State v. Lane

• Citation: 652 A.2d 724,279 N.J.Super. 209
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Isaac LANE, Defendant-Appellant.
• Decision Date: 26 January 1995
• Court: New Jersey Superior Court – Appellate Division

Page 209

279 N.J.Super. 209

652 A.2d 724

STATE of New Jersey, Plaintiff-Respondent, v. Isaac LANE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 22, 1994.

Decided Jan. 26, 1995.

Isaac Lane, appellant, pro se.

Deborah T. Poritz, Atty. Gen., for respondent (Arthur S. Safir, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MICHELS, STERN and HUMPHREYS.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Isaac Lane was convicted of aggravated assault, a crime of the second degree, in violation of N.J.S.A. 2C:12-1b(1) (Fifth Count) and unlawful possession of a handgun without first having obtained a permit to carry the same, a crime of the third degree, in violation of N.J.S.A. 2C:39-5b (Seventh Count). The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for a term of four years and assessed a $30 Violent Crimes Compensation Board penalty for his conviction for unlawful possession of a weapon under the Seventh Count. In addition, the trial court committed defendant to the custody of the Commissioner for a term of nine years with a four and one-half year period of parole ineligibility and assessed a $30 VCCB penalty for defendant's conviction for aggravated assault under the Fifth Count. This sentence was to be served consecutively to the sentence imposed under the Seventh Count. Defendant appeals.

Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:

POINT I: INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN VIOLATION OF THE SIXTH AMEND., U.S. CONST., ART. I, SECTION 10, N.J. CONST. (Not Raised Below).

POINT II: THE CHARGE OF AGGRAVATED ASSAULT AND THE SECOND PROSECUTION VIOLATED THE DOCTRINE OF DOUBLE JEOPARDY AND THE CONCEPT OF COLLATERAL ESTOPPEL EMBODIED THEREIN, U.S.C.A. CONST. AMENDS. 5, 14; N.J.S.A. CONST. ART. 1, PAR. 1. (Not Raised Below).

POINT III: THE STATE FAILED TO DISPROVE THE DEFENSE AND ALSO FAILED TO PROVE THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.

POINT IV: THE JURY CHARGE FAILED TO ADEQUATELY INSTRUCT THE JURY OF THE STATE'S BURDEN AND THE PROPER APPLICATION OF THE DIMINISHED CAPACITY DEFENSE TO THE OFFENSES.

POINT V: THE COURT ERRED IN EXCLUDING EVIDENCE IN THE FORM OF TAPED CONVERSATIONS OF THE DEFENDANT, THE VICTIM AND OTHERS.

POINT VI: THE NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT VII: THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE AND CONTAINED A MINIMUM PERIOD OF PAROLE INELIGIBILITY GREATER THAN THAT REQUIRED BY LAW WITHOUT PROPERLY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS.

POINT VIII: THE CUMULATIVE ERRORS OF THE TRIAL COURT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

We have carefully considered these contentions and all of the supporting arguments advanced by defendant, and find, with the exception of the order directing defendant to serve his sentences and the claimed ineffective assistance of counsel, that they are without merit and warrant only the following discussion in a written opinion. R. 2:11-3(e)(2).

I.

Defendant contends for the first time on appeal that his retrial for second-degree aggravated assault under the Fifth Count, after reversal of his earlier conviction on this charge, constituted an infringement of the Federal and State Constitutional double jeopardy prohibitions and also violated the collateral estoppel doctrine. We disagree.

The Double Jeopardy Clause "does not bar reprosecution of a defendant whose conviction is overturned on appeal." Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311, 324 (1984). "[I]t is consistent with the guarantee against double jeopardy to retry a defendant who has succeeded in obtaining reversal of his conviction based on trial errors." State v. Koedatich, 118 N.J. 513, 519, 572 A.2d 622 (1990); see also N.J.S.A. 2C:1-9c.

Further, the defense of double jeopardy must be raised by pretrial objection. R. 3:10-2. Likewise, the doctrine of collateral estoppel may not be raised for the first time on appeal in the absence of a demonstration of fundamental unfairness or manifest injustice. State v. Davis, 67 N.J. 222, 224-26, 337 A.2d 33 (1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); see also State v. Ebron, 61 N.J. 207, 216, 294 A.2d 1 (1972); State v. Esposito, 148 N.J.Super. 102, 105-08, 371 A.2d 1273 (App.Div.), certif. denied, 74 N.J. 260, 377 A.2d 669 (1977).

