STATE OF NEW JERSEY VS. DANIEL BEDFORD(13-03-0681, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3518-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL BEDFORD,

Defendant-Appellant.
_________________________________________________

Submitted March 28, 2017 – Decided May 26, 2017

Before Judges Messano and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 13-03-0681.

Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy
Public Defender II, of counsel and on the
brief).

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM

Defendant Daniel Bedford appeals from a judgment of

conviction and sentence. A jury found defendant guilty of

first-degree carjacking, N.J.S.A. 2C:15-2 (count one); first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), which

the jurors considered as a lesser included offense of murder,

N.J.S.A. 2C:11-3a(1) & (2) (count two); fourth-degree unlawful

possession of a knife, N.J.S.A. 2C:39-5d (count three); and,

third-degree possession of a knife for an unlawful purpose,

N.J.S.A. 2C:39-4d (count four).

At sentencing, the judge merged the convictions for

aggravated manslaughter and possession of a knife with an

unlawful purpose and sentenced defendant to concurrent terms of

imprisonment for counts one through three. The concurrent terms

are: fifteen years for carjacking; twenty-five years for

aggravated manslaughter; and one year for unlawful possession of

a weapon. The sentences for aggravated manslaughter and

carjacking include terms of parole ineligibility and supervision

required by the No Early Release Act, N.J.S.A. 2C:43-7.2. With

one exception, the judge imposed the appropriate fines,

penalties and assessments. The $50 VCCA assessments for

aggravated manslaughter and carjacking should be $100 for each

of those violent crimes, N.J.S.A. 2C:43-3.1.

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 On appeal defendant argues:

POINT I

A DEFECTIVE SELF-DEFENSE JURY CHARGE LIKELY
LED THE JURY TO INCORRECTLY BELIEVE THAT THE
DEFENSE APPLIED TO MURDER BUT NOT AGGRAVATED
MANSLAUGHTER, AND REQUIRES REVERSAL OF THE
CONVICTIONS. [NOT RAISED AT TRIAL]

POINT II

THE PITCHED CREDIBILITY BATTLE WAS UNFAIRLY
TIPPED IN FAVOR OF THE STATE BY THE COURT'S
IMPROPER INSTRUCTION ALLOWING THE JURY TO
DISCREDIT DEFENDANT BASED ON HIS AUNT'S
FAILURE TO INFORM THE POLICE OF DEFENDANT'S
SELF-DEFENSE. [NOT RAISED AT TRIAL]

POINT III

THE 25-YEAR NERA SENTENCE FOR AGGRAVATED
MANSLAUGHTER IS MANIFESTLY EXCESSIVE AND
SHOULD BE REDUCED.

Early in the morning on June 6, 2012, Kareem Montague's

body and a knife with a six inch handle and an eleven and one-

half inch blade serrated on one side, were found in the blood-

soaked back seat of his car, which defendant had abandoned on a

sidewalk in Newark. An autopsy disclosed a fatal injury and

superficial defensive wounds consistent with that knife.

Although the penetration was only two inches deep, the knife

passed through Kareem's second rib, entered his pericardial sac,

injured his anterior right ventricle and continued into his

heart's cavity. In the opinion of the retired medical examiner

3 A-3518-14T4
who reviewed the autopsy, the injuries would have caused

Kareem's death within minutes.

At trial, the State introduced physical evidence retrieved

from Kareem's car implicating defendant — his wallet, driver's

license, social security card and fingerprint. In addition, the

State presented a surveillance video of the area near the spot

Kareem's car was abandoned that showed defendant removing and

discarding a sweatshirt stained with what was subsequently

identified as Kareem's blood.

Defendant did not deny stabbing Kareem. During his

testimony, he told the jurors he stabbed him, identified the

knife and explained that he stabbed Kareem because he thought

that either he or Kareem was going to be hurt. His only defense

was self-defense, a use of force necessitated by Kareem's

production of the knife and attempt to use it to injure him.

Charlene Fields, Kareem's girlfriend, and defendant were in

the car when Kareem was stabbed. There was no testimony from

any other eyewitness to the events that preceded the discovery

of Kareem's body.

Fields, who testified for the State, and defendant,

testifying on his own behalf, gave consistent accounts of what

occurred before defendant got into Kareem's car.

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 According to Fields, at approximately 1:00 a.m. on June 6,

2012, she was driving Kareem toward his home, when he received a

cell phone call. Fields could not hear the conversation, but

Kareem told her to turn around and take him to an address in

Newark about a block off Orange Street. She found the place and

double-parked, and defendant, whom Fields had seen before with

Kareem and identified at trial, promptly approached.

Fields explained that Kareem distributed cigarettes dipped

in embalming fluid, PCP, which he carried in small bottles with

black tops. He charged $20 for each cigarette and generally

made the transactions by lowering the car window.

Defendant acknowledged making the early morning call to

Kareem and giving him his location. Awaiting Kareem's arrival,

defendant saw Fields pull-up and double-park, and he approached

the car. Defendant had seen Fields with Kareem on four or five

prior occasions. He explained that he had a problem with PCP at

that time and had been purchasing PCP-laced cigarettes from

Kareem regularly for about a year, generally making the

transaction at the window of Kareem's car.

Defendant's and Fields' recollections of what occurred

after defendant reached Kareem's car were starkly different.

According to Fields, defendant approached and told Kareem

"he was short with his money." Kareem assured defendant it was

5 A-3518-14T4
"okay" and went about preparing a PCP soaked cigarette. By the

time he dipped the cigarette, defendant, without invitation, had

jumped into the car's back seat on the driver's side. Things

quickly changed. Noticing Kareem looked scared, Fields thought

defendant had something; he started to struggle with defendant

and screamed, "What are you doing." As they tussled, Kareem

asked Fields to drive. Assuming he wanted to get away, she

complied. After about two blocks, Kareem said, "Baby, get me to

the hospital. This [expletive], he stabbed me."

As Fields drove, "Kareem['s] body fell over the back seat"

and defendant told her to "stop the [expletive] car," which she

did. Defendant reached over and took the car key, and Fields

saw a knife in his hand. Fields recalled the knife being bloody

and a lot of blood in the back seat. Although she had been in

Kareem's car many times, she had never seen the knife the State

recovered there. In fact, she could not identify that knife as

the one defendant held.

Fields recalled being in the back seat with Kareem, who was

trying to breathe and talk, and getting out of the car. When

Fields saw defendant, who was pacing outside the car and acting

crazy, point the knife at her, she ran to a nearby gas station.

Defendant drove away with Kareem in the backseat. At the gas

6 A-3518-14T4
station, Fields encountered a woman who gave her water and

called 911.

Defendant's account of the drug transaction and its

aftermath was quite different. He testified that there were

people around when Fields and Kareem arrived, and Kareem told

him to get in the car. Complying, defendant went to the

driver's side of the car because Kareem's seat was all the way

back. Inside, defendant took cash from his pocket and gave

Kareem $16, instead of the usual $20. He did that because he

did not have much money and wanted to keep "the little extra

dollars [he] had. [He] didn't think it was going to be a

problem, truthfully . . . ."

By his account, defendant misjudged Kareem's reaction. On

taking the cash, Kareem asked, "What is this only $16."

Although Kareem took the short payment, he was mad and told

defendant to "stop playing" him. Turning and cursing, Kareem

grabbed defendant with both hands, got "aggressive," and

snatched the wallet defendant had hooked to his pants' pocket.

Admitting he did not just sit there, defendant said they

struggled, punched each other and scuffled for two or three

minutes. Then, backing away, Kareem reached for something,

pulled the knife and, holding it in his right hand, lunged at

defendant.

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 Using both hands, defendant got the knife from Kareem,

swung it and stabbed him. He knew he hit Kareem with the knife,

but did not know that it was "like in his heart or anywhere that

was like - - was going to kill him." Kareem outweighed

defendant by 111 pounds, but defendant did not think that

mattered and could not or did not care to explain why he thought

that was so.

