State v. Crumb

• Decision Date: 22 November 1994
• Citation: 277 N.J.Super. 311,649 A.2d 879
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Christopher CRUMB, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 311

277 N.J.Super. 311

649 A.2d 879

STATE of New Jersey, Plaintiff-Appellant, v. Christopher CRUMB, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 14, 1994.

Decided Nov. 22, 1994.

Jack J. Lipari, Asst. County Prosecutor, for appellant (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the letter brief).

Barbara J. Lieberman, Northfield, for respondent (Ms. Lieberman on the brief).

Before Judges KING, D'ANNUNZIO and EICHEN.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Atlantic County Indictment No. 93-09-2265 charged defendant with the murder of Roy Dick, a 75 year old black man, in violation of N.J.S.A. 2C:11-3a(1) and (2), and with possession of a weapon, a walking cane, with a purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4d. A superseding indictment, No. 94-03-0669, added as a third count the charge that defendant assaulted Roy Dick and in doing so he was motivated "at least in part, with ill will, hatred or bias toward and with a purpose to intimidate Roy Dick because of race," in violation of N.J.S.A. 2C:12-1e.

We granted leave to the State to appeal from a pre-trial order severing count three of the superseding indictment and excluding from "the State's case in chief" drawings and writings allegedly prepared by defendant, expressing defendant's hatred of blacks and his dedication to "white supremacy."

The record indicates that the State has evidence tending to prove the following facts. The victim, Roy Dick, died on July 19, 1993, while a patient at the Atlantic City Medical Center, from injuries he sustained on July 13, 1993. On the latter date, persons living on South Chelsea Avenue in Atlantic City heard loud noises and observed a blond male jump into a gray, 1980's vintage automobile, either a Chevrolet or a K-car. The car was operated by a blond female and exited the Chelsea Pub parking lot. Apparently, the witnesses also observed Dick's body because the police and an ambulance responded to the scene. Dick, who used two canes to assist him in walking, had multiple injuries caused by blunt force trauma and was unconscious when he was removed from the scene. Dick's wallet was in his pocket and contained approximately $127 cash.

On July 16, 1993, as a result of information provided to law enforcement authorities, the police questioned defendant and one Tabitha Buntele. They were apprehended in a gray 1987 Plymouth Reliant K-car owned by Buntele's mother.

Buntele told the police that she saw Crumb push a black male while Crumb was going through the bushes behind the Chelsea Pub parking lot. Buntele stated that thereafter she was unable to see defendant or the victim. According to Buntele, when Crumb returned to her car, he said that he had hit the man, and later he admitted to having kicked the man.

Crumb told the police he had been drinking that night and was urinating in the bushes in back of the Chelsea Pub parking lot when an old man with dark skin approached and swung a cane at him. Crumb was not struck, but he stated that he grabbed the cane and hit the man in the face with his fist. Defendant told the police that he possibly hit the man in the face a second time. According to defendant, the man fell down but did not get up. Crumb then left the scene with Buntele. Police charged Crumb with aggravated assault, and he was incarcerated.

The charge was amended to murder when Roy Dick died. Upon being informed of the new charges, defendant allegedly admitted that he had perhaps struck the victim more than twice. He advised the police that Tabitha Buntele had not been involved in the assault.

The State also contends that a witness, William Dayton, informed the police that he had heard defendant state he had beaten up "an old black bum." According to Dayton, Crumb said that he had walked past the victim and struck him in the back of the head, and that once the victim was on the ground, he had kicked and stomped on his face and chest. Crumb told Dayton that he did it "just because he was there" and that Tabitha Buntele was urging him on.

The State also alleges that Crumb told a fellow inmate, Arthur Thomas, a black man, that he is a skinhead and that skinheads don't like people of another color or "anyone who looks like a scum." According to Thomas, Crumb said that he took the cane from the victim and beat the victim over the head with it, that once the victim was on the ground he kicked and punched him and that Tabitha Buntele also kicked the victim.

