STATE OF NEW JERSEY VS. JAMES A. STUART (13-09-0949, GLOUCESTER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 p osted 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-1627-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES A. STUART,
Defendant-Appellant.
__________________________
Submitted January 28, 2020 – Decided March 2, 2020
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 13-09-
0949.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Dana R. Anton, Senior
Assistant Prosecutor, on the brief).
PER CURIAM
David Compton was shot in the head while at the home of defendant James
Stuart. Compton later died from the gunshot wounds. Defendant has never
disputed that he shot Compton. The issue is whether the shooting was
intentional, reckless, or a tragic accident.
Defendant has been tried twice for the shooting of Compton. Following
his first conviction for murder and aggravated manslaughter, we reversed and
remanded for a new trial because of errors in the jury charge. State v. Stuart,
No. A-3262-15 (App. Div. Aug. 3, 2017).
A second jury convicted defendant of second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included offense of first-
degree murder, N.J.S.A. 2C:11-3(a)(2). Defendant was sentenced to seven years
in prison with periods of parole ineligibility and parole supervision following
his release from prison, as prescribed by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
Defendant now appeals his second conviction, contending there were
errors at his second trial that warranted a reversal of his conviction and the
sentence was excessive. We affirm his conviction. We remand for resentencing
so that the court can rebalance the aggravating and mitigating factors without
considering aggravating factor one. We also remand so the court can consider
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whether defendant should be disqualified from all future state employment in
addition to his forfeiture of past state employment.
I.
We derive the facts from the testimony and evidence presented at the
second trial. In 2013, defendant was a Deptford Township police officer.
On January 4, 2013, defendant, while off duty, went out to a bar with a
group of friends. Compton was one of those friends. Defendant and his friends
drank various alcoholic beverages together for several hours. Compton and
defendant then went to defendant's home where they continued to drink and
watched a movie. While watching the movie, defendant removed a Glock 27
handgun from his ankle holster. As a police officer, defendant was required to
carry a gun, even when off duty except when doing so would be impracticable.
The Glock 27 was defendant's department-approved off-duty handgun.
According to defendant, Compton asked to see the gun. Defendant
testified at trial that he made the weapon safe by removing the magazine and
placing the round that had been in the chamber on a table. Defendant next dry
fired the gun and then allowed Compton to handle the weapon. Defendant also
retrieved two other guns – his service weapon, a Glock 22, and a revolver – from
a gun safe and showed those weapons to Compton.
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According to defendant, he thereafter fell asleep while watching the
movie. Sometime later, defendant claims he woke up suddenly when he was
startled by a loud scene in the movie. Defendant picked up the Glock 27
intending, according to defendant, to dry fire it at the movie screen. Compton,
however, was shot in the head.
At approximately 5 a.m. on January 5, 2013, defendant called an
emergency dispatcher at the Gloucester County Communication Center and
reported that Compton had been shot. Several Deptford police officers
responded to defendant's home. They found Compton slumped over on the
couch, still alive, but with a bullet hole in his cheek. Two responding officers
testified that defendant appeared to be in a state of shock and that he was taken
to the backyard.
The officer who accompanied defendant to the backyard testified that
defendant was walking and talking slowly, smelled of alcohol, and appeared to
be intoxicated. That officer also testified that he heard defendant call his union
representative and leave him a message.
Compton was transported to a hospital. A trauma surgeon who treated
Compton testified that the gunshot fractured Compton's first cervical vertebra
and injured one of the arteries that provided blood to Compton's brain. The
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surgeon also testified that those injuries caused severe neurological damage and
Compton never regained consciousness. Compton's family removed him from
life support, and he died.
After Compton was taken to the hospital, defendant was transported to the
police station. The officer who drove defendant to the police station testified
that defendant fell asleep on the ride. At the station, defendant was interviewed
by a detective from the prosecutor's office. Defendant told that detective that
Compton had not shot himself; instead, Compton was shot when defendant and
Compton were dry firing the guns and one of them went off. Defendant also
told the detective that he panicked after the shooting and put all the guns in his
safe before emergency medical help arrived.
Several law enforcement personnel who dealt with defendant after the
shooting testified that he appeared to be under the influence of alcohol.
Defendant consented to provide blood and urine samples and testing revealed
that defendant's blood alcohol level was approximately .14 percent.
At defendant's home, the police recovered a spent .40 caliber shell casing
and a live .40 caliber bullet under a table near the couch. In defendant's
bedroom, police found the Glock 27 on the top of a bureau and the two handguns
in a safe in the bedroom closet. The Glock 27 had its magazine in the gun and
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the magazine contained nine .40 caliber bullets. At trial, an officer explained
that the Glock 27 had an extended clip that could hold ten bullets, with an
additional bullet in the chamber. The Glock 22 was found with the magazine
outside the gun and one bullet in the chamber of the gun. Both the Glock 22 and
Glock 27 fire a .40 caliber bullet. The second handgun in defendant's gun safe
was an unloaded .38 caliber revolver.
At defendant's second trial, which was conducted in August 2018, thirty-
one witnesses testified including several experts and defendant. One of the
state's experts was a ballistic expert. He examined the Glock 27 and found that
it was in working order. He opined that the recovered shell casing had been
fired from the Glock 27. He also testified that the bullet recovered from
Compton during the autopsy was too damaged to match it to a particular gun.
The state also called a Deptford police captain who supervised firearms
instruction for the police department. 1 The captain described the police
department's gun training and safety policies. In that regard, he explained that
officers were only allowed to point a weapon at a person when performing a
law-enforcement function. The captain also testified that it would be an illegal
1
At the time of the incident in 2013, the captain was a lieutenant in the Deptford
Township Police Department's special services division.
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aggravated assault to point a weapon at someone when not exercising a law-
enforcement function. The captain also explained that the Glock 27 was
defendant's registered off-duty weapon.
During his testimony at trial, defendant contended that the shooting was
an accident because he believed the Glock 27 was unloaded and he did not point
the weapon at Compton. Defendant also testified that one of the responding
police officers told him to call his union representative and that it was his
understanding that his union representative would hire an attorney for him.
On cross-examination, the prosecutor asked defendant if he was "aware
that it's illegal to point a firearm at or in the direction of any person, whether
you think it's loaded or unloaded." Without objection, defendant responded that
he understood that it was a crime to knowingly point a gun at another person.
In her summation, the assistant prosecutor made arguments about the call
to the union representative and the criminal nature of pointing a firearm at
someone. The assistant prosecutor argued that when defendant called his union
representative, he was not acting like a person in a state of panic; rather, he was
acting out of his own "self-preservation." In that regard, the assistant prosecutor
argued:
So defendant is outside, guzzling water, trying to
sober up, trying to wash gun residue off his hands. Who
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knows? But he's outside. No other suspect would have
been able to guzzle water. And before David Compton
is even taken out of the house for treatment, he is on the
phone to his union representative. Again, self-
preservation. And he falls asleep on the way to the
police station.
What does that tell you? What do those facts tell
you about his state of mind? He wants you to believe
that he was in a panic over what happened. I don't know
that that – those are the actions of someone in a panic
over what happened.
With regard to pointing a gun at another person, the assistant prosecutor
contended that such an act was a crime and that crime was part of a link in a
chain of events showing defendant's reckless indifference. Specifically, the
assistant prosecutor in her closing contended:
Even if everything defendant said to you is true - which
the State submits to you that it's not - but even if what
he said is true, it's still aggravated manslaughter, it's
still is aggravated manslaughter.
Think of it as a chain, and each of the following
things I am going to tell you is a link in that chain . . . .
....
Link number four: He pointed the gun in the
direction of another. There is some dispute – and we'll
talk about it – as to whether or not he pointed the gun
at [Compton], or if he pointed it at his T.V. The State
submits that he pointed it at [Compton]. Defendant
tells you he pointed it at his T.V. This is a very small
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room. The T.V. is not far from [Compton] at all, and
you'll see it in the picture.
The statute – there is a statute that says pointing
a firearm at or in the direction of another human,
whether or not you think it's loaded or unloaded – you
can even think it's unloaded – it's a crime to do that.
That's a crime. And you heard [the Captain] say that
you never point a gun at something you don't intend to
destroy. This is his supervisor, his instructor. He's
heard this may times before.
Defendant did not object to the state's closing arguments. Instead, the
defense contended that the shooting was an accident. In that regard, defense
counsel suggested that Compton may have loaded the Glock 27 while defendant
was sleeping.
After hearing all of the evidence, including the testimony of defendant,
the jury in the second trial found defendant not guilty of murder and aggravated
manslaughter, but convicted him of the lesser-included offense of second-degree
reckless manslaughter.
II.
On this appeal, defendant presents four arguments for our consideration,
which he articulates as follows:
POINT I – THE TRIAL COURT ERRONEOUSLY
ALLOWED THE STATE TO INTRODUCE
TESTIMONY THAT DEFENDANT CONTACTED
HIS POLICE UNION REPRESENTATIVE, FROM
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WHICH THE STATE IMPERMISSIBLY URGED
THE JURY TO DRAW A NEGATIVE INFERENCE.
POINT II – DEFENDANT WAS DENIED DUE
PROCESS AND A FAIR TRIAL BY
INTRODUCTION OF EVIDENCE THAT HE
COMMITTED THE UNCHARGED CRIME OF
POINTING A FIREARM, WHICH WAS COMBINED
WITH ARGUMENT THAT THE JURY COULD
CONSIDER THIS CRIME AS PROOF THAT HE
HAD THE REQUISITE MENS REA FOR
MANSLAUGHTER.
POINT III – THE ORDER REQUIRING
DEFENDANT TO FORFEIT ALL PUBLIC
EMPLOYMENT SHOULD BE VACATED BECAUSE
THE DISQUALIFYING OFFENSE DID NOT
INVOLVE OR TOUCH HIS EMPLOYMENT.
POINT IV – THE SENTENCE IS EXCESSIVE
BECAUSE IT WAS NOT BASED ON A PROPER
FINDING AND WEIGHING OF AGGRAVATING
AND MITIGATING FACTORS.
A. Testimony Regarding the Call to the Union Representative
During the state's case, a police officer testified that he overheard
defendant call his union representative while defendant was in the backyard and
other officers were inside the home attending to Compton. In her closing, the
assistant prosecutor argued that defendant's call revealed his state of mind and
showed that he was not panicking or in shock but was acting for his own "self-
preservation." When defendant testified on direct examination, he explained
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that he understood that his union representative would hire a lawyer on his
behalf.
Defendant now argues that allowing the testimony concerning his call to
his union representative violated his Fifth Amendment right against self-
incrimination because it related to hiring an attorney. In that regard, defendant
contends that "any reasonably-informed juror" would understand "that legal
representation for a police officer is obtained through that officer's membership
in the [Policemen's Benevolent Association] union." Defendant also asserts that
the error was compounded when the trial court failed to give a limiting
instruction.
It is improper for the state to elicit testimony about, or comment on, a
defendant's request for an attorney to infer that defendant is guilty. State v.
Marshall, 123 N.J. 1, 124 (1991); United States v. Williams, 556 F.2d 65, 66
(D.C. Cir. 1977). Accordingly, "[courts] should endeavor to excise any
reference to a criminal defendant's invocation of his right to counsel." State v.
Feaster, 156 N.J. 1, 75 (1998). When such references do not relate to the alleged
crime and are permitted only to explain why questioning ended, a trial court has
discretion to allow the testimony. Id. at 76. Nevertheless, in exercising that
discretion, the court should give a limiting instruction explaining that
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defendant's invocation of his right to counsel may not be used to infer guilt.
Ibid.
The state did not violate defendant's Fifth or Sixth Amendment rights.
The testimony elicited by the state only referred to defendant calling his union
representative. There was no reference to defendant seeking legal counsel or to
hire an attorney. Instead, the state sought the testimony to show defendant's
state of mind; that is, he was not in shock or panicking, but was thinking about
how he should proceed. We reject defendant's unsupported contention that the
jury knew that the union representative would hire an attorney for defendant.
There was no support for such an inference in the limited testimony elicited from
the police officer who overheard defendant making the call to his union
representative.2
The testimony about the union representative hiring an attorney came
from defendant on his direct examination by his own counsel. Accordingly,
defendant cannot seek reversal of the jury verdict on evidence he introduced.
See State v. Munafo, 222 N.J. 480, 487 (2015) (citing State v. A.R., 213 N.J.
542, 561 (2013)). Moreover, defendant did not ask for a limiting instruction
2
The testimony also fell within an exception to the hearsay rule since it was
offered against defendant, a party opponent. See Griffin v. City of E. Orange,
225 N.J. 400, 419 (2016); N.J.R.E. 803(b)(1).
A-1627-18T4
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concerning his testimony and, therefore, we discern no reversible error or plain
error. See State v. Anthony, 237 N.J. 213, 238 (2019); R. 2:10-2.
