July 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARRON L. BLACKSTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, 06-04-0172-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 24, 2008
Before Judges Skillman and Winkelstein.
A Salem County grand jury indicted defendant on two counts, third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count one); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count two). A jury convicted defendant of count two, and acquitted him of count one.
At sentencing, the court imposed 365 days of incarceration in New Jersey State Prison, conditioned upon one year of probation. Defendant's judgment of conviction, however, makes no reference to probation, but commits defendant to the custody of the Commissioner of the Department of Corrections for a period of 365 days with credit for one day time served.
On appeal, defendant raises the following three points:
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE TRIAL COURT'S JURY INSTRUCTIONS WERE INCOMPLETE AND MISLEADING (NOT RAISED BELOW).
(A) THE TRIAL COURT FAILED TO INSTRUCT THE JURY AS TO THE PROHIBITED USE OF THE TRIAL TESTIMONY THAT THE DEFENDANT'S MOTHER, CO-DEFENDANT DEBORAH BLACKSTON, ENTERED A GUILTY PLEA TO OBSTRUCTION (NOT RAISED BELOW).
(B) THE TRIAL COURT IMPROPERLY INTRODUCED THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" INTO ITS JURY CHARGE (NOT RAISED BELOW).
IN THE CONTEXT OF THE THEORY OF THE STATE'S CASE AND THE TRIAL COURT'S JURY INSTRUCTIONS, THE GUILTY VERDICT ON COUNT TWO WAS IRRATIONALLY INCONSISTENT WITH THE NOT GUILTY VERDICT ON COUNT ONE (NOT RAISED BELOW).
IMPOSITION OF THE 365 DAY CUSTODIAL SENTENCE, WHETHER OR NOT IT WAS A CONDITION OF PROBATION, WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
(A) THE COTERMINOUS CUSTODIAL STATE PRISON TERM AND PROBATIONARY SENTENCE IS ILLEGAL.
(B) THE TRIAL COURT ABUSED ITS DISCRETION IN ITS ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS PRESENT.
Having reviewed defendant's arguments in light of the record and applicable law, we conclude that points I, II, and III(B) of his brief are without merit. Consequently, we affirm his conviction. As to point III(A), we remand to have the trial court clarify defendant's sentence.
The events that led to the charges against defendant occurred on March 3, 2006, when Carneys Point police officers assisted in the execution of a search warrant at defendant's residence in Penns Grove. The State offered the testimony of a number of police officers who took part in the execution of the search warrant. They substantially testified that while the search was taking place, defendant and his mother, Deborah Blackston, with whom defendant resided, returned home and attempted to force their way into the premises. Detective Michael Colletti testified that he was standing at the front door while the search was taking place inside. Defendant and his mother approached and demanded entry into the apartment, "yelling obscenities and being very combative." He claimed that defendant cursed at him and shoved him into the door, which resulted in Colletti breaking the pinky finger on his right hand.
Lieutenant Charles Ashfield testified that he heard Detective Colletti tell defendant and his mother not to enter, but defendant insisted on entering the apartment, and when Colletti attempted to stop him, they "got into a fisticuff." Another officer, Timothy Haslett, observing Colletti in an altercation with defendant, grabbed defendant, and helped Colletti restrain and handcuff him. In the meantime, Deborah Blackston entered the apartment.
Defendant's witnesses, his mother and cousins, disputed the officers' versions of the incident. Deborah Blackston testified that when she arrived at her house in her car, her front door was open and eight to ten police officers were standing outside the house. She asserted that Lieutenant Ashfield told her she could enter the property and when she did, her son entered behind her. Inside, Detective Colletti grabbed defendant, put his arms in the air, and whistled for the other officers to assist him. At that point, the officers "knocked [Deborah Blackston] over on the couch, . . . then they put the handcuffs on [her]." They arrested both her and her son and removed them from the apartment. She asserted that defendant did not assault any of the officers.
Defendant's cousin, Tannile*fn1 Broaddus, related another version of the incident. She testified that she saw police officers take defendant's brother, Keenan Blackston, into the house and close the door. She was concerned about Keenan Blackston because the Penns Grove police "had beat him up before." She saw Deborah Blackston and defendant pull up to the house in separate cars and enter the house. Deborah Blackston entered the house first and defendant attempted to follow her. She testified that Detective Colletti pushed both defendant and his mother; the officer was aggressive, and was trying to push defendant to the ground.
Defendant also offered the testimony of another cousin, Gail Broaddus. She testified that defendant did not strike or push the officer; she saw defendant put his arms in the air with Detective Colletti behind him, and with his hands underneath defendant's armpits, Colletti tried to throw defendant to the ground.
Following the incident, defendant and his mother were indicted. At defendant's trial, on direct examination, Deborah Blackston testified that she had been charged with obstruction of justice and assault on a police officer. At defense counsel's request, she read the complaint against her. She also testified on direct examination that she was subsequently indicted and entered a guilty plea to obstruction.
In summation, defense counsel referred to Deborah Blackston's testimony in an effort to convince the jury that it was Deborah Blackston, not defendant, who caused Detective Colletti to break his finger. Defense counsel told the jury the following:
But what did Deborah Blackston do?
She said yes, I did that. And that's the second count of the indictment, it's kind of a long count, again, "by forcefully pushing officer, breaking his finger while he was trying to place them under arrest". That's what she pled guilty to. So somewhere along the line in this matter, Deborah Blackston said I was the one who caused by pleading guilty to that count in the indictment, doing something to the finger, or doing intimidation. Deborah Blackston said yes, she did it.
Well, who did it? The State already said Ms. Blackston did it, by her pleading guilty to that count in the indictment, that's what she pled guilty to. The judge again will read you the count of the indictment. She pled guilty to that. By forcefully pushing the officer, breaking his finger while he was trying to place them under arrest. Place them under arrest. That's what the indictment says. Well, did he ever try to place Ms. Blackston under arrest? That was Officer Ashfield.
What does he do? He says in his complaint, it was Deborah Blackston that broke his finger.
Against this background, we begin with defendant's claim that the court's failure to instruct the jury as to the prohibited use of Deborah Blackston's testimony regarding the charges against her warrants a reversal of defendant's conviction. As defendant did not raise this issue in the trial court, we address the argument in the context of the plain error rule, Rule 2:10-2, which permits us to reverse only if we are satisfied the claimed error is clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971) (possibility of unjust verdict must be real and sufficient to raise reasonable doubt as to whether error led jury to a result it otherwise might not have reached). We find no plain error.
Not only did defendant not object to the testimony, but it was defense counsel who elicited the testimony from Deborah Blackston that she had been indicted for obstruction. In his closing argument, defense counsel used that evidence in an effort to convince the jury that it was Deborah Blackston, not defendant, who assaulted Detective Colletti, breaking his finger. Defense counsel referred to the complaint against Deborah Blackston, in which the officers claimed that she broke Detective Colletti's finger.
Although defense counsel did not request any limiting instruction regarding that testimony, defendant now argues that the trial court committed plain error by failing to give an instruction that a co-defendant's plea cannot be considered as substantive evidence. See State v. Adams, 194 N.J. 186, 208 (2008). Because, however, it was the defense, not the State, which attempted to use Deborah Blackston's plea as substantive evidence, the judge's failure to sua sponte provide the jury with that instruction was not clearly capable of producing an unjust result.
We also reject defendant's argument that the trial court improperly introduced the concept of defendant's innocence into the jury charge. In explaining the concept of direct and circumstantial evidence, the court included the following language: "So guilt in this case could be proved by direct evidence, circumstantial evidence, or some combination of the two. And likewise, innocence could be found by the same use of direct or circumstantial evidence as well." Defendant challenges that statement as improperly introducing the concept of his innocence into the jury's deliberations. Because defendant did not raise this issue at trial, this argument too is subject to the plain error rule. Again, we find no plain error.
The judge made this passing reference to innocence during his explanation of direct and circumstantial evidence, not in his instructions concerning the burden of proof. The court properly instructed the jury on the State's burden of proof and defendant's presumption of innocence. The judge said, in part:
I know I told you before but I need to reiterate that there is a presumption of innocence that applies, and that presumption of innocence continues, it never shifts, never changes in other words, until such time as the State has proved each of the elements of the two crimes with which Mr. Blackston is charged by a standard which we know is beyond a reasonable doubt.
So, the burden again is upon the State to prove guilt, not upon Mr. Blackston or Mr. Klamo or any of the other witnesses to prove innocence. The State has the burden to [prove] beyond a reasonable doubt.
That's the standard in the Criminal Court.
It [does] not mean that the State has the responsibility to remove all doubt. But, it has to be beyond a reasonable doubt.
The instruction taken as a whole fairly communicated the State's burden to prove defendant's guilt beyond a reasonable doubt. See State v. Thompson, 59 N.J. 396, 411 (1971) (if charge as a whole is accurate, there is no prejudicial error). When read as a whole, the jury instruction makes clear that the State had the burden to prove defendant's guilt, not that defendant had a burden to prove his innocence. Although we do not approve of the language the court used, we do not find that it constituted plain error.
We next turn to defendant's argument that the guilty verdict for obstruction was inconsistent with the not guilty verdict on the aggravated assault charge. That argument is also without merit. As the trial court accurately instructed the jury, to find defendant guilty of the aggravated assault charge, the jury was required to find that he purposely, knowingly or recklessly caused bodily injury to Detective Colletti. Under the facts here, the jury could well have found that although defendant caused Detective Colletti to break his finger, defendant did not do so purposely, knowingly or recklessly.
Verdicts may be inconsistent as a matter of law only when the acquittal on one count would preclude a finding of guilt on one or more elements of another offense. State v. Ellis, 299 N.J. Super. 440, 457-58 (App. Div.), certif. denied, 151 N.J. 74 (1997). The crime of obstruction requires a purpose to obstruct or impair the administration of a governmental function by means of "flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." N.J.S.A. 2C:29-1a. The record supports the guilty verdict for this offense, in that the testimony supported an inference that defendant broke the detective's finger by force or physical interference while the police were engaging in a governmental function - the execution of a search warrant. That inference is not inconsistent with the not guilty verdict for aggravated assault.
Finally, defendant claims that his 365-day custodial sentence as a condition of probation was illegal. Alternatively, he claims that even if the sentence did not include probation as a condition, his sentence was excessive.
First, we agree, and the State concedes, that defendant could not have been sentenced to probation conditioned upon a 365-day term of imprisonment. When a court sentences a defendant to probation, the defendant may serve a term of imprisonment not to exceed 364 days as a condition of probation. N.J.S.A. 2C:43-2b(2); State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005). In addition, when a court imposes a jail term as a condition of probation, that custodial term must be served in the county jail, not state prison. N.J.S.A. 2C:43-10c. Thus, if the court intended to impose a 365-day prison term as a condition of probation, that sentence would be illegal.
In the sentencing transcript, the judge conditioned one year of probation on 365 days of incarceration in state prison.
The reference to probation is not, however, included on the judgment of conviction. It is therefore unclear which sentence the court imposed. This requires a remand for the court to clarify whether the sentence was for 365 days, or for 365 days as a condition of probation. If the latter was imposed, the court must resentence defendant.
Assuming that the court's sentence is 365 days, and not as a condition of probation, we find that the sentence is not excessive.
An appellate court must make sure that the trial judge follows the sentencing guidelines in the criminal code. State v. Roth, 95 N.J. 334, 363-64 (1984). We must further assure that the sentencing guidelines are not violated, determine whether findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable. Id. at 364-65. This is defendant's second Superior Court conviction, and the court properly identified and weighed the three aggravating factors against the nonexistent mitigating factors. The court's findings were supported by the competent, credible evidence in the record, and were not an abuse of discretion.
In sum, we affirm defendant's judgment of conviction and remand for the court to clarify defendant's sentence.