Opinion
DOCKET NO. A-1736-12T1
05-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARL J. GARRISON, a/k/a CARL JOSEPH WOLBERT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-02-0142.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). PER CURIAM
Defendant Carl J. Garrison appeals from his convictions for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. We affirm.
We discern the following facts from the evidence adduced at trial. On September 7, 2010, defendant went to Michael Renner's residence to cut down a tree. After the work was completed, defendant and Renner drank beer while they packed up tools, went to a gathering where they had a "couple of beers," then went to defendant's girlfriend's trailer, where they continued drinking beer. While at the trailer, defendant and Renner got into an altercation. Defendant hit Renner multiple times with a baseball bat, called 9-1-1 claiming that Renner hit his head on a chair, and then left.
When emergency medical personnel arrived, they found Renner lying unconscious on his back with "significant blood loss coming from his head." They transported him to the hospital via helicopter, and doctors treated him for contusions on his chest, abdomen, and extremities, and for lacerations on his forehead and the back of his head.
The next morning, Detectives Joan Krucinski and Lee Harris interviewed defendant about the altercation. Defendant first stated that Renner "sucker[] punched" him, he punched Renner back, and Renner hit his head on the back of a chair. He then admitted that he hit Renner with a bat. Although defendant maintained that Renner punched him, neither detective saw any marks or bruises on defendant's face that would indicate he had been assaulted. Detectives recovered from defendant's residence clothing stained with blood matching Renner's DNA. They recovered three baseball bats from the trailer. Defendant was charged with second-degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count One), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Two).
A judge and jury tried defendant over three days in May 2012. At trial, Renner testified that while in the trailer, he decided to take a nap. He put his head down on the kitchen table, said he was going to go home, and then "saw a white flash" and heard a "bing." He then saw an aluminum bat coming towards him, tried unsuccessfully to grab it, saw three "black flash[es]," and heard defendant say "[h]e's dead now." Defendant testified that he "grabbed something . . . . And, it happened to be a bat" and that he "recall[ed] swinging something and hitting contact with Mr. Renner." He denied saying "[h]e's dead now."
Defendant also testified that after he cut down the tree, Renner stole his truck for three hours. The assistant prosecutor objected, arguing that "there's no indication that his truck was ever stolen. He never said it was stolen; there's no police report produced to say that it was stolen." The judge said that the assistant prosecutor could cross-examine defendant on his statement. After the defense rested, defense counsel moved for a mistrial based on the assistant prosecutor's objection, arguing that the assistant prosecutor's statement would unfairly undermine defendant's credibility in the eyes of the jury. The judge denied the motion and issued the following curative instruction in addition to the instruction on the burden of proof:
[In] framing objections, the attorneys may state certain things that they believe to be fact; it may or may not be fact. It doesn't matter when it comes from the mouth of an attorney, either in their closing argument, or in a question, or in an objection. It is what comes from the mouth of the witness [that] is the evidence, you weigh that evidence, you decide what weight to give it to — what weight to give it. Either you believe it or you don't believe it, taking into account all the things that I have said and will say about credibility.
The jury found defendant guilty of the lesser-included offense of third-degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7), on Count One, and found defendant guilty of Count Two. The judge sentenced defendant to a five-year term of imprisonment with no parole ineligibility on Count One and a concurrent five-year term on Count Two.
On appeal, defendant argues the following points:
POINT I
PLAIN ERROR OCCURRED WHEN THE PROSECUTOR MADE REPRESENTATIONS IN HIS SUMMATION THAT REQUIRED SUPPORTING EXPERT TESTIMONY (NOT RAISED BELOW).
POINT II
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S JURY INSTRUCTIONS WERE INCOMPLETE AND INADEQUATE (NOT RAISED BELOW).
(A) THE ABSENCE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK IN THE TRIAL COURT'S CHARGE CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
(B) THE PREJUDICE RESULTING FROM THE PROSECUTOR'S IMPROPER OBJECTION WAS NOT AMELIORATED BY THE TRIAL COURT'S LIMITING INSTRUCTION (NOT RAISED BELOW).
POINT III
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RULING THAT DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO IMPEACH CREDIBILITY.
POINT IV
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
POINT V
THE 5 YEAR BASE TERMS IMPOSED ON DEFENDANT'S CONVICTIONS WERE MANIFESTLY EXCESSIVE.
I.
Defendant argues that the assistant prosecutor improperly represented in his summation that defendant hit Renner in the head with a baseball bat. He contends that Renner's head injuries could have been caused by Renner hitting his head on a chair and that, without expert testimony, the prosecutor's statements were not supported by the evidence. We disagree.
It is well-settled that "[s]o long as [a prosecutor] stays within the evidence and the legitimate inferences therefrom the [p]rosecutor is entitled to wide latitude in [the] summation." State v. Wakefield, 190 N.J. 397, 457 (2007) (first alteration in original) (citation and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. But such testimony should "relate[] to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. Sowell, 213 N.J. 89, 99 (2013) (alteration in original) (quoting State v. Odom, 116 N.J. 65, 71 (1989)) (internal quotation marks omitted). "[T]he case law makes clear that it is not proper to present expert testimony about straightforward but disputed facts." Id. at 100.
Here, there was a factual dispute over whether Renner hit his head on a chair or was hit with a baseball bat, but an "average person of ordinary experience, education, and knowledge" would be able to make this factual determination. Id. at 99. The assistant prosecutor's statements were fair inferences from the evidence, which included Renner's testimony that he saw a "white flash," heard a "bing," and saw a baseball bat coming towards him; defendant's admission to the detectives that he hit Renner with a baseball bat; defendant's testimony that he grabbed a bat and "recall[ed] swinging something and hitting contact with Mr. Renner"; and testimony from Renner's treating physician that Renner had lacerations on his forehead and the back of his head. Therefore, we conclude that the assistant prosecutor's statements were not improper.
II.
We reject defendant's argument in Point II.A of his brief that the trial court committed plain error by failing to provide the jury with a Kociolek charge regarding defendant's alleged statement "[h]e's dead now." Kociolek applies when a witness testifies regarding a defendant's "inculpatory, out-of-court remarks." State v. Harris, 156 N.J. 122, 182 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). Under Kociolek, a trial court must charge the jury that it "should receive, weigh, and consider such evidence with caution." Kociolek, supra, 23 N.J. at 421.
Where, as here, defense counsel did not request the Kociolek charge at trial, the plain error standard applies. See State v. Jordan, 147 N.J. 409, 421 (1997). We view the absence of a Kociolek charge "within the factual context of the case and the charge as a whole," State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998), and we may reverse only if the absence was "clearly capable of producing an unjust result," Jordan, supra, 147 N.J. at 421 (quoting R. 2:10-2) (internal quotation marks omitted).
Even if the judge should have given the Kociolek instruction here, that failure was not capable of affecting the outcome of the trial. Defense counsel impeached Renner's credibility as to the alleged statement "[h]e's dead now" by pointing out that Renner did not tell Detective Harris that defendant made this statement. Defense counsel also attacked Renner's credibility generally by attempting to show that Renner was biased, and by challenging Renner's explanation for defendant attacking him. There was no dispute as to the content of the statement; defendant denied making the statement at all. See State v. Baldwin, 296 N.J. Super. 391, 400-02 (App. Div.), certif. denied, 149 N.J. 143 (1997). And there was overwhelming evidence that defendant hit Renner with a baseball bat. Finally, the judge adequately charged the jury on weighing the credibility of witnesses. Therefore, considering the "factual context of the case and the charge as a whole," Crumb, supra, 307 N.J. Super. at 251, we conclude that the trial court did not commit plain error.
III.
Defendant argues in Point II.B of his brief that the trial court erred by denying defendant's motion for a mistrial. We disagree.
The decision whether to grant a mistrial 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." State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 647 (1984)), certif. denied, 149 N.J. 142 (1997). Therefore, we accord such a decision "great deference on appeal" and affirm unless it would result in manifest injustice. Ibid.
"It is, of course, a basic tenet of our criminal jurisprudence that a defendant has no obligation to establish his innocence." State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). When a prosecutor's statements suggest that a defendant must establish innocence, "the facts and circumstances must be closely scrutinized to determine whether the defendant's . . . right to a fair trial [has been] compromised." Id. at 383 (alterations in original) (citation and internal quotation marks omitted).
Here, the assistant prosecutor objected to defendant's testimony that Renner stole his truck, arguing that defendant did not produce a police report showing that the car was stolen. However, this comment did not relate directly to whether defendant committed the crime at issue in the trial. Neither the assistant prosecutor nor Renner suggested that defendant hit Renner because he was angry about the truck. Defendant testified that he was angry about the truck, but that he calmed down and "decided to push it aside." The judge charged the jury on the burden of proof and instructed them that objections are not evidence. Therefore, after a close scrutiny of the facts and circumstances, we conclude that the objection did not compromise defendant's right to a fair trial and the judge's decision to deny defendant's motion for a mistrial did not result in manifest injustice.
After carefully considering defendant's arguments in light of the record and applicable legal principles, we conclude that his remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Kociolek, 23 N.J. 400 (1957).