Opinion
DOCKET NO. A-5092-15T4
01-16-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDDIE V. DAVIS, a/k/a JAMES ROBINSON and RICKY GALE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah C. Hunt, Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Hoffman and Mayer. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-07-2234. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah C. Hunt, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After a four-day trial, a jury found defendant Eddie V. Davis guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), for sexually assaulting and causing significant bodily injury to C.J. The jury acquitted defendant of aggravated sexual assault.
We use initials to protect the victim's privacy interests.
In addition, the trial court dismissed two kidnapping counts at the conclusion of the State's case.
For the sexual assault count, the trial court sentenced defendant to ten years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the court sentenced defendant to a consecutive sentence of five years imprisonment with two-and-one-half years of parole ineligibility for the aggravated assault count.
On appeal, defendant raises two points in his brief:
POINT I
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENTS MADE BY KEY STATE WITNESSES WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below).
POINT II
Following our review of the trial record and the briefs submitted, we conclude defendant's arguments lack merit. We therefore affirm.DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
At trial, C.J. provided following testimony. C.J. explained that she and defendant had an "off and on" romantic relationship from 2012 until 2014. After the relationship ended, C.J. allowed defendant to remain living in her home because he had nowhere else to stay.
On the evening of February 7, 2014, C.J. visited her brother and returned home at approximately one o'clock in the morning; upon returning home, defendant grabbed her arm and forced her into the living room where she fell. Defendant proceeded to punch C.J. "a couple times" in the face, causing her to bleed from the mouth and nose. Defendant then began choking C.J., digging his fingernails into the back of her neck, while forcing her into the bedroom and continuing to hit her. C.J. tried to tell defendant to stop and to fight him off, but defendant continued beating her.
When in the bedroom, defendant threw C.J. to the floor and kicked her; he then picked her up from the floor and threw her on the bed. Defendant proceeded to have nonconsensual vaginal intercourse with C.J. Afterward, defendant would not allow C.J. to go to the bathroom to clean up. C.J. asked defendant to let her go to the hospital, but he refused and would not let her leave the bed for the rest of the night. The following day, defendant did not go to work and instead stayed with C.J., preventing her from leaving the home or calling anyone. Defendant told C.J. he did not want her to go to the hospital because she would have him "locked up."
The following day, defendant went to work. After he left, C.J. showered and cleaned herself up, and then called 9-1-1. Police arrived and an ambulance took C.J. to the hospital. At the hospital, a Sexual Assault Nurse Examiner (SANE), Mary Lou Kline, examined C.J.
The State also presented testimony from Officer Robert Schwartz, who testified that upon arriving at C.J.'s home, he observed "visible swelling and bruising to her face, and she was visibly upset and distraught." Detective Keith James interviewed C.J. at the hospital and found her "extremely nervous," "just shaking," and "just broken." Police found several red stains on the curtain leading to the bedroom and in the bedroom.
Nurse Kline testified she found C.J. "very fearful," which she explained is typical of sexual assault victims. She noted observing several injuries to C.J.'s face and upper torso. C.J. did not have any vaginal injuries, but Nurse Kline stated, in her experience, it is "very common" to find no vaginal injuries after a sexual assault.
Nurse Kline's report indicated C.J. "had been drinking" before the incident. C.J. admitted to drinking at her brother's house before returning home. There was some discrepancy as to how much C.J. had to drink before the alleged assault, because C.J. testified she had three or four beers and two glasses of wine, while Nurse Kline's report indicated she had consumed two beers and one glass of wine. Defendant did not testify on his own behalf, nor did he present any witnesses.
I
In his first point, defendant argues the jury received an incomplete charge, a contention not raised at trial. Specifically, defendant argues the trial court should have instructed the jurors they may treat the prior inconsistent statements made by State witnesses as substantive evidence in defendant's favor. In particular, defendant contends C.J. failed to inform the 9-1-1 operator that she had been sexually assaulted and provided different accounts of how much she had to drink before the incident; in addition, defendant asserts Nurse Kline provided inconsistent testimony regarding C.J.'s injuries. Defendant maintains that, although he did not request one, the trial judge should have issued the model jury charge relating to the substantive use of prior inconsistent statements. See Model Jury Charges (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (approved May 23, 1994). We disagree.
Because defendant failed to object to the jury charge, we evaluate defendant's argument regarding the charge under a plain error standard of review. R. 1:7-2; R. 2:10-2. Under that standard, an appellate court will not set aside a guilty verdict because of the omission of an unrequested jury charge unless the defendant on appeal demonstrates a "sufficiently grievous" omission having a "clear capacity to bring about an unjust result." State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). We recognize, however, the omission of a jury instruction is a "poor candidate" for the harmless error rule. State v. Weeks, 107 N.J. 396, 410 (1987) (citing State v. Warren, 104 N.J. 571 (1986); State v. Crisantos, 102 N.J. 265 (1986)) (remanding for the trial court to re-try the defendant with correct instructions).
The charge regarding prior inconsistent statements of a witness is sometimes required in instances when the "essence" of the prior inconsistent statement may be "used as substantive evidence concerning the disputed factual issue." State v. Hammond, 338 N.J. Super. 330, 342 (App. Div. 2001). However, where there is "only an inconsistency, not one or more conflicting versions of the same event," a substantive charge is not necessary. Ibid. In other words, where the witness's prior inconsistent statements lack "any significant substantive exculpatory value," there is no need for a substantive charge. Id. at 343.
In fact, the charge is not given if the "prior inconsistent statements are relied upon solely to attack the credibility of a witness, and not as substantive evidence." State v. P.H., 353 N.J. Super. 527, 547 n.3 (App. Div. 2002). We have previously suggested that the standard credibility charge is sufficient even when there are contradictory prior statements. See State v. Allen, 308 N.J. Super. 421, 427 (App. Div. 1998) (reversing conviction where no credibility charge was given to address prior inconsistent statements of a witness, because "[a]t a minimum, defendant was entitled to a full charge on the issue of credibility.").
Here, the trial judge gave the jury a charge on determining the credibility of witnesses, which included consideration of any inconsistent or contradictory statements. However, the trial judge did not give a specific charge indicating whether the jury could use inconsistent statements as substantive evidence.
Defendant first argues C.J.'s failure to tell the 9-1-1 operator that she had been sexually assaulted was an inconsistent statement warranting a jury charge on substantive use. However, C.J. explained that she "just wanted to go to hospital first," and never wavered in her story of being sexually assaulted once she informed the police and nurse at the hospital. Furthermore, two police officers and one nurse described C.J. as "visibly upset and distraught," "just broken," and "very fearful" on the day she called 9-1-1. Defendant contends C.J.'s failure to inform the 9-1-1 operator that defendant sexually assaulted her is substantive evidence that the sexual assault did not occur. However, based upon our review of the trial testimony, we find no plain error in the court's failure to charge the jury on the use of inconsistent statements as substantive evidence.
Next defendant argues C.J. gave conflicting testimony about how much she drank in the hours before the incident. Although C.J. may not remember exactly how much she had to drink that night, the amount she drank has no direct bearing on defendant's guilt. It only directly bears on C.J.'s credibility. The court instructed the jury on using inconsistent statements to determine credibility, and we discern no error in the court's failing to give the substantive evidence instruction.
Last, defendant argues Nurse Kline offered testimony inconsistent with her written report regarding whether C.J. had bruising on her neck and how long defendant strangled C.J. Given the extent of C.J.'s other injuries, whether she had bruising specifically on her neck also has minimal bearing on defendant's guilt, and only bears on the nurse's credibility. Again, the court instructed the jury on using inconsistent statements to judge credibility; therefore, the court did not err in failing to give the substantive evidence instruction.
The trial court instructed the jury on using prior inconsistent statements in evaluating credibility, and the statements were minor inconsistencies lacking "any significant substantive exculpatory value." See Hammond, 338 N.J. Super. at 343. Furthermore, the omission did not have a "clear capacity to bring about an unjust result," because the instruction would have only assisted the jury in fact-finding, rather than aid in explaining the law. See Singleton, 211 N.J. at 183. We therefore discern no error, much less plain error, in the omission of the jury charge regarding the use prior inconsistent statements as substantive evidence.
II
In his second point, defendant argues his aggregate fifteen-year prison term constitutes a "manifestly excessive and unduly punitive" sentence. Specifically, he asserts the sentencing judge failed to consider all factors when imposing consecutive sentences for aggravated assault and sexual assault, and did not provide sufficient reasons for finding aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). We disagree.
A
First, defendant argues the trial court failed to consider all factors in setting consecutive sentences. The decision to impose concurrent or consecutive sentences is subject to following guidelines identified in State v. Yarbough, 100 N.J. 627, 643-44 (1985):
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominately independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .
A 1993 amendment to N.J.S.A. 2C:44-5(a) superseded what was guideline six, which limited the overall term. The statute now provides, "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a).
"[T]he Yarbough guidelines are just that — guidelines. They were intended to promote uniformity in sentencing while retaining a fair degree of discretion in the sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "It follows that a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28.
Here, the trial judge stated her reasons for imposing consecutive sentences. She noted defendant's extensive prior criminal history and "the need to protect society . . . ." She also recognized the Supreme Court's statement in Yarbough that "there can be no free crimes . . . ." Yarbough, 100 N.J. at 643. She found the aggravated assault was an act separate from the sexual assault, factor 3(b) from Yarbough. She also implicitly considered factor 3(a) from Yarbough in stating, "[T]he act of sex assault was completed with holding her down. The act of striking her in her face, leaving her with a black eye requiring medical treatment, was a separate injury in and of itself." Therefore, we conclude the trial judge properly imposed consecutive sentences, and provided the reasons supporting her sentencing decision.
B
Defendant further argues the trial judge did not provide sufficient reasons for finding aggravating factor nine. So long as a sentencing judge appropriately considers and applies the mitigating and aggravating factors supported by the record, and explains how he or she arrived at the sentence, we owe the trial court's sentencing decision substantial deference. State v. Case, 220 N.J. 49, 65 (2014). In this case, we find no basis to disturb the sentence imposed. The court appropriately explained the sentence and it does not "shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)).
Here, the trial judge went through each of the aggravating and mitigating factors individually. In the end, she found aggravating factors three, six, and nine, and no mitigating factors. For aggravating factor three, the court found, based on defendant's prior record, "a huge risk that [defendant] would commit another offense." The court also found aggravating factor six due to defendant's "extensive" prior criminal record and the seriousness of the crimes. For aggravating factor nine, the court stated, "I find that there's a huge need to deter [defendant]. In fact, I find the only deterrent I see is that [defendant] is being housed by the Department of Corrections. There's a huge need to continue to deter his conduct." We find the trial judge appropriately considered defendant's extensive prior criminal record, the seriousness of the crimes, and the need for deterrence, in imposing defendant's sentence.
The judge noted that defendant's criminal record spans three states — New Jersey, Delaware, and Maryland. His record includes five assault convictions, a robbery conviction, four resisting arrest convictions, in addition to six violations of probation and three violations of parole. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION