September 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WALTER BRANDON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-04-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Coburn and Chambers.
A jury found defendant not guilty of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), as alleged in count one of the indictment, but guilty of the remaining charges alleged respectively in counts two and three of the indictment; namely, third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge approved the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a), merged the weapons offense into the assault, and sentenced defendant to prison for seven years with half of that term to be served without parole. Defendant appeals. The State concedes that a remand for re-sentencing is required by State v. Natale, 184 N.J. 458, 482 (2005), and State v. Pierce, 199 N.J. 155, 168-69 (2006), which is hereby ordered. Otherwise, the conviction is affirmed in all respects.
The charges arose from a late evening, street confrontation on November 1, 2003, in Jersey City. The main participants were defendant, his ex-girlfriend, Antoinette Holmes, and her friend, Corey Courts. During the confrontation defendant became enraged because he believed that Holmes and Courts were involved in a sexual relationship. He demanded that Courts leave. As Courts started to walk away, defendant struck him on the right side of his face with a forty-ounce beer bottle. The bottle shattered, and Courts's face was lacerated by the broken glass. Courts ran across the street, grabbed a piece of pipe from a broken gate, and started walking back toward defendant. Although Courts admitted that he initially intended to hit defendant with the pipe, he did nothing to carry out that act. Holmes's sister came out into the street and told defendant, who was accompanied by four other men, that he should leave because the police were on their way. Police and paramedics arrived shortly thereafter. Courts and Holmes told the police that defendant, who had left with his friends, had struck Courts with a bottle. Courts was taken to the hospital. Later Holmes told the police that defendant had shown her a knife during the confrontation but after he had struck Courts with the bottle.
Defendant testified that during the confrontation Holmes told him she wanted to watch him have sex with Courts and her. Courts, he said, then walked up to him, felt him, and pushed him up against a wall. He cursed at Courts, who responded by cutting defendant with a knife. In self-defense, he then struck Courts in the head with the bottle.
Defendant was arrested in February 2004 and indicted in April 2004. Eight months after the incident, on July 13, 2004, defendant filed a complaint against Courts, and gave the police a statement asserting the story of self-defense for the first time. On cross-examination, the prosecutor questioned defendant about why he had not sought treatment for his wound and why he had not immediately reported the alleged assault to the police. On re-direct examination, defendant said that he took neither course of action because he was on parole when the incident occurred and feared that going to the hospital or the police might result in a parole violation.
Defendant offers the following arguments on appeal:
POINT I: THE PROSECUTOR'S USE OF DEFENDANT'S SILENCE TO ATTACK HIS DEFENSE OF SELF-DEFENSE AS A LAST-MINUTE FABRICATION VIOLATED HIS STATE PRIVILEGE AGAINST SELF-INCRIMINATION AND MANIFESTLY PREJUDICED HIS RIGHT TO A FAIR TRIAL. N.J.S. 2A:84A-19; N.J.R.E. 503. (Not Raised Below).
POINT II: INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT III: THE PROSECUTOR USURPED THE JUDGE'S FUNCTION DURING SUMMATION BY INSTRUCTING THE JURY ON THE ELEMENTS OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND THE MEANING OF REASONABLE DOUBT AND, THEREBY, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
POINT IV: THE TRIAL COURT IMPROPERLY FAILED TO CONSIDER THE FULL RANGE OF POSSIBLE SENTENCES FOR DEFENDANT, FROM THE ORIGINAL TERM MINIMUM TO THE EXTENDED TERM MAXIMUM; THEREFORE, DEFENDANT'S SENTENCE SHOULD BE REVERSED AND THE MATTER REMANDED. U.S. CONST., AMEND. VI.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments, putting to one side his first point and the need for resentencing, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments as to his first point.
Defendant's claim, that the prosecutor's use of his pre- and post-arrest silence in cross-examination and summation violated his privilege against self-incrimination under N.J.S.A. 2A:84A-19 and N.J.R.E. 503, was not made during trial. Consequently, the plain error rule applies. R. 2:10-2. Although defendant's point heading relies on statutory bases, the issue appears to be of state constitutional dimension. State v. Brown, 190 N.J. 144, 157-58 (2007). But assuming that to be so, reversal, if there was error, "depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971).
