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State v. Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN BROWN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, 05-08-0483-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 11, 2008

Before Judges A. A. Rodríguez and Collester.

Tried to a jury, defendant was found guilty of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5), by knowingly or recklessly causing bodily injury to a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. Because defendant was an inmate at the time of the offense, Judge Carmen H. Alvarez imposed a mandatory five-year prison term to run consecutive to defendant's 1974 sentence of life imprisonment for two murder convictions.

Defendant appeals alleging the following grounds:

POINT I -- THE COURT ERRED IN FAILING TO PROPERLY CHARGE THE JURY AS TO THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT. (Not Raised Below.)

POINT II -- STATEMENTS MADE BY THE PROSECUTOR DURING OPENING AND CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

POINT III -- THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN ADMITTING INFLAMMATORY PHOTOGRAPHS INTO EVIDENCE.

POINT IV -- THE COURT FAILED TO INSTRUCT THE JURY ON HOW "IMPERFECT SELF-DEFENSE" COULD IMPACT THE STATE OF MIND ELEMENT IN AGGRAVATED ASSAULT AND THUS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)

POINT V -- NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT VI -- THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

On July 14, 2005, at approximately 4 p.m., defendant was brought to the Cape May County Jail and was to be processed in accordance the regulations of the sheriff's office, which included a strip search and search of the inmate's body and body cavities. Officer Bowman asked defendant to remove his clothing, including his undershirt and boxer shorts. When Bowman instructed the defendant to turn around, bend over, spread his cheeks, and cough, in accordance with the standard procedure, the defendant replied, "I'm not playing this fucking game." Bowman told defendant that he had to comply, but defendant again refused and became more hostile. A general call for assistance was made, and six correction officers arrived to assist Bowman. Correction Officer Campbell entered the room and repeated the instruction again, but defendant stated, "I'm not doing it," while flailing his arms in what was described as a threatening manner. The decision was then made by the officers to remove defendant from the strip search room. He was handcuffed and marched naked down a main corridor of approximately 100-200 yards passing correction officers to the detention area.

When the officers and defendant arrived at the detention cells, defendant's handcuffs were removed, and he was instructed to enter one of the cells. However, after entering the cell, defendant used his arm to prevent the gate from being closed and pushed it open. He held a closed fist in the air and said, "Fuck that. I feel like fighting." He stepped forward toward the officers and began throwing punches at them. During the struggle, defendant placed his fingers into Officer McCorriston's mouth and pulled it. He also scratched McCorriston's face and neck, causing bleeding. Defendant continued resisting until a request for assistance brought additional officers to the scene. Finally, the officers placed handcuffs and shackles on the defendant and put him in the cell. Officer McCorriston was then treated by a nurse at the county jail for injuries sustained during the altercation. He was taken to the hospital and received a tetanus shot. He later reported that the pain inside his mouth and neck continued for four or five days.

The defense called Stacy Harris, LPN, a nurse at the Cape May County Jail. She testified that she arrived at the detention area and observed that defendant was naked, sweating, wheezing, and had a small cut on his lip. She attributed the wheezing to defendant's asthma and provided him with an inhaler. She rendered no further treatment. Defendant then called Officer Lachica, who had testified during the State's case. Lachica testified that the medical information received at the time of defendant's processing included information that defendant required a low sodium diet, that he suffered from asthma, and he had high blood pressure.

Defendant's initial argument that the trial court erred in failing to charge the jury as to the lesser-included offense of simple assault is without merit. The State's proofs were that defendant assaulted correction officers who were acting in the performance of their duties while in uniform and exhibiting evidence of their authority. Pursuant to N.J.S.A. 2C:12-1(b)(5), even a simple assault upon a law enforcement officer renders a defendant guilty of third-degree aggravated assault. See State v. Battle, 256 N.J. Super. 268, 284 (App. Div.), certif. denied, 130 N.J. 393 (1992). Accordingly, there was no legal basis for the court to charge simple assault as a lesser-included offense.

We find no substance to defendant's argument that the remarks of the prosecutor in opening and summation resulted in substantial prejudice to him. The comments of the prosecutor hardly amounted to a "call to arms for the jury" when she asserted in summation that it was appropriate for the jury to hold a defendant criminally responsible for his conduct. Compare State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994); State v. Moore, 122 N.J. 420, 516-17 (1991); State v. Rose, 112 N.J. 454 (1988).

Defendant's further arguments are also without merit. The photographs to which defendant objected were hardly inflammatory. All but one of the photographs were of Officer McCorritson and his facial injuries. The only photograph of defendant depicted his hand and fingernails. The pictures were relevant to the issue as to whether an assault had taken place upon Officer McCorritson. Moreover, the fact that the photographs included a label stating "Inmate John Brown" with an inmate number next to it was of no moment in the circumstances of this case. As noted by the trial judge, the jury knew that defendant was in the course of being processed in the Cape May County Jail, and it was not disputed at trial that defendant was in fact an inmate. We therefore find that the denial of redaction of the photographs and the statement that defendant was in fact an inmate was proper.

Defendant next argues on appeal that the trial court should have instructed the jury on imperfect self-defense because the jury could have found that defendant had an honest but unreasonable belief that he needed to resort to the use of deadly force to protect himself and therefore did not act "purposefully." Imperfect self-defense is not a recognized defense in New Jersey. State v. Branch, 155 N.J. 317, 329 (1998); State v. Bowens, 108 N.J. 622, 633 (1987); State v. Tierney, 356 N.J. Super. 468, 483 (App. Div.), certif. denied, 176 N.J. 72 (2003). Rather, evidence of a defendant's honest, albeit unreasonable, belief in the need to act for self-defense is admissible to negate the applicable mental state of "purposeful," which is the mental element for an intention act such as aggravated assault.

However, here there was no proof that defendant acted in self-defense. To the contrary, the trial testimony was clear that defendant was the aggressor by initiating the attack upon the correction officers. As the one who provoked the assault, he cannot invoke self-defense on the charge resulting from injury to another. State v. Moore, 158 N.J. 292, 312 (1999); State v. Villaneuva, 373 N.J. Super. 588, 600 (App. Div. 2004). In State v. Doss, 310 N.J. Super. 450 (App. Div.), certif. denied, 155 N.J. 589 (1998), the inmate threw a food tray at one of the correction officers, which initiated a physical confrontation between the defendant and correction officers. We pointed out that nothing in the record indicated that the officers struck first or that they applied excessive force under the facts set forth in the record. No request was made for a jury instruction along the lines of imperfect self-defense, and we find that there is no basis for concluding that the lack of such an instruction constituted plain error.

The remaining arguments set forth by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20080319

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