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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...