On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-142.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Skillman, Fuentes and Gilroy.
A jury found defendant guilty of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d). The trial court sentenced defendant to a seven-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree aggravated assault, a concurrent four-year term for possession of a weapon for an unlawful purpose, and a nine-month term for unlawful possession of a weapon. The court merged defendant's conviction for third-degree aggravated assault into his conviction for second-degree aggravated assault.
Defendant's convictions were based on the stabbing of a fourteen-year-old boy in the street near the hall of the Fraternal Order of Eagles in Vineland on the evening of February 12, 2005. The victim was one of the attendees at a birthday party held at the hall that evening. The stabbing occurred while he was waiting for a cab to return home. Due to the severity of his injuries, the victim had no recollection of the stabbing.
Before the stabbing, defendant, who was nineteen years old, and two of his friends, Joseph Aponte and co-defendant James Dennis, were at the home of another friend, Jesus Rosario, which was located two or three blocks from the hall, when they observed "a lot of commotion going down" outside the hall, with numerous persons "moving," "screaming," and "just fighting." Defendant, Aponte and Dennis armed themselves with knives and walked to the hall. Rosario stayed home because he was under house arrest. The State's evidence indicated that defendant was the one who stabbed the victim when the three young men arrived in the area of the Fraternal Order of Eagles' hall.
Co-defendant Dennis pled guilty in accordance with a plea bargain under which he agreed to testify against defendant. Dennis testified that he gave defendant a twelve-inch butcher knife at Rosario's house before he, Aponte and defendant went to the area of the hall. He also stated that he saw the victim lying on the ground at some point. However, Dennis did not testify that he saw the stabbing.
Rosario testified that defendant returned to his home from the area of the hall before Dennis and Aponte. According to Rosario, defendant told him he had "stabbed some kid" and showed him the knife he had used in the stabbing, which had blood on it. At this point, defendant said, "he's going to put D Block back on the map." Rosario described D Block as "a group of people [who] fight together" and said that he, Dennis, Aponte and defendant were all members of that group. Defendant also told Rosario that he needed to throw the knife away so that the police would not find it. He then went to the back of the house next door and hid the knife, which the police later recovered.
After his arrest, defendant gave an oral statement concerning his stabbing of the victim. Defendant's account of the stabbing was consistent in most respects with Dennis's and Rosario's testimony. Defendant stated that Dennis gave him a knife before he, Dennis and Aponte went to the area near the hall. Defendant claimed that when they arrived on the scene, a group of people began to assault him and knocked him to the ground. To defend himself, defendant began swinging the knife Dennis had given him. At first, defendant did not believe he had hit anyone with the knife. However, when he looked at the knife and saw blood on it, he realized that he had stabbed someone. He then went back to Rosario's house and hid the knife behind the house next door. Defendant claimed that the comment about "putting D Block back on the map" was made by someone else at Rosario's house. Defendant admitted that he did not see any weapons in the hands of any of the persons who allegedly assaulted him.
Defendant called as a defense witness Detective Scott Collins of the Cumberland County Prosecutor's Office, who testified that two eyewitnesses to the stabbing, Javier Valentin and Henry Leadbetter, had identified Dennis as the person who committed the stabbing based on a photographic array of six persons. Defendant's photograph was not included in this array.
Defendant did not testify at trial.
On appeal, defendant presents the following arguments:
POINT I: DEFENDANT'S STATEMENT TO POLICE WAS OBTAINED IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS AND SHOULD HAVE BEEN SUPPRESSED.
POINT II: THE TRIAL COURT FAILED TO PROPERLY INVESTIGATE WHETHER A BIASED POTENTIAL JUROR HAD TAINTED THE JURY POOL.
POINT III: THE TRIAL COURT ERRED IN NOT CHARG- ING THE JURY AS TO ALL APPLICABLE LESSER INCLUDED AGGRAVATED ASSAULT OFFENSES.
POINT IV: DEFENDANT WAS PREJUDICED BY DETECTIVE RAMOS' TESTIMONY REGARDING THE CREDIBILITY OF JAMES DENNIS.
POINT V: THE TRIAL COURT ERRED BY PERMITTING THE ADMISSION OF THE VICTIM'S MEDICAL RECORDS BY STIPULATION.
POINT VI: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT VII: THE PROSECUTOR'S COMMENTS DURING SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT VIII: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF GANG AFFILIATIONS.
POINT IX: THE JURY CHARGE FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS DEFICIENT.
POINT X: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERROR. POINT XI: THE TRIAL COURT ERRED IN REFUSING TO CONSIDER MITIGATING FACTOR FOUR WHEN SENTENCING DEFENDANT.
We reject the argument presented under Point I of defendant's brief and affirm the denial of the motion to suppress his inculpatory statement to the police substantially for the reasons expressed in Judge Farrell's June 2, 2006 oral opinion. The only other arguments that warrant discussion are the arguments presented under Points III, V, VII and VIII of defendant's brief. Defendant's remaining arguments are clearly without merit. R. 2:11-3(e)(2).
Under Point III of his brief, defendant argues that the trial court erred in failing to instruct the jury regarding "all applicable lesser included aggravated assault offenses."