According to the State, the defendant made a telephone call to Christine Frolich. Crumb told Frolich that he had been looking for black bums to kill and that he kicked and stomped the victim and that Buntele helped him by kicking the victim in the stomach.

An autopsy revealed the cause of Roy Dick's death to be blunt force trauma to the face, head, upper extremities and thorax. The medical examiner found symmetrical fractures to the victim's orbits, which were consistent with being struck by the cane. The victim had fractures of his sternum and the second, third, fourth and fifth ribs on the left side. According to the State's theory, those injuries are consistent with being kicked or stomped.

The State seized the written material, which is at the core of this appeal, in February 1993, five months before Roy Dick's death. It was seized during execution of a warrant to search defendant's apartment in connection with another criminal investigation. The material consists of letters, verse and drawings. In one letter to someone named Shawna, defendant stated that "I'm a Dedicated Atlantic City Skinhead. I've Got the Shaven head, the Black Bomber Jacket, the Dr. Martens Combat boots, the Red Suspenders And 13 different Tattoos. But I'm still a loyal Satanist."

The drawings refer to skinheads, and A.C.S. (Atlantic City Skinheads). They also contain phrases, such as "White Power," "Sieg Heil," "Nazi Skinheads" and "Neo Nazi." The swastika decorates many of the papers.

Of direct relevance to this case are references to black people. One 8- 1/2"' X 11"' sheet contains two phrases in ultra large lettering: "Die Nigger Scum" and "White is Right." Another sheet contains the phrase "Nazi Pretty Boys" above a swastika located in the center of the page. The bottom of the page contains a hand-drawn circle within which is written "Kill them Fucking Niggers." Beneath the circle is the phrase "White Power."

Other writings express admiration of Adolf Hitler's racial policies and refer favorably to the Ku Klux Klan. One note referring to Hitler states: "His Attitude Toward the Minorities and Jews was about the same I would have done if I had the power."

The State filed a pre-trial motion for a ruling regarding the admissibility of the written material at trial. Defendant opposed the application and cross-moved for an order dismissing the third count or severing it for a separate trial. The trial court ruled that the material seized during the search of defendant's room (hereinafter written material) would not be admitted at trial in the State's direct case. The court determined that the written material was too inflammatory and that the resulting prejudice to defendant outweighed its probative value regarding defendant's motive. The court noted that defendant's statements to persons such as Frolich and Thomas regarding his racial motivation would be admissible because those statements related directly to the Roy Dick homicide.

Recognizing that the written material would be admissible in prosecuting the bias crime, the court severed the third count for a separate trial, but denied defendant's motion to dismiss it.

As previously indicated, the trial court excluded the written material because it determined that the risk of undue prejudice substantially outweighed the written material's probative value. See N.J.R.E. 403. That is a determination left to the sound discretion of the trial court and we may not interfere with the court's ruling "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982). We are persuaded that the court erred.

A wider range of evidence is admissible to establish motive or intent than is permitted in support of other issues. State v. Rogers, 19 N.J. 218, 228, 116 A.2d 37 (1955). "Otherwise there would often be no means to reach and disclose the secret design or purpose of the act charged in which the very gist of the offense may consist.... All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense." Ibid. (citations omitted); accord State v. Carter, supra, 91 N.J. at 106, 449 A.2d 1280. Evidence establishing motive is so essential that it is admissible as an exception to N.J.R.E. 404(b), which generally excludes evidence "of other crimes, wrongs or acts" to prove a defendant's disposition to behave in a particular way. Cf. State v. Baldwin, 47 N.J. 379, 391, 221 A.2d 199, cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966) (in murder trial, evidence that victim intended to testify against defendant regarding an unrelated robbery was admissible to establish defendant's motive); State v. Engel, 249 N.J.Super. 336, 372-74, 592 A.2d 572 (App.Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991) (murder defendant's prior violent treatment of and threats to former wife, the victim, were admissible to establish motive).

In the present case, some of the written material directly expresses defendant's hostility toward and hatred of black people and his concomitant desire to see them dead....