By defendant's account, Fields drove the car away from the

scene after Kareem collapsed on top of defendant in the back

seat. At that point, Fields stopped the car and jumped out.

Defendant slid from under Kareem, got out and, without saying

anything to Fields, got into the car and drove away. After

driving for about a minute, he left the car on the sidewalk and

ran. As defendant ran, he threw his blood-covered sweatshirt on

the ground and did not even know he had lost a shoe. When he

realized he still had his cell phone, defendant called his aunt,

and she picked him up. At that time, he was living with that

aunt and his grandmother.

In defendant's view, the "[o]nly thing [he] probably could

have [done] better was, you know, called the police as to - - or

let them know. I mean, my side of the story, what happened."

Defendant's aunt testified. She confirmed defendant's

early morning call for a ride, which he explained by telling her

8 A-3518-14T4
something happened and he was in trouble. Defendant's aunt

found him frantic, with blood on his T-shirt, missing a shoe and

apparently scared. Thinking someone had "jumped" him, she

suggested the hospital, but defendant told her he just wanted to

go home.

According to the aunt, a car with four people inside

stopped in front of their house two days later, and one got out

and demanded to know where defendant was. Feeling threatened,

she asked her mother to call the police, and the police

responded.

The next day, defendant's aunt photographed defendant's

injuries. For the first time that day, defendant told her about

what happened. Although she thought defendant was the victim,

she acknowledged that she did not give that information to the

police.

Having discussed the evidence pertinent to the issues

raised on appeal, we turn to consider defendant's objections to

the jury instructions.

I.

On appeal defendant contends the instruction on self-

defense was defective because it "likely led the jury to

incorrectly believe that the defense applied to murder but not

[to] aggravated manslaughter." There is no question that self-

9 A-3518-14T4
defense is a defense to murder and to the lesser-included crimes

of aggravated and reckless manslaughter. State v. Rodriguez,

195 N.J. 165, 175 (2008) (explaining that a jury should have

been told to acquit the defendant of murder, aggravated

manslaughter, and manslaughter, if it found the "State failed to

prove beyond a reasonable doubt that defendant could not have

reasonably believed in the need to use deadly force); see State

v. Gentry, 439 N.J. Super. 57, 68 (App. Div. 2015) (reversing

conviction because the jury was instructed that self-defense was

a justification for murder but not told it was a defense to

aggravated manslaughter or manslaughter).

In determining if there was error, we must consider whether

the instruction, when read as a whole, clearly conveyed the

elements of self-defense and its applicability to aggravated

manslaughter. See State v. Singleton, 211 N.J. 157, 181-82

(2012) (noting that jury charges must comprehensibly explain the

law applicable to the facts). Because defendant did not object

at trial, our review is for plain error. R. 2:10-2. Plain

error is error in a jury instruction with prejudicial impact on

substantial rights that is "'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.'" State v. Adams, 194 N.J. 186, 207 (2008)

10 A-3518-14T4
(quoting State v. Jordan, 147 N.J. 409, 422 (1997) with

citations omitted); accord State v. Camacho, 218 N.J. 533, 554

(2014).

Although murder was the only form of "criminal homicide"

charged in the indictment, N.J.S.A. 2C:11-2, the judge also

directed the jurors to consider aggravated manslaughter and

reckless manslaughter. In each instruction on the elements of

those crimes, the judge explained defendant's reliance on self-

defense. In fact, there were two references to defendant's

reliance on self-defense in the instructions on both aggravated

manslaughter and manslaughter.

After explaining what the State was required to prove in

order to establish the recklessness element of aggravated

manslaughter and manslaughter, the judge advised: "In this

case, the State alleges that [defendant] entered the car and

stabbed Kareem . . . . The Defense alleges that Kareem . . . was

stabbed as an act of self-defense after a fight ensued with the

defendant."

The second reference in the aggravated manslaughter and

manslaughter instructions followed the portions of those

instructions describing the State's duty to prove, beyond a

reasonable doubt, that Kareem's death "was not so unexpected or

unusual that it would be unjust to find the defendant guilty of

11 A-3518-14T4
aggravated manslaughter." At that point, the judge reiterated,

"In this case, the State alleges that [defendant] entered the

car and stabbed Kareem . . . . The [d]efense alleges that

Kareem . . . was stabbed as an act of self-defense after a fight

ensued with the defendant."

At the conclusion of the charge on reckless manslaughter

and following the repetitive references to self-defense, the

judge delivered the instruction on self-defense.

The first paragraph of the self-defense instruction

explained: "the indictment charges that the defendant committed

the crime of homicide. The defendant contends that if . . . the

State proves he used . . . or threatened to use force upon the

order person, that such force was justifiable - - justifiably

used for his protection." Consistent with Rodriguez, the court

concluded the self-defense instruction by directing, "If the

State does not satisfy this burden . . . and you do 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."

We have no doubt that these jurors, who had been told

multiple times that defendant was claiming self-defense as a

defense to murder and to aggravated and reckless manslaughter,

understood the defense was available to all three crimes. We

12 A-3518-14T4
are confident that the jurors understood acquittal was required

if the State failed to prove that defendant did not act in self-

defense. Defendant's arguments to the contrary has insufficient

merit to warrant any additional discussion. R. 2:11-3(e)(2).

II.

Defendant also claims error in the judge's charge on his

and his aunt's failure to call the police and report that Kareem

had attacked him. Here, he contends that the instruction

unfairly tipped the credibility battle in favor of the State.

The instruction at issue was as follows:

You heard testimony from [defendant's
aunt] and [defendant] that the defendant did
not contact law enforcement after the alleged
crime to inform them that he was a victim in
the incident. This evidence may only be used
in determining the credibility of the
defendant. [T]his testimony was allowed in
evidence for the sole purpose of affecting the
credibility of the defendant and for no other
purpose.

You are not, however, obligated to change
your opinion as to the credibility of the
defendant simply because he did not contact
the police after the incident. You may
consider such evidence, along with all the
other factors we previously discussed, in
determining the credibility of the defendant.

Defense counsel did not object at the time, and again our

review is for plain error. The question is whether, after

considering the charge as a whole, we are convinced that

13 A-3518-14T4
impropriety in the charge had a clear capacity to produce an

unjust result. Adams, supra, 194 N.J. at 207.

The instruction addresses credibility, not an element of a

crime or defense material to guilt, and it does not implicate

defendant's Federal Constitutional right to remain silent, U.S.

Const. amend. V, or the State's privilege against self-

incrimination "codified in both statute and an evidence rule."

State v. Muhammad, 182 N.J. 551, 567 (2005) (referencing

N.J.S.A. 2A:84A-19 and N.J.R.E. 503).

On the evidence in this case, the court properly permitted

the prosecutor to impeach defendant's testimony on self-defense

by questioning him about his failure to report Kareem's attack.

State v. Brown, 190 N.J. 144, 158-59 (2007). Defendant

recognized this himself when he told the jurors that the thing

he could have done better was to go to the police and tell his

side of the story. The evidence established "objective

circumstances" demonstrating that a "reasonable person" in

defendant's "situation" would have gone to police. Ibid. The

question is admittedly closer with respect to impeachment of

defendant's aunt, who had no personal knowledge of the events

and could only report what defendant had told her.

The instruction defendant finds objectionable was a

limiting instruction. It explained that the evidence was

14 A-3518-14T4
admitted for the jurors' consideration in assessing credibility

and directed the jurors not to use that evidence for any other

purpose.

Even if we were to conclude the judge should not have

linked the credibility of defendant and his aunt in this

instruction, we would not have any doubt that the reference to

the aunt's recalcitrance could not have had any impact on this

verdict. We are certain that the instruction did not, as

defendant argues, have the clear capacity to unfairly tip the

credibility battle in the State's favor.

III.

Defendant argues that his aggregate twenty-five year

sentence is excessive. As noted at the outset of this opinion,

the judge merged defendant's convictions for aggravated

manslaughter and possession of a knife with an unlawful purpose

and sentenced him to concurrent terms of imprisonment for first-

degree carjacking, first-degree aggravated manslaughter, and

fourth-degree unlawful possession of a knife.

The Legislature has provided a sentencing range for

aggravated manslaughter and carjacking that is greater than the

ordinary range for crimes of the first degree, which is ten to

twenty years, N.J.S.A. 2C:43-6(a)(1). For these first-degree

crimes, the range is ten to thirty years. N.J.S.A. 2C:11-4(c);

15 A-3518-14T4
N.J.S.A. 2C:15-2(b). In addition, both crimes are subject to

terms of parole ineligibility and supervision required by the No

Early Release Act, N.J.S.A. 2C:43-7.2(d)(2),(10).

After hearing counsel's argument and statements from

members of the victim's family, his children's mother and

defendant, the judge made these findings and provides the

reasons:

Mr. Bedford I have reviewed your pre-
sentence report. I note that you are 23 years
old. You attended Clifford Scott until the
ninth grade and then subsequently received
your GED and you did a semester at Essex County
College.

You have 18 adult arrests, 5 juvenile
adjudications, 5 adult arrests. I sat through
this trial and to say the circumstances that
occurred was anything less than a tragedy, a
tragedy for everyone. Obviously a tragedy for
the victim, obviously a tragedy for the
victim's family, obviously a tragedy for the
defendant and his family. There's been
nothing but a lot of losses here.

[Interjection omitted.]

There's been nothing but a lot of losses
here. However, I note the age of 23 and
unfortunately what one does at one age is not
what somebody would do at another age. And
life is about redemption and life is about
having a grain of hope somewhere. It is a
tragedy that this happened.

[The judge's listing of correspondence
received is omitted.]

16 A-3518-14T4
 And I understand that the only two people
that really understand - - know what went on
were the two people that were involved in this
incident. One cannot speak for themselves.
We are bound by a jury’s verdict that has ruled
on this matter and heard the case in front -
- in front of them.

I find that there are no mitigating
factors. I find the following aggravating
factors. There is a risk that the defendant
may commit another offense. The extent of the
defendant’s prior juvenile and criminal record
and the seriousness of those offenses for
which he had been previously convicted. And
the need to deter he and others from violating
the law.

In State v. Fuentes, 217 N.J. 57, 74 (2014), the Court

explained:

A careful statement of reasons . . .
facilitates appellate review. The trial
court's explanation of its reasoning "is
important for meaningful appellate review of
any criminal sentence challenged for
excessiveness," because the appellate court
"is expected to assess the aggravating and
mitigating factors to determine whether they
'were based upon competent credible evidence
in the record.'" [State v. Bieniek, 200 N.J.
601, 608 (2010)(quoting [State v. Roth, 95
N.J. 334, 364 (1984)]. A clear and detailed
statement of reasons is thus a crucial
component of the process conducted by the
sentencing court, and a prerequisite to
effective appellate review.

We note the defendant was twenty years old when he

committed these crimes, and we understand he had prior

adjudications for delinquency, including one disposition that

17 A-3518-14T4
provided for eighteen months at the Jamesburg Training School.

We also recognize that defendant was arrested several times

after he committed these crimes and before he was sentenced.

Apart from the fact that the jurors rejected defendant's

claim of self-defense, we are unable to determine why the judge

found no mitigating factors or determined that the three

aggravating factors she identified, N.J.S.A. 2C:44-1(a)(3), (6),

(9), qualitatively analyzed, warranted a sentence so near the

top of the ten to thirty range. See Fuentes, supra, 217 N.J. at

70-81.

In short, the judge's statement is inadequate to permit

effective appellate review. Accordingly, we remand for further

explanation in accordance with Fuentes and the cases discussed

in that opinion. On remand, the judge also must correct the $50

VCCA assessments for aggravated manslaughter and carjacking,

which should be $100 for each of those violent crimes, N.J.S.A.

2C:43-3.1.

Affirmed in part and remanded for resentencing.

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