Procedurally, defendant failed to object to the retrial on double jeopardy and collateral estoppel grounds prior to trial, and is, therefore, now barred from raising this objection. R. 3:10-2. Importantly, the reversal of defendant's conviction for aggravated assault was based upon trial error, namely, erroneous jury instructions, not on a lack of evidential support for his conviction. The reversal of defendant's conviction for trial error does not preclude the retrial of defendant for the same offense.

II.

Defendant also contends that the State failed to prove beyond a reasonable doubt the essential elements of the aggravated assault charged in the Fifth Count. He argues essentially that the verdict with respect to the aggravated assault charge was against the weight of the evidence.

Preliminarily, we note that defendant's contention that the jury's verdict was against the weight of the evidence is not properly cognizable on this appeal. Defendant failed to move for a new trial on this ground as required by R. 2:10-1. See State v. Ross, 249 N.J.Super. 246, 253, 592 A.2d 291 (App.Div.1991); State v. Perry, 128 N.J.Super. 188, 190, 319 A.2d 505 (App.Div.1973), aff'd, 65 N.J. 45, 319 A.2d 474 (1974). Furthermore, even if we ignore this fundamentally sound principle of appellate review and consider the merits of defendant's contentions, we are convinced from our study of the record that there was sufficient credible evidence on the record from which the jury could find defendant guilty beyond a reasonable doubt of second degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1). In sum, the verdict in this regard was amply supported by the State's proofs and was not a miscarriage of justice under the law. State v. Carter, 91 N.J. 86, 96, 449 A.2d 1280 (1982); State v. Sims, 65 N.J. 359, 373-74, 322 A.2d 809 (1974).

III.

Defendant also contends that the trial court failed to adequately instruct the jury on the State's burden of proof and the proper application of his diminished capacity defense. We disagree.

It is fundamental that "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379, 545 A.2d 119 (1988); see also State v. Grunow, 102 N.J. 133, 148-49, 506 A.2d 708 (1986). When evaluating a challenge to a jury charge, it is also well settled that the charge should be examined as a whole in order to determine its overall effect. State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973). Consequently, portions of a charge which are alleged to be erroneous cannot be dealt with in isolation. As long as a trial court succeeds in communicating the law to the jury, even if it does so with less than "neat precision," the charge should stand. State v. Freeman, 64 N.J. 66, 69, 312 A.2d 143 (1973).

Applying these settled principles here, the trial court properly instructed the jury as to defendant's diminished capacity defense. The trial court's charge followed the Model Jury Charge entitled "Evidence of Mental Disease or Defect Based on 3rd Circuit Decision in Humanik v. Beyer." Model Jury Charges, Criminal, (Approved November 6, 1989). As that title indicates, the Model Jury Charge is in compliance with Humanik v. Beyer, 871 F.2d 432 (3d Cir.1989), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989).

IV.

Defendant contends that the trial court erred in excluding taped telephone conversations involving his victim-wife and former mother-in-law. Defendant argues essentially that evidence of these conversations was properly admissible to show his state of mind, prior inconsistent statements by his wife and his wife's prior extra-marital affairs.

We are satisfied that the evidence was properly excluded under the New Jersey Wiretapping and Electronics Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., which was enacted in 1969. L.1969, C. 409. Although the New Jersey Wiretapping Act, was modeled after the federal legislation, see State v. Fornino, 223 N.J.Super. 531, 544, 539 A.2d 301 (App.Div.), certif. denied, 111 N.J. 570, 546 A.2d 499 (1988), cert. denied, 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed.2d 123 (1989), it is more restrictive in some respects. See State v. Catania, 85 N.J. 418, 436-39, 427 A.2d 537 (1981). Nevertheless, both provide generally that telephone calls and other wire or oral communications may not be "intercepted except pursuant to court order." Fornino, supra, 223 N.J.Super. at 544, 539 A.2d 301; see also N.J.S.A. 2A:156A-3 and N.J.S.A. 2A:156A-8; 18 U.S.C. § 2516.

N.J.S.A. 2A:156A-3 provides:

Except as otherwise specifically provided in this act, any person who:

a. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; or

b. Willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or

c. Willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication;

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