On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Lihotz and Baxter.
Following a non-jury trial, defendant Amy Ortiz was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d) (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). The judge found her not guilty of attempted murder, as charged in count one of the indictment. On count two, even though defendant had been convicted of a second-degree crime, the judge sentenced her in the third-degree range, imposing a three-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On count three, the judge sentenced defendant to a concurrent three-year term of imprisonment and merged counts four and five with count three.
On appeal, defendant raises a single claim:
I. AS THE JUDGE WAS BOTH JUDGE AND FACTFINDER, THE DEGREE OF HIS INTERFERENCE IN THE TRIAL IMPEDED THE ADVERSARIAL PROCESS AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
On March 3, 2006, Stephany Waddell and her boyfriend Micah Adams were at home in their apartment when they heard their car alarms sounding. When Waddell looked out the window, she saw defendant standing next to her car. Waddell knew defendant from a Honda car club that Adams founded and of which he was the president. For reasons not relevant to this appeal, friction had developed between the two women in the months preceding the night in question.
After seeing defendant standing next to her car, Waddell ran outside and punched defendant in the face. The two fell to the ground, with defendant on the bottom and Waddell on top of her. Waddell testified that defendant grabbed her by the neck and she had trouble breathing. Almost immediately, she felt "a hot, tingling feeling in [her] neck." When defendant released her hold of Waddell's neck, Waddell realized she was bleeding. At that point, Waddell looked in defendant's hand and saw defendant holding a knife. Waddell, who was unarmed, unsuccessfully attempted to pry the knife loose from defendant's grasp, but did not succeed. Her fingers were cut as she continued to attempt to grab the knife away from defendant. Defendant then stabbed Waddell in the leg and abdomen, at which point Waddell screamed to Adams, "Micah, this bitch stabbed me. Micah, this bitch stabbed me." At that point, Adams intervened and separated the two women.
After the attorneys had completed their direct and cross-examination of Waddell, the judge stated that he "want[ed] to ask a few questions since this is a bench trial." At that point, he questioned Waddell about whether she had actually seen the knife, what the lighting conditions were like, when she had first seen the knife, what it looked like, how much of the metal blade she had observed, how wide the blade was, whether she had known defendant prior to that night and how long she had known her. The judge also asked Waddell a series of questions concerning her employment as a model and as an installer of special equipment on cars.
Notably, the judge asked Waddell whether she had ever, prior to the night in question, seen defendant with a knife, to which Waddell answered "yes." After Waddell testified she had indeed seen defendant in possession of a knife on a prior occasion, the judge asked "what type of knife was it that you saw her with? This is 404(b) information." Waddell answered, "a hand knife."
During Waddell's testimony, the State presented a videotape showing all of her scars in detail. The State also presented the testimony of Martina Harmon, who lived across the street from Waddell and Adams. After hearing a loud argument, she went outside where she saw Waddell in a fight with another woman. She testified she heard Waddell yell that she had been stabbed and observed bloodstains on Waddell's blouse.
Adams testified that because Waddell, at least at the beginning, appeared to be the stronger of the two, he had not interfered. In fact, he explained that he let the two fight until he heard Waddell yell that she had been stabbed and that she believed she was dying. Adams also maintained that although blood was pouring out of several wounds on Waddell's body, he had not seen a knife in defendant's hand because his attention had been distracted by the many car club members who had arrived, some of whom he did not know. Adams testified that "somebody" hit him and that he was preoccupied with "trying to prevent everybody from getting past him." Adams admitted using a baseball bat to smash the window of the car in which defendant had been riding. Her children were in the car at the time.
After presenting the testimony of other members of the car club, who were also present during the fight between Waddell and defendant, the State called Dr. Richard Burns, a trauma surgeon at Cooper Medical Center, who treated Waddell when she was admitted. Burns testified that Waddell was bleeding from multiple stab wounds and was in considerable distress. Although some of the five stab wounds were superficial and were cleaned and sutured in the operating room, the wounds to her neck and abdomen were serious and required surgery. According to Burns, due to the location and apparent depth, "[b]oth of these wounds had the potential to injure vital structures." Burns also testified that Waddell had wounds on her hands, which he described as consistent with defensive wounds. Burns explained that Waddell had lost so much blood that she received a blood transfusion. She remained hospitalized for eight days.
At the conclusion of Burns's testimony, the judge asked him a series of questions designed to elicit further detail about the wounds and the surgery. Defendant did not object to the judge's questioning of Burns.
Defendant testified on her own behalf. She explained that on the night in question, she was driving with her boyfriend, Edwin Rivera, when she decided to drive to Fifth Street to visit her cousin Jessica. According to defendant, she did not realize that Jessica's home was adjacent to Waddell's. As soon as Rivera parked the car, Adams began smashing the windshield with a baseball bat. It was at that point that Waddell approached her and punched her in the face. With that, the two women began fighting.
Defendant claimed she did not have a knife, did not stab Waddell and, when the fight was over, there was no blood on Waddell. Defendant also denied that Waddell ever ...