Opinion
DOCKET NO. A-3902-12T2
06-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. A.E.H., Defendant-Appellant.
Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Glimis, of counsel and on the brief). Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-02-0186. Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Glimis, of counsel and on the brief). Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant A.E.H. was convicted of disorderly persons simple assault, N.J.S.A. 2C:12-1(a), a lesser-included offense of the original charge of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one). The jury also found her guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). On January 25, 2013, the trial judge sentenced defendant to three years' probation and 364 days' county jail time.
We now reverse, concluding that the judge improperly granted the State's motion to bar testimony regarding the parties' prior domestic violence history. Such evidence was admissible, pursuant to State v. Jenewicz, 193 N.J. 440, 463-64 (2008) and N.J.R.E. 404(b), to establish the reasonableness of defendant's belief, at the time she stabbed the victim, that he posed a threat sufficient to legally justify her conduct. We limit our discussion to this pivotal issue, vacating defendant's conviction and remanding the matter for a new trial.
I
Immediately before the trial commenced, the State filed a motion seeking to bar defendant from testifying regarding her allegations that the victim had previously assaulted her. The basis for the State's application was that defendant had given four inconsistent versions of the events leading to the stabbing, had in fact been the only one against whom domestic violence charges had been filed, and that permitting such testimony would result in a trial within a trial that would unduly consume the court's time.
The motion also sought to bar any testimony regarding the victim's alleged alcohol and drug abuse, which order the judge granted. That is not challenged on appeal.
In response, trial counsel argued, pursuant to Jenewicz, that defendant's testimony describing the victim's allegedly violent prior conduct was relevant and necessary to establish the defense of self-defense, which required proof of defendant's state of mind. With regard to defendant's alleged lack of credibility, counsel asserted that it was not dispositive on whether her testimony—establishing her state of mind—was admissible. As counsel put it, the question of defendant's credibility related only to the weight the jury might give her testimony, and would supply the State with fertile ground for cross-examination. It otherwise should have had no impact on admissibility.
After hearing oral argument, the court stated:
With respect to . . . barring testimony regarding the alleged aggressiveness, the [c]ourt looks at this under [N. J.R.E.] 404(b) and 405. This [c]ourt does not believe that the rules allow for specific instances of conduct, and there has been no showing here, at least from the statements as I see them, of any aggressiveness on behalf of the victim in this case. What it appears to the [c]ourt is that there are incidents of prior disputes, verbal arguments, things of that nature, but
there's no evidence here of any type of aggressiveness on behalf of the victim. And what the [c]ourt is concerned about is turning this trial on these charges into a trial about [the victim]. I don't think that's appropriate. I'm going to grant that part of the application to bar the testimony of the alleged aggressiveness on behalf of the victim.
. . . .
I think if I allow [this issue] to come in, it could lead to confusion on behalf of the jury under [N.J.R.E.] 403[.]
After opening statements, the court conducted a further N.J.R.E. 104 hearing out of the presence of the jury at the request of trial counsel. During that hearing, defendant testified as to her troubled relationship with the victim, which commenced in August 2008. She said that in 2009, when she was six months pregnant, the victim pushed her down a flight of stairs. On a second occasion, shortly after she had given birth to their child in December of that year, she claimed she and the victim argued because she did not want him to drive, and he pushed her into their car. She immediately called police and reported the matter. Although asked if she wanted to file a restraining order, she declined.
Defendant said that there were many more occasions when the victim assaulted her and she did not call police. On March 12, 2010, for example, she recalled threatening to obtain a restraining order because the victim had slapped her the night before and they continued to argue the following day. On May 18, 2010, the victim slapped defendant with such force that she tripped over the baby's high chair and fell on her back. When she attempted to get up, he sat on her and held her arms down. Defendant called the police, but she was arrested, not the victim. On July 21, 2010, following another argument, defendant put the victim's clothes out on the porch. He grabbed her and shoved her into a wall, and on this occasion he called the police.
On September 23, 2010, defendant and the victim again argued, and the victim again contacted the police. When they arrived, defendant was not home and she later learned that the victim told them that she threw hot water at him and hit him with a hammer. Later in 2010, after the victim threw a box cutter at her, she picked up their child and just left the apartment. Defendant did not report the incident.
The State thoroughly cross-examined defendant. She acknowledged that there were no photographs or medical records corroborating any injuries. She was the only partner ever arrested, despite the number of calls, on any occasion.
After the hearing, the court denied defendant's application. The judge ruled that there was "nothing that was . . . said on the record in this case that would make the [c]ourt change its opinion about its previous ruling."
During her trial testimony, defendant said that the September 29, 2010 incident began at approximately 5:00 a.m., when the victim awakened late for work. He and defendant began to argue and their baby began to cry. Defendant asked the victim to calm the baby, as she wanted to wash her bottles and prepare her breakfast.
The argument progressed, however, and the victim smacked defendant with such force that she fell into a wall and hurriedly put the baby down as she feared the child would be hurt as well. Defendant then said to the victim,
How could you hit me again? How could you put your hands on me, because from our conversations we thought that that was the past, and we were trying to move forward with it. So I was telling him -- and now it's into an argument and I'm telling him, you know, I can't believe you put your hands on me again and how dare you and --At this point, the State objected and, at sidebar, moved for a mistrial, arguing that defendant's testimony had violated the in limine order barring her from testifying about prior acts of domestic violence. The judge denied the application since he interpreted defendant's statement as meaning only that the victim struck defendant during that morning's confrontation.
Defendant continued and said that when the fight moved into the living room, the victim grabbed her and pushed her face-down into the couch. When she attempted to reach for the phone, the victim knocked it from her hand. She tried to get up, but he threw her down again and began choking her. As her vision began to blur, defendant repeatedly asked to be let up, and the victim finally released her. When she got up from the sofa, she grabbed the baby, ran into the bedroom, and locked the door.
Defendant waited a few minutes and, assuming the victim had left for work, returned to the kitchen and began cutting fruit for the baby's breakfast. The victim re-entered the kitchen, grabbed her from behind, and put his forearm around her neck. Defendant was startled and jumped back, breaking his hold. She told him to back up because she had a knife, but he came towards her a second time, and she stabbed him to prevent being choked again. Defendant claimed she intended only to defend herself, not to hurt the victim. Defendant told the dispatcher, when she called 9-1-1, that the victim had accidentally stabbed himself.
On cross-examination, defendant was extensively questioned about the discrepancies between the tape of her 9-1-1 call, the statement she later made to police, and her trial testimony. She insisted that she reported that the victim accidentally stabbed himself because she was afraid of him. The tape of her statement was played for the jury.
The victim's account of the incident differed sharply from defendant's. He testified that he awakened that morning late for work, and while getting dressed, he unintentionally woke the baby. He and defendant then argued in the hallway, and she began to punch him as he pushed past her. He responded by pushing her away and grabbing her arms to attempt to restrain her. The victim said he pushed her shirt up to her neckline in an effort to get her to stop. The two struggled into the living room and fell onto the couch, where he held her down by her shirt and her arms. He pushed defendant down by the neck a couple of times in the process of trying to stop her from hitting him.
When defendant asked him to let her go so she could take care of the baby, the victim complied. She began to cut fruit in the kitchen in preparation to feed the baby, but they continued to argue. As the victim walked by defendant, he saw that she had a knife behind her back and he told her to be careful, but denied grabbing her. Defendant moved the knife to her right hand, approached him, said something to the effect of "you put your hands on me, I'm going to put my hands on you," and then struck him a backhanded blow with the knife. Realizing he had been injured, the victim ran into the bathroom and locked the door while defendant called 9-1-1.
The trial judge gave the model charge on self-defense. Counsel requested that the jury not be charged on the lesser-included offenses of aggravated assault because it might generate confusion; the court overruled the objection. The jury deliberated for approximately four hours over two days. They requested to view transcripts of defendant's 9-1-1 call and her statement to police, and to hear again both defendant's and the victim's trial testimony, which were played for the jury in the courtroom in their entirety.
II
On appeal, defendant raises the following issues for our consideration:
POINT I
THE ERRONEOUS EXCLUSION OF EVIDENCE THAT [THE VICTIM] HAD BEATEN [A.E.H.] IN THE PAST PRECLUDED THE JURY'S FULL CONSIDERATION OF [A.E.H.'S] SELF DEFENSE CLAIM AND DENIED HER DUE PROCESS AND A FAIR TRIAL.
POINT II
THE COURT BELOW ERRED IN REFUSING TO MERGE DEFENDANT'S CONVICTION FOR FOURTH-DEGREE POSSESSION OF A KNIFE UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR A LAWFUL USE INTO THE CONVICTION FOR THIRD-DEGREE POSSESSION OF A KNIFE WITH A PURPOSE TO USE IT UNLAWFULLY.
POINT IIIWe address only the exclusion of defendant's testimony regarding the victim's alleged prior assaults.
THIS MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR CORRECTION OF THE JUDGMENT OF CONVICTION TO ELIMINATE THE CONDITION OF PROBATION WHICH REQUIRES DEFENDANT TO WAIVE HER RIGHT TO APPEAL AND TO ELIMINATE THE LANGUAGE WHICH STATES THAT THIS CASE INVOLVES A NEGOTIATED PLEA BETWEEN THE PROSECUTOR AND THE DEFENDANT. (NOT RAISED BELOW).
POINT IV
THE IMPOSITION OF 364 DAYS IN COUNTY JAIL AS A CONDITION OF PROBATION TO BE SERVED AT THE END OF THE THREE YEAR PROBATIONARY TERM IS A MANIFESTLY EXCESSIVE SENTENCE.
A.
Ordinarily, this court reviews a trial court's evidentiary rulings, including its rulings on the admissibility of character and prior-acts evidence, under an abuse-of-discretion standard. State v. J.A.C., 210 N.J. 281, 301 (2012) (evidentiary rulings generally); State v. Lykes, 192 N.J. 519, 534 (2007) (N.J.R.E. 403 and 404(b) rulings); State v. Hernandez, 170 N.J. 106, 128 (2001) (N.J.R.E. 404(b) rulings).
But where the trial court has erred in its selection of the proper standard for the admission of proffered evidence, our review is de novo. State v. Darby, 174 N.J. 509, 518 (2002). This is because we owe no deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, our review of the matter is plenary because the trial judge incorrectly analyzed the application.
The judge opined that the issue of the victim's "alleged aggressiveness" implicated "specific instances of conduct." And because he did not believe defendant, he found that there was "no evidence here of any type of aggressiveness on behalf of the victim." Furthermore, he was "concerned about [] turning this trial on these charges into a trial about [the victim]." Lastly, he considered that allowing testimony on the point would "lead to confusion on behalf of the jury under [N.J.R.E.] 403."
Defendant urged admission, however, not just to establish the victim's character for aggression, but to establish her own state of mind, necessary to support her contention that she acted in self-defense. She sought to present her testimony in order to show that her fear of the victim at the time of the stabbing was reasonable.
N.J.S.A. 2C:3-4(a) allows force to be used in self-protection "when the actor reasonably believes that [it] is immediately necessary for the purpose of protecting himself against the use of unlawful force" by another. The measure of the force's reasonableness is not what the defendant finds reasonable, but rather what the jury finds reasonable. State v. Kelly, 97 N.J. 178, 204 (1984); State v. Bess, 53 N.J. 10, 15, 17 (1968); State v. Bryant, 288 N.J. Super. 27, 34 (App. Div.), certif. denied, 144 N.J. 589 (1996). The jury employs an objective standard to determine what is reasonable. State v. Moore, 158 N.J. 292, 309-10 (1999). Furthermore, the actor's belief must be honest as well as reasonable. Kelly, supra, 97 N.J. at 198-99.
In the absence of any testimony regarding prior incidents of violence between the parties, the jury was deprived of information essential to fairly determine the merits of defendant's self-defense claim. The evidence was admissible to explain defendant's asserted reasonable belief in the need to use force to defend herself from the victim when she stabbed him. Jenewicz, supra, 193 N.J. at 462-63. See also State v. Gartland, 149 N.J. 456, 473 (1997) ("Our courts have always admitted evidence of a victim's violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim."). In other words, although the testimony related to prior acts, it was offered to demonstrate defendant's knowledge of the threat the victim posed to her and the reasonableness of her state of mind, not to prove his character for aggression or prior acts in a vacuum.
As reiterated in Jenewicz, N.J.R.E. 404(b) "permits defendants alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant's belief that deadly force was necessary." 193 N.J. at 462. Clearly, in advancing a self-defense defense, the reasonableness of defendant's belief that the victim posed a threat to her was key.
A more complete presentation of the parties' history, if believed, might well have influenced the jury's decision even as to the lawfulness of defendant's purpose in possessing the knife and the circumstances in which she possessed it. See N.J.S.A. 2C:39-4(d) and -5(d). That the jury found defendant's testimony credible to some extent is demonstrated by their verdict. Despite the victim's contrary narrative and the undisputed medical evidence that defendant stabbed him, they nonetheless found defendant guilty only of simple assault. She may have been acquitted of assault altogether had more information been available to the jury.
A simple assault occurs when a person "(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) Negligently causes bodily injury to another with a deadly weapon; or (3) Attempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1(a).
In deciding the matter, the trial judge usurped the jury's function by determining credibility and by ruling that in the prior incidents defendant, not the victim, was the aggressor. That was a decision that should have been left to the jury, and was an issue with which they wrestled. While deliberating, they requested a replay of defendant's redacted statement to police and of the victim's testimony, and, despite defendant's acknowledgment of the stabbing, found her guilty only of simple assault. In any event, we conclude that, even without the corroboration the trial judge found wanting, defendant's proposed testimony should have been admitted in light of Jenewicz and Gartland.
References to the victim's prior assaults were stricken from defendant's statement to police.
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Furthermore, the additional time spent in admitting defendant's barred testimony would not have been so substantial as to justify preventing her from fully developing her only defense. Nor would defendant's testimony have resulted in a mini-trial about the victim which might confuse the jury. The information was not so excessive or complex as to pose that risk.
That the jury heard testimony regarding the parties' physical confrontation on the morning of the stabbing did not suffice. It did not render the error of exclusion harmless. State v. Bradshaw, 392 N.J. Super. 425, 447 (App. Div. 2007) (the exclusion of a defendant's testimony as to a vital defense is not harmless error), aff'd on other grounds, 195 N.J. 493 (2008).
B.
Because we find that the trial court applied the wrong standard for admission of the proffered evidence, and that this error was not harmless in light of the importance of self-defense, the only defense defendant raised, we reverse. Accordingly, we will not reach defendant's remaining points.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION