State v. Mann

• Decision Date: 03 March 1992
• Citation: 603 A.2d 533,254 N.J.Super. 332
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Peter MANN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 332

254 N.J.Super. 332

603 A.2d 533

STATE of New Jersey, Plaintiff-Respondent, v. Peter MANN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 14, 1992.

Decided March 3, 1992.

Wilfredo Caraballo, Public Defender, Trenton, for defendant-appellant (Robert Brigliadoro, Designated Counsel, Paterson, on the brief).

John J. Fahy, Bergen County Prosecutor, for plaintiff-respondent (Terri Del Greco, Asst. Prosecutor, of counsel and on the brief).

Before Judges O'BRIEN, HAVEY and CONLEY.

The opinion of the court was delivered by

HAVEY, J.A.D.

A jury convicted defendant of two counts of sexual assault, N.J.S.A. 2C:14-2c(1), and criminal sexual contact, N.J.S.A. 2C:14-3b. On the sexual assault convictions, defendant was sentenced to a concurrent custodial term of ten years with a five-year period of parole ineligibility. He was given an 18-month concurrent term for sexual contact.

On appeal, defendant raises the following points:

Point I--The trial court abused its discretion in ruling that defendant's prior conviction could be used to impeach his credibility.

Point II--The trial court erred in allowing evidence of the defendant's alleged suicide attempt.

Point III--The trial court's instructions to the jury were prejudicial to the defendant, thereby affecting his right to a fair trial.

Point IV--The trial court erred in denying the defendant's motion for a new trial as the jury verdict was against the weight of the evidence.

Point V--The trial court erred in admitting fresh complaint testimony of the alleged victim.

Point VI--The sentence imposed was manifestly excessive and an abuse of the trial court's discretion and must be modified by the reviewing court.

We have considered defendant's contentions and supporting arguments and are satisfied they are clearly without merit. R. 2:11-3(e)(2). See State v. Bethune, 121 N.J. 137, 145, 578 A.2d 364 (1990); State v. Hill, 121 N.J. 150, 167-68, 578 A.2d 370 (1990); State v. Pennington, 119 N.J. 547, 587, 575 A.2d 816 (1990); State v. Roth, 95 N.J. 334, 363-64, 471 A.2d 370 (1984); State v. Sands, 76 N.J. 127, 144, 386 A.2d 378 (1978). With respect to Points II and III, we add the following.

The victim, D.M., reported to the Westwood Police that defendant, her cousin, had sexually assaulted her two days earlier. Defendant was taken into custody and questioned about the crime at the Bergen County Prosecutor's Office. Prior to questioning defendant, Westwood police officers had advised Investigator Petro of the prosecutor's office that defendant had earlier in the day threatened to kill himself. Petro was also told that defendant had "prior suicidal tendencies." Over defendant's objection, Petro was permitted to testify that prior to the commencement of the interrogation, defendant slit his wrist with a piece of metal and, when he attempted to cut himself a second time, was restrained by the officers. Defendant's wounds were treated and he was transported to the Bergen Pines County Hospital for psychological observation.

In an opinion reported at 244 N.J.Super. 484, 582 A.2d 1048 (Law Div.1990), Judge Minuskin concluded that evidence of defendant's attempted suicide was admissible into evidence. We agree. Citing State v. Jaggers, 71 N.J.L. 281, 58 A. 1014 (E. & A.1904), Judge Minuskin reasoned that "evidence of attempted suicide is analogous to evidence of flight" and thus the "principle upon which the evidence of flight is admitted to show a consciousness of guilt is equally applicable to evidence of attempted suicide." 244 N.J.Super. at 485, 582 A.2d 1048. In Jaggers, the Court of Errors and Appeals stated the principle as follows:

It has always been recognized that the flight of one accused of a crime, or his escape from custody under a criminal charge, may be given in evidence upon the trial of an indictment for the crime charged. Such evidence is deemed, when unexplained, to raise some presumption of guilt, akin to the presumptions deemed to arise upon the fabrication of false evidence or the suppression of true evidence. [Citation omitted.] The principle upon which such evidence is admitted against an accused person we deem applicable to evidence that the accused, when in custody charged with the crime, attempted to take his own life and thereby escape further prosecution. [71 N.J.L. at 282, 58 A. 1014.]

The analogy between attempted suicide and flight has been embraced by other jurisdictions and appears to be the universal rule. See 2 J. Wigmore, Wigmore on Evidence § 276, at 131 (Chadbourn rev. 1979) (attempted suicide may be construed as "an attempt to flee and escape forever from the temporal consequences of one's misdeeds"); 1 Wharton, Criminal Evidence § 159 at 649 (14th ed. 1985); J.J. Director, Annotation, Admissibility of Evidence Relating to Accused's Attempt to Commit Suicide, 22 A.L.R.3d 840, 842 (1968); 29 Am.Jur.2d Evidence § 284 (1967); State v. Brown, 128 N.H. 606, 615-16, 517 A.2d 831 (1986) (just as a jury may consider flight after a crime, it may also consider attempted suicide as indicating a consciousness of guilt); State v. Mitchell, 450 N.W.2d 828, 831 (Iowa 1990) (in prosecution for kidnapping and sex abuse, evidence of defendant's attempted suicide while in squad car en route to jail was admissible to show his guilty state of mind); People v. Campbell, 126 Ill.App.3d 1028, 1053, 82 Ill.Dec. 39, 467 N.E.2d 1112 (1984), cert. denied sub nom., Campbell v. Illinois, 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 695 (1985) (evidence of strips of torn blanket hanging from jail cell bars, construed either as an escape attempt or suicide attempt, was probative of defendant's consciousness of guilt and thus admissible).

Noting his prior psychological disorder and history of suicide attempts, defendant argued against admission of the evidence, reasoning that the attempt was simply a manifestation of his underlying psychological disorder rather than a consciousness of guilt. It is true that an attempted suicide may raise an inference of consciousness of guilt "when unexplained." Jaggers, 71 N.J.L. at 282, 58 A. 1014. As an analogy, in flight cases mere "departure ... does not imply guilt." State v. Long, 119 N.J. 439, 499, 575 A.2d 435 (1990). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Sullivan, 43 N.J. 209, 238-39, 203 A.2d 177 (1964), cert. denied sub nom., Sullivan v. New Jersey, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966) (emphasis added); see also Long, 119 N.J. at 499, 575 A.2d 435.

However, defendant's conduct at least implied a guilty state of mind. Defendant's attempt to slash his wrists, occurring just days after the commission of the crime and upon the advent of interrogation by the police, may well support an inference that defendant was harboring guilt for committing the crime. On the other hand, the jury may well have concluded that the suicide attempt occurred solely as a result of defendant's underlying psychological disorder, and...