On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-09-0613.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Baxter.
Defendant, Dara Willis, appeals from her August 19, 2005 conviction and resulting sentence for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three), following a trial by jury.*fn1 On count one, the judge sentenced defendant to a five-year term of imprisonment subject to a two and one-half year term of parole ineligibility. On count three, the judge imposed a concurrent eighteen-month term of imprisonment. That sentence was ordered to run concurrently to an unrelated violation of probation sentence on a different indictment, for which the judge imposed an eighteen-month term of imprisonment. The aggregate sentence was five years imprisonment with two and one-half years of parole ineligibility. Appropriate fines and penalties were imposed. We affirm the conviction and remand the sentence for an explanation of the factors considered in imposing the period of parole ineligibility.
On March 5, 2004, Andrea Chance went to an apartment on Belvedere Street in Trenton to look for her nephew who was late in arriving home. After knocking on the apartment door and receiving no answer, Chance left the building and began to walk home. As she did so, she was able to see defendant standing on the nearby corner of Belvedere and Fowler.
Chance had met defendant twice before. The first time was in late January or early February 2004 at a friend's house, but there was no interaction between the two. The next occasion was in mid-February 2004 when the two women passed each other on the street and defendant pushed Chance "real, real hard" causing her to fall to the ground.
On the night in question, as Chance approached the spot where defendant was standing, Chance slipped and fell on the wet pavement. When she fell, her keychain and a canister of mace that was attached to the keychain fell out of her hand. She tried to retrieve the mace, but before she could do so, defendant began swinging a razor blade at her. An acquaintance named Ronald intervened to try to protect Chance. Despite his efforts, defendant was able to swing the blade at Chance three times and slash her face and upper right arm. Chance was taken by ambulance to a nearby hospital where she received twenty-two stitches to the cut that ran from under her nose to the bottom of her lip and another twenty-two stitches to close the gash on her arm. The responding police officer and the medical personnel who attended to Chance both testified that she did not appear to be intoxicated.
Defendant rested without calling any witnesses. No charge conference was conducted on the record. If there was an informal discussion of the jury charge in chambers, the record does not so indicate. During his charge to the jury, the judge instructed the jury on the following subjects: 1) a prohibition on consideration of defendant's absence from the courtroom on the second day of trial; 2) defendant's right not to testify and the prohibition on drawing an adverse inference from her silence; 3) the model charge for the offenses contained in the indictment; and 4) identification. The judge also instructed the jury that its verdict must be limited to the law and the facts and that "bias, prejudice or sympathy" were to play no role in its deliberations. At the conclusion of the charge, the judge asked both sides whether there were any objections to the instructions given to the jury. Both sides answered no.
After the jury retired to deliberate, it sent the judge a note that said "can we use the defendant's demeanor in the courtroom?" After some discussion, the judge decided to send the jury a note instructing them, "You may not consider the defendant's conduct in the courtroom. The issue concerns the defendant's alleged conduct on March 6, 2004." Defense counsel agreed with that response. Before the court officer was able to photocopy the judge's proposed note to the jury, the jury notified the judge that it had reached a verdict. Without responding to the jury's inquiry about whether it could consider defendant's demeanor in the courtroom, the judge brought the jury into the courtroom for its verdict. No further discussion of the jury's question ever occurred.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE APPROPRIATE LESSER-INCLUDED OFFENSE OF FOURTH DEGREE AGGRAVATED ASSAULT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (Not Raised Below)
II. DEFENDANT DID NOT TESTIFY. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY, IN RESPONSE TO THEIR QUESTION, THAT THEY COULD NOT CONSIDER DEFENDANT'S COURTROOM DEMEANOR IN THEIR DELIBERATIONS, DENIED DEFENDANT A FAIR TRIAL.
III. THE PROSECUTOR'S COMMENTS IN SUMMATION, WHICH SHIFTED THE BURDEN OF PROOF AND DENIGRATED DEFENSE COUNSEL, DENIED DEFENDANT A ...