Opinion
DOCKET NO. A-4314-12T4
01-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH W. WATKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-02-0369. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Following a jury trial, defendant Keith W. Watkins was convicted of the sole charge of second-degree aggravated assault, causing or attempting to cause serious bodily injury (SBI), N.J.S.A. 2C:12-1b(1). The trial judge sentenced defendant to nine years of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision.
On appeal, defendant raises the following issues:
POINT IConsidering defendant's arguments in light of the record and applicable principles of law, we affirm his conviction and remand the matter solely for the purpose of amending the judgment of conviction (JOC) to reduce the period of parole supervision from five years to three years.
AS BOTH THE JURY CHARGE AND THE VERDICT SHEET ON AGGRAVATED ASSAULT FAILED TO PROPERLY DIFFERENTIATE "RECKLESSNESS" FROM "RECKLESSNESS UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE," THE DEFENDANT WAS DENIED A FAIR TRIAL. (Not Raised Below)
POINT II
THE DEFINITION OF THE PHRASE "UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO HUMAN LIFE" SHOULD NOT BE INTERPRETED TO CHANGE FROM CRIMINAL STATUTE TO CRIMINAL STATUTE; RATHER, THE DEFINITION OF THAT PHRASE AS FIRST INTERPRETED IN STATE V. CURTIS , AND APPROVED THEREAFTER BY THE NEW JERSEY SUPREME COURT, SHOULD APPLY WHENEVER IT IS USED IN THE CODE. CONSEQUENTLY, THE JURY INSTRUCTION ON SECOND-DEGREE AGGRAVATED ASSAULT WAS INCORRECT. (Not Raised Below)
POINT III
THE TRIAL JUDGE FOUND IMPROPER AGGRAVATING FACTORS, FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS AND IMPOSED A NINE-YEAR
SENTENCE UNDER THE NO EARLY RELEASE ACT THAT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.
POINT IV
THE PERIOD OF PAROLE SUPERVISION MUST BE CORRECTED.
195 N.J. Super. 354 (App. Div.), certif. denied, 99 N.J. 212 (1984).
I.
On January 27, 2010, during a dispute over a gas pump at a Palisades Parkway gas station, defendant kicked a seventy-seven-year-old man causing him to fall and fracture his hip, necessitating a hip replacement. Off—duty New York Police Department Lieutenant Nicholas McAteer heard the commotion and saw the victim lying on the ground, with gas station employees rushing to his aid. McAteer then saw defendant drive-off in a minivan with a woman passenger. McAteer jumped into his car and followed the minivan, allowing him to identify the minivan's license plate and to see defendant's face before he discontinued his pursuit.
In the ensuing investigation, in separate photo arrays, McAteer identified defendant as the man he followed driving the minivan, and the victim identified defendant as his attacker. They both confirmed their identification of defendant during their respective trial testimony. Another gas station patron also testified that defendant was the man who kicked the victim and fled the scene in a minivan. Defendant did not attend the trial and did not testify.
Defendant explained at sentencing that he was overcoming personal hardship at the time, including helping his girlfriend who was in the hospital battling cancer. --------
The judge instructed the jury on the model charge of aggravated assault:
A person is guilty of aggravated assault if he: 1) attempts to cause serious bodily injury to another; 2) or causes such injury purposely or knowingly; or 3) under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.
. . . .
To find the defendant guilty of aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements:
. . . .
. . . That the defendant acted purposely or knowingly or acted recklessly under circumstances . . . manifesting extreme indifference to the value of human life.
. . . .
A person acts recklessly with respect to the result of his conduct if he consciously disregards a substantial and unjustifiable risk that the result will occur from his conduct.
. . . .
The phrase "under circumstances manifesting extreme indifference to the value of human life" does not focus on the state of mind of the actor, but rather on the circumstances under which you find that he acted. If, in light of all the evidence, you find that the conduct of the defendant resulted in a probability as opposed to a mere possibility of serious bodily injury, then you may find that he acted under circumstances manifesting extreme indifference to the value of human life.
In determining whether the defendant acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the acts themselves, [and] the severity of the resulting injuries.
