March 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SYLVAN BLACKMON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1333.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Gilroy and Simonelli.
A jury convicted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). The trial judge merged count three with count one and sentenced defendant to a six-year term of imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and three years parole supervision upon release on count one, and a concurrent one-year term of imprisonment on count two. The judge also imposed the appropriate assessments, penalties and fees.
On appeal, defendant raises the following contentions:
POINT I - THE PROSECUTOR'S MISCONDUCT IN COMMENTING ON DEFENDANT'S PRE- AND POST-ARREST SILENCE DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
POINT II - THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject these contentions and affirm.
The incident giving rise to defendant's conviction occurred in the early evening hours of February 12, 2006, at the apartment of Qamar Palmer*fn1 in East Orange. According to Palmer, she and defendant were friends, having met a few years earlier at a nursing home where she was recovering from a stroke that left her paralyzed on the right side of her body. The two were not intimate because, in addition to the stroke, she had told defendant many times that she was HIV positive.
Palmer had asked defendant to leave her apartment because it was getting late and she wanted to go to bed. Defendant left but returned shortly thereafter because it was raining. Palmer told defendant that he could get something to eat but she was going to bed. She also told him that she "wanted to stop seeing him so much because he was getting on my nerve." She denied having an argument with defendant over money.
Shortly after going to bed, Palmer was awakened by a burning sensation, which caused her to leap from the bed, take off all of her clothes, and run outside into the hallway, where she met Lawrence Powell, the building superintendent. Palmer suffered second-degree burns on sixteen percent of her body.
Powell testified that at approximately 7:15 p.m., he saw Palmer run from her apartment into the hallway completely nude, screaming, "Why did he do that?... I was asleep. He burned me." The skin around Palmer's neck and chest was "beginning to bubble up" and the skin on her left elbow to shoulder was "hanging off."
Powell went into the apartment, where he saw defendant standing in the living room. Defendant, who had no injuries, then sat down in a chair by the bedroom door. Powell saw a pot with a rag around its handle on a stand located where defendant was sitting. Powell asked defendant what happened to Palmer, and defendant responded, "I poured... hot water and butter on her" because "she made me mad... [a]nd she's spen[t] my money. She got my money." Powell called 9-1-1. Powell then went into the bedroom, where he saw water on the bed and on the floor. When he went into the kitchen, he saw no water on the floor.
Powell was in Palmer's apartment when the police arrived. He heard defendant repeat to the police that he had poured hot water and butter on Palmer because she took his money and made him mad.
Officer Anthony Rogers, Jr. of the East Orange Police Department testified that upon arriving at Palmer's apartment, he saw her naked on her bed with burns on her chest, left arm and underneath her neck. Defendant, who had no injuries, was in the kitchen talking to Powell at the time. Rogers overheard defendant tell Powell that he threw hot water on Palmer because she stole his money. To confirm what he had heard, Rogers went into the kitchen, did not see any water on the floor, and asked defendant what happened. Defendant responded, "I threw the water on her because she stole my money." At that point, Rogers arrested defendant and handcuffed him but did not issue defendant his Miranda warnings. Rogers then went into the bedroom, where he saw water on the bed.
A second police officer arrived at the apartment after defendant was handcuffed. The officer heard defendant say, "I threw hot water on her because she stole my money."
After a Rule 104 hearing, the trial judge barred defendant's statement to the second officer, but permitted his statements to Powell, because Powell was not a police officer, and his statements to Rogers, because they were made in response to the officer's attempt to confirm what defendant had told Powell, not to elicit an incriminating response.
Defendant testified on direct examination that he and Palmer had an intimate relationship. While at Palmer's apartment on the day of the incident, he saw cocaine on her bed. He and Palmer then got into an argument about her use of his money to buy drugs and about her HIV status, which she had hidden from him.*fn2 They were in the kitchen at the time, where Palmer was cooking. When defendant told Palmer that he was going to end their relationship, she took a pot containing boiling water with her right and was going to throw the water on him, but he "pounced on it[,]" pushed her back, "[a]nd that's when she got burnt." Defendant admitted that he said nothing to the police, except that he "told them about money."
On cross-examination, defendant reiterated that Palmer had attacked him and that he acted in self-defense. He also admitted that the only thing he told the police was that Palmer stole his money.
In summation, the prosecutor referred to defendant's failure to tell the police that he acted in self-defense:
Now, a defendant has no obligation to talk to the police. But when the defendant does talk to the police and when the defendant takes the stand, you can analyze their testimony the same as any other witness.
And what does he tell the police? Does he tell the police, "Hey she came at me with a pot. I'm very upset. I didn't mean for it to happen?" Does he say that to the police? Wouldn't -- wouldn't that be a normal reaction if what happened -- what he says happened happened? He doesn't say that. He says, "I threw water on her because she stole my money," and that's exactly what he did.
Defendant contends for the first time on appeal that the prosecutor violated his Fifth Amendment*fn3 right against self-incrimination by cross-examining him on and commenting in summation about his failure to tell the police he acted in self-defense. We review this contention under the plain error standard of review. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result." State v. Castagna, 187 N.J. 293, 312 (2006); Macon, supra, 57 N.J. at 337. Reversal of defendant's conviction is required only if there was error "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
We discern no error, much less plain error, in the prosecutor's conduct. On direct examination, defendant claimed he acted in self-defense and admitted he did not tell this to the police. The prosecutor had the right to cross-examine him on the inconsistencies between his statements at the scene and those made at trial and to comment on the inconsistencies in summation. State v. Tucker, 190 N.J. 183, 189-90 (2007).
Defendant also contends that his sentence is excessive. At sentencing, he asked to be sentenced in the third-degree range to a three-year term of imprisonment due to his age, poor health and lack of a criminal record.
Sentencing a first- or second-degree offender to a sentence one degree lower is governed by N.J.S.A. 2C:44-1f(2), which provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
The statute thus establishes a two-prong test. State v. Megargel, 143 N.J. 484, 495-96 (1996). "The court must be 'clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demand[s] a downgraded sentence.'" Id. at 496 (quoting N.J.S.A. 2C:44-1f(2)). The Megargel Court observed that "the standard governing downgrading is high." Id. at 500. First, a court must apply the basic sentencing principles of the Code. Ibid. Paramount is the requirement that the severity of the crime is "the most single important factor in the sentencing process." Ibid. "In evaluating the severity of the crime, the trial court must consider the nature of and the relevant circumstances pertaining to the offense.... The surrounding circumstances of an offense may make it very similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate. Id. at 500.
Nonetheless, "facts personal to the defendant may be considered in the sentencing process." Id. at 501.
Courts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him. Was the defendant the mastermind, a loyal follower, an accomplice whose shared intent is problematic, or an individual who is mentally incapable of forming the necessary criminal intent? [Ibid.]
Deterrence is "one of the most important factors in sentencing." Ibid.
A sentencing judge must then consider the interest of justice. A decision to downgrade "should be limited to those circumstances in which defendant can provide 'compelling' reasons for the downgrade." Id. at 502 (citation omitted). Such "reasons must be in addition to, and separate from, the 'mitigating factors which substantially outweigh the aggravating factors'" as found under the first prong. Ibid. Finally, after identifying the sentencing factors, the judge must describe how, in the exercise of discretion, he balanced those factors. Ibid.
At sentencing, the trial judge noted that defendant lacked remorse, claimed a lack of memory of the crime, and called Palmer a liar. The judge found and gave slight weight to aggravating factor N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense) based on defendant's lack of remorse and his deliberate act of throwing boiling water on Palmer, found and gave great weight to aggravating factor N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law) because the boiling water was a weapon that caused serious injury to the defenseless Palmer, and found aggravating factor N.J.S.A. 2C:44-1a(12) (the defendant committed the offense against a person who he knew or should have known was disabled).*fn4 We are satisfied that the judge's findings of the aggravating factors are clearly supported by "competent, reasonably credible evidence in the record." Megargel, supra, 143 N.J. at 493.
We also find no error in the mitigating factors found by the judge.*fn5 The judge found mitigating factors N.J.S.A. 2C:44-1b(7) (the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense), and found and gave "a great deal of weight" to mitigating factor N.J.S.A. 2C:44-1b(11) (the imprisonment of the defendant would entail excessive hardship to himself) based on defendant's age and health. The judge concluded that the mitigating factors "slightly preponderate" over the aggravating factors, and imposed a sentence at the lower end of the range for a second-degree conviction. The record supports these findings.
Having concluded that the record supports the aggravating and mitigating factors, we must now determine whether the interest of justice demand that defendant be sentenced as a third-degree offender. We are clearly convinced that the high standard governing downgrading, Megargel, 143 N.J. at 500, is not met here. Compelling reasons do not exist for the downgrade. Id. at 502.