STATE OF NEW JERSEY VS. CHINUA S. ANDERSON(11-10-1720, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4654-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHINUA S. ANDERSON,
Defendant-Appellant.
____________________________________
Argued October 11, 2016 – Decided June 8, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-10-1720.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Kirsch, of counsel and on the brief).
Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Ms.
Lichter, of counsel and on the brief).
PER CURIAM
Defendant Chinua Anderson seeks to overturn his judgment of
conviction for murder and three weapons offenses for which he is
serving an aggregate custodial sentence of thirty years without
parole. He argues two points on appeal:
POINT I
THE JURY INSTRUCTIONS SO COMPLETELY SEPARATED
THE ISSUES OF SELF-DEFENSE AND JURY
DELIBERATION REGARDING THE ELEMENTS OF THE
CRIME OF MURDER THAT THE JURY WAS: (1) LEFT
WITHOUT PROPER GUIDANCE ON HOW TO DELIBERATE
ON THE MURDER COUNT WHILE SIMULTANEOUSLY
CONSIDERING THE ISSUE OF SELF-DEFENSE, AND (2)
GIVEN WHOLLY CONTRADICTORY INSTRUCTIONS
REGARDING THE PROPER VERDICT IN THE CASE. (NOT
RAISED BELOW).
POINT II
THE TRIAL COURT'S DECISION TO ALLOW THE JURORS
TO TAKE NOTES WHEN THEY RE-VIEWED THE
SURVEILLANCE VIDEO WAS AN ABUSE OF DISCRETION;
MOREOVER, THE COURT'S FAILURE TO GIVE THE
MODEL INSTRUCTION ON NOTETAKING WAS ALSO
REVERSIBLE ERROR. (PARTIALLY RAISED BELOW).
For the reasons that follow, we affirm.
On October 18, 2011, a Hudson County grand jury returned an
indictment charging defendant with first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2) (count one); third-degree possession of a
weapon for an unlawful purpose, a knife, N.J.S.A. 2C:39-4(d) (count
two); fourth-degree unlawful possession of a weapon, a knife,
N.J.S.A. 2C:39-5(d) (count three); and second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b) (count four).
Two years later, in December 2013, a petit jury found
defendant guilty on the first three counts. Following the verdict,
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defendant pleaded guilty to count four in exchange for the State's
recommendation of a five-year prison term with five years of parole
ineligibility, concurrent with the sentence to be imposed on the
murder count.
On December 23, 2013, defendant filed a notice of motion for
judgment of acquittal and a new trial, arguing the trial court
erred by permitting the jury to take notes while reviewing a video
in open court during deliberations. The court merged counts two
and three and sentenced defendant to a thirty-year prison term
with thirty years of parole ineligibility on count one, murder.
In accordance with the plea bargain, the court sentenced defendant
on count four to a five-year prison term with five years of parole
ineligibility, concurrent to the sentence on count one. The court
also imposed appropriate penalties and assessments. This appeal
followed.
The State presented the following proofs at trial. On May
2, 2011, at approximately 9:30 p.m., Jersey City Police Officer
Gregory Wojtowicz responded to a dispatch of an assault at a liquor
store. As he entered the liquor store, he observed a black male,
later identified as the victim, lying face down on the floor.
Officer Wojtowicz observed no blood, but testified the victim
could neither speak nor move. An ambulance transported the victim
to the hospital where he was pronounced dead. An autopsy revealed
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the victim had been stabbed nine times. The State's expert
forensic pathologist testified the cause of the victim's death was
multiple stab wounds and the manner of death was homicide.
Investigating detectives recovered no weapons from the victim.
While Officer Wojtowicz was at the liquor store, he noticed
security cameras inside and outside the store. Upon reviewing the
footage, he was able to get a description of the victim and the
suspect. A Hudson County Prosecutor's Office detective who had
arrived at the liquor store obtained a video copy of the
surveillance footage depicting the incident. From still images
he printed from the video, the detective was able to observe the
suspect from various angles. According to detective, the suspect
was "a black male, approximately [five feet and seven inches tall],
[with a] bushy beard, black, thick-framed glasses, gold front
teeth, wearing a[n] Army-style fatigue jacket, a maroon-colored
Yankee baseball hat, [and] carrying a black messenger-type bag
with light writing on it." The still images were distributed to
other law enforcement officers.
The day after the homicide, two other Hudson County
Prosecutor's detectives were driving in the area of Garfield Avenue
when they observed defendant standing on a sidewalk. Defendant
matched the suspect's description. The detectives exited their
vehicle and approached defendant. After explaining why they wanted
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to speak with him, the detectives showed him a photograph taken
from the surveillance video. The detectives asked whether he was
the individual in the photograph and where he was the night before.
