April 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1356-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Collester and Grall.
Tried to a jury, defendant J.I. was convicted of one count of aggravated assault, contrary to N.J.S.A. 2C:12-1b; one count of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a; one count of unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d; and one count of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. On February 16, 2007, Judge Michael L. Ravin imposed an aggregate sentence of seven years subject to the eighty-five percent No Early Release Act (NERA) period of parole ineligibility.
On August 6, 2005, defendant, his thirteen-year-old son, and his ten-year-old daughter, were installing an above-ground pool in the backyard of their rented home in Bloomfield. After the pool was set up, the defendant used a hose to fill it up. His daughter was in the pool waiting for it to fill up with water. His son was digging a hole around the perimeter of the pool in order to erect a fence. At some point the defendant and his son began to argue, and defendant slapped him in the face with his hand, calling him lazy. The altercation escalated as defendant continued to hit his son. His daughter jumped out of the pool and yelled to her father to stop. S.B., defendant's landlord, tried to calm defendant and was able to move him about ten yards away from his son. S.B. described the defendant as "a bit excited," shouting that his son was lazy and didn't do things right. After about three or four minutes, S.B. was able to calm the defendant. S.B. said defendant's son resumed digging the hole, but the argument with his father also resumed. The defendant grabbed a piece of wood, a two-by-four, and hit his son. S.B. grabbed the defendant, told defendant's son to go upstairs and again spoke to the defendant to calm him down.
After a few minutes, S.B. called for defendant's son to come downstairs to resolve the matter with his father. The defendant again told his son that he was lazy, and he denied it. According to both S.B. and defendant's daughter, the defendant then grabbed a crowbar and struck his son on his left side, causing him to fall to the ground. S.B. and defendant's daughter attempted to intervene, but the defendant hit his son on the side of the head with the claw end of the crowbar while his son was trying to defend himself.
As defendant's son lay on the ground, defendant's daughter tried to help her brother by stopping his head from bleeding. G.O., the next-door neighbor, heard defendant's daughter screaming, and called 9-1-1. G.O. went to J.I.'s home and saw that defendant's son's head was bleeding profusely. She also saw the defendant with a crowbar in his hands.
E.O., an off-duty detective sergeant for the Union County Prosecutor's Office, went outside when his wife made the 9-1-1 call and saw defendant's son lying in a pool of blood. He ran back into his house to retrieve his service weapon. When he came out, he saw the defendant walking down the driveway with the crowbar in his hand. E.O. put his hand on his gun and directed defendant to drop the crowbar and sit down. E.O. said defendant was "in a trance," "dazed," and "not showing any emotion." When he instructed defendant that he would shoot him if defendant tried to charge him or pass him, defendant said, "shoot me." A few minutes later Bloomfield police arrived and took defendant into custody. Officer Harry Norris read defendant his Miranda*fn1 rights in English and in Spanish. Defendant read the form and signed it. While Norris was speaking with another officer, he heard the defendant say that he did what he had to do because his son disrespected him.
The defendant's son was taken to the emergency room at University Hospital and New Jersey Medical Center in Newark. Examination revealed he had a skull fracture as well as subarachnoid hemorrhage. A fragment of the fracture severed a vein covering the top of his head. Surgery was necessary to remove the fragment because of the risk of clotting and resulting stroke. The surgery was delicate and required several blood transfusions. After it was completed, he was put in a medically induced coma for three weeks. After he recovered, he remained in the hospital another week before he was transferred to the Children's Specialized Hospital for physical rehabilitation, speech therapy, and psychological counseling.
The defense did not contest the State's testimony about the incident. Rather, the claim was that because of a psychiatric condition, the defendant was unable to form the requisite intent for conviction. In support of this contention, the defendant's wife testified that her husband's demeanor had changed considerably since the death of his brother about a month before the incident. She said that the brother had died in a tragic accident. After her husband returned from his brother's funeral in the Dominican Republic, he was quieter and very sad. He developed a bleeding rash, severe stomach pains, pains in his arms, and an inability to sleep. He consulted with doctors about these conditions two or three times between June and August. The defendant's wife recalled only one prior occasion when the defendant had behaved in a similar fashion, which was on Christmas Eve, 2002, when he threw a crystal vase against the wall after having been uncharacteristically quiet for several days before the incident.
The victim, defendant's son, testified on behalf of his father. He recalled his father had been mumbling to himself and "was just mad in general" when they were installing the pool. When he and his father began arguing about the depth of the hole, defendant's son said he refused to do any further work. He testified his father then grew uncharacteristically angry. His eyes turned red as he began wildly swinging the crowbar. He said he tried to defend himself with a screw driver, and the screw driver made contact with the defendant's stomach. He added that his father's actions led him to believe that he was not in control.
Dr. Arnaldo Apolito, a psychiatrist, testified as an expert witness for the defense. Based on his interviews with defendant and his wife and the records he reviewed, Dr. Apolito diagnosed defendant with generalized anxiety disorder and intermittent explosive disorder. He said that defendant "had limited capacity to know the nature and consequences of his behavior when he committed the offense." It was Dr. Apolito's further opinion that defendant had not intended to hurt his son and was unaware of the consequences of his actions because the intermittent explosive disorder caused him to lose control of his actions. Dr. Apolito said that during such time the defendant "had no feelings, no perception of the nature of his behavior, meaning, that he was inflicting severe injury and pain to his son." Dr. Apolito opined that the recent death of defendant's brother had triggered defendant's explosive disorder and anxiety.
On rebuttal, the State called Dr. Azariah Eshkenazi, a psychiatrist, as an expert witness. After examination of the defendant, review of the police reports, witness statements and Dr. Apolito's report, Dr. Eshkenazi opined that defendant did not suffer from any mental disease at the time of the crime. He found no psychiatric condition that would have interfered with the defendant's ability to distinguish right from wrong. Moreover, he further opined that defendant was fully capable of acting purposely, knowingly and recklessly and that he possessed the intent to hit and hurt his son.
Following his convictions and sentence, defendant filed a notice of appeal and makes the following arguments for our consideration:
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
POINT II - THE TRIAL COURT ERRED IN LIMITING THE DEFENSE'S PRESENTATION OF CRUCIAL EVIDENCE.
POINT III - THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL SUA SPONTE. (Not Raised Below.)
POINT IV - THE SENTENCE IS EXCESSIVE AND THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING.
After review of the record we have determined that the arguments made by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
There was ample testimony from the State's witnesses which could lead a reasonable jury to find the defendant guilty beyond a reasonable doubt of the charges against him. Accordingly, Judge Ravin properly denied the motion for acquittal at the conclusion of the State's case.
There was no error in sustaining the prosecutor's objection to the question posed to defendant's wife as to the circumstances surrounding the death of defendant's brother. The question called for an objectionable hearsay answer.
During cross-examination of defendant's wife as to an alleged earlier incident of domestic violence, it became apparent that the assistant prosecutor was using a police report of the incident which had not been provided to defendant. Judge Ravin found that there was a discovery violation but that the prosecutor did act in good faith and that the report did not contain Brady*fn2 material favorable to the defendant. He precluded further cross-examination based on the report and offered to strike the testimony as well as give a curative instruction.
Defense counsel declined the offer of a curative instruction on grounds it would give more emphasis to the testimony.
The second incident upon which defendant argues a sua sponte mistrial should have been granted related to the following question and answer during cross-examination:
Q: You're still with him?
A: No, he's in jail. I'm in my house.
Again defense counsel did not object and declined the court's invitation for a curative instruction.
Both of these trial events were insufficient to cause a mistrial, much less a sua sponte mistrial ordered by the court. Neither the discovery violation nor the fleeting and unsolicited response by defendant's wife constituted error such that manifest injustice would result from continuance of the trial and submission of the case to the jury. See R. 3:20-1; State v. LaPorte, 62 N.J. 312, 318-19 (1973).
Finally, the sentence imposed by Judge Ravin of seven years for second-degree aggravated assault and concurrent terms on the other convictions was not excessive. Our consciences are not shocked. State v. Roth, 95 N.J. 334, 365-66 (1984).