August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM SINGLEY, A/K/A WILLIAM TYRONE SINGLEY, JR., WILLIAM T. SINGLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3708.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges R. B. Coleman and Baxter.
Defendant William Singley appeals from a final judgment of conviction of fourth-degree assault by a motor vehicle, as a lesser-included offense of the charge of aggravated assault; simple assault, a disorderly persons offense, as a lesser-included charge of aggravated assault; and third-degree possession of a weapon for an unlawful purpose. He argues that
(1) inadmissible statements made by two State witnesses deprived him of his right to a fair trial; (2) the jury verdict was inconsistent and fatally deficient; and (3) the trial court abused its discretion at sentencing by imposing a custodial term. We have carefully considered defendant's arguments in light of the facts and applicable law, and for the following reasons, we affirm.
The proofs at trial established that on May 26, 2006, Diane Clark-Cook was working for the Department of Community Affairs of the State of New Jersey at its offices at South Harrison Street, East Orange. Shortly before 5:00 p.m., her son, Jared Cook, and his friend, Lood O'Librisi came to visit her at work. Clark-Cook, Cook and O'Librisi left at 5:00 p.m., accompanied by Clark-Cook's co-worker, Topaz Lovingood, who Cook intended to drive home.
Clark-Cook went to her car parked in front of her place of employment, while Cook, O'Librisi and Lovingood went to Cook's car parked in an adjacent parking lot. Before they arrived at their car, Lovingood's ex-boyfriend, defendant, sped into the lot, stepped out of the car and started yelling at Lovingood, questioning, pushing and grabbing her, "getting all up in her face . . . in an aggressive type of way."
Cook and O'Librisi tried to reason with defendant, but he ignored them and continued to pursue Lovingood. Defendant pinned Lovingood up against Cook's car and continued to question her. Cook and O'Librisi once again tried to reason with defendant. Then, Clark-Cook arrived at the scene in her vehicle, she parked, and stepped out of her car, called the police, and told Cook and O'Librisi not to get involved.
As defendant walked toward his car, he said that he was going to get his "heat" and his boys.*fn1 Clark-Cook then called the police a second time. Cook sat on the trunk of Clark-Cook's car in order to view the defendant's license plate. Next, defendant accelerated his car in reverse and hit Clark-Cook's car, knocking Cook off the trunk. Immediately after hitting Clark-Cook's car, defendant backed up, put the car into drive, and hit Clark-Cook mid-thigh with his car, knocking her to the ground. As Clark-Cook began to stand up, defendant drove his car into her again striking her in the abdomen and pinning her against one of the cars that was still there. Defendant then drove out of the parking lot and did not return.
Meanwhile, Nicola Swint was working as a security guard for the Division of Youth and Family Services at the Harrison Street address. She saw Clark-Cook get hit by a car, and fall to the ground. According to Swint, Clark-Cook did not get up. Swint saw the car speed away and that Clark-Cook was bloody on her lower extremities. Clark-Cook was bleeding from the right-side of her foot, her forearm, her shoulder, and her left knee. As a result of the incident, Clark-Cook testified that she received treatment for a tear in her left wrist, internal bleeding, and a torn rotator cuff. She underwent surgery for the rotator cuff. She requires physical therapy and has a permanent scar on her right shoulder from the rotator cuff surgery.
Approximately thirty-five minutes after the police were initially called, Officer Damon Johnson of the East Orange Police Department arrived on the scene. The officer spoke with Clark-Cook for about five minutes, before an ambulance transported her to East Orange General Hospital. The officer also spoke with Cook, O'Librisi and Lovingood. He learned and later included in his report, defendant's identity, what defendant was wearing, where defendant worked and that there was a pre-existing relationship between Lovingood and defendant.