Defendant denied he was the person in the photograph and said he
was at a store with his wife the previous night. He also denied
possessing any weapons. Defendant phoned his wife, who spoke with
one of the detectives to confirm defendant was with her the night
before. The detectives photographed defendant and allowed him to
leave.
As defendant began walking away, one detective saw a knife
blade protruding from defendant's right rear pocket. The
detectives arrested defendant, searched him, seized the knife
protruding from his pocket, and seized another folding knife
concealed on defendant's person. Defendant did not complain of
any injuries at the time of his arrest nor were any injuries
visible to the detectives.
Following defendant's arrest, law enforcement officers
executed a search warrant at defendant's residence.1 They
recovered one green jacket from the living room and another from
the bedroom. The jacket seized from the bedroom appeared to
1
On appeal, defendant does not contest the warrant's validity.
5 A-4654-13T3
contain bloodstains. The officers also recovered a messenger bag
matching the one depicted in the liquor store's video surveillance.
The State established through expert forensic testimony that
DNA stains on the jacket seized from defendant's bedroom were
mixed stains that could exclude neither defendant nor the victim.
Another DNA stain taken from the jacket came from defendant.
Additionally, through forensic experts, the State established
there were DNA stains on the knife protruding from defendant's
pocket when he was arrested. The expert testimony linked a DNA
stain on the blade to the victim and a DNA stain on the handle to
defendant.
Defendant elected to testify. He explained that because he
was a commercial truck driver, he carried a knife as part of his
job to cut boxes, cords or plastic. Sometime during the
"[a]fternoon or evening" of May 2, 2011, he walked to a wholesale
store to "kill time." He was wearing a green jacket, jeans, and
a baseball cap. He had also gone to Shoprite. He was carrying a
plastic grocery bag and a messenger bag.
While on his way home, defendant stopped at the liquor store
to pick up juice for his wife. He had a conversation with a woman
in front of the liquor store, and he interacted with a few people
inside the store. He was in a good mood at that time and shook
hands with a few patrons before leaving the store.
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As defendant left the liquor store, he encountered the same
woman outside. She appeared slightly "incohesive [sic] and
intoxicated." Defendant conversed with the woman and told her he
had no change to give her. He went back into the store to get
confirmation from the clerk that he did not receive any change
from his transaction. He exited the store and again explained to
the woman that he had no change.
As defendant walked away from the liquor store, he encountered
a man who appeared intoxicated. Still concerned for the woman,
defendant asked the man whether he had any relation to her.
Defendant spoke with the man for a few minutes before accompanying
him back to the liquor store.
On his way back to the liquor store, defendant testified
someone, who turned out to be the victim, suddenly "came out of
nowhere" at a fast, aggressive pace. Defendant stated he did not
know the victim, whom he described as bigger than himself.
Defendant testified the victim "came right up to [his] face" and
began arguing with him. Defendant then observed the victim raise
a metallic object in his hand as if to strike defendant. In
response, defendant grabbed his knife and swung it at the victim
in an attempt to disarm him.
Defendant and the victim fought. Defendant believed the
fight lasted between two and three minutes, and though he claimed
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the victim was the aggressor, defendant admitted to stabbing the
victim multiple times. Defendant did not believe he caused any
injuries to the victim at that time, nor did he hear the victim
cry out in pain.
Defendant followed the victim into the liquor store to ensure
that he would not pursue him upon leaving the area. Defendant
admitted that he was the individual on the liquor store’s security
footage, but claimed the footage captured only a portion of the
fight. After defendant saw the victim fall, he grabbed his
belongings and ran from the store. He did not wait for police to
arrive because he was afraid others in the liquor store would
pursue him.
Defendant ran home but claims he did not call the police
because he was too shaken up. Although defendant dropped the
knife on the night of the incident, he retrieved it the next day
before encountering the detectives who arrested him. Defendant
admitted, in hindsight, he could have escaped without stabbing the
victim.
During the charge conference, the trial court stated it had
"reordered the charge . . . and moved up credibility after expert
witnesses, followed by statements of the defendant, stipulations,
character witnesses, if . . . necessary; identification, self[-]
defense and then the substantive charges." Neither the State nor
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the defense objected. The trial court agreed to charge
passion/provocation manslaughter as requested by defendant,
notwithstanding defense counsel's statement he would probably not
argue that to the jury. In his summation, defense counsel argued
defendant acted in self-defense and that the State had the burden
to disprove this defense beyond a reasonable doubt.
During the jury charge, the judge instructed the jury on
self-defense. The judge's instruction tracked the model jury
charge. The judge explained, among other things:
Burden of proof. The State has the
burden to prove to you beyond a reasonable
doubt that the defense of self-defense is
untrue. This defense only applies if all of
the elements previously described exist.
. . . .
If the State carries its burden then you
must disallow the defense. If the State does
not satisfy this burden and you have . . . a
reasonable doubt[,] then it must be resolved
in favor of the defendant and you must allow
the claim of self-defense and acquit the
defendant.
Immediately after this instruction, the judge instructed the
jury on the elements of murder and passion/provocation
manslaughter. The judge told the jury, among other things, "[a]
person is guilty of murder if he, one, caused the victim's death
or serious bodily injury that then resulted in death. And, two,
that the defendant did so purposely or knowingly. And, three, did
9 A-4654-13T3
not act in the heat of passion resulting from a reasonable
provocation." In addition, the judge stated:
The third element that the State must
prove beyond a reasonable doubt to find the
defendant guilty of murder is that the
defendant did not act in the heat of passion
resulting from a reasonable provocation.
Passion provocation manslaughter is a death
caused purposely or knowingly that is
committed in the heat of passion, resulting
from a reasonable provocation.
After explaining the four factors that distinguish
passion/provocation manslaughter from murder, the judge instructed
the jury that if it determined the State had disproved passion/
provocation manslaughter beyond a reasonable doubt, "and in
addition . . . you determine that the State has proven beyond a
reasonable doubt that the defendant purposely or knowingly caused
death or serious bodily injury resulting in death[,] you must find
the defendant guilty of murder." The judge further instructed the
jury that if it determined the State had not disproved
passion/provocation manslaughter beyond a reasonable doubt, then
it should find defendant guilty of passion/provocation
manslaughter.
The judge next instructed the jury on aggravated and reckless
manslaughter. Thereafter, the judge instructed the jury on the
elements of the weapons offenses.
10 A-4654-13T3
Near the conclusion of the judge's instruction regarding
possession of a weapon for an unlawful purpose, the judge reminded
the jury of defendant's main argument, namely, that he used the
knife to defend himself. Specifically, the judge stated, "if the
defendant had an honest though unreasonable belief that he needed
to use the weapon to protect himself, this negates the purposeful
mental state required for [possession of a weapon for an unlawful
purpose]." Additionally, the judge stated:
[e]arlier in this charge I instructed you
on the concept of self-defense as it applies
to the offenses of murder, passion provocation
manslaughter, aggravated manslaughter, and
reckless manslaughter. The concept of self-
defense as it applies to those offenses is
different than that of protective purpose that
applies to [possession of a weapon for an
unlawful purpose] . . . . [w]hen applied to
those offenses[,] self-defense requires a
defendant to have an honest and a reasonable
belief in the need to use force.
During deliberations, the jury requested to see the liquor
store's video surveillance footage, which the State had played
during the trial. The jury also asked for permission to take
notes while watching the video. Defense counsel did not object
to allowing the jury to review the footage; however, he objected
to the jurors taking notes because the judge had not allowed the
11 A-4654-13T3
jury to take notes during trial.2 The judge allowed the jury to
take notes because they were in the midst of deliberations, rather
than at trial. In addition, the judge instructed the jury not to
give undue weight to the surveillance footage. The judge read the
model charge on the playback of testimony.
As previously noted, the jury found defendant guilty on the
first three counts, and defendant pleaded guilty to the fourth.
After the court denied defendant's motion for a new trial and
sentenced him, defendant filed this appeal.
Defendant first argues the order of the jury instructions,
specifically the jury charge on self-defense, denied him due
process. He argues that because the self-defense charge was placed
separately from the jury instruction on murder, the jury was given
no guidance on how to deliberate on the murder count, and was
instructed on the elements of murder "without ever considering
self-defense."
Indisputably, jury charges "must provide a 'comprehensive
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
2
During the jury instruction before opening statements, the judge
instructed the jury that they were not permitted to take notes.
The judge stated the jurors should "depend upon the combined
recollection of all the jurors than upon notes taken by one or
more of them."
12 A-4654-13T3
jury may find.'" State v. Singleton, 211 N.J. 157, 181-82 (2012)
(quoting State v. Green, 86 N.J. 281, 287-88 (1981)). Because
clear and correct jury charges are essential to a fair trial,
State v. Adams, 194 N.J. 186, 207 (2008), "erroneous instructions
on material points are presumed to possess the capacity to unfairly
prejudice the defendant." State v. McKinney, 223 N.J. 475, 494
(2015) (citations omitted). However, an error in the charge that
could not have affected the jury's deliberations does not amount
to reversible error. State v. Docaj, 407 N.J. Super. 352, 366
(App. Div.), certif. denied, 200 N.J. 370 (2009). In that regard,
"[i]f the defendant does not object to the charge at the time it
is given, there is a presumption that the charge was not error and
was unlikely to prejudice the defendant's case." Singleton, supra,
211 N.J. at 182.
Here, defendant did not object to the self-defense charge,
nor did he raise the issue he now raises on appeal. Because
defendant did not object at trial, we review the charge for plain
error. R. 1:7-2; R. 2:10-2; McKinney, supra, 223 N.J. at 494.
Plain error in this context is "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the defendant
sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear
capacity to bring about an unjust result." Adams, supra, 194
13 A-4654-13T3
N.J. at 207 (alteration in original) (quoting State v. Jordan, 147
N.J. 409, 422 (1997)). When reviewing a charge for plain error,
an appellate court must not examine the "portions of the charge
alleged to be erroneous in isolation; rather, 'the charge should
be examined as a whole to determine its overall effect.'"
McKinney, supra, 223 N.J. at 494 (quoting Jordan, supra, 147 N.J.
at 422).
Applying these principles to the case now before us, we
conclude it was not plain error to structure the charge in the
manner the trial court structured it. The trial court made clear
at the outset of its charge on the substantive offenses, as to
which defendant was claiming self-defense, that the State had the
burden of disproving self-defense beyond a reasonable doubt.
Immediately following the self-defense charge, the court
instructed the jury on the elements of murder and manslaughter.
Near the end of the charge, the court reminded the jury that
earlier in the charge the court had "instructed you on the concept
of self-defense as it applies to the offenses of murder, passion
provocation manslaughter, aggravated manslaughter, and reckless
manslaughter." The court thus harkened back to the portion of the
charge in which the court had instructed the jury on the elements
of self-defense and the State's burden of disproving the defense
beyond a reasonable doubt. Considering the self-defense charge
14 A-4654-13T3
in the context of the overall instructions, we conclude the trial
court did not commit plain error.
Our conclusion is fortified by the presumption - the charge
was not error and was unlikely to prejudice defendant's case –
arising from trial counsel's failure to object. Singleton, supra,
211 N.J. at 182. In summation, defense counsel told the jury,
"there's no secret here. . . . [W]e're submitting that he acted
in self-defense." Defense counsel further emphasized:
Not only does the State have to prove that
there was a murder. That will be part of the
instructions. The State has to prove that it
wasn't passion[/]provocation. Okay? That he
wasn't just incited but it was still a murder
except for passion[/]provocation. The State
has to prove all those things to you.
And, on top of that, I don't have to convince
you that it was self-defense. The State has
to convince you beyond a reasonable doubt that
it was not self-defense. Once again, just
because we're advancing this defense . . .
it's still the burden of the prosecution to
come forward with evidence to convince you -
- to leave you firmly convinced that it wasn't
self-defense.
Defense counsel continued throughout his summation to
emphasize defendant acted in self-defense, and the State had failed
to carry its burden of disproving self-defense beyond a reasonable
doubt. It is inconceivable that had defense counsel believed the
jury charge somehow confused or prejudiced defendant's sole
defense, he would not have lodged an objection.
15 A-4654-13T3
Defendant relies on State v. Coyle, 119 N.J. 194 (1990), for
the proposition that the self-defense charge given in this case
should have been incorporated within the murder charge. We
disagree with defendant's argument that the failure to do so
constitutes reversible error.
In Coyle, our Supreme Court addressed in a capital murder
case a trial court's obligation to clearly instruct the jury, when
the evidence so requires, on the State's obligation when seeking
a murder conviction to disprove "beyond a reasonable doubt that
the purposeful killing was not the product of passion/
provocation." Id. at 221. The Court noted that "[i]f there is
sufficient evidence of passion/provocation, a trial court must
instruct the jury that 'to find murder it must be convinced beyond
a reasonable doubt that the accused did not kill in the heat of
passion . . . .'" Id. at 221-22 (quoting State v. Grunow, 102
N.J. 133, 145 (1986)). The Court further noted the trial judge:
instructed the jury that if it found beyond a
reasonable doubt that the killing was
purposeful, it should convict defendant of
murder. Nowhere in the initial charge
concerning purposeful murder did the court
refer to the State's burden of disproving
passion/provocation beyond a reasonable
doubt. The trial court's initial charge
concerning purposeful murder failed to make
clear that if there is evidence of passion/
provocation, a jury cannot convict for murder
without first finding that the defendant did
not kill in the heat of passion.
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[Id. at 222.]
Although the trial judge in Coyle later instructed the jury
on the role of passion/provocation, the Supreme Court deemed the
belated charge ineffective, particularly because the trial judge
had explained in the initial charge on purposeful murder that the
jury need not consider the lesser-included offenses of aggravated
manslaughter or manslaughter unless it determined that the State
had failed to prove murder beyond a reasonable doubt. Ibid.In contrast to Coyle, here, in the initial charge, the court
clearly and unambiguously instructed the jury on the law of self-
defense. No confusion occurred by reason of the court giving
sequential charges on self-defense, murder, and manslaughter.
Significantly, the Court in Coyle explained:
[t]here is nothing inherently wrong with a
sequential charge. Such charges assure that a
jury renders a just verdict by applying the
facts to the law as it is charged. Indeed,
there is nothing inherently wrong with the
model charge for purposeful murder. Absent
evidence of passion/provocation, sequential
charges usually provide a framework for
orderly deliberations.
[Id. at 223 (citations omitted).]
We have concluded no plain error occurred as the result of
the trial court sequentially instructing the jury on self-defense,
murder, manslaughter, and the weapons offenses. Nonetheless, the
better practice would have been to remind the jury, while
17 A-4654-13T3
instructing on the elements of murder and manslaughter, that the
State also had to disprove self-defense beyond a reasonable doubt.
After so instructing the jury, the court could have explained that
if the jury determined the State had proved the elements of the
substantive offense beyond a reasonable doubt and also disproved
self-defense beyond a reasonable doubt, the jury should return a
verdict of guilty on the substantive offense.3
Defendant next argues the trial court abused its discretion
by allowing the jury to take notes while re-viewing the liquor
store's video surveillance footage in the midst of deliberations.
Defendant concedes that replaying the video to the jury was proper.
Defendant's argument is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add the
following brief comments.
The decision to permit jurors to take notes lies within the
discretion of the trial court. State v. Jumpp, 261 N.J. Super.
514, 526-27 (App. Div.), certif. denied, 134 N.J. 474 (1993). The
case now before us is somewhat unusual because the trial court did
not permit jurors to takes during the trial, but allowed them to
take notes while they viewed the surveillance video in open court
following deliberations. Nonetheless, the court cautioned the
3
We refer this issue to the Committee on Model Criminal Jury
Instructions for consideration.
18 A-4654-13T3
jury not to give undue weight to the surveillance footage and to
consider all the evidence. And defendant has offered no evidence,
other than speculation, of "any prejudice produced by allowing the
jurors to take notes." Id. at 527. Furthermore, the court found
"no evidence of confusion, distraction or prejudice caused by
juror note-taking . . . which would warrant a reversal of
defendant's convictions." Ibid.
Moreover, even if the trial court erred by permitting the
jurors to take notes, the error was harmless. An error will not
lead to reversal unless it is "clearly capable of producing an
unjust result." R. 2:10-2. Thus, even if an alleged error was
brought to the trial judge’s attention, it will not be grounds for
reversal if it was "harmless error." State v. Macon, 57 N.J. 325,
337-38 (1971).
Trial errors have an effect that may "be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they are] harmless beyond a reasonable doubt."
Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246,
1264, 113 L. Ed. 2d 302, 330 (1991). In addition, a reviewing
court can consider its assessment from the record of witnesses'
credibility in determining whether an error is harmless. See
State v. J.R., 227 N.J. 393, 420 (2017).
19 A-4654-13T3
Here, a considerable quantum of evidence — including forensic
testimony, DNA evidence, and surveillance — established defendant
was the man who repeatedly stabbed the victim. Defendant's
credibility was impeached not only by his initial denials to police
that he was not the man in the surveillance video, but also by the
surveillance video itself. The video depicted defendant
persistently and aggressively pursuing and lunging at the unarmed
victim as the victim persistently attempted to retreat from and
avoid defendant's attack. One might aptly characterize
defendant's self-defense testimony and argument to the jury as
"don't believe your lyin eyes." Defendant's testimony concerning
why he pursued the victim into the store bordered on frivolity.
In short, defendant's testimony was manifestly incredible. Even
if the trial court erred when it permitted the jury to take notes
when it viewed the surveillance during deliberations — and we do
not so conclude — the error was harmless beyond a reasonable doubt.
Affirmed.
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