On appeal from Superior Court of New Jersey, Law Division, Essex County.
Petrella, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.
[223 NJSuper Page 125] The Essex County grand jury returned a multi-count indictment charging defendant with second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), possession of a sawed-off shotgun (N.J.S.A. 2C:39-3b) and possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a). Defendant entered pleas of not guilty with respect to all charges and proceeded to trial. Following the conclusion of the State's case, the trial judge granted a judgment of acquittal on the count charging second degree aggravated assault, but found sufficient evidence to support submission of the reduced charge of fourth degree aggravated assault (N.J.S.A. 2C:12-1b(3)) to the jury. The judge also granted a judgment of acquittal on the count charging defendant with possession of a firearm for an unlawful purpose. The jury ultimately returned a verdict, finding defendant guilty of fourth degree aggravated assault and possession of a sawed-off shotgun. At sentencing, the judge imposed a custodial term of 18 months without parole eligibility on the aggravated assault
conviction.*fn1 See N.J.S.A. 2C:43-6c. Defendant was sentenced to a concurrent custodial term of 18 months on the conviction for possession of a sawed-off shotgun.*fn2 In addition, the judge assessed penalties totaling $125 payable to the Violent Crimes Compensation Board.
On appeal, defendant asserts that: (1) the trial judge mistakenly exercised his discretion by needlessly and improperly advising a defense witness of potential criminal charges that could be made against him and by apprising him of his privilege against self-incrimination, thereby encouraging him to refuse to testify, (2) the State's evidence was insufficient to support a charge of possession of a sawed-off shotgun and the question should not have been submitted to the jury, (3) the jury instructions concerning aggravated assault were materially deficient and (4) the judge should have instructed the jury on the principles of self-defense and imperfect self-defense both with respect to aggravated assault and possession of a sawed-off shotgun. Although we find no merit in defendant's other arguments, R. 2:11-3(e)(2), we conclude that the trial judge was ill-advised in apprising a defense witness he was in imminent peril of incriminating himself and advising him of his constitutional right not to respond to defense counsel's questions. We deem this error harmless beyond a reasonable doubt, however, and thus affirm defendant's convictions.
The incident giving rise to this prosecution grew out of an altercation between defendant and Jasper Murray. The fight began in the second-floor apartment of Theresa Jackson and later moved outside to the street in front of the house. The commotion was witnessed by several individuals, some of whom
apparently participated in varying degrees. According to the State's witnesses whose observations were limited to the protagonists' confrontation in the street, Murray carried a baseball bat and defendant was armed with a sawed-off shotgun. Albert Jackson testified that he attempted to stop Murray, who was wildly swinging the bat in the direction of defendant's head. Jackson noticed that defendant was cradling a shotgun pointed slightly to the side of Murray, when he heard a shot. Jackson, who was highly inebriated at the time of the incident, did not actually observe the antagonists because he was attempting to avoid being struck by the bat. In any event, Del Jackson, the 11 year-old brother of Albert, was wounded in the thigh.
The justification for the shooting offered at trial was that of self-defense and misadventure. Theresa Jackson testified that, after the initial fracas in her apartment, defendant was accosted by Murray in the street. According to her testimony, Murray, who was armed with a bat, repeatedly struck the windshield of defendant's automobile. He then began pursuing defendant, who, the witness said, did not have a weapon.
Defendant elected to testify in his own behalf. According to his account, Murray was lunging at him with the bat when someone in the crowd that had gathered handed him what "felt like a club with a wooden handle." As defendant turned around, Murray's bat came in contact with his shoulder, thereby causing the gun to fire. Defendant testified that the incident occurred so rapidly that he was not initially aware of the fact that he had a shotgun in his hands.
In an attempt to bolster defendant's contention that the shooting occurred either in self-defense or by way of misadventure, the defense offered Ernest Jackson as a witness. He testified that he observed the fight between Murray, who was swinging a baseball bat, and defendant, who was unarmed. According to Jackson, someone in the crowd of bystanders began waving a gun, at which point he ran over and "snatched
it away from him." At this posture, the prosecutor interposed an objection and, during the course of the ensuing side-bar conference, stated that the witness was incriminating himself and should be apprised of his right not to testify. In response, defense counsel noted his understanding, apparently gleaned from his prior interview with Jackson, that the witness would testify that he gave the gun to defendant to assist him in defending himself against Murray's attack. The judge then instructed the jury to disregard ...