The court instructed the jury regarding the lesser-included disorderly persons offenses of simple assault by purposely, knowingly or recklessly causing bodily injury, in violation of N.J.S.A. 2C:12-1(a)(1), and negligently causing bodily injury with a deadly weapon, in violation of N.J.S.A. 2C:12-1(a)(2).
Defendant did not request submission to the jury of any other lesser-included assault offenses. Therefore, the court had a duty to instruct the jury regarding those lesser-included offenses only if they were "clearly indicated" by the evidence. State v. Denofa, 187 N.J. 24, 42 (2006).
One of the elements of second-degree aggravated assault under N.J.S.A. 2C:12-1(b)(1) is that the defendant causes or attempts to cause "serious bodily injury" to another. Defendant argues that the court also had an obligation to instruct the jury regarding third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(7), which requires the State to show that the defendant caused or attempted to cause "significant bodily injury" to another, and fourth-degree aggravated assault under N.J.S.A. 2C:12-1(b)(3), which requires the State to show that the defendant recklessly caused "bodily injury" to another. Thus, to find defendant guilty of one of these offenses as a lesser-included offense of second-degree aggravated assault, the jury would have to have found that defendant did not suffer "serious bodily injury" but rather only "significant bodily injury" or "bodily injury."
The Code defines "[s]erious bodily injury" as "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:11-1(b). In contrast, "[s]ignificant 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:11-1(d), and "[b]odily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a).
The evidence presented at trial, consisting of the victim's own testimony and extensive medical records, showed that defendant stabbed the victim through his right lung and into the right ventricle of his heart, that the victim suffered a massive loss of blood at the scene of the stabbing, that he had to be transported to a hospital by helicopter, that he was comatose thereafter for a period of at least two weeks, that he has a disfiguring scar on his chest as a result of his wound that required surgery, and that he has significant permanent restrictions on his physical abilities attributable to the injury to his heart. The only reasonable finding a jury could reach based on this evidence was that defendant suffered "serious bodily injury" as a result of defendant stabbing him rather than merely "significant bodily injury" or "bodily injury."
Moreover, even though the evidence, in particular defendant's inculpatory statement, could have supported a jury finding that defendant did not purposely or knowingly stab the victim, the two simple assault charges the trial court submitted to the jury provided the option of returning a verdict for a lesser included offense if the jury found that defendant did not stab the victim knowingly or purposely. The court instructed the jury that it could find defendant guilty of a violation of N.J.S.A. 2C:12-1(a)(1) if it found that he purposely, knowingly or "recklessly" caused bodily injury to the victim,*fn1 and that the jury could find defendant guilty of a violation of N.J.S.A. 2C:12-1(a)(2) if it found that he "negligently" caused the victim injury with a deadly weapon. Thus, the trial court provided the jury with a range of options of lesser-included offenses if it found that defendant's stabbing of the victim was not purposeful or knowing but only reckless or negligent.
Furthermore, the court instructed the jury with respect to self defense. Consequently, if the jury credited the version of the stabbing that defendant gave in his statement to the police, and concluded that this version established self defense, it could have acquitted defendant entirely. Under these circumstances, the court's failure to submit any additional lesser-included offenses to the jury was not plain error.
Under Point V of his brief, defendant argues that the trial court erred in admitting the records of the victim's hospitalization in accordance with a stipulation between the prosecutor and defendant and in its instructions to the jury regarding this stipulation.
Initially, we note that hospital records are generally admissible in evidence as business records under N.J.R.E. 803(c)(6). See Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006). Therefore, even if defendant had not stipulated to their admission, the records of the victim's hospitalization, or at least substantial portions of those records, would have been admissible. Moreover, even if some portion of those medical records would not have been admissible under the business records exception to the rule against hearsay, a party may waive an objection to the admission of evidence on hearsay grounds. See State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). A stipulation to the admission of evidence constitutes such a waiver. See State v. Neal, 361 N.J. Super. 522, 534 (App. Div. 2003).
We also note that defendant had sound strategic reasons for stipulating to the admission of defendant's medical records. It is clear from the trial record that the stabbing caused the victim horrendous injuries, consisting of a perforation of his lung and the right ventricle of his heart, that he was comatose for a period of at least two weeks as a result of those injuries, and that he now has significant permanent restriction on his physical abilities attributable to his injuries. Defendant's trial counsel could reasonably have concluded that it was in defendant's best interest for the jury to be informed of the seriousness of those injuries, which was essentially uncontested,*fn2 through dry medical records*fn3 rather than the live testimony of a doctor or other medical professional. Therefore, the trial court properly allowed the parties to stipulate to the admission of those records.
The trial court gave the jury the following instruction regarding that stipulation:
Before we begin the defense case, I believe there's just a few things I want to address with you.
One is, there is a stipulation. There is an item that you have not heard us refer to yet in the trial. It is S-26, which would be a compilation of the medical records relating to Mr. Allen's diagnoses and treatment, relating to the injuries that are the subject of this trial.
The parties have agreed that they can be admitted into evidence without going through testimony establishing that they are what they say they are. And accordingly, those items were -- have been admitted into evidence and they'll come back to the jury room for your review, if you choose to do so.
I need to tell you that the parties have agreed to these facts and to the stipulation of this evidence into -- these items into evidence. The jury should treat these facts as undisputed. That is, that the parties agree that they are true.
As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict. Which simply means, you can review those items and you can decide whether to accept them, reject ...