d 459 (1975). Relying upon State v. Pickles, 46 N.J. 542, 218 A.2d 609 (1966), defendant contends that his incrimination of Nicely in order to exculpate himself caused the jury to react unfavorably to him. In addition, he contends that the substantial evidence of Nicely's repeated abusive conduct towards Shawn and the court's repeated admonition to the jury that such testimony could only be used against Nicely was prejudicial to him. Further, he contends the prejudice to him was greatly enhanced by Nicely's defense of diminished capacity, since the psychiatrists attributed much of her conduct to her isolation and despair which reflected unfavorably upon defendant. For this proposition he relies upon State v. Sinclair, 49 N.J. 525, 231 A.2d 565 (1967), where, although the Court found that the trial judge had not abused his discretion in denying a severance, it nonetheless concluded that on retrial justice would be better served by a severance, if requested by either defendant. Id. at 550, 231 A.2d 565. We have thoroughly reviewed defendant's contentions concerning the denial of his motion for severance in light of the applicable law and affirm the denial substantially for the reasons given by Judge Edwin H....