On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-10-00702-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges C.L. Miniman and Waugh.
Defendant J.I.F. appeals from a final judgment convicting him of the lesser-included offense of assault, a disorderly persons offense, contrary to N.J.S.A. 2C:12-1a(1); third-degree criminal restraint, contrary to the N.J.S.A. 2C:13-2a; third-degree witness tampering, contrary to N.J.S.A. 2C:28-5a; and fourth-degree harassment while on parole, contrary to the provisions of N.J.S.A. 2C:33-4e, on which an aggregate sentence of nine years imprisonment was imposed. We now reverse.
On May 23, 2006, defendant and the victim, who had a ten-year-long relationship and two children together,*fn1 were living in Middle Township. The victim told defendant that she was going to work, but instead went to the home of a co-worker to quell a rumor spreading at her place of employment that she was romantically involved with the co-worker. Sometime later that morning, defendant called plaintiff at work and was told that she did not go to work that day. He then called her cell phone, but she did not answer the call. However, she did call her stepfather, who advised her to go home.
In the meantime, defendant called the victim's mother screaming hysterically that her daughter was cheating on him and he was going to kill her. The victim's mother immediately left work and went to her daughter's apartment. She found defendant in a fit of rage throwing her daughter's belongings out the back door. They went inside and he sat down on the couch and started to cry. She tried to calm him down.
The victim soon arrived home and parked her sport utility vehicle (SUV) in the driveway at the back of the house. Defendant came out of the house and threw the house phone at her SUV, cracking the windshield. Defendant then punched out the driver's side window with his fist and tried to pull her out of the SUV. He accused her of cheating on him and called her names.
The victim's mother got between them, urging defendant to calm down while she pushed her daughter's head back into the SUV and tried to open the vehicle door. Blood from defendant's hand was all over the three of them. Defendant then threw the door open and pulled the victim out of the SUV by her neck and dragged her into their apartment.
Defendant and the victim continued to argue, then started a fist fight but calmed down somewhat and separated. Defendant went outside and the victim followed him, but he told her to go back inside. At that point, the victim and her mother started arguing, with the victim denying that she was unfaithful to defendant. The victim's mother grabbed her daughter, told her she had to fix the mess because she had a family, and gave her a push. The victim hit her mother back; her mother grabbed her arms, shook her, and told her she had to fix it. The victim's mother hit her and defendant got into the middle of their fight, at one point pushing his forearm against the victim's jaw and neck. The mother said she had had enough and asked where to find clothing for her youngest grandchild, dressed him, and took him to her home.
After the mother left, the victim and defendant resumed their accusations and denials. When the victim said she did not have to put up with defendant's accusations, she stood up and defendant smacked her face, causing her to fall and hit the couch. While the victim was on the couch, defendant put his hands on her several more times. He punched her thighs and arms more than once, causing bruising, and would not stop until the victim identified the man she was with that morning. He stopped hitting her after that, but said he was going to get the man. At that point, the victim stood up and told him there was no need for that, and he grabbed her by the shirt and dragged her into the bedroom and threw her on the bed. Defendant got on top of the victim and put his forearm on her throat, saying that she ruined him and he loved her. The defendant left the room to clean up the blood on his hand and the victim took the portable house phone, went into the backyard, and called 9-1-1 at 11:49 a.m.*fn2 She reported that defendant "just beat the shit out of [her]" and she needed help. She was crying hysterically and reported that she was hurt and needed an ambulance. Police were immediately dispatched to her location. When the victim saw defendant through the back door, she dropped the phone and went back into her apartment where they continued to argue. She did not tell him she had called 9-1-1. They went to their bedroom, argued some more, and she sat on the bed. He told her she was not leaving and sat on a computer chair in front of the bedroom door.
Defendant left at one point and then came back to the bedroom door to tell the victim there were police officers outside the house. He was upset because he was on parole. The victim apologized for calling the police. He asked her to stay in the bedroom while he tried to get rid of the police and she told him to say she was not there. Defendant stepped out of the apartment and told Patrolman Joshua Bryan that he got into an argument with his girlfriend and punched out the window of her SUV. He told the officer that the victim was not there; she might have walked through the woods to her grandmother's house in Whitesboro. Bryan asked Officer James D'Alonzo to search for her, but he could not find her. Defendant then said she might have gone to her mother's home. Bryan asked Officer Jason Sill to go there.
Because the victim was embarrassed to have anyone see her face, which was red, and because she was crying, she did not want to talk to the police, although she did not want them to leave. As the victim waited in the bedroom, she began to experience pain and stiffness in her arms and legs from the blows from defendant and her mother and did not have the strength to move. She called her stepfather to explain the situation and he told her to just sit there and see what happened and he would call the police and her mother. The stepfather called 9-1-1 at 12:41 p.m.*fn3 He informed the operator that he had received a call from his daughter, who had been beaten by defendant and was injured, and was in her bedroom in her apartment. The victim called her father again to say that defendant was not letting the police into the house.
Fifteen minutes after the mother left her daughter's apartment, Sill arrived at the mother's home looking for the victim. The mother informed him the victim was at her own apartment. She claimed Sill searched her apartment, but the officer had no recollection of doing so. Sill informed Bryan that the victim was not there, and left with the mother following the police back to the victim's apartment. Bryan then asked to search the apartment, but defendant refused to consent to a search.
The mother found defendant standing on the back deck talking to a police officer and she walked up to him, told the officer that the victim was still in the apartment, which was locked, and demanded the keys from defendant. He complied and she entered the house with two police officers following her. She and the officers headed to her daughter's bedroom, pushed aside a computer chair in front of the bedroom door, and found the victim sitting on the bed with her face swollen and marks around her neck. The mother testified the victim was not in the same physical condition as when the mother left earlier. The victim was taken to the hospital on a stretcher and defendant was arrested and charged. While in the hospital, the victim told Detective Allen McClure that defendant punched her in the face and caused injuries to her shoulders and neck. He took photographs of her injuries and they were received into evidence.
While at police headquarters on May 23, 2006, defendant gave a handwritten statement to the police after he waived his Miranda*fn4 rights. When asked what happened, defendant read his handwritten statement while McClure tape recorded it, with McClure interjecting questions and defendant responding to them. Defendant then gave his handwritten statement to McClure, who made a copy for him.
In his statement to McClure, defendant admitted holding the victim down on the bed with his forearm against her jawbone, smacking her in the face, hitting her repeatedly in the thigh, putting a chair in front of the bedroom door, and telling her that she was not going anywhere until she told him the truth. Defendant also stated:
Now, I'm in the house with [the victim]. Officer Bryan shows up. I'm looking out the front window. I said, now what did you go do? She said, I . . . I called the cops. I said now you want . . . you want to put me back in jail, right? I said, this is what you want to do. She said, [J.I.F.], I don't want to lose my family. I don't want to lose my family. I don't want to lose you. You . . . you helped me get as far as I got. You didn't . . . when I . . . when you were in prison, I had nothing. And then when I . . . when you came back home, I have something. And it's the same thing over again. She says, before you went to prison, I had something, when you . . . when you left to go to prison, I had nothing. And now that you're back home, I'm back doing something with myself.
McClure allowed defendant to listen to the tape recording of the statement; defendant made no clarifications, deletions, or additions.
Defendant married the victim on August 20, 2006.*fn5 The victim's mother objected to the marriage, having had no relationship with defendant since May 23, 2006. However, defendant attempted to speak with her several times until defendant left three messages on his mother-in-law's voicemail on March 8, 2007.
In the first voicemail message, defendant stated:
[N]ow my lawyer called me yesterday and said you're the . . . you're the State star witness. They don't even . . . tell them the whole truth about your background, your (inaudible) in the pool. You're [sic] stabbing yourself in the hand. You . . . overdosing on pills. Tell them that you have a mental problem. That you're unfit to be a witness. . . . All of that testimony, all of that . . . all of that stuff bomb-barding [sic] you, because you wanna be in the lime light [sic], and you wanna destroy my family. Our family. Your daughter's family. . . . So call me. And if you don't . . . if you don't call me, then I'm just gonna put my lawyer on you, but you'll be on the stand for two days. I wanna prevent this. I don't wanna see you crack up and be in some mental institution. So call me.
In the second voicemail, defendant stated: "Do the brainy thing. Don't go in there and do nothing negative, and you won't suffer. 'Cause either way it go [sic], I'm coming out a winner. Alright? So, you can do what you want."
In the third voicemail, defendant stated:
So would you . . . please give me a call back, alright? I don't wanna see you do 3-5 for purgery [sic] or anything like that. . . . [The victim and I] never lived . . . better than this. Ever. Since I been with [the victim]. And you're gonna try to destroy it? And then you're gonna get upset with us, once we try to cut you off? Don't make no sense.
After hearing those messages, defendant's mother-in-law was "terrified": "I was in fear of my safety at that point." The next day she contacted the prosecutor's office, who advised her to contact Detective Don Nelson of the Middle Township Police Department.
According to Nelson, "[Defendant's mother-in-law] came into the police headquarters to report intimidating messages she received on her voicemail." She provided him with her phone number and voicemail password to retrieve and record the messages left by defendant. Those messages were later transcribed and read to the jury. After taking a statement from the mother-in-law, Nelson contacted the prosecutor and then prepared a warrant for defendant's arrest.
After defendant was arrested on March 10, 2007, and taken to police headquarters, Nelson read him his Miranda rights; defendant waived his rights and signed a Miranda waiver card. Nelson informed defendant of the charges, but he denied intimidating or threatening his mother-in-law. Defendant stated:
I have this case going on, domestic violence with me and my wife. The state has me on charges of aggravated assault and criminal restraint. Which are both false, my wife lied and stated that I was restraining her against her will. . . . I didn't aggravate [sic] assault her. [I]t was more like a simple assault. And that's pretty much it.
Defendant also acknowledged that, at the time he left the voicemails for his mother-in-law, he was aware of the charges against him, that the matter was pending, and that it was scheduled for trial. He also acknowledged that, pursuant to an earlier order, he was not to have any contact with his mother-inlaw. Defendant made no specific reference to his prior convictions, incarcerations, or his parole status.
Notwithstanding defendant's denial that he intimidated or threatened his mother-in-law, she subsequently testified at trial:
Q: Did he threaten physical violence to you in those phone calls?
A: No, he didn't have to, no, no.
Q: Did he tell you to change your testimony?
Q: Okay. You're certain of that?
Q: Did he tell you not to show up ...