Opinion
DOCKET NO. A-1580-11T4
01-27-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEPHEN F. SCHARF, Defendant-Appellant.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-08-1485. Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). PER CURIAM
Hon. Carol E. Higbee participated in the panel before whom this case was argued. The opinion was not approved for filing prior to Judge Higbee's death on January 3, 2017. Pursuant to R. 2:13-2(b), "Appeals shall be decided by panels of 2 judges designated by the presiding judge of the part except when the presiding judge determines that an appeal should be determined by a panel of 3 judges." The presiding judge has determined that this appeal shall be decided by two judges. --------
The Supreme Court remanded this appeal after reinstating defendant Stephen F. Scharf's first-degree murder conviction, N.J.S.A. 2C:11-3(a)(1) and (2). State v. Scharf, 225 N.J. 547, 582 (2016). The victim was defendant's wife Jody Scharf (Scharf). The Court held that hearsay statements admitted at trial regarding Scharf's fear of defendant did not violate N.J.R.E. 803(c)(3) and (c)(4). The Court's decision was based in part on the declarant's state of mind, made relevant when "the door [was] opened . . . by defendant's advancement of accident as [] the cause of [Scharf's] death under unusual circumstances." Id. at 571-72. In our earlier opinion, we did not reach defendant's second point of claimed error by the trial court. We do so now and affirm.
The issue was framed by defendant as follows:
THE NEED FOR A JURY INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER WAS CLEARLY INDICATED FROM THE RECORD. (Not Raised Below).We describe only those facts gleaned from the trial testimony that inform our conclusion that the court did not err in failing to charge the lesser-included second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b).
I.
Life Insurance Policy
Defendant purchased a $300,000 life insurance policy and $200,000 accidental death benefit insuring Scharf's life on May 23, 1991. He was the primary beneficiary; the parties' son, Jonathan, ten years old at the time of the murder, was the contingent beneficiary. Scharf's therapist, Patricia Teague, who had been treating Scharf for depression since July 1990, testified that Scharf told her defendant obtained the insurance policy to use as security for the purchase of a condominium in which the couple could reside while divorcing.
The policy's definition of "accident" included murder, unless the named beneficiary was the killer. Although Scharf's fall from the Cliffs at the Palisades (the Cliffs) on September 20, 1992, was initially investigated as suspicious, no conclusions were reached. Initially, the death certificate listed the cause of death as "multiple fractures and injuries," and the manner of death as "pending investigation." In January 1993, the manner of death was amended to "unable to be determined."
After the life insurer received notification of Scharf's death in September 1992, claim forms were forwarded to defendant on four separate occasions. None were returned.
Because the manner of death was not established, and the beneficiary did not apply for the proceeds, the insurer paid the policy benefits, $730,154.27, into the New Jersey Department of Treasury, Unclaimed Property Unit (Unit) on April 30, 2001, in defendant's name. After deposit, the Unit contacted defendant regarding the funds. He eventually responded, and on April 24, 2003, received $770,650.83.
Scharf's Death
In August 1992, Scharf reported to Teague that defendant invited her to picnic on the Cliffs. Scharf refused and told defendant "he was crazy[.]" Scharf's divorce complaint was not served on defendant until September 8, 1992, but he had known since February that Scharf had retained counsel to represent her in the divorce.
Numerous friends and family members, including the parties' son, testified about Scharf's fear of heights. Additionally, various witnesses testified about Scharf's fear of defendant and her belief that he was going to kill her.
The son confirmed that Scharf initially declined defendant's invitation. However, he wanted to visit a friend and knew if his parents went out, they would take him to his friend's home. He "begged" Scharf to let him go, and she eventually changed her mind and agreed to spend the evening with defendant.
Shortly after 8:00 p.m. that evening, police arrived at Rockefeller Lookout at the Cliffs in response to a report that someone had fallen. Defendant approached Officer Paul Abbott of the Palisades Parkway Police and said his wife had disappeared from the cliff edge. Abbott described defendant's demeanor as calm and controlled, which he considered unusual. After other officers arrived, defendant escorted them up a trail created by hikers, which was overgrown with foliage, bushes, and branches, and portions of which were blocked by tree limbs. Aided by flashlights, they reached a flat rock at the cliff edge that was shaped like a bench seat.
