June 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-00717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Skillman and Simonelli.
A grand jury indicted defendant John Williams for second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four). The charges stemmed from defendant's alleged assault and robbery of Gerson Jean-Marie in a McDonald's restaurant parking lot in Elizabeth.
A jury convicted defendant on counts two, three and four, and on the lesser included offense of simple assault on count one. The trial judge imposed an extended-term sentence of seven years with a forty-two month period of parole ineligibility on count two, a concurrent one hundred and eighty days on count one, a concurrent five years on count three, and a concurrent eighteen months on count four. The judge also imposed the appropriate assessments and penalty. This appeal followed.
We derive the following facts from the evidence presented at trial.
On May 5, 2007, Jean-Marie, a police officer with the Elizabeth Police Department, finished his shift at 9:00 p.m. and drove to McDonald's to meet his wife, their ten-month-old daughter and his wife's twenty-three-year-old daughter, Renee. He was wearing a t-shirt and navy blue police uniform pants. His uniform shirt, gun and badge were inside his car.
Jean-Marie parked his car next to Renee's and began transferring his daughter's car seat from Renee's car to his, while his wife stood by the rear bumper of his car holding their child. As Jean-Marie was securing the car seat he heard a man's voice, turned around and saw defendant standing directly in front of him, stating, "You have money for me?" After Jean-Marie responded that he had no money, defendant got an "angry look in his face" and aggressively continued to demand money. Jean-Marie denied he had money and instructed defendant to "get out of here." Defendant "took an aggressive step toward" Jean-Marie's wife and daughter, saying, "Hey, lady, give me some money." Jean-Marie intervened and ordered defendant to leave the area.
Defendant then punched Jean-Marie on the left cheek, took a step back, and began "bouncing back and forth in a fighting stance." Jean-Marie advised defendant that he was a police officer and that defendant was under arrest, to which defendant stated, "even the police can get some." Defendant charged toward Jean-Marie as the officer approached to arrest him. Jean-Marie tackled defendant to the ground, where the two struggled for a few seconds before defendant jumped to his feet and fled. Defendant was apprehended in a nearby warehouse by one of Jean-Marie's fellow police officers and placed under arrest.
Jean-Marie's wife heard Jean-Marie identify himself as a police officer and defendant's statement that "even the police can get some." Renee did not hear either of these statements.
It is against these facts that defendant raises the following contentions:
TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE AND INSUFFICIENT DUE TO THE COURT'S FAILURE TO MOLD THE INSTRUCTIONS IN A MANNER THAT EXPLAINED THE LAW TO THE JURY IN THE CONTEXT OF THE MATERIAL FACTS OF THE CASE THEREBY DEPRIVING THE DEFENDANT OF DUE PROCESS OF LAW (Not Raised Below).
A. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY REGARDING THE ALLEGED ORAL STATEMENT OF THE DEFENDANT (Not Raised Below).
B. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY REGARDING CREDIBILITY OF WITNESSES AND WEIGHT OF THE EVIDENCE WAS INSUFFICIENT (Not Raised Below).
C. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING CIRCUMSTANTIAL EVIDENCE AND INFERENCES WAS INADEQUATE.
DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE TRIAL COURT IMPROPERLY APPLIED THE AGGRAVATING FACTORS TO SENTENCE THE DEFENDANT TO AN EXTENDED TERM.
We reject these contentions and affirm.
Because defendant did not object to the jury charges below, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2; State v. Brown, 190 N.J. 144, 160 (2007). Under that standard, we "must disregard any error unless it is 'clearly capable of producing an unjust result.' 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.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004)); State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.
Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981); State v. Afanador, 151 N.J. 41, 51 (1997). As most lay people do not understand legal jargon, the court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Green, supra, 86 N.J. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). Applying these standards, we discern no error, let alone plain error, in any of the challenged jury charges.
Defendant contends that the judge failed to specifically instruct the jury on his statement that "even the police can get some[,]" and to inform the jury that it must determine whether he made the statement and the credibility and weight to give it. This contention lacks merit, as the judge gave the following instruction:
Now, there is also for your consideration in this oral statement allegedly made by the defendant. In this instance, we are talking about any words he used in asking for money, if any, and the words to the effect that even the police can get some, whatever you find were the words said, if any. Now, it is your function to determine whether or not the statements were actually made by the defendant and, if made, whether the statement or any portion of it is credible.
In considering whether or not an oral statement was actually made by the defendant and, if made, whether it is credible, you should receive, weigh, and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. The specific words used and the ability to remember them are important to the correct understanding of any oral communication, because the presence, or absence, or the change of a single word may substantially change the true meaning of even the shortest sentence. You should, therefore, receive, weigh, and consider such evidence with caution. In considering whether or not a statement is credible, you should take into consideration the circumstances and facts as to how the statement was made as well as all of the other evidence in this case relating to this issue.
If, after consideration of those factors, you determine that the statement or any one of them was not actually made or that the statement is not credible, then disregard the statement. You must disregard the statement completely. If you find the statement was made and that a part or all of the statement is credible, you have to give what weight you think appropriate to that portion of the statement that you find to be truthful and credible. And you should apply this instruction to any oral statement that you find was made by the defendant, if you find there is a genuine issue regarding precise contents or words of the statement.
Defendant also contends that the judge erred in failing to tailor the instructions on the credibility of the State's witnesses and the inconsistencies and discrepancies in their testimony. We disagree. A trial judge is required to tailor the jury charge to the facts of the case in situations when a statement of the law, "divorced from the facts, [is] potentially confusing or misleading to the jury" or the case presents "an abstract issue of law in view of the facts of the case." State v. Robinson, 165 N.J. 32, 42-43 (2000). The ultimate responsibility to advise a jury of weaknesses in the State's case falls on defense counsel, not the trial court. Id. at 43-45. Here, the judge instructed the jury on witness credibility in accordance with Model Jury Charge (Criminal), "Final Jury Charge -- Witness Credibility" (February 2003). Instructions on witness credibility do not explain the applicable law or relevant legal principles. Rather, they "assist the jury in performing its fact-finding role." State v. Walker, 322 N.J. Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999). Thus, the credibility of the witnesses was not "an abstract issue of law in view of the facts of the case" that required further explanation. Robinson, supra, 165 N.J. at 43. Nor was this a case where the evidence presented "pose[d] particular credibility issues not adequately addressed by general credibility instructions." Walker, supra, 322 N.J. Super. at 546. Indeed, defense counsel's summation made the jury eminently aware of the credibility issues surrounding the witnesses' testimony. The ultimate responsibility to advise a jury of weaknesses in the State's case falls on defense counsel, not the trial court. Robinson, supra, 165 N.J. at 43-45.
We reject defendant's contention about the inadequacy of the judge's instruction on circumstantial evidence and inferences relating to the State's failure to prove that Jean-Marie suffered bodily injury to his face necessary to convict him of third-degree aggravated assault. The judge instructed the jury in accordance with Model Jury Charge (Criminal), "Circumstantial Evidence" (January 1993) on circumstantial evidence and inferences. Although the judge did not recite the model charge verbatim, he incorporated all of the concepts and language from the model charge and gave a detailed factual example depicting the difference between direct and circumstantial evidence. The judge also instructed that the jury was free to determine whether or not any inferences should be drawn from the circumstantial evidence presented in the case.
As with instructions on witness credibility, instructions on circumstantial evidence are meant to assist the jury in its fact-finding role and do not involve explaining an abstract issue of law. Therefore, it was defense counsel's responsibility to make the jury aware of the absence of evidence of injury to Jean-Marie's face, which she adequately did in her summation.
Defendant challenges his extended-term sentence for the third-degree aggravated assault conviction, contending he should have been sentenced to an ordinary-term. Defendant argues that the judge improperly applied the aggravating factors to impose an extended-term sentence; there was no basis, other than his prior record, supporting the judge's conclusion that he would commit another offense; and the judge double-counted his prior record as an aggravating factor when imposing an extended-term sentence and imposing the base term and parole ineligibility period.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Roth, 95 N.J. 334, 364-66 (1984). Our role in this regard is circumscribed:
[We are] bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. [State v. O'Donnell, 117 N.J. 210, 215-16 (1989).]
Defendant conceded at sentencing that he was statutorily eligible for a discretionary extended-term sentence. He has an extensive criminal history, including convictions for robbery, criminal trespass, aggravated assault, simple assault, obstruction, hindering apprehension, resisting arrest, eluding, possession of a controlled dangerous substance and drug paraphernalia, and third-degree receiving stolen property. He has served substantial time in prison and has violated parole and probation.
In determining what sentence to impose, the judge relied on a portion of defendant's criminal record. In setting the extended term of seven years, 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 parole revocation in 1998. He judge also found aggravating factor N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law) based on defendant's history of assaults and resisting arrest. The judge imposed a forty-two month period of parole ineligibility based on his finding of a "very strong aggravating factor [N.J.S.A. 2C:44-1a(6)]" (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted). The judge found no mitigating factors.
We discern no abuse of discretion in defendant's sentence. The judge imposed an extended-term sentence based on a portion of defendant's extensive criminal record, and did not double count aggravating factors. The judge's findings of aggravating factors are amply supported by the record. State v. Dalziel, 182 N.J. 494, 505 (2005). Defendant was clearly eligible for an extended-term sentence, and he received a sentence within the extended-term range.
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