As a result of this incident, an Essex County Grand Jury returned Indictment No. 06-12-3708 against defendant, charging him with two counts of second-degree aggravated assault contrary to N.J.S.A. 2C:12-1(b)(1) (counts one and two)*fn2 ; fourth-degree unlawful possession of a weapon (a motor vehicle) contrary to N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon (a motor vehicle) for an unlawful purpose contrary to N.J.S.A. 2C:39-4(d) (count four). Although defendant was aware of the trial date and had told his attorney he would be there, he did not appear. Hence, the trial was held in defendant's absence before Judge Ned M. Rosenberg and a jury over the course of four days - October 23, 24, 25 and 30, 2007.*fn3
Clark-Cook, Cook, O'Librisi, Swint, and Officer Johnson testified consistently with the facts described above. No witnesses testified on defendant's behalf.
On October 30, 2007, the jury returned its verdict, finding defendant guilty of third-degree possession of a weapon for an unlawful purpose on count four, and the lesser-included offenses of fourth-degree assault by a motor vehicle under N.J.S.A. 2C:12-1(c) on count one, and simple assault on count two under N.J.S.A. 2C:12-1(a)(3), a disorderly persons offense. The jury found defendant not guilty on the charge of unlawful possession of a weapon (count three).
At the sentencing hearing on November 12, 2008, at which defendant was in attendance, Judge Rosenberg merged count one of the indictment, assault by a motor vehicle, into count four, possession of a weapon for an unlawful purpose, and imposed a four-year term of imprisonment on count four, concurrent with a six-month period of incarceration on count two, simple assault. The court made findings regarding defendant's criminal, juvenile offense, and work history, and determined that aggravating factors three and nine applied. N.J.S.A. 2C:44-1(a)(3) and (9). Finding no mitigating factors, the judge concluded that the aggravating factors outweighed the mitigating factors, "in favor of a custodial term."
Counsel for defendant raises the following arguments in defendant's brief on appeal:
POINT I THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF NUMEROUS STATEMENTS MADE BY TWO STATE'S WITNESSES CONNECTING HIM WITH PRIOR CRIMINAL CONDUCT. (PARTIAL[LY] RAISED BELOW).
POINT II THE JURY'S VERDICT FINDING THE DEFENDANT NOT GUILTY OF COUNTS I, II, AND III AS WELL AS THE VARIOUS LESSER INCLUDED OFFENSES EXCEPT FOR ASSAULT WITH AN AUTOMOBILE AND SIMPLE ASSAULT NECESSARILY PRECLUDED A CONVICTION ON COUNT IV, RENDERING ITS GUILTY VERDICT ILLOGICAL, INCONSISTENT AND FATALLY DEFICIENT AS A RESULT. (NOT RAISED BELOW).
POINT III THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A FOUR YEAR CUSTODIAL TERM RATHER THAN A PROBATIONARY TERM.
Defendant argues that State witnesses, Clark-Cook and Cook, volunteered unsolicited information during their testimony regarding defendant's supposedly violent nature, thereby depriving him of a fair trial. For example, on direct examination, the prosecutor asked Clark-Cook when she got out of her car, and Clark-Cook responded:
I got out of my car when - I guess it seemed like the argument was gonna escalate, so I got out of my car. I told my son and I told [O'Librisi] that they needed to get away, this guy was kind of losing it, it wasn't worth it. If that's how she wanted to live . . . . Umm, I don't know if I can mention anything prior to what happened but, you know, she had had some problems with him . . . .
At that point in Clark-Cook's testimony, defense counsel objected, and the judge sustained the objection, and directed Clark-Cook to "[j]ust answer the question."
Later, during the cross-examination, defense counsel showed Clark-Cook police reports of the incident and inquired regarding the nature of the altercation between Lovingood and defendant. The line of questioning continued as follows:
Q: But it's your testimony today . . . that this was a physical altercation between the defendant and Ms. Lovingood?
A: It wasn't a fight or anything it was just a shoving, you know?
Q: But I guess you characterized it as violent?
A: He's a violent person.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q: Just what is your definition of violent, not in particular to this defendant?
A: I don't know how I can describe it. I mean, 'cause like I said, I have personal knowledge of him being violent.
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection Sustained.
Defendant then asked at sidebar for a limiting instruction, which was given. The judge instructed the jury to "disregard any testimony . . . that's indicative of any other date or prior knowledge, because the witness has testified that as a result of the incident of May 26th, 2006, that's how she knew the defendant . . . and any testimony otherwise should be disregarded."
