November 5, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAJEEHAH JACOBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-03-0462 and 04-10-3235.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Wajeehah Jacobs appeals from two judgments of conviction, pursuant to which she was sentenced to an aggregate term of ten years in prison.*fn1 Although we remand the matter for reconsideration of the sentence in light of State v. Natale, 184 N.J. 458 (2005), we otherwise affirm the judgment of conviction.
On June 8, 2004, while in the parking lot of the Garden Spires, a gated community in Newark, defendant allegedly rammed her automobile into Evelyn Malachi. She then backed up a second time and rammed Malachi again. The victim was positioned underneath the front end of the vehicle after the first impact and impaled into a fence after the second. Then, ignoring verbal warnings by security personnel to stop, defendant sped out of the Garden Spires housing complex onto the streets of Newark before she was eventually apprehended.
On October 12, 2004, defendant was charged under Essex County Indictment No. 04-10-3235 with the following offenses: first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third degree terroristic threats, N.J.S.A. 2C:12-3a (count three); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third degree possession of a weapon for an unlawful possession, N.J.S.A. 2C:39-4d (count seven); and second degree eluding, N.J.S.A. 2C:29-2b (count eight).
Defendant was tried before a judge and a jury on March 22, 23, 29, 30, 31 and April 1, 2005. On the last day of trial, the jury returned its verdict finding defendant guilty of aggravated assault (count two); unlawful possession of a weapon (count four); possession of a weapon for an unlawful purpose (count five) and eluding (count eight). The jury acquitted defendant of attempted murder (count one), terroristic threats (count three), aggravated assault (count six), and possession of a weapon for an unlawful purpose (count seven).
In a separate indictment, No. 05-03-0462, issued on March 1, 2005, defendant was charged with third degree possession of heroin, N.J.S.A. 2C:35-10(a) (count one); third degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third degree possession of heroin with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); second degree possession of heroin with intent to distribute within a public housing zone, N.J.S.A. 2C:35-7.1 (count four); and third degree resisting arrest, N.J.S.A. 2C:29-2 (count five). On May 16, 2005, defendant pled guilty to count three, possession of heroin with the intent to distribute within 1000 feet of school property. Pursuant to the plea agreement, defendant was to receive a five-year sentence with a thirty-month period of parole ineligibility as part of the drug possession plea. That sentence was to run concurrent with any sentences to be imposed for the convictions stemming from the trial of charges under Indictment No. 04-10-3235. The rest of the counts of the indictment were to be dismissed, as was Indictment No. 04-10-3191, in which defendant had been charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, and third degree possession of a weapon for an unlawful purpose.
On June 3, 2005, Judge Casale sentenced the defendant to a term of ten years subject to the eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), for the conviction for second degree aggravated assault. The court merged count five, possession of a weapon for an unlawful purpose, with count two, aggravated assault. For eluding, count eight, defendant was sentenced to a concurrent ten-year prison term. On the conviction for unlawful possession of a weapon, count four, defendant received an eighteen-month concurrent sentence. The judge pronounced sentence on Indictment No. 05-03-0462, in accordance with the plea agreements. Also, consistent with the plea agreement, Indictment No. 04-10-3191 was dismissed. Thus, the aggregate custodial sentence resulting from the sentencing hearing of June 3, 2005 was ten years subject to the eighty-five percent NERA period of parole ineligibility. Ibid.
Defendant filed her notice of appeal on April 4, 2006, and in this appeal, she raises the following points of asserted error:
POINT I: TESTIMONY THAT A "JUDGE" WAS INVOLVED IN THE PROCESS OF ARRESTING THE DEFENDANT DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT II: TESTIMONY THAT THE DEFENDANT WAS OPERATING THE VEHICLE "RECKLESSLY" CONSTITUTED IMPROPER PERSONAL OPINIONS THAT THE DEFENDANT WAS GUILTY OF THE CRIMES OF SECOND DEGREE AGGRAVATED ASSAULT ON COUNT TWO AND SECOND DEGREE ELUDING ON COUNT EIGHT (NOT RAISED BELOW).
POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW).
A. THE PROSECUTOR EXPRESSED PERSONAL OPINIONS IN HIS SUMMATION THAT IMPROPERLY APPEALS TO THE EMOTIONS OF THE JURY (NOT RAISED BELOW).
B. COMMENTS MADE BY THE PROSECUTOR IN SUMMATION MISREPRESENTED THE FACTS (RAISED BELOW).
POINT IV: THE TRIAL COURT COMMITTED PLAIN ERROR IN RECHARGING THE JURY ON SECOND DEGREE ELUDING ON COUNT EIGHT (NOT RAISED BELOW).
POINT V: IMPOSITION OF BASE TEN YEAR CUSTODIAL SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR SECOND DEGREE AGGRAVATED ASSAULT ON COUNT TWO AND SECOND DEGREE ELUDING ON COUNT EIGHT, AND IMPOSITION OF THE EIGHTEEN MONTH BASE CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION FOR FOURTH DEGREE POSSESSION OF AN UNLAWFUL WEAPON ON COUNT FOUR, WERE MANIFESTLY EXCESSIVE AND VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.
We have carefully considered defendant's arguments in light of applicable law, and we are satisfied that none of the matters raised constitutes reversible error.
Defendant contends that she is entitled to a reversal of her conviction because Detective James Wright testified he had gone "in front of a judge who issued a warrant." In our view, such a comment in the presence of the jury could not have prejudiced the defendant. The witness simply stated that a judge issued an arrest warrant. This is a routine procedure.
Indeed, warrants are issued in accordance with R. 3:3-1, which provides in pertinent part:
An arrest warrant may be issued on a complaint only if:
(1) a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the warrant[.]
A judge's involvement in the warrant process is, therefore, expressly contemplated and permitted by the court rules. A passing reference to the issuance of a warrant, therefore, should not have improperly influenced the jury. See State v. McDonough, 337 N.J. Super. 27, 34 (App. Div. 2001). Moreover, the witness did not directly testify or imply that a judge had made any determination beyond the existence of probable cause or that he or she had any further involvement in the process.
Because Officer Alejandro Rosa and Security Guard Mark Ortman testified that defendant's driving in the Garden Spires parking lot was reckless, defendant argues that she is entitled to a reversal of the judgment of conviction. Her contention is that such testimony improperly removed factual questions from the jury's consideration and improperly encroached on the sole responsibility and function of the jury to determine guilt. We reject that contention.
The aggravated assault statute does include recklessness as an element of the offense. Specifically, the Criminal Code provides that
[a] person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.] [N.J.S.A. 2C:12-1(b)(1).]
A witness is not, however, estopped or precluded from describing or characterizing conduct as reckless simply because the term "reckless" may also carry legal significance.
"'[A] lay witness may give an opinion on matters of common knowledge and observation.'" State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)); State v. Labrutto, 114 N.J. 187, 197 (1989). See, e.g., State v. Risden, 56 N.J. 27, 40 (1970) (allowing a lay witness to testify as to whether an actor was of unsound mind based on observed actions). Such an opinion "may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Furthermore, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704. While an opinion by a lay witness does not relieve a party of the requirement to satisfy the applicable burden of proof, the courts of New Jersey have recognized the acceptability of such opinions concerning matters of common knowledge and observation.
Here, witnesses testified that defendant rammed the victim twice with a car. She then accelerated to a speed of thirty-five miles per hour while still in the parking lot. Officers Rosa and Ortman recounted these actions as the basis for their testimony that defendant's actions were reckless. The State did not suggest that the witnesses' statements amounted to expert commentary or legal conclusions, and in our view, the language was merely descriptive of the erratic and dangerous manner in which defendant was operating the car. Even if this testimony addressed an ultimate issue in the case, N.J.R.E. 704 does not prohibit it. Recklessness was but one element of aggravated assault and did not even constitute an element of eluding.*fn2
Moreover, the trial judge instructed the jury on the legal definition of recklessness. The instructions closely tracked the codified definition in N.J.S.A. 2C:2-2(b)(3) which reads:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. [Ibid.]
A jury is presumed to accept and faithfully follow such instructions. State v. Manley, 54 N.J. 259, 270-71 (1969).
The jury asked several questions of the court during its deliberations. In response to one of those questions, the judge again offered the above-mentioned definition of recklessness. Trial counsel did not object, and this court rejects the contention that the witnesses' use of the terms "reckless" or "recklessly" during their testimony, without more, would constitute plain error. R. 2:10-2.
Defendant also complains that the prosecutor's mention during the closing statement of his personal connection to the crime location amounted to prosecutorial misconduct. The prosecutor told of his first contact with Garden Spires when he and a friend who lived there shared a limo to attend their high school prom. The reference, if not innocuous, was certainly not so egregious that it would justify a reversal, as urged by defendant.
The Court has, of course, stressed that "'prosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant, or [otherwise engage] in collateral improprieties of any type, lest they imperil otherwise sound convictions.'" State v. Frost, 158 N.J. 76, 88 (1999) (quoting State v. Thornton, 38 N.J. 380, 400, cert. denied sub nom., Thornton v. New Jersey, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963)); see also State v. Spano, 64 N.J. 566, 569 (1974) (noting that sometimes severe action is necessary to curb prosecutorial misconduct); State v. D'Ippolito, 19 N.J. 540, 549 (1955) (stressing that the "[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done"). On the other hand, the Court has also directed that "prosecutorial misconduct will not serve as the basis for reversal unless it was so egregious as to work a deprivation of a defendant's right to a fair trial." State v. Feaster, 156 N.J. 1, 59 (1998); State v. Koedatich, 112 N.J. 225, 323 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989); State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993).
In this case, the prosecutor began his summation by explaining that he himself grew up in Newark. He had been driven to the Garden Spires complex at one point in his youth, and he regards the area differently now. At no point in his reminiscence did the prosecutor offer a personal opinion as to the facts or law in dispute in this case. He simply used his story as a rhetorical device. He may have drifted into nostalgia but certainly not into improper or prejudicial comment.
Defendant also complains that the prosecutor made a comment in summation regarding the victim's scar, though there had been no testimony about the scar. Indeed, after listing for the jury certain specific injuries sustained by the victim, the prosecutor suggested also "you were close enough to see her and see a scar on her face." When defense counsel objected that no evidence about the scar was in the case, the court acknowledged that there was testimony about her bleeding from her face, but no witness had testified to the existence of a scar. Nevertheless, the court determined it was not necessary to give a curative instruction on this point. The general charge told the jurors to be guided by their own recollection of the evidence and not to speculate.
More fundamentally, we note that substantial proof of "serious bodily injury," N.J.S.A. 2C:12-1(b)(1), was presented without regard to any scar. Prior to mentioning that the jurors might have been able to see a scar on the victim's face, the prosecutor enumerated specific injuries about which there had been testimony, namely a fractured rib, a punctured lung, a fractured disc in the back, and dislocated collar bone. Hence, there was substantial credible evidence in the record from which a reasonable jury could have found that defendant had caused or attempted to cause the victim serious bodily injury. In context, therefore, we are convinced the fleeting mention of a scar that could be seen "[i]f you could have gotten close enough to her" would not have had the capacity to deprive defendant of a fair trial.
As her final argument, defendant states that the imposition of a ten-year prison term was manifestly excessive. Alternatively, she asserts that the trial court's sentence should be remanded for resentencing, consistent with Natale, supra, 184 N.J. at 495-96. The Natale ruling was intended to apply retroactively to all cases in the judicial pipeline at the time of the decision. Id. at 494. Due to its timing, defendant's case qualifies for such an assessment. Accordingly, we withhold comment on the propriety of the terms of the sentence imposed. Instead, we remand for resentencing in light of Natale.
Remand for reconsideration of sentence in accordance with Natale. Affirmed in all other respects.