State v. JenkinsState v. Jenkins
- Reporters:
- ,
- Before:
- Bilder, R.S. Cohen, Arnold M. Stein
Defendant was indicted for second degree aggravated assault of his wife, Juanita Jenkins (
The State and defendant agree on a great many of the facts. In August 1986, defendant and his wife of six years, companions for a total of 17 years, were not getting on as well as they once did. One day after work, defendаnt stopped in a neighborhood bar and ordered a beer. His wife, seated across the bar, threw defendant a hostile question and he left. After defendant returned home, his teenage daughter became upset аnd tearful, because the wife had telephoned from the bar and said she was staying the night with her cousin Guendetta.
Defendant became angry — he says — because his wife had upset the daughter. He returned to the bar, had words with his wifе and punched her in the face, knocking her off her barstool.
The next part of the episode is very murky. At trial the wife and daughter said they heard popping or firecracker-like sounds that could havе been shots. They saw no gun. Cousin Guendetta heard noises from inside the bar, saw the wife running towards the bar, and saw the younger daughter come in and heard her say “He‘s shooting.” In earlier statements to the police, the witnesses were clearer that shots were fired. A police report had the wife describing a .25 caliber automatic, a description that seemed to mystify her at trial.
A police officer who promptly arrived to investigаte looked for but found no gun, cartridges, bullets, or bullet holes. No one ever knew defendant to own a gun or carry one. Defendant testified that the noise which sounded like shots must have been his car engine with its defective muffler backfiring in the parking lot as he prepared to drive off after hitting his wife the second time.
Over defendant‘s objection, the State‘s case included the wife‘s account of an Eastertime confrontation with defendant some three or four months before the incident in question. The wife said defendant became upset because she was selling charity breakfast tickets for a friend but refused to do so for defendant‘s fraternal organization. He punched and choked her and said he ought to kill her. Defendant was cross-examined about the incident. His was a kinder, gentler version, but he admitted there was some “wrestling.” The evidence was admitted on the thesis that it bore on defendant‘s intent on the night in question.
It is impossible to say with any assurance what the jury thought was defendant‘s unlawful purpose. The problem arises from the fact that defendant was acquitted of aggravated assault, which means that the jury probably had а reasonable doubt that defendant fired a gun at his wife. It is apparent the jury believed he was carrying a gun, but not what it thought his purpose was in doing so.
In most cases, a charge of possession with unlawful purpose is coupled with a charge of an act accomplished with the gun — a robbery, an assault, a homicide — which the court tells the jury is unlawful. Conviction of such an unlawful act supplies the factual basis for an inference of unlawful purpose in possessing the gun. State v. Daniels, 231 N.J. Super. 555, 559 (App.Div. 1989). Cf. State v. Mieles, 199 N.J. Super. 29 (App.Div.), cert. den., 101 N.J. 265 (1985). But, if the possession charge stands alone, or if acquittal of the accompanying charge erases the identification of the unlawful purpose, the court may not permit the jury to сonvict on the basis of speculation as to what possible purposes qualify as unlawful.
Here, for instance, the jury might have thought defendant‘s purpose in carrying a gun was to impress his estranged wife, or to threaten her, or to lessen the chance of physical confrontation with others, or to fire the weapon into the air to avoid attack by others. The problem is pointed up by the State‘s summation, which included:
If you feel, for whatever reason, that he possessed that gun for an unlawful purpose, be it just to show somebody and scare somebody with, wave it around, then you must find him guilty of that charge. [Emphasis supplied.]
Defendant separately argues that the possession charge should not have been submitted to the jury at all because there was no evidence that defendant intended to use thе gun unlawfully against the person of his wife. We disagree. The situation was instinct with aggressive and hostile emotions. The jury had sufficient evidence before them to convict.
Defendant next attacks the “other acts” evidence admitted under
The admissibility of
The assistant prosecutor virtually opened his summation with:
[T]his was not an isolated incident and I submit to you it‘s very likely to happen again. Except if it does, I submit to you that Mrs. Jenkins might not be so lucky. You might not get a chance to hear her testimоny next time. As I said, this was not an isolated incident.
The next 21 lines of transcript are taken by a description not of the August incident but of the Eastertime confrontation.
A few pages later, the assistant prosecutor returned tо the theme, in explaining why Mrs. Jenkins’ testimony was so much less inculpatory than her initial statement to the police:
But I submit to you, that there may be another reason and that‘s what‘s going to happen tonight or tomorrow or the nеxt day when she‘s back out on the street and maybe he‘s going to come after her again. Maybe she was just afraid to testify because she‘s afraid of what he might continue to do to her. Remember, this was not an isolated inсident.... This whole mess started before August 7, 1986, and continued on to that date and I submit to you, will continue unless you all put an end to it and unless you all watch out for the safety of Mrs. Jenkins.
The prosecutor is a representative of the people, whose interest is not to convict but to pursue justice, and whose words carry heavy weight with the jury. State v. Marks, 201 N.J. Super. 514, 534-535 (App.Div. 1985), cert. den., 102 N.J. 393 (1986). It is for that reason that excessive or inaccurate use of evidence, and improper appeals to the jury in a prosecution summation are such dangers to a fair trial. Here the assistant prosecutor took
There was no factual basis for the domestic crime wave the State conjured up. Therе was no legal justification for warning the jurors that the next incident had to be prevented or they would have it on their heads. Defense counsel made no objection to the improper arguments and the trial court did nоt intervene sua sponte. The court‘s charge as to the limited purpose of the evidence did not refer to the summation and was insufficient to cure the problem. We are satisfied that the situation presented, at the very leаst, a clear capacity to produce an unjust result as to every count of the indictment.
The judgment of conviction is reversed. The matter is remanded to the Law Division.