Defendant also contends that certain statements made by Cook were unduly prejudicial and warrant a reversal. Specifically, in his description of defendant, Cook described him as "a guy wearing a Dominos shirt" who was Lovingood's ex-boyfriend, and he added that he had "heard some stuff about him[.]" Defense counsel objected, and the trial court directed Cook to "answer the question put to [him] by [the prosecutor]."
During cross-examination, defense counsel asked Cook if he reviewed Officer Johnson's report at the East Orange Police Department when Cook met with Sergeant Kelshaw, and Cook responded: "I don't remember, 'cause I think we were there to file a separate complaint on top of something else that he already did. So if we went over Officer Johnson's statement, my mother and I probably were more focused on the new complaint that he was harassing[.]" Defense counsel neither objected to these statements nor did she request a curative instruction.
On appeal, defendant contends that the gratuitous comments made by the witnesses unfairly portrayed him "as an individual who had engaged in prior conduct associated with criminal, quasi-criminal or domestic violence activity."
At the conclusion of the State's case, the judge held a charge conference. The judge determined that there should be an instruction as to the limiting instruction given at trial, and defense counsel did not request that any specific instruction be given. During the jury charge, the judge instructed the jurors that they were not to use or consider stricken testimony, and testimony on which he had given them limiting instructions, they were to consider the evidence for that limited purpose only.
Whether inadmissible evidence may be cured by a cautionary or limiting instruction, or requires a mistrial is within the discretion of the "trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). "Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647. Further, the possibility of a different outcome at trial "must be real, one sufficient to raise a reasonable doubt[.]" Ibid.
The Supreme Court of New Jersey has recognized:
[E]very single thing that happens at a trial cannot be completely controlled: ["]The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that 'not every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . . .['"] [State v. Vallejo, 198 N.J. 122, 132 (2009) (quoting Winter, supra, 96 N.J. at 646 (citations omitted)).]
In determining whether information improperly disclosed at trial warrants a new trial, "when an error is not of constitutional dimension," 'it shall be disregarded by the appellate court unless it is of a nature as to have been clearly capable of producing an unjust result.'" Winter, supra, 96 N.J. at 648 (internal quotations omitted). An appellate court can also consider the proof of a defendant's guilt in considering whether a "prejudicial comment had the capacity to influence the jury." Id. at 649.
First, defense counsel did not move for a mistrial at any point, and counsel did not object to Cook's statement during cross-examination that he and his mother went to the East Orange Police Department on May 30, 2006, to file a separate complaint against defendant. Nor did defense counsel request a curative instruction after objecting to Cook's statement that he "heard some stuff about" defendant. "When no request for a limiting or curative instruction is made, defendant must show that the failure to give such an instruction sua sponte constitutes an error 'clearly capable of producing an unjust result[.]'" State v. Mays, 321 N.J. Super. 619, 633 (App. Div.) (quoting State v. Loftin, 287 N.J. Super. 76, 97 (App. Div.), certif. denied, 144 N.J. 175 (1996)), certif. denied, 162 N.J. 132 (1999). See also R. 2:10-2. Such an error is not presented in this case. Moreover, we may "infer from counsel's failure to request a curative instruction that [she] made a strategic decision not to draw more attention to [these] isolated, fleeting comment[s]." Ibid. Not only were Cook's comments fleeting, but also the jury returned a guilty verdict on the lesser-included disorderly persons offense of simple assault on count two, which charged defendant with second-degree aggravated assault against Cook. See, e.g., Mays, supra, 321 N.J. Super. at 633 (jury's failure to convict defendant of any charges arising out of an incident with one of two victims leads to the conclusion that the trial judge's failure to give sua sponte curative instruction as to a witness's mention of "Rahway State Prison" was not clearly capable of producing an unjust result).
Clark-Cook's statements also did not deprive defendant of his right to a fair trial. Her statements regarding Lovingood and defendant's relationship did not allude to prior crimes or defendant's violent nature, and Clark-Cook did not elaborate on those statements. Moreover, as defense counsel did not request a curative instruction after the judge sustained her objection to the above comments, it may be inferred that this was a strategic decision. Mays, supra, 321 N.J. Super. at 633.