Finally, we note that the reference to the call to the union representative
was relatively limited and was not a substantial part of the evidence presented
or arguments made at defendant's second trial. Instead, defendant's credibility
and state of mind were the central issues at trial. The trial record does not reflect
that the testimony about defendant calling his union representative was "clearly
capable of producing an unjust result." R. 2:10-2.
B. The Evidence that Defendant Pointed the Gun at Compton
Defendant argues that the state introduced testimony that pointing a
firearm at another person constituted the crime of aggravated assault. Defendant
then argues that he was denied a fair trial because in its closing, the state argued
that defendant committed that crime, which formed a "link in the chain" showing
he acted with reckless indifference. In making that argument, defendant
contends that the jury was never instructed on the elements of aggravated assault
and there was a prejudicial "blurring of legal principles" that denied defendant
due process.
Defendant did not object to the testimony about pointing a firearm at
another person. Nor did defendant object to the state's arguments during its
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closing. Furthermore, defendant did not request a jury charge on aggravated
assault. Consequently, we review these issues for plain error. R. 2:10-2; State
v. Funderburg, 225 N.J. 66, 79 (2016); State v. Camacho, 218 N.J. 533, 554
(2014).
In reviewing any claim of error relating to a jury charge, "[t]he charge
must be read as a whole in determining whether there was any error." State v.
Torres, 183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422
(1997)). In addition, "[t]he error must be considered in light of the entire charge
and must be evaluated in light 'of the overall strength of the State's case.'" State
v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289
(2006)). Furthermore, counsel's failure to object to jury instructions "gives rise
to a presumption that he did not view [the charge] as prejudicial to his client's
case." State v. McGraw, 129 N.J. 68, 80 (1992).
The trial court correctly charged the jury on the elements of murder,
aggravated manslaughter, and reckless manslaughter as a lesser-included
offense. Accordingly, we discern no error in the jury instructions.
Moreover, we discern no reversible error in the arguments made in the
state's closing. Read in full context, the state was not asking the jury to find
defendant guilty merely because he pointed a firearm. Instead, the state
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contended that defendant acted with knowing recklessness in pointing a firearm
at Compton. Indeed, in making that argument, the state acknowledged that
defendant contended he did not point the firearm at Compton; rather, he pointed
the firearm at the screen on which the movie was playing. When considered in
full context, the state did not cross the boundary between a fair argument and
prosecutorial misconduct. See State v. R.B., 183 N.J. 308, 330 (2005); State v.
McGuire, 419 N.J. Super. 88, 139 (App. Div. 2011).
C. Forfeiture of Public Employment
The Legislature has mandated that persons convicted of certain crimes
must forfeit public employment. N.J.S.A. 2C:51-2(a). Specifically, that statute
provides that any person holding public employment shall forfeit that position
if the person is (a) convicted of an offense involving dishonesty, (b) convicted
of a crime of the third-degree or higher, (c) convicted of an offense involving or
touching the public employment, or (d) the "Constitution so provides." Ibid.
The forfeiture statute also mandates that if a person is convicted of an
offense involving or touching his public employment that person "shall be
forever disqualified" from holding any public office or position in New J ersey
or a political subdivision of the State. N.J.S.A. 2C:51-2(d). In that regard,
subsection (d) of the forfeiture statute states:
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In addition to the punishment prescribed for the
offense, and the forfeiture set forth in subsection [(a)]
of N.J.S.A. 2C:51-2, any person convicted of an offense
involving or touching his public office, position or
employment shall be forever disqualified from holding
any office or position of honor, trust or profit under this
State or any of its administrative or political
subdivisions. As used in this subsection "involving or
touching on his public office, position or employment"
means that the offense was related directly to the
person's performance in, or circumstances flowing
from, the specific public office, position or employment
held by the person.
In defendant's judgment of conviction, the trial court ordered: "Defendant
is to forfeit all public employment." Defendant contends that that ruling was
erroneous because his conviction did not involve or touch his publ ic
employment. We reject that argument as inconsistent with the plain language
of N.J.S.A. 2C:51-2(a)(1). Defendant was convicted of a second-degree offense
and under subsection (a)(1) his conviction was higher than a third-degree and,
therefore, he had to forfeit his public employment as a Deptford police officer.
In making his argument, defendant focused on N.J.S.A. 2C:51-2(a)(2), which
requires forfeiture if his conviction involved or touched on his public
employment as a police officer.