[Model Jury Charge (Criminal), "Aggravated Assault — Serious Bodily Injury" (2012).]
The judge then read the verdict sheet to the jury, noting that she had "already instructed" them on the relevant terms. The first question on the verdict sheet was,
1a. On the charge of purposely, knowingly or recklessly causing serious bodily injury to [victim], our verdict is:The question, however, did not include the phrase "under circumstances manifesting extreme indifference to the value of human life" preceding the word "recklessly," as the judge had advised the jury in her instructions. Defendant did not object to the jury charge or verdict sheet. The jury returned a guilty verdict on the first question.
A. Not Guilty ___
B. Guilty ___
If you answered GUILTY to Question 1A, then cease your deliberations and return your verdict to judge. If you answered NOT GUILY to Question 1a, answer the following:
At sentencing, the judge found aggravating factors one, two, three, six, nine, and twelve. N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); -1(a)(2) (gravity and seriousness of harm inflicted); -1(a)(3) (the risk to commit another offense); -1(a)(6) (prior record and seriousness of offense); -1(a)(9) (need for deterrence); and -1(a)(12) (offense against an elderly or disabled person). In addition, the judge rejected defendant's request to apply mitigating factors two, six, seven, eight, nine and eleven. N.J.S.A. 2C:44-1(b)(2) (not contemplate serious harm); -1(b)(6) (compensated or will compensate the victim for the damage or injury sustained, or will participate in a program of community service); -1(b)(7) (no history of prior delinquency or criminal activity or led a law-abiding life for a substantial period of time before the commission of the present offense); —1(b)(8) (conduct unlikely to recur); -1(b)(9) (unlikely to commit another offense); and -1(b)(11) (imprisonment would entail excessive hardship). The judge concluded that the aggravating factors significantly outweighed the mitigating factors, and imposed a nine-year sentence subject to NERA with a five-year period of parole supervision. This appeal followed.
II.
We first consider defendant's challenge that the trial court failed to provide proper jury instructions related to aggravated assault. Defendant contends that since the victim was struck once, the jury had to decide whether the striking was "under 'circumstances manifesting extreme indifference to the value of human life'[,] an additional element required for conviction of aggravated assault" under N.J.S.A. 2C:12-1b(1). He argues that the jury reached its verdict because the jury charge on aggravated assault was misleading and confusing, likely causing the jury to conflate "recklessness" and "circumstances manifesting extreme indifference to the value of human life." Defendant adds that the confusion was compounded by the jury verdict sheet which effectively provided that "recklessness" is "equated to a guilty finding of aggravated assault in the second degree." He acknowledges that he did not object to the charge or verdict, but contends that the errors produced an unjust result necessitating reversal of his conviction.
We are mindful of some well-settled principles. "'[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149, 150 (1999) (citation omitted). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,
plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (citation omitted).
Applying these principles, we are convinced that there was no plain error with respect to the trial judge's jury instructions or the verdict sheet. Consistent with N.J.S.A. 2C:12-1b(1), the jury was told that the State had to prove that defendant caused the victim serious bodily injury, by acting either purposely or knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. See Pressler & Verniero, Current N.J. Court Rules, comment 8.1 to R. 1:8-7 (2015) ("[u]se by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error"). 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). Thus, the jury could have found defendant guilty if it concluded that defendant purposely or knowingly caused the victim SBI.
Based on the record, we reject defendant's contention that the jury could have only found him guilty of recklessly causing SBI under circumstances manifesting extreme indifference to the value of human life based on the fact that victim was only struck once. It was reasonable for the jury to conclude that one blow or kick to the elderly victim, causing him to fall and fracture his hip, is a sufficient basis to find defendant guilty of purposefully or knowingly causing SBI. We acknowledge that it would have been preferable for the verdict sheet to require the jury to differentiate defendant's state of mind to determine defendant's guilt. Yet, considering that the jury's verdict is consistent with the law, this deficiency does not support reversal of defendant's conviction.
Next, defendant contends that the trial judge incorrectly relied upon State v. Scher, 278 N.J. Super. 249 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995) (concerning a defendant driving recklessly on a highway while highly intoxicated causing injury). Defendant argues that our holding in Scher was "wrong" in concluding that "'circumstances manifesting extreme indifference to the value of human life,' as an element of aggravated assault, 'entail a probability of serious bodily injury[,]'" id. at 272 (citation omitted), and so the trial court's application of the ruling in Scher to this case produces an unjust result. Defendant further maintains that Scher misapplied our prior holding in State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984), where, in the context of an aggravated manslaughter charge, we first interpreted the meaning of the phrase "circumstances manifesting extreme indifference to human life" as whether objective circumstances demonstrate a probability, rather than a possibility, of death. Defendant contends that Curtis is limited to circumstances involving a death because the trial "court's conflation of recklessness and circumstances manifesting extreme indifference may have led the jury to convict [defendant] where there was only a possibility, not a probability, of serious bodily injury []."
We find no merit to this contention. First of all, as noted, we have no way of knowing if the jury found defendant guilty because he recklessly caused SBI under circumstances manifesting extreme indifference to the value of human life; there was sufficient basis for the jury to find defendant guilty of purposefully or knowingly causing SBI. Moreover, we see no reason to conclude that Scher is no longer good law. In fact, in State v. Moore, 158 N.J. 292, 302 (1999), abrogated by State v. Rodriguez, 195 N.J. 165, 173-74 (2008) (departing from Scher dicta that self-defense is not a justification when the requisite mental state to establish an offense is recklessness), our Supreme Court accepted the standard set forth in Scher that the requirement that SBI in an aggravated assault charge can occur "under circumstances manifesting extreme indifference to the value of human life means a probability as opposed to a mere possibility of causing such injury." Ibid. (citing Curtis, supra, 195 N.J. Super at 364; see also State v. Barboza, 115 N.J. 415, 419 ( 1989); State v. Breakiron, 108 N.J. 591, 605 (1987)).
Next, we turn to defendant's contentions that his sentence was excessive because the trial judge erred in her assessment of aggravating and mitigating factors. Specifically, defendant contends that there was no basis for the judge to find aggravating factors one and two, and that the finding of aggravating factor one amounted to a prohibited double-counting of crime elements because the victim's injury did not occur in a particularly heinous or cruel manner.
We begin by noting that review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal 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 omitted).
If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentencing court must avoid "double-counting" facts that establish the elements of the relevant offense in making that determination. State v. Fuentes, 217 N.J. 57, 74-75 (2014). However, "[i]n appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense." Id. at 75 (citation omitted).
We are not persuaded that the court erred in sentencing defendant. In considering aggravating factor one, the judge explained that defendant's act was "completely unprovoked." She further labeled defendant's crime as a "stranger to stranger crime," which she commented was "worse because it's one thing if . . . somebody attacks you and you retaliate but you know the person and . . . you're trying to defend yourself. But this is a stranger who had absolutely no animosity towards [him] and you should have no animosity towards [defendant] . . . ."
In considering aggravating factor two, the judge underscored the seriousness of the harm defendant inflicted by stating that the victim is essentially "incarcerated now in his own house. [He] [c]an't put on his pants, can't put his shoes on. He needs to be 100 percent cared for . . . by someone else." In addition, although defendant argued for several mitigating factors, the judge, while making no express mitigating factor findings, rejected defendant's excuse that he was under the influence of drugs at the time of the incident.
In accord with the record, the judge appropriately weighed the aggravating and mitigating factors. We find support for the aggravating factors that were applied, and no basis for the mitigating factors asserted by defendant. The sentence does not shock the conscience. Moreover, the trial court was justified in applying aggravating factor one which in this instance did not amount to double counting considering the brutality of defendant's action. Therefore, we shall not second-guess and disturb the trial court's findings. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
Finally, the State agrees with defendant's contention that he was convicted of a second-degree offense, and in accordance with NERA the judge should have imposed a three-year period of parole supervision, instead of five years as ordered. We likewise agree.
Defendant's conviction is affirmed. We remand to the trial court to amend the JOC to reduce defendant's parole supervision to three years. Jurisdiction is not retained. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION