Opinion
DOCKET NO. A-5751-12T1
04-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. GREEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-08-519. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael J. Green was convicted following a jury trial of third-degree aggravated assault, causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1); fourth- degree resisting arrest, N.J.S.A. 2C:29-2(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree criminal restraint, N.J.S.A. 2C:13-2; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The judge sentenced defendant to an aggregate term of nine years imprisonment, five of which must be served prior to parole eligibility. Defendant appeals from his conviction and the sentence imposed, arguing:
POINT ONE
THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE CHARGE THE JURY ON ALL APPLICABLE LESSER-INCLUDED OFFENSES OF AGGRAVATED ASSAULT (COUNT ONE), NAMELY SIMPLE ASSAULT WITHOUT A DEADLY WEAPON AND RECKLESS AGGRAVATED ASSAULT, THEREBY DEPRIVING [DEFENDANT] OF A FAIR TRIAL. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., ART. 1, PARS. 1 AND 10. (NOT RAISED BELOW)
POINT TWO
THE TRIAL COURT ERRED BY NOT ISSUING A CLAWANS INSTRUCTION AFTER THE STATE FAILED TO CALL CRUCIAL WITNESS KEVIN TURNER TO TESTIFY AT TRIAL. (NOT RAISED BELOW)
POINT THREE
THE TRIAL COURT ERRED BY NOT ISSUING A CURATIVE INSTRUCTION FOLLOWING THE TESTIMONY OF OFFICER BROWN THAT HE HAD PREVIOUSLY DEALT WITH [DEFENDANT], WHICH PREJUDICED [DEFENDANT] AND DEPRIVED HIM OF A FAIR TRIAL BECAUSE IT SUGGESTED PRIOR CRIMINAL CONDUCT. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., ART. 1, PARS. 1 AND 10. (NOT RAISED BELOW)
POINT FOURFollowing review of the record and applicable law, we reject defendant's arguments. We affirm.
THE TRIAL COURT ERRED BY FAILING TO CONSIDER A MITIGATING FACTOR SUPPORTED BY THE RECORD THEREBY IMPOSING AN EXCESSIVE SENTENCE ON [DEFENDANT].
I.
These facts surrounding defendant's conviction are taken from the trial record. Trial testimony of these events was related by defendant and the victim, who was his estranged wife.
In March 2012, defendant and the victim lived in separate residences one block apart. In the late morning of March 27, 2012, defendant arrived at the victim's home to discuss a reconciliation. The victim rejected defendant's proposal. Defendant requested to use the bathroom. Once inside the victim's residence, the couple continued to argue. The victim testified she attempted to leave the home and defendant prevented her from doing so by standing in front of the locked door. The argument then became physical. Defendant squeezed the victim and told her he loved her. She requested he let go, and in the struggle, fell to the floor. Defendant laid atop of the victim, positioning his hands and legs to prevent her from rising. Defendant finally allowed her to sit on the couch. The argument continued. As the victim sat on the couch, she attempted to open a window. Defendant then "yanked [her] off the couch by [her] ankles." The victim attempted to call 9-1-1, but defendant fought her, bit her left wrist, pulled her hair out, and grabbed her cell phone.
While defendant held the victim's cell phone, she received a text message from her friend Kevin. This exacerbated defendant's anger. Defendant ordered the victim call Kevin. She did and asked him to come and get her. Defendant then ordered her to put the call on speakerphone while he went to the kitchen to retrieve a kitchen knife. As defendant stood holding the knife, he stated "[y]ou going to stab me, I'm going to shoot you because there ain't nobody else going to have you." The victim said "no" and told defendant to put the knife down. Defendant then began choking the victim. The confrontation was overheard by Kevin because the victim never disconnected the call. Kevin went to the victim's apartment and began yelling and kicking the door. Defendant grabbed the victim and put a gun to her head. When defendant attempted to brace himself against the door to prevent it from opening, the victim freed herself and ran to the kitchen. She attempted to exit through the back door, but defendant slammed it closed. He then struck the left side of her face with the gun. She continued to fight back, striking defendant's right ear. The victim then attempted to escape through the dining room window.
Police responded to the residence after receiving a call from Kevin's mother. Upon arriving, they saw a women leaning out a first floor window screaming. The officers also saw a man running from the back door. Police described the victim as having a bloody lip and face, a bite mark on her arm, chunks of missing hair, and lacerations. Photographs of the residence showed its disarray and blood splattered in the kitchen and living room.
Officers chased defendant, who did not obey orders to stop. He was arrested in front of his home. A subsequent search of the wooded pathway between the victim's and defendant's homes yielded a handgun, identified by the victim at trial as the gun defendant used to threaten her.
At trial, defendant testified on his own behalf. He generally denied the facts the victim related and presented his own recitation of events, which was markedly different.
Defendant explained he went to the victim's home at her request to make repairs so the residence could pass inspection, allowing the victim to receive a housing subsidy. As he was repairing a front door screen, his phone rang and the victim answered it. He asked for his phone back, but she would not return it. Defendant then noted a blue car pull up to the residence; the driver exited the vehicle and punched defendant in the back of his head. At trial, defendant identified the driver as Kevin. Defendant and Kevin began "tussling"; defendant stated he did not throw a punch, and was just trying to restrain Kevin. Defendant stated the victim attacked him by jumping on his back and biting his left hand, as he swatted at her in his attempt to "get her off." Defendant asserted he successfully pushed Kevin, who then ran away.
At that point defendant stated the victim struck him with a nebulizer, hitting him on the right side of his head, at his ear. This was when defendant stumbled into the home. The victim started complaining of an asthma attack, so defendant began to help her. Afterward, defendant slowly walked back toward his home.
The jury acquitted defendant of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4), and second-degree unlawful possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). After sentence was imposed, in June 2013, this appeal ensued.
II.
A.
Defendant initially argues the court erred in failing to charge fourth-degree reckless aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(3), and simple assault without a deadly weapon, N.J.S.A. 2C:12-1(a)(1), as lesser-included crimes of the third-degree offense. He suggests this omission denied the jury the option of finding he was unarmed or his conduct did not cause bodily injury.
Defendant did not raise this issue before the trial court, restricting our review to whether plain error exists, that is, error which was "clearly capable of producing an unjust result . . . ." R. 2:10-2. Absent plain error,
no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . . A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a . . . charge.
[R. 1:7-2.]
Generally, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). See also N.J.S.A. 2C:1-8(e) (stating jury shall not be charged with a lesser offense absent a rational basis for a conviction of such offense). However, "courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted," that is, "if the evidence is jumping off the page . . . ." State v. Denofa, 187 N.J. 24, 42 (2006) (second emphasis added). "[W]hen the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Ibid. See also State v. Thomas, 187 N.J. 119, 132 (2006) (finding trial judges have "no duty to instruct the jury sua sponte" on an included offense charge when the evidence does not clearly show the charge is appropriate (citation and internal quotation marks omitted)).
Here, in addition to the charge of third-degree aggravated assault causing bodily injury with a deadly weapon, the jury was instructed on simple assault with a deadly weapon, N.J.S.A. 2C:12-1(a)(2). Contrary to defendant's claim, we find no facts clearly mandating the inclusion of reckless assault with a deadly weapon. The State's case showed defendant's conduct was purposeful and his defense included his testimony he did not possess a gun during the incident.
We also reject the argument the court should have added the charge for the disorderly persons offense of simple assault without a deadly weapon because the State's theory of the case included that defendant was armed. While defendant testified he did not have a gun, it is undisputed defense counsel did not request a charge for this lesser offense, and that decision may have been part of counsel's trial strategy. It is not the duty of the trial judge to scan the record for all potential charges. Denofa, supra, 187 N.J. at 42. Moreover, any alleged error resulting from omission of a charge for assault without a weapon did not produce an unjust result given the jury's decision to convict defendant of aggravated assault with a deadly weapon. In this light, there was no basis for the trial court to sua sponte include such a charge.
B.
Because Kevin was not called as a witness, defendant argues he was entitled to an adverse inference charge, pursuant to State v. Clawans, 38 N.J. 162 (1962). We disagree.
Where certain conditions are met, it is permissible to give an adverse inference charge stating the jury "may infer from the non-production of a likely witness that his [or her] testimony would have been unfavorable to the party expected to produce him." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 601 (2014). In Clawans, the Court set forth the standard governing when an adverse inference charge must be given. Clawans, supra, 38 N.J. at 170-71. See also Washington v. Perez, 219 N.J. 338, 342 (2014). The Court held, the "failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Clawans supra, 38 N.J. at 170. Such an instruction is appropriate when the court determines:
(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.
[State v. Hill, 199 N.J. 545, 561 (2009) (alteration in original) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986) (internal quotation marks omitted).]
"For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Clawans, supra, 38 N.J. at 171. Clawans defines "availability" in terms of whether the witness "'was within the power of the party to produce.'" Witter by Witter v. Leo, 269 N.J. Super. 380, 391-92 (App. Div.) (quoting Clawans, supra, 38 N.J. at 171), certif. denied, 135 N.J. 469 (1994). "The failure to call a witness available to both parties has been said to preclude the raising of an inference against either." Clawans, supra, 38 N.J. at 171.
"Whether a litigant seeks to have the court instruct the jurors on this adverse inference or to urge the inference in closing argument, the trial court has the responsibility to determine if the inference is reasonable under the circumstances of the case." State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007). On this score, a trial court "must demonstrate that it has taken into consideration all relevant circumstances by placing, on the record, findings" of the four elements, discussed in Hill. Hill, supra, 199 N.J. at 561, 566 (holding a Clawans charge "generally should not [be] issue[d] against criminal defendants" as it "risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt").
"A court should not start with the assumption that an absent witness's testimony must be favorable to either one side or the other and an adverse inference must arise against either." Velasquez, supra, 391 N.J. Super. at 308. "It is well-settled that a court should evaluate a litigant's decision to do without a witness by considering the 'person,' who is the witness, and the content of his or her expected 'testimony.'" Ibid. (quoting Parentini v. S. Klein Dep't Stores, Inc., 94 N.J. Super. 452, 456 (App. Div.), certif. denied, 49 N.J. 371 (1967)). When "the testimony to be expected from that witness is unimportant to the litigant's case, cumulative or inferior to testimony already presented on the issue, it is more reasonable to infer that non-production is explained by the fact that the testimony is unnecessary." Id. at 308-09 (citing Clawans, supra, 38 N.J. at 171).
Equally important in Clawans was the procedure to be followed in requesting a jury charge for adverse inference. Clawans, supra, 38 N.J. at 172.
[T]he party seeking to obtain a charge encompassing such an inference [is to] advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and demonstrat[e] the names or
classes of available persons not called and the reasons for the conclusion that they have superior knowledge of the facts.The purpose of this procedure is "to provide the party accused of non-production an opportunity either to call the witness or to explain his failure to do so." Ibid.
[State v. Irving, 114 N.J. 427, 442 (1989) (second alteration in original) (quoting Clawans, supra, 38 N.J. at 172) (internal quotation marks omitted).]
Applying these governing principles, we determine no Clawans violation occurred. Defendant never advised the State of his need for Kevin's testimony. Further, he never sought the charge be given to the jury. These omissions are fatal. Hill, supra, 199 N.J. at 560-61; Irving, supra, 114 N.J. at 442.
C.
Defendant maintains he was denied a fair trial when the trial judge failed to issue a curative instruction after the arresting officer uttered inadmissible testimony. Specifically, during his in-court identification of defendant, Patrolman Robert Brown was asked whether he had seen the individual he arrested before, to which he responded: "I had dealt with him once before on an unrelated — — . . . ." Before the officer continued, the prosecutor asked a different question. Patrolman Brown's testimony did not elicit an objection. Defendant's argument on appeal suggests Patrolman Brown's statement prejudicially implied he had prior criminal contact with police. See State v. Branch, 182 N.J. 338, 351 (2005) ("[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.").
In our review, we must determine whether the evidence complained of wrongly contributed to defendant's conviction. See State v. Bankston, 63 N.J. 263, 273 (1973). "[N]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . . ." State v. Winter, 96 N.J. 640, 646 (1984) (citation and internal quotation marks omitted). As the Court has observed:
[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.""[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (quoting R. 2:10-2). See also Winter, supra, 96 N.J. at 648.
[State v. Yough, 208 N.J. 385, 397 (2011) (quoting Winter, supra, 96 N.J. at 646).]
Following review of this record, we conclude any error by including this inadvertent statement by Patrolman Brown was harmless. We weigh heavily the fact that the comment did not evoke an objection or a subsequent request for a curative instruction. See id. at 646-47 ("The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction . . . 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."); see also State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999). Moreover, defendant's testimony contained his admission of prior criminal conduct. Thus, the officer's brief statement could not have prejudiced the jury or produced an unjust result. Winter, supra, 96 N.J. at 647.
D.
Defendant challenges the sentence imposed as excessive because the judge failed to consider applicable mitigating factors. Prior to imposing sentence, the judge applied aggravating factors three, six, and nine, N.J.S.A. 2C:44- 1(a)(3), (6), (9), and found no applicable mitigating factors. N.J.S.A. 2C:44-1(b)(1)-(13). Defendant argues mitigating factor eight, defendant's conduct was unlikely to reoccur, N.J.S.A. 2C:44-1(b)(8), should apply as the events emanated from emotional marital circumstances and his criminal history did not include violent offenses.
First, we note the claim was not presented to the trial court, limiting our review to plain error. See R. 2:10-2. Second, in any sentencing determination, our review is limited to whether there is a "clear showing of abuse of discretion." State v. Bolvito, 217 N.J. 221, 228 (2014) (citation and internal quotation marks omitted). A sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation and internal quotation marks omitted).
Defendant's criminal history commenced in 1992 and continued through 2012. Other than this offense, he had twenty-one criminal matters as an adult and a juvenile, three of which were indictable offenses. He also had downgraded charges involving assault and resisting arrest by force; convictions for violating domestic violence restraining orders; and a pending charge for attempted bodily injury to another. Thus, defendant's argument for inclusion of the mitigating factor is factually unsupported.
Our review reflects the sentencing judge properly identified and balanced all factors, which he fully supported by sufficient credible evidence in the record. The imposed sentence is within the applicable range for the offense and does not shock our judicial conscience. Accordingly, we have no basis to interfere with the judge's reasoned and appropriate exercise of discretion. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION