Opinion
DOCKET NO. A-1398-14T3
07-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AXEL CORADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-02-0196. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2(a)(3)(a), a jury found defendant Axel Corado guilty of the weapons offense and guilty of the lesser-included fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). Defendant was sentenced to five years' incarceration with three years parole ineligibility on the weapons offense, and eighteen months' incarceration on the resisting arrest offense, to be served concurrently. Defendant now appeals. Upon reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.
Defendant was also charged with aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), which was dismissed before trial by motion of the prosecutor.
I.
On the evening of October 6, 2012, Detectives Aaron Bernstein and Jason Astbury of the Trenton Police Department (TPD) were responding to a call of shots fired on Cummings Avenue in the City of Trenton. The detectives were traveling in an unmarked police vehicle with the lights activated. As they slowed at the intersection of Whittaker Avenue and Swan Avenue, Bernstein saw two Hispanic males standing at the southwest corner of the intersection. Bernstein could see that one of the males, later identified as defendant, had a gun in his right hand.
According to Bernstein, he illuminated defendant with his flashlight and alerted his partner that the individual had a gun. He stated that, "when I put my flashlight on him[,] he realizes I was there and he immediately went to his waistband with the gun, turned his body and began running . . . ." Astbury slowed their vehicle, and Bernstein got out of the car where he identified himself as a police officer, ordered defendant to stop, and advised him he was under arrest. Bernstein then gave chase.
Bernstein stated that as he was chasing defendant, he was identifying himself as a police officer, telling him to stop, and that he was under arrest, but defendant continued to run. About half way down the block, defendant crossed the street, went between two parked cars, reached into his waistband, and made a motion with his right hand discarding what Bernstein believed to be a gun. Bernstein followed defendant as he began to jump several fences entering the backyards of multiple residences. Ultimately, defendant reached a dead end when he turned and started towards Bernstein, who then tackled defendant, and the two fell onto a concrete patio.
Bernstein stated that he believed defendant suffered a laceration to his head and Bernstein suffered scratches to his arms and scrapes to his wrist. At that point, defendant brought both of his hands into his waistband and rolled onto his stomach. Bernstein advised him to put his hands behind his back, that he was under arrest, but defendant did not comply. Being concerned that defendant possessed a second gun or another weapon, Bernstein punched defendant several times in the shoulders and the back area. When Astbury arrived, defendant was still refusing to take his hands out of his waistband and Astbury pepper sprayed defendant. Defendant was placed under arrest. Bernstein returned to the area where he saw defendant throw the gun and recovered a Taurus .38 caliber revolver. Defendant was taken to the hospital to receive medical attention for his injuries.
The Emergency Room (ER) Admissions Department diagnosed defendant with "a skull fracture with intracranial injury and [brief] loss of consciousness and pneumocephalus," as well as assault by other unspecified means, laceration on the scalp, and "contusions, multiple, not elsewhere classified."
Defense counsel called Dr. Louis D'Amelio, a trauma specialist, who had prepared defendant's discharge summary. He confirmed defendant's diagnosis, which included an occipital skull fracture, pneumocephalus (air in the skull from a fracture and laceration), and a possible minimally displaced nasal fracture.
Prior to Dr. D'Amelio's testimony, defense counsel stated that Dr. D'Amelio was not being offered as an expert witness and objected to the prosecutor raising issues beyond the scope of direct testimony. The prosecutor agreed, "the scope of direct goes to the injury of the defendant . . . ."
On cross-examination, the State asked Dr. D'Amelio if the skull fracture he had discussed on direct was "consistent with an assault?" The doctor responded, "[i]t's the kind of fracture we see more commonly when people fall backwards." He described circumstances which would cause a person to fall backwards. He also stated it would be consistent with an injury caused by a person being tackled and falling backwards, but inconsistent with an injury caused by being hit in the head with objects such as baseball bats, pipes and other similar things. He explained that when hit by those types of objects, "[y]ou'd expect a larger fracture that would be more definitely seen by the radiologist . . . ."
Dr. D'Amelio testified the defendant's fracture pattern would be very common for someone who had fallen backwards. The prosecutor asked, "[a]nd that's to a high degree of medical certainty?" to which he responded, "[t]o a very high degree of medical certainty, yes." Defense counsel objected, arguing that the line of questioning converted the testimony of the doctor from a fact witness to an expert witness. The judge agreed that "to a very high degree of medical certainty" should be stricken and gave the jury a curative instruction, ordering them to disregard that statement.
Prior to summations, defendant moved for a mistrial, contending that Dr. D'Amelio's testimony on cross-examination was improper. The trial judge denied the request stating there was no timely objection and the doctor's testimony was not improper. The judge noted Dr. D'Amelio "was permitted to testify to the cause of such a skull fracture suffered by Mr. Corado." During the judge's final charge, he instructed the jury that Dr. D'Amelio was called as a fact witness, and the jury was to disregard that his answers were given to a reasonable degree of medical certainty; his testimony was not to be considered as expert opinion, but only as given by a fact witness.
Defendant testified in his own defense. He explained that he was walking to a liquor store when the police car, with lights and siren activated, approached him and a friend. A police officer jumped out of the car and chased them. Defendant stated that he ran from the police because of a "traffic warrant." He admitted to running from the officer and hopping the fences. When he arrived at a dead end, he just gave up because he did not have anywhere to hide.
Defendant contended that after he was handcuffed and lying on the ground, the police officer started hitting him with his fists and kicking him as well. Defendant confirmed that he was pepper sprayed. He also stated that he was hit with something cold on the back of his head, which could have been a flashlight, and he lost consciousness. Defendant denied that he hit, kicked, or in any way resisted the police officer.
On appeal, defendant presents the following issues for our consideration:
POINT I
THE TRIAL JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE STATE IMPROPERLY CONVERTED THE TREATING FACT-WITNESS DOCTOR INTO AN EXPERT WITNESS.
POINT II
DEFENSE COUNSEL WAS UNCONSTITUTIONALLY INEFFECTIVE BY INSISTING ON LANGUAGE FOR DEFENDANT'S VERSION TO BE EMPLOYED IN THE CHARGE OF RESISTING ARREST BY FLIGHT THAT ESSENTIALLY CONCEDED GUILT TO THAT OFFENSE. (Not Raised Below).
II.
An appellate court's review of "a trial court's denial of a mistrial motion" is governed by the abuse of discretion standard. State v. Yough, 208 N.J. 385, 397 (2011) (stating that "grant of a mistrial is an extraordinary remedy").
As the Supreme Court has reminded, "a trial is not a perfectly scripted and choreographed theatrical presentation," rather "[i]n any trial, 'inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.'" Ibid. (quoting State v. Winter, 96 N.J. 640, 646 (1984)). We may not order a new trial in such circumstance unless we are convinced the inadmissible evidence coming before the jury was "clearly capable of producing an unjust result." R. 2:10-2; see also id. at 397-98.
A trial judge is permitted and encouraged to correct errors that occur during trial; a curative jury instruction is one method to remedy trial error, and is sometimes required to address testimony that should not have been heard by the jury. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004). The decision to provide a curative instruction and the content of that statement is left to the discretion of the trial judge. Yough, supra, 208 N.J. at 397. Moreover, whether a comment can be cured by a limiting or cautionary "instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 646-47.
Similarly, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647.
Likewise, we review a trial court's evidentiary rulings for abuse of discretion. Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div.), certif. denied, 223 N.J. 163 (2015) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). The admissibility of evidence, including expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). We defer to a trial court's evidentiary ruling and will not reverse unless it was "so wide of the mark that a manifest denial of justice resulted[.]" Brenman v. Demello, 191 N.J. 18, 31 (2007).
It is well established that a treating doctor, such as Dr. D'Amelio, testifying as a fact witness, is permitted to testify about the cause of the patient's disease or injury because causation is an essential part of diagnosis and treatment. See Stigliano by Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995) (holding "the characterization of [such] testimony as 'fact' or 'opinion' creates an artificial distinction"). "[T]estimony about the likely and unlikely causes of [a patient's condition] is factual information, albeit in the form of opinion." Ibid.
Measured under these standards, the trial court did not commit reversible error when it denied defendant's request for a mistrial, but instead elected to give a curative instruction, followed by renewed instructions to disregard the "reasonable degree of medical certainty" statement in its final charge to the jury. Winter, supra, 96 N.J. at 646-47. Defendant has made no showing that this instruction failed to adequately remedy any perceived prejudice caused by the testimony. Accordingly, the court did not abuse its discretion when it elected to give a curative instruction rather than grant defendant's mistrial motion. Ibid. Moreover, juries are presumed to understand and follow instructions. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
III.
Next, we address defendant's contention that his trial counsel was ineffective for requesting that defendant's version of the reason that he fled the scene be included in the court's flight charge to the jury. In order to obtain relief for the ineffective assistance of trial counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.
The court employed Model Jury Charge (Criminal), "Criminal Final Charge-Complete, Resisting Arrest-Flight Alleged" (2007). --------
In his charge to the jury, the trial judge instructed, "Mr. Corado has not denied that he left the scene, but he claims that his purpose was not to evade arrest, but rather to avoid being checked for traffic warrants." This charge was consistent with defendant's testimony. Defendant argues trial counsel was ineffective because the charge concedes "one of the essential elements of resisting arrest by flight."
Defendant challenges trial counsel's strategy to defeat the State's highly incriminating evidence by requesting the trial judge to charge the jury on his version of events. Defendant fails to overcome a "strong presumption that counsel rendered reasonable professional assistance." State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted). "Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Defendant now critiques his counsel's decision to request defendant's version in the charge to the jury. That is "precisely the kind of tactical decision that should not be disturbed by a reviewing court." State v. Marshall, 148 N.J. 89, 262-63 (1997).
Defendant's reliance on State v. Harrington, 310 N.J. Super. 272 (App. Div.), certif. denied, 156 N.J. 387 (1998), is clearly misplaced. There, we found that the defendant's attorney was constitutionally deficient when he conceded that the defendant was guilty of committing a robbery that was the predicate to a felony murder charge. Id. at 282. We said that the concession inexorably led to the defendant's conviction of felony murder. Ibid. In contrast, here, counsel's request was consistent with defendant's testimony and part of a crafted defense designed to result in an acquittal of the resisting arrest charge. Harrington is thus clearly inapposite.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION