August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER LOCKETT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-09-1876.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Rodríguez and Payne.
Following a jury trial, defendant Christopher Lockett, was convicted of second-degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1b(1); third-degree aggravated assault (deadly weapon), N.J.S.A. 2C:12-1b(2); third-degree terroristic threats, N.J.S.A. 2C:12-3a; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stem from defendant's attack on his former girlfriend Donna Lugo. The judge granted the State's motion for a discretionary extended term. The judge merged all of the convictions into the second-degree aggravated assault conviction and imposed a fifteen-year term with a NERA*fn1 parole disqualifier. We reverse, agreeing with defendant's argument that it was plain error for the judge not to charge third-degree significant bodily injury aggravated assault.
These are the salient facts. On August 20, 2004, Lugo went into Atlantic City and met Dayrl Pettus there. They spent the night in Atlantic City. The following day, as they were waiting at the jitney stop, defendant came up from behind Lugo and broke a bottle over her head. Then he stabbed her multiple times in the back of her head and across the top of her back. Lugo recognized the voice of her attacker to be that of defendant. Lugo also saw defendant's face as he jumped in front of her to stop her from getting away.
Pettus also identified defendant as the attacker. Defendant told Pettus that if he did not stand back from Lugo he would "put one in [him]."
After the attack, defendant ran away. Pettus helped Lugo to the police station, which was a block from where the attack had occurred. Pettus testified at trial for the State, at which time he was incarcerated on unrelated charges. The jury saw him in prison attire.
Detective Kevin Burrows of the Atlantic City Police Department was on duty at the police station. He went to the station lobby and saw Lugo "lying on the ground, hysterical, screaming in pain with some injuries to her back and to [the] back of her head . . . ." Burrows asked if she knew who stabbed her. Lugo named defendant. According to Burrows, Pettus also identified defendant as the person who committed the attack.
Jill Plourde testified that she was living in a rooming house near the intersection of Pacific and California, where the stabbing took place. As of the date of the stabbing, she had known defendant for approximately two to three months and was also familiar with Lugo and Pettus. From the third floor of the house, she witnessed Pettus step back from Lugo, while defendant then "went at [Lugo's] throat". Although, in her statement to the police following the incident, Plourde indicated she did not know what was in defendant's hand, during the trial, she testified it was a glass bottle. Plourde testified that she turned around briefly to get her friend's attention and upon returning to the window she saw defendant run towards the boardwalk. At the time of trial, Plourde was also incarcerated on unrelated charges and was dressed in prison garb during her testimony.
Khashayar Salartash, M.D., a vascular surgeon at the Atlantic City Medical Center, testified regarding Lugo's injuries. According to Salartash, upon arrival, Lugo had four injuries to her upper back and one at the base of the neck. The total length of the lacerations was ten centimeters and no vital organs were punctured. Salartash cleansed, anesthetized and then closed the wounds with staples. Lugo was given an intravenous pain medication while in the hospital and was prescribed a pain medication for when she was discharged. According to Salartash, although a brain injury did not occur in this case, an injury such as the one Lugo received had the potential to cause injury to the brain. Additionally, the stab wounds to her back could have caused paralysis if the wounds were to impact or contact the spinal column. The lung and aorta were also in the vicinity of the wounds and if hit could have caused more serious injuries. However, Salartash further testified that the vital organs do not necessarily run through the back, rather they run through the front chest area. The back is protected by the scapula (shoulder blade) on both sides and a fair amount of muscle. Therefore, because Lugo's injuries were to her back, there was not a great likelihood that her vital organs were endangered by the attack. A CT scan established that there was no additional injury beyond the visible lacerations. Salartash stated that he could not tell specifically what caused Lugo's injuries, however, her wounds were consistent with a glass object. Salartash testified that Lugo was not in need of any ongoing physical therapy or treatment of any kind and that she had not been functionally limited.
The defense presented only one witness, Kempton Adams, a family friend. At the time of the stabbing, defendant was living in a camper located on Adams' property in Galloway Township. Adams testified that the defendant and he spoke outside the camper on the morning of August 21, 2004, the day of the stabbing, and again later that afternoon. Adams testified that after their conversation in the morning, defendant went back to the camper to take a nap.
THE FAILURE TO CHARGE THIRD-DEGREE SIGNIFICANT BODILY INJURY AGGRAVATED ASSAULT AS A LESSER-INCLUDED OFFENSE OF SECOND-DEGREE SERIOUS BODILY INJURY AGGRAVATED ASSAULT WAS PLAIN ERROR BECAUSE SIGNIFICANT BODILY INJURY WAS CLEARLY INDICATED IN THE RECORD. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, ¶ 10 (Not Raised Below).
A defendant may be convicted of an offense of which he or she was not indicted if the offense is included in a charged offense. Such an offense is called a lesser-included offense and occurs when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8d.]
Whether an offense is included within a charged offense is not an open-ended determination. State v. Thomas, 187 N.J. 119, 131 (2006). Therefore, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e.
If neither side requests a lesser-included charge, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). See also State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004); State v. Choice, 98 N.J. 295, 299 (1985); State v. Powell, 84 N.J. 305, 318-19 (1980). The converse then is of course true that a trial "court ha[s] no duty to instruct the jury sua sponte on [an included offense charge if] the evidence [does] not clearly indicate or warrant such a charge." Thomas, supra, 187 N.J. at 132 (quoting State v. Savage, 172 N.J. 374, 401 (2002)). Further, although clearly supported by the proofs, if the "lesser-included offense would be so unanticipated by either party as to cause complete surprise, or so inconsistent with the defense as to undermine the fairness of the proceedings, the trial court may depart from this general rule, but must place its reasons for doing so on the record." Garron, supra, 177 N.J. at 180-81.
Here, defendant did request a lesser-included charge of simple assault, which the trial judge granted. However, neither party requested a third-degree aggravated assault charge as a lesser-included offense.
The indicted charge, second-degree aggravated assault, requires that defendant "did attempt to cause serious bodily injury to Donna Lugo, and/or did purposely or knowingly cause serious bodily injury to Donna Lugo, and/or under circumstances manifesting extreme indifference to the value of human life, did recklessly cause serious bodily injury to Donna Lugo." See
N.J.S.A. 2C:12-1b(1). "Serious bodily injury" is defined as a "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.
In contrast, third-degree aggravated assault requires only "significant bodily injury." N.J.S.A. 2C:12-1b(7). "Significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses."
N.J.S.A. 2C:11-1d. Except for this lesser degree of injury, the third-degree offense is identical to the second-degree crime of aggravated assault under N.J.S.A. 2C:12-1b(1). Therefore, the only question remaining is whether the judge was required sua sponte to charge it as a lesser-included offense. From our review of the record we conclude that "the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." See Jenkins, supra, 178 N.J. at 361 (emphasis added).
Lugo's injuries clearly indicate only a "temporary loss of the function of any bodily member or organ" because there was no permanent damage resulting from the stabbing. See N.J.S.A. 2C:11-1(d). We note that the victim sustained permanent scarring. The other injuries in this case were significant but only temporary in nature. Therefore, although the jury could still find defendant attempted to commit serious bodily injury, the facts adduced at trial clearly indicate that a jury could have found only a "significant bodily injury" while acquitting on the "serious bodily injury" charge. The State appears to agree to this possibility as it was conceded at trial that Lugo "did not receive what the law would consider to be a serious bodily injury," although the State argued that defendant did still attempt to inflict a "serious bodily injury."
In addition, a third-degree significant bodily injury aggravated assault charge would not have been "unanticipated by either party [so] as to cause complete surprise" since a simple assault charge was already being provided. See Garron, supra, 177 N.J. at 180-81. Neither would the charge have been "so inconsistent with the defense as to undermine the fairness of the proceedings" since the defense had previously moved to dismiss count one for the State's failure to prove "serious bodily injury." See Id. at 181. Defendant also requested a simple assault charge on the same premise, that the State had not proven "serious bodily injury." Therefore, a charge on third-degree aggravated assault would have been consistent with the defenses strategy.
The judge found a rational basis in the evidence to support defendant's requested lesser-included charge of simple assault. See N.J.S.A. 2C:1-8e. Simple assault requires defendant to have purposely or knowingly attempted to cause or purposely, knowingly or recklessly actually caused bodily injury to Donna Lugo. N.J.S.A. 2C:12-1a(1). The trial judge allowed the simple assault charge as a lesser-included charge and thus must have found a rational basis. It should follow that if the judge found a rational basis for simple assault in the evidence, then the evidence must "clearly indicate" a basis for conviction on the intermediate level aggravated assault for "significant bodily injury."
We conclude that the judge was obligated to sua sponte charge the jury on third-degree aggravated assault. The failure to do so constitutes reversible error warranting a new trial.
Defendant appeals contending:
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN TWO PRIMARY STATE WITNESSES APPEARED BEFORE THE JURY IN PRISON GARB IN DIRECT VIOLATION OF THIS COURT'S HOLDING IN STATE V. RUSSELL, 384 N.J. Super. 586 (APP. DIV. 2006). U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶ 10 (Not Raised Below).
Both the Federal and State Constitutions guarantee a defendant "the right to a fair trial before an impartial jury and to a determination of guilt or innocence based solely on the evidence introduced at trial." State v. Russell, 384 N.J.
Super. 586, 592 (App. Div. 2006), overruled in part on other grounds by State v. Kuchera, 198 N.J. 482, 500 (2009). This determination should not however be made "on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." State v. Artwell, 177 N.J. 526, 534 (2003). For instance, courts have long held that to insure a fair trial, a defendant has the right to appear before a jury free from restraints and prison garb. See State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988) (defendants may proceed to trial in prison garb only upon an explicit in-court waiver); State v. Roberts, 86 N.J. Super. 159, 162-63 (App. Div. 1965). The rationale is that the practice of wearing prison garb "may affect a juror's judgment," "furthers no essential state policy" and "operates usually against only those who cannot post bail prior to trial" and thus preventing a fair trial. Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693-94, 48 L.Ed. 2d 126, 131 (1976).
The rule against compelling a defendant to appear at trial in prison garb was extended in 2003 to include defense witnesses. Artwell, supra, 177 N.J. at 539. The Artwell Court found that requiring a defense witness to testify in prison clothing "furthers no vital State interest." Ibid. (quoting State v. Maisonet, 166 N.J. 9, 17 (2001)). Rather, the "practice only prejudices a defendant both by undermining his or her witness's credibility and suggesting a defendant's guilt by association." Ibid. Therefore, the Court held prospectively that a trial court may not require a defense witness to testify in prison garb and further that a defendant "need not make an affirmative request of the trial court that his or her witnesses appear in civilian clothing." Ibid. Instead, the Court stated as a general rule that the correction authorities should supply defense witnesses with civilian clothing in which to testify at trial. Ibid.
In Russell, supra, 384 N.J. Super. at 599, we made the first steps in applying Artwell's holding regarding prison clothing to a witness for the State. The State's witness in Russell had been charged as defendant's co-conspirator and had agreed to testify against defendant as a condition of a more lenient sentence. Id. at 590, 595. Defense counsel objected to the witness testifying while restrained and in prison garb, arguing that it was prejudicial to defendant. Id. at 592. However, the trial judge overruled the objection and did not further instruct the jurors at the commencement of testimony, or at the close of the case, that they could not draw an inference of defendant's guilt from the witness's appearance. Ibid. We reversed, determining that Artwell's holding regarding prison clothing should be applied "to any State's witness in a future trial in this case." Id. at 599.
However, in State v. Kuchera, 198 N.J. 482, 500 (2009), the Supreme Court explicitly overruled Russell, calling its "proscription on prison garb . . . to be overbroad" and concluding that "as a matter of law or constitutional doctrine, we cannot accept the Appellate Division's conclusion in Russell that a witness can never testify in prison garb." The Kuchera Court rather held that "as a general rule, the corrections authorities should supply defense [and prosecution] witnesses with civilian clothing and those witnesses should enter the courtroom in such attire." Id. at 500-01 (quoting Artwell, supra, 177 N.J. at 539). "[W]hether a witness testifies wearing prison garb [is] subject to review under the abuse of discretion standard and [is to be] gauged as whether it constitutes harmless error, that is, whether the error 'is of such a nature as to have been clearly capable of producing an unjust result.'" Id. at 501 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).
The circumstances in this case are comparable to the circumstances found in Kuchera, where the defendant did not object to the witness's appearance in prison garb and in fact, "on the contrary, defendant sought to capitalize on it and what it represented." Kuchera, supra, 198 N.J. at 502. Defendants in neither case made a showing that the trial court abused its discretion in allowing a State's witness to testify in prison garb. See Ibid.
Therefore, as in Kuchera, any error that might have arisen as a result of allowing a State's witness to testify in prison garb "clearly was harmless." See Ibid.
Reversed and Remanded for a new trial.