When the men arrived at a cable fence running along the cliff face, Abbott asked defendant where Scharf had fallen. Defendant pointed to the bench seat at the cliff edge. The location had no view either of the George Washington Bridge or the northern Manhattan skyline, and was past a warning sign which said "[c]liff and steep slopes are dangerous . . . do not climb cliffs or slopes."
Defendant initially told police that he and Scharf were headed to dinner and a comedy club in New York City. In a Coleman cooler, defendant packed a bottle of wine, two wine cooler drinks, cheese, and a blanket for their trip. After dropping their son off at his friend's house, defendant and Scharf decided to stop at Rockefeller Lookout first, a spot defendant claimed they visited frequently. They arrived at around 7:00, and Scharf consumed some wine in the car before she ventured out. The son testified he had never heard his parents mention going to the Cliffs before that night.
Defendant told Lowell Tamayo, another officer, that he and Scharf were sitting on the rock by the cliff's edge, hugging and kissing, when he stood up intending to retrieve more wine and a blanket from his car. When he turned around, Scharf was gone.
Defendant sat in the back of the patrol car while the search began, although he would intermittently walk around the vehicle. At one point, Tamayo saw defendant mouth Scharf's name, on another occasion he knelt by the car and seemed to be praying, although he never cried.
Police and fire personnel brought in lights and rappelled down the side of the cliff. They discovered Scharf's open pocketbook, contents strewn about, approximately ten feet down the cliff side on a ledge. They eventually located Scharf's body wedged facedown between a tree and a large rock. The tree was 119.3 vertical feet from the bench seat, and 52 horizontal feet from the cliff. One of the officers found blood and human tissue six to eight feet above ground on the tree, and the blood appeared to have drained downward.
Defendant's Statements Regarding Scharf's Fall
Defendant was driven to a nearby police station after the discovery of the body. While being transported, he recited a Hail Mary prayer, and volunteered to Lieutenant Walter Siri that he and Scharf were walking along the cliff edge when she asked him to go back to the car and get the blanket, that she slipped, and he could not see her anymore.
Detective Ronald Karnick interviewed defendant, who claimed he and Scharf were going to New York City when they wound up at "their spot." They were kissing and hugging when defendant became uncomfortable and told Scharf he was going to get a blanket and wine from the car. They both stood up, Scharf said "no, don't go," and fell forward. He called out her name but received no reply. When Abbott shone a flashlight inside defendant's car, he saw an empty wine cooler bottle on the floor as well as a plastic Coleman cooler.
At Karnick's request, defendant provided a handwritten statement that reads:
[Scharf] and I were kissing and hugging on the flat rock by the trail overlooking the river about 7:30[ a]nd I was uncomfortable when I asked [Scharf] or told her I was going to get the blankets and the wine. She said
"no don't go." As I got up to get the wine and blankets, she got up and then fell forward and I didn't see her anymore. She didn't answer me.
While providing the statement, defendant asked if Scharf was alive or dead. Karnick did not know, and after defendant signed the statement, Karnick returned to the scene. Once informed that his wife's body had been found, defendant did not seem very upset.
Early the following morning, defendant consented to be photographed and to the search of his vehicle. Karnick found a red nylon bag, with a blue nylon bag inside, on the back seat of the car, the Coleman cooler, and a full bottle of wine. Inside the Coleman cooler was a wine glass, one full and one empty bottle of wine coolers, and a steak knife. Inside the blue bag was a green blanket, ace bandages, two white towels, a candle, a plastic bag with receipts, one box of wine crackers, and a small jewelry box containing a chain and gold cross. At the bottom of the bag was a claw hammer.
For some time before Scharf's death, defendant had been involved with Kathleen Scanlon. She ended the months-long relationship shortly after learning defendant was not single. The two remained in contact, however, and eventually defendant told her that Scharf was filing for divorce.
On September 21, defendant phoned Scanlon and said he had some bad news, that his wife had died. He told her that he and Scharf had gone to dinner, she had been drinking, and they decided to talk about the divorce at the Cliffs. Scanlon, unfamiliar with the spot, asked defendant about it. He responded, "well there's an area where we used to go when we used to date and she felt very comfortable." Defendant told Scanlon the location where Scharf fell had a barrier, that they had walked beyond it, and "one minute she was there and the next minute she was gone." When Scanlon pressed him for additional information, defendant became upset and ended the conversation.
On September 22, defendant met with Detective James Lynam of the Palisades Interstate Parkway Police and Detective Terrence Ulver of the Bergen County Prosecutor's Office. During this interview, defendant claimed he and Scharf were going to an 8:30 p.m. show at a comedy club in New York and planned to eat either before or after at the Plaza Diner in Fort Lee. They packed a Coleman cooler with two wine coolers, a blanket, cheese, and a bottle opener.
Defendant told the officers that he and Scharf had been to the Cliffs some thirty to forty times, and that they had "their spot" at the site. He said they last visited the location in May 1992.
When defendant and Scharf arrived at approximately 7:00 p.m., it was dusk. They remained in the parking area for about fifteen minutes and drank some wine. They then walked down a path to a fence along the cliff face, stopping several times along the way to kiss.
Defendant said that when they arrived at the bench seat, Scharf sat between his legs facing south at the cliff's edge. At some point, he stood up because he was uncomfortable from sitting on his wallet. After zipping up his pants, he told Scharf that he was going back to the car to get wine and a blanket. Scharf turned to him and said, "no, don't go," and fell to her knees. She rolled forward off the cliff, and did not scream or cry out as she fell. He was standing some two or three feet away from Scharf when this occurred. Defendant called her name about ten times, retrieved a flashlight from the car, and returned to the rock. Receiving no response, he flagged a passing motorist to ask for help.
Defendant told the officers his marriage had been "open" for the past thirteen years and that he had been with fifty to sixty other women during his relationship with Scharf. He also informed them that his wife two weeks prior had served him with divorce papers alleging abuse and infidelity. Defendant denied having been abusive except for one episode. He admitted to currently being involved with two other women, insisting he was ending his relationships with them, and that the trip to the Cliffs was a first step in an effort to reconcile with Scharf.
Asked to explain the presence of the claw hammer in the nylon bag, defendant claimed he had used it to fix a kitchen drawer and had meant to leave it in the garage. Instead, he threw it into the nylon bag with the picnic items. When the officers searched his home, they saw no sign that the kitchen drawer defendant identified as the one he had fixed had been repaired. They did not seize the drawer as evidence.
Later that day, defendant said he and Scharf left their home at about 6:00 p.m. and drove to the Cliffs, discussing their pending divorce on the way. Once they arrived, they parked and kissed before walking to the bench seat, where they continued kissing until defendant said he was uncomfortable and tried to return to the car to get a blanket and wine. Scharf asked him not to go and tried to get up. She got into a squatting position, tripped, and fell forward over the cliffs.
Defendant claimed his relationship with Scharf was improving but still distant because he was dating other women, and he believed she was seeing someone else as well. He said he had been attempting to end his relationships earlier in the month with the two women he was involved with because he hoped to reconcile his marriage.
While the police were searching his home, defendant sat with two officers, one of whom was a very religious person who tried to comfort defendant. Defendant observed, "you don't believe me." When the officer, who had not asked defendant any questions, responded "I believe an accident happened. It was an accident[,]" defendant said, "no," and put his head down. He asked to speak to a priest.
Expert Testimony
In the original autopsy report, Dr. Maryann Clayton, of the Bergen County Medical Examiner's Office, indicated she found lacerations on the scalp, including a large one that spanned the top of Scharf's head, together with skull fractures on the right side of her face. Both sides of Scharf's face had abrasions and scrapes, her right eye socket, nose, and cheek were fractured, and her eyeball was torn. Her upper chest area had a nine-inch-long and four-inch-wide laceration extending from the right armpit down and across the left breast. The skin on top of the laceration was scraped. Scharf had scrapes on her arms and legs, and bruising to her lower legs and hand. Her right shoulder was dislocated and her ribs were fractured. Scharf's back was not injured, however. Her serious head injuries were prominent on the right side, and the main chest injury was only to the right upper chest wall.
Scharf's sternum and collar bones were also fractured. The sac around her heart was torn, the chambers of the heart were lacerated, the lungs bruised, and the upper lobe of the left lung and her spleen were torn, as was the aorta, and, superficially, the liver. The skull was extensively damaged.
In August 2005, Clayton consulted with Dr. Michael Baden, a pathologist retained by the Prosecutor's Office, regarding Scharf's death. Scharf's autopsy had been Clayton's first of a death connected with the Cliffs; by 2006, she had performed autopsies on a number of Cliffs deaths. She also reinterviewed John DeSimone, a medical examiner's investigator who witnessed the removal of Scharf's body.
In 2006, in addition to her review of the autopsy records and additional interviews, Clayton for the first time walked the roadway up the rocky terrain to the tree Scharf's body had struck. The officers who located Scharf accompanied her, indicating the places on the tree where they remembered seeing blood and hair. Viewing the scene from the perspective of the location of the body, as opposed to just the upper level from which it descended, aided Clayton's understanding of the manner of death.
As a result of these renewed efforts, Clayton concluded that the injuries were not consistent with a person passively falling over the Cliffs. For Scharf to have established contact with the tree at a point six feet above the ground, some force had to propel her out and away from the rock face. The death certificate was amended to indicate the cause of death was homicide, and defendant was charged with Scharf's murder.
Baden had a lengthy career as a medical examiner for New York City and New York State, during which he had gained extensive experience in deaths caused by falls from great heights, including from mountains and cliffs. He testified that the manner of death determination depended in large part on the distance from the point of the fall, and that accidental death usually resulted in impact within three to five feet from the point of departure. Baden therefore agreed with Clayton that the cause of death was homicide.
Baden inspected the scene, including the bench seat from which defendant alleged Scharf had fallen. He climbed upward from where Scharf was found and noted the absence of a smooth area that would have allowed the body to roll down from the top to the bottom without being stopped in its trajectory by vegetation or rocks.
Baden considered the victim's injuries to be inconsistent with an accidental fall. He believed the lack of injuries on Scharf's back was consequential: if her descent had been passive, she would have many marks on her body from impact injuries with rocks and vegetation, in contrast with the series of injuries resulting from the impact with the tree.
Baden also concluded that given the distance from the cliff edge to the point of impact, Scharf would have had to strike the tree with sufficient force to cause the extensive fractures and internal injuries she suffered. She could not, in his opinion, have developed that much propulsion without being pushed, even if she had jumped.
At the trial, defendant presented two experts. The first, Steven Schorr, an engineer, based his calculations in part on laser measurements of the cliff face. He opined that in order to fall cleanly without striking any objects along the way, a person would have to leave the cliff at thirteen miles per hour. Schorr said it was impossible for an object to strike the tree "unimpeded even if a body was pushed or thrown from the cliff." Thus, the body could have landed in its final position simply because it struck unidentified trees, ledges, or rocks on the way down.
Defendant's second expert, Dr. Cyril Wecht, a pathologist, disagreed with the notion that Scharf's injuries were caused by a single strike with a tree. Based on his review, he concluded that the ledge below the cliff edge at the bench seat area likely catapulted the body outward.
Wecht believed the sliding wounds to the victim's face and legs were consistent with multiple impacts on rocks and other shrubbery on the way down. He testified that if the victim's head had struck the tree in the manner alleged by the State, as a result of a single fall from the cliff, a membrane covering the brain, the dura mater, "would have burst open[,]" and the skull would have had a depressed fracture on the top, which it did not. Wecht also opined that Scharf struck multiple rocks on the way down, and was already in the process of dying when her trajectory was interrupted by the tree. He questioned the likelihood that anyone could lift a body and hurl it out so that it landed fifty-three feet away.
Jury Instructions
Although the trial judge instructed the jury on murder, no instruction was requested or given on manslaughter. No objection was made to the jury charge.
II.
A.
Because defendant did not object to the trial court's jury instructions, we will disregard any error "unless it is of such a nature as to have been clearly capable of producing an unjust result." State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). The error must "be sufficient to raise 'a reasonable doubt . . . as to whether [it] led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361 (2002)). A finding of plain error in jury instructions "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Only where the record "clearly indicates" that a defendant could be acquitted of the greater charge and convicted of the lesser is the trial court required to instruct as to a lesser-included charge. State v. Walker, 203 N.J. 73, 86 (2010). A judge is not obligated to "sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Id. at 86-87 (citation omitted).
A lesser-included charge should be given when the evidence provides a rational basis for the jury to acquit defendant of the greater while convicting of the lesser. Funderburg, supra, 225 N.J. at 81. There must be "'obvious record support for such [a] charge,'" and "'the facts in evidence [must] clearly indicate the appropriateness of that charge.'" Ibid. (quoting State v. Powell, 84 N.J. 305, 319 (1980)); State v. Savage, 172 N.J. 374, 397 (2002). "[I]f the evidence is jumping off the page" then the lesser-included offense must be charged. State v. Denofa, 187 N.J. 24, 42 (2006).
Reckless manslaughter is a lesser-included offense of murder. Jenkins, supra, 178 N.J. at 361. It is a criminal homicide committed recklessly. N.J.S.A. 2C:11-4(b). It requires proof that a defendant has caused death, ignoring the possibility that death might result from his conduct. Jenkins, supra, 178 N.J. at 363. State v. Crisantos, 102 N.J. 265, 278 (1986).
When such a charge is not requested, however, in "the absence of evidence that the killing was anything less than knowing or purposeful, we cannot say that the trial court committed plain error by failing to charge . . . reckless manslaughter." State v. Ogelsby, 122 N.J. 522, 535 (1991).
B.
Turning to the elements of the offense, the New Jersey Supreme Court has found the factual predicates necessary for a guilty plea to reckless manslaughter were satisfied where a defendant "acknowledged that his conduct was reckless and that it was a contributing cause of [the victim's] death." State v. Campfield, 213 N.J. 218, 224 (2013). In that case, the defendant punched an intoxicated victim, forced him to remove his clothing at gunpoint, and chased him into a wooded area in severe winter weather. Id. at 223-24. The victim drowned in a creek. Id. at 224.
While pleading guilty, the defendant admitted under oath to the assault, and acknowledged it was reckless to force a naked, intoxicated man on a snowy night into an isolated area. Id. at 235-36. The Court held this was sufficient to establish reckless manslaughter, despite the fact the defendant could not have anticipated the victim's death by drowning. Id. at 236-37.
In order for the statutory elements to be satisfied, the actor must have acted recklessly, and there must be a "causal nexus between his conduct and the victim's death." Id. at 235. Although the defendant in Campfield could not have foreseen that the victim would drown, he admitted knowing "several facts that exacerbated the risk that [the victim] would die as a result of his conduct, and that those facts were relevant to both mens rea and causation." Id. at 236-37. He knew that the intoxicated victim had fallen and struck his head, and that he was injured and bleeding. Id. at 225. The defendant emptied the victim's pockets while he was unconscious, dragged him ten or fifteen yards, and when he awoke, punched him repeatedly in the face. Id. at 225-26. When the victim struggled, he threatened him with a handgun and forced him to undress. Id. at 226.
Campfield quoted the mental state necessary for criminal recklessness:
As the Code uses the term, recklessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved but the awareness is of risk that is of probability rather than certainty; the matter is contingent from the actor's point of view. Whether the risk relates to the nature of the actor's conduct or to the existence of the requisite attendant circumstances or to the result that may ensue is immaterial; the concept is the same. The Code requires, however, that the risk thus consciously disregarded by the actor be substantial and unjustifiable; even substantial risks may be created without recklessness when the actor seeks to serve a proper purpose. Accordingly, to aid the ultimate determination, the Code points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circumstances known to him in acting.In other words, the actor must have an improper purpose and the conduct must create the risk of death.
[Id. at 232-33 citing to II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:2-2, at 41-42 (1971).]
Campfield exposed the intoxicated victim to the elements after he had significantly injured him — displaying an improper purpose and a conscious disregard of a substantial and unjustifiable risk. Id. at 232. That established both his mens rea and his conduct. See also State v. Williams, 190 N.J. 114, 124 (2007) (recklessness, as defined in the statute, requires the conscious disregard of a substantial, unjustifiable risk).
In Jenkins, the victim died of injuries suffered in a fall down a staircase after defendant hit him on the head with a brick. Supra, 178 N.J. at 354. The defendant was convicted of murder and appealed arguing, among other things, that the court should have instructed the jury on manslaughter. Id. at 356-57. At trial, the defendant had objected to the jury being charged as to any included offenses. Id. at 356. A new trial was ordered because "the proper inquiry in distinguishing murder from the two degrees of manslaughter relates to defendant's state of mind as to the risk of death." Id. at 363.