It is undisputed that Clark-Cook's testimony that she had "personal knowledge of [defendant] being violent," and subsequent elaboration was inadmissible. However, at the request of defense counsel, the trial judge immediately issued a curative instruction directing the jurors "to disregard any testimony that's indicative of any other date or prior knowledge, because the witness has testified that as a result of the incident of May 26, 2006, that's how she knew the defendant, William Singley, and any testimony otherwise should be disregarded." We "must assume that the jury faithfully followed that instruction." Mays, supra, 321 N.J. Super. at 633. As was true of the charge of aggravated assault related to Cook, the jury's verdict rejecting the charge of second-degree aggravated assault against Clark-Cook and instead finding defendant guilty of a lesser-included offense, fourth-degree assault by motor vehicle, is consistent with the jury's compliance with the judge's curative instruction. Winter, supra, 96 N.J. at 650-51 ("the jury finding defendant guilty of the lesser included offense of simple manslaughter is consistent with a fastidious compliance with the trial court's order to disregard the improper remark by [a witness].").
Beyond this, the jury heard the testimony of five witnesses, and, other than minor inconsistencies, that testimony described an angry defendant who first accosted his ex-girlfriend and then got behind the wheel of his vehicle and drove into Clark-Cook's car, then twice drove into Clark-Cook herself.*fn4 "[I]n light of the proof of guilt in this case," we are convinced that the gratuitous and inadmissible comments by Clark-Cook and Cook did not have the capacity to lead the jury to a verdict that could not otherwise be reached. Winter, supra, 96 N.J. at 649.
Defendant argues the jury could not have found him guilty of third-degree possession of a weapon for an unlawful purpose, count four, because it found him not guilty of second-degree aggravated assault under counts one and two, and instead found him guilty of lesser-included offenses, fourth-degree assault by a motor vehicle and simple assault. Defendant's argument fails, as we may not "attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty[.]" State v. Muhammad, 182 N.J. 551, 578 (2005).
We "must accept . . . arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted." State v. Banko, 182 N.J. 44, 56 (2004). See also State v. Petties, 139 N.J. 310, 319 (1995) (citation omitted) ("inconsistent verdicts are normally permitted 'so long as the evidence was sufficient to establish guilt on the substantive offenses beyond a reasonable doubt.'"). "Each count in an indictment is regarded as if it was a separate indictment." Muhammad, supra, 182 N.J. at 578 (quoting Banko, supra, 182 N.J. at 53).
Moreover, "[w]hen a court charges a lesser-included offense and neither party objects, as in this case, we will uphold a conviction of the lesser charge so long as the evidence in the record provides rational support for the conviction." Id. at 577. We may not "speculate whether verdicts resulted from jury lenity, mistake, or compromise[.]" Id. at 578. However, we recognize that inconsistent verdicts may be vulnerable to invalidation, "when an incomplete or misleading jury instruction causes an unfair trial." Banko, supra, 182 N.J. at 55.
Here, defendant does not contend that the jury charge was incomplete or misleading; nor is there any evidence of such in the record. Defendant also does not allege any other error at trial that caused the inconsistent verdict. Thus, the only issue is whether there was sufficient evidence presented at trial to convict defendant of: (1) fourth-degree assault by a motor vehicle, contrary to N.J.S.A. 2C:12-1(c) (count one); (2) simple assault, contrary to N.J.S.A. 2C:12-1(a)(3) (count two); and, (3) third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four). There was.
In order to find a defendant guilty of fourth-degree assault by a motor vehicle, the State must show that defendant
(1) drove his vehicle recklessly, (2) causing serious bodily injury. N.J.S.A. 2C:12-1(c)(1); Model Jury Charge (Criminal), "Assault by Auto or Vessel" (2004). The term "recklessly" is defined as follows:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. [N.J.S.A. 2C:2-2(b)(3).]
"'Serious bodily injury' means 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).
Defendant clearly drove his vehicle recklessly as it is undisputed that he drove his car rapidly first into Clark-Cook's car, and then twice into Clark-Cook herself. As a result of this, Clark-Cook suffered serious bodily injury. Since the incident, she has been treated for a tear in her left wrist, internal bleeding, and a torn rotator cuff, including rotator cuff surgery. Clark-Cook now requires physical therapy for her shoulder, and has a permanent scar on her right shoulder from the rotator cuff surgery. Unquestionably, there was sufficient evidence for the jury to find defendant guilty of fourth-degree assault by a motor vehicle beyond a reasonable doubt.
Simple assault under N.J.S.A. 2C:12-1(a)(3) is an "attempt by physical menace to put another in fear of imminent serious bodily injury." "Physical menace" does not require the use of force, but it is rather a menacing threat of force, "[f]or example, an assailant could violate N.J.S.A. 2C:12-1a(3) by raising a clenched fist in a menacing manner, without hitting or attempting to hit the victim." Frazier v. N. State Prison, Dep't. of Corr., 392 N.J. Super. 514, 519 (App. Div. 2007). Here, after bullying Lovingood and threatening Cook and O'Librisi, defendant drove his vehicle into Clark-Cook's car upon which Cook was sitting, causing Cook to fall off of the car. The jury logically concluded that defendant attempted to put Cook in fear of serious bodily injury because his actions could easily have caused serious bodily injury.
Finally, to prove that a defendant is guilty of possession of a weapon, that is not a firearm, for an unlawful purpose, the State must prove four elements beyond a reasonable doubt: (1) "there was a weapon"[;] (2) "[d]efendant possessed the weapon"; (3) "[d]efendant possessed the weapon with the purpose to use it against the person or property of another"; and (4) "[d]efendant's purpose and intent was to use the weapon unlawfully." N.J.S.A. 2C:39-4(d); Model Jury Charge (Criminal), "Possession of a Weapon With a Purpose to Use it Unlawfully Against the Person or Property of Another" (2003). A "weapon" is anything that is "readily capable of lethal use or of inflicting serious bodily injury." N.J.S.A. 2C:39-1(r).
First, under the definition provided in N.J.S.A. 2C:39-1(r), defendant's car qualifies as a weapon. Second, it is undisputed that defendant was in possession of the weapon, his car. Third and fourth, the State showed that at the time of the altercation, defendant possessed the car with the purpose to use it against Clark-Cook's car, against Cook and against Clark-Cook, and that such conduct was unlawful.
There was sufficient evidence for the jury to find defendant guilty of the three final charges. Hence, the inconsistency of the verdicts does not require reversal.
Appellate review of a trial court's sentence is guided by the three-factor test of State v. Roth, 95 N.J. 334, 364-65 (1984), which looks to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. "Although appellate courts possess original jurisdiction over sentencing, the exercise of that jurisdiction 'should not occur regularly or routinely; in the face of a deficient sentence, a remand to the trial court for resentencing is strongly to be preferred.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 410-11 (1989)). We modify sentences "sparingly and only upon a 'clear showing of abuse of discretion.'" State v. Whitaker, 79 N.J. 503, 513 (1979) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)).
In sentencing defendant, the judge properly determined that the presumption against imprisonment did not apply. There is a presumption of non-imprisonment for a first offender convicted of a third or fourth degree offense, however, that presumption is negated where a defendant has been convicted of any prior offense, including a disorderly persons offense. N.J.S.A. 2C:44-1(e); State v. Pineda, 119 N.J. 621, 623 (1990). Defendant had five prior arrests resulting in one disorderly persons offense conviction. As a result of that disorderly persons conviction, the presumption against imprisonment applicable to first offenders did not apply. Pineda, supra, 119 N.J. at 623.
Although defendant contests the judge's conclusion that aggravating factor three (risk that defendant will commit another offense) and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(3) and (9) applied, we find no reason to disturb the judge's determination, and defendant's arguments concerning the court's weighing of the aggravating and mitigating factors is so lacking in merit that they do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that the sentence imposed was within the permissible sentencing ranges. N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:43-8.
In the end, we are satisfied that there were sufficient facts to support the judge's findings regarding aggravating and mitigating factors. In light of the deferential standard applicable to our review, we find no basis to disturb the judge's determination.