On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 99-7-397-I.
Before Judges Pressler, Wallace, Jr. and Ciancia.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2003
Following a competency hearing resulting in the determination that defendant Javier J. Lozada was competent to stand trial, defendant was tried and found guilty by a jury of third-degree stalking, N.J.S.A. 2C:12-10c, and fourth-degree violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b. He was sentenced to a three-year probationary period subject to a 90-day jail term and required mental health evaluations. Defendant appealed, and the trial court stayed the custodial portion of the sentence pending appeal. We now reverse.
The charges against defendant arose out of his five-month relationship with the victim. The couple dated for two months and lived together for three months. The victim then terminated the relationship. Several months thereafter, on April 8, 1999, the victim, because of defendant's conduct towards her after the breakup, obtained a domestic violence restraining order against him. The nature of that conduct was not specified. Thereafter, according to the State's case, defendant stalked the victim at various times between May 12, 1999, and June 20, 1999. That conduct was the basis of both charges brought against him.
In challenging the judgment of conviction, defendant raises the following issues:
I. THE COURT COMMITTED REVERSIBLE ERROR IN ITS REFUSAL TO SEVER THE TWO COUNTS OF THE INDICTMENT FOR TRIAL.
II. BECAUSE, CONTRARY TO THE COURT'S FINDING, DEFENDANT WAS NOT MENTALLY COMPETENT IN SEPTEMBER OF 2001 TO STAND TRIAL, HIS CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING TO DETERMINE HIS PRESENT LEVEL OF COMPETENCY.
III. IN ELICITING EXTREMELY DAMAGING TESTIMONY FROM THE VICTIM ON CROSS-EXAMINATION, AND THEN COMPOUNDING THE ERROR BY REQUESTING THE COURT NOT TO PROVIDE THE JURY WITH A LIMITING INSTRUCTION REGARDING THAT TESTIMONY, TRIAL COUNSEL FELL BELOW MINIMAL STANDARDS OF PROFESSIONAL COMPETENCE. (Not Raised Below)
IV. THE PROSECUTOR CREATED REVERSIBLE ERROR BY REPEATEDLY INVITING THE JURORS DURING HER SUMMATION TO IMAGINE THEMSELVES IN THE PLACE OF THE VICTIM. (Not Raised Below)
We agree with defendant that the court erred in failing to sever the charges of stalking and contempt of a restraining order. In reaching this conclusion, we rely on the Supreme Court's decision in State v. Chenique-Puey, 145 N.J. 334 (1996), in which a domestic violence restraining order had been entered against the defendant. He was thereafter charged with contempt of that order and with the underlying crimes that constituted violation thereof. The Court made clear that the existence of a restraining order, an element of the contempt offense but not of the underlying crimes, is nevertheless construable by the jury as other-crimes evidence demonstrating defendant's propensity to commit the substantive offense with which he was charged in violation of N.J.R.E. 404(b) or which may lead the jury to conclude that defendant, in respect of the underlying criminal offense, acted in conformity with prior behavior in violation of N.J.R.E. 404(a). Id. at 342. Moreover, as the Court pointed out, because the restraining order is not an element of the underlying crimes, the jury need not be apprised of its existence in trying the underlying crimes. Thus, in order to avoid the prejudice to defendant resulting from the jury's knowledge of the restraining order when it tries the underlying crimes, the Court mandated a severance in these circumstances, directing that "[i]n the future, trial courts should sever and try sequentially charges of contempt of a domestic-violence restraining order and of an underlying criminal offense when the charges arise from the same episode." Id. at 343. The Court expressly relied on the same principles of fairness and avoidance of undue prejudice that impelled it to require severance of the crimes of possession of a weapon by a convicted person from the other crimes with which the defendant is tried. See State v. Ragland, 105 N.J. 189 (1986).
Application of the severance procedure dictated by Chenique- Puey is, however, problematical where the underlying criminal offense is stalking. N.J.S.A. 2C:12-10b defines that crime as follows:
A person is guilty of stalking, a crime of the fourth degree, if he purposely and repeatedly follows another person and engages in a course of conduct or makes a credible threat with the intent of annoying or placing ...