State v. Polk
| Decision Date | 28 April 1977 |
| Citation | 164 N.J.Super. 457,397 A.2d 330 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Robert POLK, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Stanley C. Van Ness, Public Defender, for defendant-appellant (Donald T. Thelander, Asst. Deputy Public Defender, of counsel and on the brief).
William F. Hyland, Atty. Gen., for plaintiff-respondent .
Before Judges FRITZ, ARD and PRESSLER.
Defendant was tried by a jury and convicted of first degree murder of Marcella Bonnie Melvins and atrocious assault and battery against Sharod Melvins.
He appeals the murder conviction and asserts:
I. The trial judge committed plain error by not instructing the jury that voluntary intoxication can operate to reduce the degree of culpability from first to second degree murder.
II. The judge erred in denying defense counsel's request for an adjournment to have defendant examined by a psychiatrist.
III. The admission into evidence of S-23, a photograph of decedent, constituted reversible error.
IV. The prosecutor's comments in summation equating provocation with justifiable homicide constituted reversible error.
V. The imposition of a mandatory life sentence violates the Fifth and Sixth Amendment rights of defendant.
VI. The entire trial was so infected with error as to mandate a finding that defendant did not receive a fair trial.
The facts pertinent to the issue of intoxication are essentially undisputed. On the morning of the day of the killing, defendant and Leon Jones decided not to go to work and began drinking beer at the Jones' residence at about 9 a. m. Just prior to arriving at the Jones' residence defendant and an unidentified young lady shared a marijuana cigarette. The remainder of the morning was spent at various residences drinking beer and wine. The record is not precise as to the exact amount of alcoholic beverages consumed by defendant; however, unquestionably, it was substantial. An indication of how much was consumed is found in the testimony of Dr. Raymond Schiffman who performed the autopsy on the deceased. He testified the blood alcohol concentration was 0.158, indicating she was definitely intoxicated. Obviously the amount of alcohol consumed by decedent is not conclusive proof of defendant's consumption; however, the fact that she did not join the party until about 1 p. m. is some indication of the amount of alcohol consumed by all.
Detective Matreale testified he could smell alcohol on defendant's breath at about 4 p. m., some two hours after the killing. Although he wouldn't characterize defendant's condition as intoxicated, his testimony was not unequivocal.
Q Now, did he seem to be intoxicated at the time?
A No, I wouldn't say so.
Q Did he seem could you tell whether he had any alcohol?
A Oh, you could smell alcohol on his breath, yes.
Q But you, you determined that he wasn't, in any way, wasn't intoxicated?
A I wouldn't call it intoxicated.
Q His actions, were they that of a sober person?
A I would say so, he was walking on his own free will, talking, sitting down.
Unquestionably, the jury had a basis for determining that this testimony, in light of all the other testimony concerning drinking, was less than accurate. Moreover, in evaluating the effect of the alcoholic beverage consumed by defendant on his mental state, the jury had a right to consider his overall conduct. They may have concluded his state of intoxication was substantial in light of his irrational conduct. Without reference to his conduct with decedent, the jury also had evidence that he hit the baby, Sharod Melvins, with his fist and then literally threw the baby down onto the porch. The drinking was further corroborated by Timothy McCarthy, an investigator of the Camden County Prosecutor's Office, who arrived at the scene of the killing at about 4 p. m. He observed beer cans strewn about the floor.
The question to be decided by the trial judge, faced with a decision as to whether an instruction should be given the jury on the effect of voluntary intoxication, is not whether in fact defendant was intoxicated but whether a reasonable jury might so find. State v. Frankland, 51 N.J. 221, 238 A.2d 680 (1968).
The influence of liquor is not a defense to the crime of murder in the second degree and has no bearing on the guilt or innocence of defendant for that crime. However, where as here, the thesis of the State's case is that defendant was guilty of murder in the first degree, it is incumbent upon the State to prove beyond a reasonable doubt that defendant in fact performed the mental operations necessary to raise a murder from second degree to first degree. State v. Gardner, 51 N.J. 444, 457, 242 A.2d 1 (1968). In State v. Maik, 60 N.J. 203, 287 A.2d 715 (1972) the late Chief Justice Weintraub stated:
* * * (T)he voluntary use of liquor or drugs has been held to be relevant in determining whether the defendant in fact performed the mental operations necessary to raise a murder from second degree to first degree. But the influence of liquor or drugs thus voluntarily taken, no matter how pervasive that influence may be, will not lead to an acquittal. It cannot reduce the crime below murder in the second degree, and this because of the demands of public security. * * * (at 215, 287 A.2d at 721)
Normally, where there has been testimony in the case that indicates the consumption of alcoholic beverages by defendant prior to the time he is alleged to have committed the first degree murder, an instruction will be given the jury indicating the fact that voluntary intoxication is not an absolute defense but may be considered by the jury in determining whether the intoxication interfered with the performance of the mental operations necessary to raise a murder from second degree to first degree. State v. Maik, supra.
The defendant did not request the judge to so instruct the jury, and no objection was made on the failure so to instruct. The question before us is whether the judge should have charged the jury with respect to voluntary intoxication, and if so, whether the failure to so instruct...
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