Reckless manslaughter occurs when a "defendant disregard[s] only a 'possibility' of death [. . . .]" Id. at 363. Because a jury "could have rationally concluded that defendant struck the victim not knowing that serious bodily injury would result in the victim's . . . death, manslaughter, aggravating and reckless, should have been charged." Ibid.
A defendant's conduct must, however, be more than merely negligent, it must be wrongful. Campfield, supra, 213 N.J. at 232-33. The actor's purpose must be improper, in addition to the conduct carrying a possibility that the victim would die as a result. Id. at 232. The defendant must, for example, have inflicted bodily injury while disregarding the possibility of death. Jenkins, supra, 178 N.J. at 363.
In State v. Ruiz, 399 N.J. Super. 86, 98 (App. Div. 2008), a defendant was charged with killing a toddler, who died as a result of internal bleeding. We concluded a jury could find that the manner in which he hit the child did not reflect any "intention or awareness that his actions would probably cause the child's death." Id. at 98.
In State v. O'Carroll, 385 N.J. Super. 211, 232 (App. Div. 2006), a defendant strangled a victim who was wielding a knife. The jury found defendant guilty of first-degree murder; on appeal he argued that the trial judge should have instructed the jury on reckless manslaughter, although at trial he had requested the judge omit the charge. We ordered a new trial because the "jury could have found that rather than intending [the victim's] death . . . defendant consciously disregarded a known risk . . . ." Id. at 217.
C.
Unlike the cases we have cited, the defendant in this case claims he acted in a purely negligent manner, resulting in the possibility that death would flow from his conduct. His only defense was the theory of accident. He never admitted to any wrongdoing, such as striking, pushing, or strangling his wife.
Defendant now asserts that taking his intoxicated wife to sit at the edge of the Cliffs was sufficiently wrongful conduct which disregarded the possibility of death. We disagree. The conduct defendant claims he engaged in is entirely dissimilar to striking a victim on the head with a brick, severely injuring and undressing an intoxicated robbery victim in freezing weather, forcefully striking a crying baby, or strangling a victim who may have been in possession of a knife.
More is required to impose criminal liability. Defendant repeatedly told police he intended to reconcile with Scharf or that they were just going out for the evening. Thus, his alleged purpose or mental state was not wrongful. If defendant's purpose was not unlawful, even if he willfully took his wife to a dangerous place and observed her drink to excess, his conduct cannot be said to constitute reckless manslaughter. N.J.S.A. 2C:2-2(b)(3) defines reckless conduct as conduct engaged in which "considering the nature and purpose . . . and the circumstances known to [the actor], its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation."
Moreover, N.J.S.A. 2C:2-3 states:
When the offense requires that the defendant recklessly . . . cause [a] particular result, the actual result must be within the risk of
which the actor is aware . . . the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, a dependent on another's volitional act to have a just bearing on the actor's liability . . . .Even though the conduct in question raised the possibility of harm to the victim, i.e. accompanying an intoxicated person near a cliff edge, that act was too "remote," "accidental in its occurrence," and "dependent on another's volitional act."
Defendant's experts agreed that Scharf's death was accidental. Defendant argued to the jury that an intoxicated Scharf merely slipped and fell over the cliff edge. Had the jury accepted this theory, it would have acquitted defendant. That argument shifted the event to the realm of innocent mishap, one in which if anyone was responsible for the fall, it was Scharf herself. The defense theory that this was one of many accidents which have occurred at the Cliffs simply did not allow for a lesser-included reckless manslaughter instruction. Given the defense theory, and the facts developed at trial, no evidence of reckless manslaughter jumps off the page. See Denofa, supra, 187 N.J. at 42.
In sum, the jury heard two explanations for Scharf's death. The State presented circumstantial evidence that defendant took the victim to the Cliffs and intentionally pushed or threw her to her death. This evidence included his purchase of life insurance, his relationships with other women, Scharf's own statements regarding her fear of defendant, that she had filed for divorce, and his own inculpatory statements to police. Defendant's theory was that the victim, while intoxicated, accidentally slipped or lost her balance and fell over the edge. In support of the theory of accident, he presented expert testimony. Neither competing scenario established a rational basis upon which the jury could have found defendant guilty of reckless manslaughter.
In light of the overall strength of the State's substantial circumstantial evidence, we are satisfied no plain error occurred. See Chapland, supra, 187 N.J. at 289. Indeed, the failure to charge was not error at all.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION