# State v. Blakney

> New Jersey Superior Court Appellate Division · January 24, 2006 · 389 N.J. Super. 302

URL: https://www.frixlaw.com/law-library/cases/7323429

## Case

- **Full name:** STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/CROSS-APPELLANT v. BREANE STARR BLAKNEY, DEFENDANT-APPELLANT/CROSS-RESPONDENT
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** January 24, 2006
- **Citations:** 389 N.J. Super. 302; 913 A.2d 89; 2006 N.J. Super. LEXIS 340; 2006 WL 163566
- **Precedential status:** Published
- **Opinion:** Dissent by Weissbard
- **Judges:** Weissbard
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by State v. Blakney, 189 N.J. 88 (2006).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7323429

## Opinion text

WEISSBARD, J.A.D.,
dissenting.
Fundamental to the moral values of all people, transcending social, religious and ethnic divides, is the precept that no child should die before its time. It is for that reason, and justifiably so, that child homicides provoke such strong reactions. Such was the case of S.B., who died at the age of six months on September 18, 1999. As the majority opinion explains, the baby had sustained numerous other injuries in his brief life before the fatal head trauma that apparently resulted from shaken-baby syndrome. Even so, and especially so, defendant, the child’s mother and alleged killer, deserved a fair trial. Eegretfully, I am led to the conclusion that there were significant errors in the trial which resulted in extreme prejudice to defendant, and which cause me to dissent.
As the majority points out, S.B.’s autopsy revealed the following injuries: abrasions on the back of both ears; a healed burn mark on the abdomen and lower chest; two lesions consistent with bums on the right forearm, one in front of the armpit and the other below the armpit; an abrasion or laceration on the cuticle of the left first toe; marks in the middle of the left foot; small and scattered bruises on the top of the head; multiple healing rib fractures on the front left side of ribs four and eight, and on the back right side of ribs four, five, six, seven, and eleven, as well as several new fractures; a healing leg fracture; and, finally, the fatal injury to the right side of the brain. The indictment charged defendant with causing her son’s death “on or about” September 18, 1999, and charged the other non-fatal injuries as constituting aggravated assault on “diverse dates.”
*347 The defense was that the fatal injury had been caused by defendant’s boyfriend, Rolando Morrison, who had cared for the child on September 14, the day S.B. was taken to the hospital, where he expired four days later. Alternatively, defense counsel suggested that “whoever” caused the head injury by shaking the baby did not act with the knowing or purposeful intent required for murder.
Not surprisingly, virtually all of the errors which lead me to dissent arose out of the treatment of the prior, non-fatal injuries, on the part of both the prosecutor and the judge. Before turning to those errors, I note my agreement with the majority that the murder count need not have been severed from the aggravated assault and child abuse counts. Clearly, the prior acts, all within the brief life span of this helpless baby, were admissible, at least on the issue of defendant’s intent on the murder charge. N.J.R.E. 404(b); State v. Compton, 304 N.J.Super. 477, 482-83 , 701 A.2d 468 (App.Div.1997), certif. denied, 153 N.J. 51 , 707 A.2d 154 (1998). As a result, they would have been admissible even if murder had been the only charge. State v. Moore, 113 N.J. 239, 274 , 550 A.2d 117 (1988). To this point, I am in agreement with the majority.
That said, the “unsavory implications,” State v. Stevens, 115 N.J. 289, 308 , 558 A.2d 838 (1989), of this type of evidence demands careful handling by the trial judge, including close monitoring of the manner in which it is elicited and argued by the prosecutor during the trial and, most importantly, in the instructions to the jury. As the majority notes, the standard was set in State v. G.S., 145 N.J. 460 , 678 A.2d 1092 (1996), where the Court admonished that the trial judge “must specifically instruct the jury about the evidence’s limited relevance,” id. at 469 , 678 A.2d 1092 , and “must not only caution against a consideration of that evidence for improper purposes, it must through specific instruction direct and focus the jury’s attention on the permissible purposes for which the evidence is to be considered.” Id. at 472, 678 A.2d 1092 . Here, the charge was woefully lacking in these essentials, primarily for a reason that is entirely obfuscated by the majority opinion.
*348 The majority sets out what purports to be the limiting instruction (op. at 329-32, 913 A.2d at 106-08) as if it had been delivered all at once. But it was not. The ellipses (op. at 330, 913 A.2d at 107) do not reflect that the two sections, the second being introduced with the phrase, “Now, one further thing before we conclude,” came at widely separated points in the instructions for reasons which the transcript clearly reveals. After the initial portion (op. at 329-30, 913 A.2d at 106-07), in which the judge attempted to tell the jury how it could not use the prior injury evidence, i.e., to show disposition, the judge moved on to other instructions, including the use of prior convictions to judge credibility and how to judge expert testimony. At that point, the prosecutor asked for a side bar and pointed out that the judge had omitted an entire page, “the second half,” of the 404(b) limiting instruction, which he referred to as “the Cusick charge.” See State v. Cusick, 219 N.J.Super. 452, 466-67 , 530 A.2d 806 (App. Div.), certif. denied, 109 N.J. 54 , 532 A.2d 1118 (1987). 1 The judge immediately acknowledged the error, which had apparently been caused by someone on the judge’s staff having left that second page out of the instructions from which the judge was reading. However, rather than go back at once to correct the omission, the judge continued with instructions on the use of character evidence and prior contradictory statements. It was only at that point that the judge seemingly returned to the limiting instruction with the “one further thing before we conclude” remark. Rather than giving the jury the entire instruction at one time, the judge simply gave the omitted second half.
As a result, when the judge delivered the critical charge that prior acts might be relevant, and were being offered, on the issue of intent, the judge’s reference to “such testimony,” was completely unanchored to the earlier portion of the charge (ten pages of transcript earlier) which had referred to “certain acts that were allegedly done to and other injuries allegedly inflicted upon [S.B.] *349 on occasions prior to September 14, 1999.” While we presume that juries follow instructions, State v. Manley, 54 N.J. 259, 270 , 255 A.2d 193 (1969), that legal fiction is premised on the expectation that trial judges give correct and comprehensible instructions. In my view, a critical instruction separated into two halves by some seven pages of transcript does not meet that test, even if it were otherwise adequate, because it assumes entirely too much from the jury.
In any event, the instruction as given, taking each half separately or together, was not adequate in this case. Here, while the charges were properly joined, it was essential for the jury to understand that the pre-September 14 injuries were admissible, without limitation, on the aggravated assault and child abuse charges, but had limited applicability on the homicide count. The concept is tricky enough for lawyers and judges; it may, however, seem quite alien, and at best difficult to apply, to jurors. The need for a clear instruction is beyond question. Therefore, we must examine the instruction carefully to see if it meets the rigorous standard of G.S., swpra.
After defining the elements of the various charges, and the oral statement given by defendant, the judge turned to the limiting instruction. First, the judge stated that the jury must consider each of the four charges separately based on “the evidence which is relevant and material to that particular charge based on the law that I have given you.” So far, so good. The judge then referred to the pre-September 14 injuries and told the jurors that they had to “determine those particular incidents individually and decide whether, in fact, they were inflicted by this defendant.” This statement was facially correct but the jurors must have thought it strange since they obviously had to determine whether defendant committed those acts in connection with the assault and abuse charges. Thus, the judge failed at the outset to explain to the jurors that this instruction related to their consideration of the pre-September 14 acts on the murder charge. The confusion then continued by virtue of the judge explaining that “evidence like *350 that,” i.e., the earlier iiyuries, is inadmissible to show that a person had a “disposition to commit the crimes for which she is currently being charged.” Of course, that statement makes no sense since the evidence was admissible on some of the crimes for which defendant was being charged. However, the next sentence stated:
The thought being if you found, for instance, that she was responsible prior to preSeptember 14, you cannot then presume because you have found that she may have been responsible for those acts that automatically means she must have committed the crime on September 14.
If this sentence sought to clear the confusion resulting from the prior sentence, it failed. Defendant rightly criticizes the judge’s use of the word “automatically.” In this instance, the limiting instruction should have said that if defendant committed the earlier acts, that evidence may not be considered on the homicide charge to show that defendant had a disposition to commit murder, not that it could not be “automatically” considered for that purpose. Reasonably understood, the use of “automatically” implied that the evidence could be considered, although not “automatically.” In any event, the next two sentences did state the proposition more clearly and properly:
Therefore, you may not take this evidence and conclude from it that defendant [ ] is a bad person and, thus, has a disposition which shows that she is likely to have done the act with which she is charged, that is, the homicide of [S.BJ.
Evidence of other acts may not be used to show a general predisposition of the defendant to commit a crime. That is not the purpose of allowing the testimony and it should not be considered by you as such.
However, the judge then said:
So when I said before that each of the charges need to be dealt with separately, that is what I meant. You cannot say because a person is guilty of one, that they are then, in fact, guilty of another charge. They each have to be dealt with separately.
That final paragraph is wrong. Indeed, it so muddies the preceding statements as to destroy their efficacy. The judge was, simply, mixing apples and oranges. The instruction that each charge must be considered separately is not the same as an instruction dealing with the limited admissibility of 404(b) evidence on the murder charge. If the jury took the judge at her word, *351 that “that is what [she] mean[t]” in the proceeding paragraphs, they could only have been hopelessly confused. Did the judge mean only that the charges were to be considered separately, and nothing more? Of course, any possibility that the rest of the limiting instruction could clear the air was removed by the judge’s inadvertent omission of the remainder, to which she returned after several intervening instructions.
In returning to the limiting instruction, the judge began again with the admonition to judge each charge separately 2 but then continued by, as noted earlier, stating that “such testimony is really permitted where the evidence may relate to some other fact in issue, including motive, intent, absence of mistake or accident or some other issue.” And while I agree that intent was in issue, I remain ambivalent about whether, as the majority writes, accident and mistake were implicit in the defense. What is clear is that a judge cannot just read the laundry list of 404(b) exceptions. State v. Sanders, 320 N.J.Super. 574, 584-85 , 727 A.2d 1063 (App.Div. 1999), aff'd o.b., 163 N.J. 2 , 746 A.2d 451 (2000). Nevertheless, the judge did proceed to clear away the unnecessary terms and instructed that “the evidence” (still undefined) was admitted on the issues of intent, accident or mistake. The rest of the instruction was beyond reproach.
It is not necessary to decide whether this limiting instruction would have passed muster if delivered in one piece, in order to conclude that a reversal is required. An instruction that was absolutely essential to a fair resolution of the charges was severed, and unlike a worm, the two portions could not survive independently. As the Court has stressed, a 404(b) limiting instruction “ ‘should be formulated carefully to explain precisely the permit *352 ted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.’ ” State v. Cofield, 127 N.J. 328, 341 , 605 A.2d 230 (1992) (quoting State v. Stevens, 115 N.J. 289, 304 , 558 A.2d 833 (1989)). Despite there having been no objection, the absence of a correct instruction was “clearly capable of producing an unjust result.” R. 2:10-2.
The need for a correct limiting instruction in this case is underscored by the prosecutor’s actions, a number of which exceeded the bounds of fair advocacy. In summation, the prosecutor suggested to the jury that S.B.’s death was caused by a combination of injuries including those leading up to September 14. I reject the State’s suggestion that these remarks were a fair inference from the evidence or that they were merely intended to demonstrate defendant’s intent. Contrary to the majority, it seems clear to me that, putting aside some ambiguous statements, the expert testimony was that S.B. died as a result of a single act of violent shaking. His prior leg fracture, burns and other injuries, all of which were described as battered-child syndrome, did not contribute to his death, although some of the rib fractures, as well as the ear abrasion, might have been related to the shaking. I am not prepared to conclude that these misstatements, not objected to, constitute reversible error. However, the confusion engendered by the multiple injuries and the multiple counts of the indictment was aggravated by the prosecutor’s at best ambiguous closing argument, thereby emphasizing the need for a carefully tailored, complete and forceful limiting instruction.
Other parts of the prosecutor’s summation were also problematical. The prosecutor called the defendant a “habitual liar,” and improperly personalized his closing by referring to the “anger and rage that I feel when I look at [the photographs of S.B.’s injuries]” and, in conclusion, that “I can’t look at these photos anymore. I just can’t.” The majority finds the statements “not improper” *353 when placed in context (op. at 336, 913 A.2d at 111). Regardless of context, I cannot agree.
Defendant was a nineteen-year-old single mother; S.B. was her only child. She lived alone with the child and worked at KFC from 4:00 p.m. to 11:30 p.m. on Monday, Tuesday, Wednesday, Saturday and Sunday. While she worked, various people babysat. There was evidence that she took care of the child, and indeed it was defendant herself that brought S.B. to the hospital on September 14 and then later to the pediatrician’s office after the hospital, quite remarkably, discharged the infant. Defendant had taken her child to the hospital for a variety of ailments in March, April and July 1999. In July, defendant took S.B. to Dr. Malalis, a pediatrician, twice for vaccinations, and she called Dr. Malalis at 10:30 a.m. on September 14 but only reached her answering service. Indeed, the service tried unsuccessfully to contact Dr. Malalis. All of this is not to minimize the harm caused to S.B., both before and on September 14, but to emphasize that this was a close case, at least in the sense that a manslaughter verdict would have been well supported by the evidence. That the jury found defendant guilty of murder was, in my view, likely the result of the errors I have identified with respect to the handling of the 404(b) evidence. Accordingly, I respectfully dissent. 3
Interestingly, neither the State nor defendant have cited Cusick in their appellate briefs.
As defendant points out, the judge’s introductory language was also problematical in its use of the phrase, "does not necessarily mean.” Thus, the judge indicated that a finding of guilt on one charge "does not necessarily mean" that the defendant committed the other crimes. In fact, a finding on one charge has no impact on the other charges, that being the essence of an instruction to consider each charge separately.
I have no quarrel with the majority's disposition of defendant’s arguments as to (1) her taped statement, (2) the failure to properly charge endangering, and (3) the merger of the endangering and child abuse convictions, nor with its disposition of the State’s cross-appeal. And, while I would not find it to constitute plain error, I agree with defendant that third-degree aggravated assault should have been charged as a lesser offense under count two.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7323429. Public record. Not legal advice.