We are constrained, however, to remand for clarification whether the
order covers future employment under N.J.S.A. 2C:51-2(d). The order entered,
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which is part of the judgment of conviction, is not clear on whether defendant is
disqualified from future public employment within this State. Moreover, the
court made no findings concerning whether his conviction involved or touched
on his public employment. 3
Forfeiture of public employment is a collateral consequence.
Accordingly, the lack of clarification in the trial court's judgment of conviction,
does not preclude a remand for further proceedings and clarification of this
issue. See State v. Ercolano, 335 N.J. Super. 236, 243 (App. Div. 2000)
(explaining that forfeiture of a public office is a collateral consequenc e of a
sentence and can be imposed after sentencing); State v. Horton, 331 N.J. Super.
92, 98-99 (App. Div. 2000) (same). Indeed, the forfeiture statute itself allows
for an application to enter an order of forfeiture when the court inadvertently
fails to order forfeiture at the time of conviction or sentencing. N.J.S.A. 2C:51-
2(g). Accordingly, we remand the issue of whether defendant should be required
to be disqualified from future public employment to the trial court.
3
We note that at sentencing the assistant prosecutor stated that she would
submit a forfeiture order to the court. We were not provided with such a separate
order as part of the record on this appeal. Instead, as previously noted, the only
forfeiture order in the record is contained in the judgment of conviction.
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D. The Sentence
We review sentencing determinations under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606
(2013)). We will not substitute our judgment for the judgment of the sentencing
court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180
(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we
will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
original) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)).]
Defendant was sentenced to seven years in prison subject to NERA. That
sentence fell within the mid-range of a conviction for a second-degree crime.
N.J.S.A. 2C:43-6(2) (setting forth a range of five to ten years of imprisonment
for a second-degree conviction). Because defendant was convicted of
manslaughter, his sentence was subject to NERA. N.J.S.A. 2C:43-7.2(d)(2).
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Defendant contends that the sentencing court erred in finding and
balancing the applicable aggravating and mitigating factors and the court did not
consider the real time consequences of a NERA sentence. The sentencing court
found aggravating factors one, the nature and circumstance of the offense and
the role of the actor therein, including whether or not it was committed in an
especially heinous, cruel, or depraved manner (N.J.S.A. 2C:44-1(a)(1)); factor
three, the risk of re-offense (N.J.S.A. 2C:44-1(a)(3)); and factor nine, the need
for deterrence (N.J.S.A. 2C:44-1(a)(9)). The sentencing court also found
mitigating factors two, defendant did not contemplate that his conduct would
cause or threaten serious harm (N.J.S.A. 2C:44-1(b)(2)); factor four, there were
substantial grounds tending to excuse or justify defendant's conduct (N.J.S.A.
2C44-1(b)(4)); and factor seven, defendant had no prior criminal record
(N.J.S.A. 2C:44-1(b)(7)).
Having reviewed the sentencing record, we find no error in the court's
determinations of the aggravating and mitigating factors except for aggravating
factor one. All the other aggravating and mitigating factors are supported by
facts in the record and the applicable law. Moreover, the sentencing court
appropriately considered but rejected defendant's argument for the application
of additional mitigating factors.
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The sentencing court erred, however, in finding aggravating factor one.
Aggravating factor one calls on the court to consider the nature and
circumstances of the offense and the role of the actor in committing that offense,
including whether or not it was committed in an especially heinous, cruel or
deprived manner. In finding that factor, the sentencing court focused on
defendant's actions after the shooting by not calling 911 and, instead, calling
another number, and in not attending to the injured victim. There was no
evidence presented at trial that any immediate medical attention to Compton
would have increased his chances of survival. More to the point, defendant was
convicted of reckless manslaughter, which focuses on the act causing the death;
here, that would be the shooting. Defendant's conduct following the shooting
does not go to any of the elements that constituted the crime for which he was
convicted. Accordingly, it was an error to apply aggravating factor one in
sentencing defendant.
Consequently, we remand for a resentencing. In doing so, we note that
we find nothing shocking about a seven-year sentence imposed for the
conviction of second-degree reckless manslaughter. Nevertheless, the court will
need to rebalance the remaining aggravating factors against the mitigating
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factors it found and determine whether it will impose the same or a different
sentence.
In summary, we affirm defendant's conviction. We remand for two
limited purposes: (1) consideration of whether an order should be entered
barring defendant from future public employment; and (2) a rebalancing of the
aggravating and mitigating factors without consideration of aggravating factor
one and imposition of a new sentence.
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
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