Defendant relies on the following excerpts from the record, beginning with this cross-examination by the prosecutor:
Q: I'm going to show you what's been marked S-2 for identification by the State. Do you recognize this?
A: Yes. That's the statement I put on him, [Courts], pressed charges on him as well.
Q: This is a statement that you give to who?
A: To the prosecutor.
Q: The prosecutor of Hudson County?
Q: Did you wait for the police to arrive that night?
Q: Did you go to the hospital that night?
A: No, I didn't.
Q: Did you report it to the police the next day maybe?
Q: But he stabbed you.
A: He cut me.
Q: Cut you?
Q: You were injured?
Q: He cut you first?
Q: But you didn't wait for the cops?
Q: You didn't go to the hospital?
Q: And you wrote your letter eight months later?
Defendant than cites this redirect examination by his counsel:
Q: Now, on the evening of November 1st, 2003, Mr. Brandon, why didn't you go to the police?
A: Because I was on parole then.
Q: Okay. So your fear was what?
A: I go to the hospital, they're going to call the cops, I got cut, and then I be violating my parole.
Next, defendant cites the following from the recross exmination by the prosecutor:
Q: Isn't it true that the first time for you to present your version would have been the night you were allegedly assaulted?
Q: Okay. And that would have been the first time you'd (sic) able to tell law enforcement, correct?
Q: You indicated that you were on parole at the time?
Q: And you expect this jury to believe that you thought parole would violate (sic) for defending yourself from someone who stabbed you, cut you?
A: Yes. If you get another charge while you're on parole, you're violated.
Last, defendant cites the following portion of the prosecutor's summation:
You actually heard the defendant say it was self-defense, that Corey Courts sliced him on the arm, but he didn't report it because he felt parole would violate him. Well, wait a minute. You're cut by somebody. You were slashed with a knife by someone, you don't wait for the police, you don't go to a hospital? You write a letter with your version of the events eight months later because you're afraid parole might violate you? Doesn't make sense.
Does it make sense that he would wait for the police? No. Does it make sense that he can get medical attention. No. Does it make sense that you write your version of events eight months after the incident happened? No.
Walter Brandon got up on this witness stand and made a story up, a creative one I would say, about what happened.
The thrust of the prosecutor's examination and summation was that defendant's pre-arrest silence was relevant to impeachment of his trial testimony. To that extent both were clearly proper under State v. Brown, supra, 190 N.J. at 148 ("when there is no governmental compulsion involved, the State may fairly cross-examine the defendant concerning pre-arrest conduct or silence to challenge his self-defense testimony.").
In short, once defendant chose to testify, relying on self- defense, the prosecutor was entitled to cross-examine him on his failure to seek medical attention, or to report the alleged assault to the police during the months between the incident and his arrest when, as here, he was not under compulsion, and a reasonable person in his position would have reported the incident and sought medical care.
To the extent that the prosecutor's cross-examination and summation might be taken as relating to defendant's post-arrest silence, the case is somewhat more troublesome. Certainly, had the prosecutor stressed defendant's failure to give his defense immediately after his arrest, we might well view this case differently. But the prosecutor's focus was overwhelmingly on the long period of time between the incident and defendant's arrest, and not on what occurred at arrest or thereafter.
Consequently, if there was error here, it was harmless beyond a reasonable doubt, and did not in any way influence the jury's verdict. State v. Whitehead, 80 N.J. 343, 348 (1979); State v. Elkwisni 190 N.J. 169, 181 (2007).
In his reply brief, defendant argues for the first time that the trial court erred by failing to give the jury a limiting instruction to the effect that the pre-arrest silence was only relevant to impeachment of defendant's credibility and could not be used as evidence of guilt. The case holding that such a charge should be given, State v. Brown, 190 N.J. at 160- 61, was decided after this trial. More importantly, the Court held that failure to give the charge was not "clearly capable of producing an unjust result . . . ." Ibid. The same result obtained in State v. Elkwisni, supra, 190 N.J. at 182. Consequently reversal on that basis would be improper.
Affirmed and remanded for resentencing.
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