On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-03-0671 and 07-11-2606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Reisner, Sabatino and Alvarez.
Following a four-day jury trial, defendant James T. Bankowski was convicted of second-degree witness tampering, N.J.S.A. 2C:28-5a; third-degree witness tampering, N.J.S.A. 2C:28-5a; and two counts of simple assault, N.J.S.A. 2C:12-1a, a disorderly persons offense. Defendant now appeals his convictions on numerous grounds. He also contests the reasonableness of his sentence. We affirm.
Because the factual and procedural chronology pertinent to our analysis is intricate, we describe the record in considerable detail. As reflected in the State's proofs at trial, all of the instant offenses stem from defendant's unlawful conduct directed at his wife.*fn1 The assault charges initially arose after the police responded to an altercation between defendant and his wife at a tavern, in which he slammed her head on the bar counter. According to the State's evidence, after the barroom incident, defendant repeatedly attempted to prevent his wife from cooperating with the investigative authorities and from testifying against him. Those efforts included defendant's renewed use of force against her after she received a subpoena from the prosecutor.
Defendant denied physically assaulting his wife or intentionally hurting her. He also denied that he had improperly tried to hinder her interactions with police and prosecutors, contending that his wife loved him and that she genuinely did not want him prosecuted.
Defendant and his wife first met one another at a bar in Keansburg in July 2006. In December 2006, they were married in a civil ceremony. The couple then resided with defendant's mother at her home in Keansburg. On December 17, 2006, defendant had an encounter with the Keansburg police, which resulted in his indictment on one charge of third-degree resisting arrest and one charge of fourth-degree obstruction of the administration of law.
A month into their marriage, on January 13, 2007, the couple got into an argument at their home over defendant's accusations of the wife's infidelity. The wife left and walked to a nearby bar. Defendant followed her and continued to yell at her. Once at the bar, the wife ordered a pitcher of beer and some hard liquor, which she shared with defendant.
According to a female bartender who was on duty at that time, the couple continued to argue while at the bar. Defendant appeared to be doing most of the talking. As the bartender recounted, the wife pushed defendant away when "he got in her face," and she "kept putting her head down" and crying. The wife repeatedly told defendant to stop yelling at her, and to leave her alone. The arguing persisted and the bartender told the couple that they had to leave.
The wife testified that defendant told her that she should "go have oral sex" with a certain male friend of the family.*fn2
The wife testified that this remark upset her, as the male friend had been "a father figure" to her "for quite some time[.]" In response, the wife "slapped [defendant] across the face for saying that."
Defendant then grabbed his wife and slammed her head into the bar. Defendant claimed that he "tried to help her after [he] did it," that he "didn't realize that it was that hard," and he immediately tried to stop her bleeding. The wife testified that defendant "wanted to -- to see the damage that he did, you know, and he was like, just tell them you slipped, tell them you slipped[.]" The entire incident, including the physical confrontation, was captured on the bar's surveillance video.*fn3
The bartender testified that her attention was drawn to the couple again by the "bang" she heard when the wife's head struck the bar. She testified that defendant asked her if she had seen his wife "fall." The bartender replied to defendant that "she didn't fall" and told him "to get away from [the wife]." At that point, another patron attempted to attend to the wife, but defendant told the patron to leave her alone. The bartender told her boss to call 9-1-1, and then assisted the wife to the restroom, where she iced her wound and waited for the police to arrive.
Shortly thereafter, Keansburg police arrested defendant at the bar. The wife was taken first to the police station to have her injuries photographed and her statement taken, and then to a local hospital for treatment. The wife received eleven stitches in her forehead. However, despite the attending physician's request, she declined the magnetic resonance imaging needed to diagnose a concussion. She testified that she "didn't want to go through with it," because she was "humiliated," "scared," and "frightened." Instead, she left the hospital, returned to the bar for another beer, bought a six-pack, and then walked to the house of the aforementioned friends of her family.
A few days later, on January 16, 2007, defendant wrote to his wife from the county jail; he asked that she "[p]lease visit and write for now and call [the] Prosecutor's Office and see what you can do. I said you fell and that's that."*fn4
As a result of the events at the bar, a restraining order was entered temporarily forbidding defendant from having contact with his wife. In the meantime, she resided at her friends' home. The wife eventually decided to resume living with defendant and, at her request, the restraining order was dissolved.
A few days later,*fn5 after he had been released from jail, defendant presented the wife with a letter that he had prepared and typed himself. He requested that she sign the letter and send it to the Prosecutor's Office, "[s]o [that] he wouldn't go to jail." The letter, which the wife read aloud to the jury during her direct examination at trial, contained one paragraph. As quoted to the jury, the letter stated, in pertinent part:
To Whom it May be Concerned . . . I do not wish to testify nor make any statements concerning the matter against my husband, James Bankowski. . . . .
No one is threatening me or making me say this. I spoke to your office on this matter, my statement stands true. Thank you very much at this time -- thank you for your time.
At defendant's request, the wife eventually signed this letter and evidently went with him to the post office to dispatch it by certified mail.
However, the wife then called the person at the prosecutor's office to whom the letter was addressed and told her "that they were being certified and sent out and that [she] was forced to sign these letters,*fn6 to be aware that they were coming." Shortly thereafter, the wife allowed defendant to remove the stitches from her head because, as the wife testified, he "didn't want it to be documented that -- that the doctors would write down why I had to have stitches taken out of my head."
About a month later, on February 27, 2007, the wife was scheduled to testify before the grand jury in relation to the January 13, 2007 incident. She had made prior arrangements with the prosecutor's office to be picked up at her friends' house and driven to the grand jury. When the wife did not show up at the agreed-upon time, Keansburg police were called to the scene to check on her welfare.
Officer Joseph Jankowski was dispatched to the house following reports that the prosecutor's office "had called and talked to her, she sounded upset and was crying, and they overheard a male in the background." Officer Jankowski testified that the prosecutor's office had reported that "[a]t that point, the call was terminated and they called several other times to try to get a hold of her with no success."
When he got to the house, Officer Jankowski "knocked on the door, several times [and] rang the doorbell, for several minutes." After no one responded, Officer Jankowski informed his sergeant, who arrived with two other patrolmen. All four police officers then went to defendant's residence to "see if the subjects were there." When they arrived at defendant's residence, defendant's mother informed them that neither spouse was present and that they were staying at the residence of the family friends.
The police officers returned to the family friends' house. They rang the doorbell numerous times, and knocked on the door repeatedly. After another ten minutes without any answer, they entered the home forcibly, using a battering ram to force open the front door. The police thereby entered the home and found both the wife and defendant on the premises.
According to the wife, defendant had learned of her upcoming testimony before the grand jury "just prior" to her leaving their residence to meet the employee from the prosecutor's office at her friends' home. She claimed that defendant followed her to the friends' home and told her "don't go, don't go, you don't have to go. They're just trying to do this to coerce you[.]" She testified that, when the prosecutor's employee called, defendant told her not to pick up the phone. When she did answer, she told the employee that she had a doctor's appointment to go to that day. She also testified that, when a police officer began banging on the door, defendant instructed her to get in the bathroom.
In his own testimony at trial, defendant contended that he and the wife were at the friends' house preparing her for an unrelated medical appointment. He claimed that he was waiting for the wife to finish showering, when the police burst into the house and compelled her to go with them. Defendant testified that he demanded to see a warrant or a subpoena, but the police said that they did not have to show him anything and that he would be arrested if he did not remain quiet.
Despite defendant's efforts, the wife did testify before the grand jury on February 27, 2007. Thereafter, on March 14, 2007, the grand jury returned Indictment No. 07-03-0671 against defendant, charging him with one count of third-degree resisting arrest and one count of fourth-degree obstruction of justice, in relation to a December 17, 2006 incident.*fn7 In that same indictment, the grand jury also charged defendant with third-degree aggravated assault and third-degree tampering with a witness, in relation to the January 13, 2007 incident. Defendant pled not guilty to all of the charges.
The trial date for Indictment No. 07-03-0671 was initially set for August 6, 2007. In anticipation of the trial, the prosecutor sent a trial subpoena to the wife at her friends' house. The wife's seventeen-year-old daughter by another marriage received the subpoena on July 13, 2007. The daughter called her mother and read the subpoena to her over the phone. The daughter testified that, during the phone call, she could hear defendant in the background, telling her mother "don't worry, don't worry about it, you're not going."
According to the wife's testimony, defendant became "panicky" when she told him about the trial subpoena, and he told her that she shouldn't testify against him. She contended that defendant "wanted [her] to lie and [she] wasn't going to lie." She asserted that defendant got angry and the argument then got physical, and defendant "gave [her] black and blue [marks] on [her] face[.]" On cross-examination, the wife admitted that the July 13 argument began when defendant accused the wife of cheating on him.
Defendant presented a markedly different narrative of the events of July 13. He testified that his wife was taking various prescription medications and drinking, and that she began to abuse him verbally. Eventually, according to defendant, the verbal abuse escalated and his wife "struck at [his] eye, tried to gouge [his] eye out." Defendant, who testified that he was particularly sensitive to attacks on his one functional eye,*fn8 claimed that he "smacked" his wife in response to this perceived attack.
According to the wife, she was "not really" allowed to leave her home for the next five days "because the argument just kept escalating," and because defendant "didn't want [her] to go, didn't want anybody to see [her] face." On July 18, 2007, the wife finally left and went to the friends' home. When she arrived there, their daughter-in-law*fn9 took photographs of her injuries, which included two black eyes, a swollen face, and cuts on her mouth and her lip. After the photos were taken, the wife gave the camera to her daughter to hide "so [that defendant] wouldn't come in the house and steal it . . . and destroy the pictures[.]"
On July 31, 2007, the wife reported the July 13, 2007 incident to the Keansburg police. At trial, the wife testified that she provided a statement to the police after lengthy questioning that day.
According to the wife's police statement, she "had gotten away from [defendant] for a couple of days [prior to the July 13, 2007 incident], because [they] had been arguing[.]" She further stated that, "when she came back, [defendant] was drinking and [she] had a couple of drinks [herself]." The wife told police that she and defendant got into an argument that started when he accused her of being unfaithful to him and eventually turned to whether or not she would attend the upcoming August 2007 court date.
As a result of the wife's statement to the police, defendant was arrested on July 31, 2007. He has been incarcerated since that date. While in jail, awaiting trial on the indictment for the January 13, 2007 incident, defendant wrote a series of letters to the wife, urging her to help him get the indictment dismissed.
The first of these letters, dated September 8, 2007, told the wife:
You need to recant your story on paper in writing, and there is nothing they can do but drop these charges. You're the only one. I don't care what you said or what you -- you gave them, that is all irrelevant. You can change your mind. You were under heaving drinking and your mind was confused. So listen to me, you know I know this is b[******]t and you can't do this to me.
In her trial testimony, the wife characterized the remainder of this letter as defendant's attempt to convince her "to drop the charges, write these letters and drop the charges, and -- and do it."
On September 10, 2007, defendant wrote a second letter to the wife from jail, stating that he "will say and do whatever it takes to get out of [jail]." He reminded the wife that she had the right to "change [her] story," and that if she recanted her statement it would "help [his] defense big time." He urged her to "plead the Fifth [Amendment] and request a lawyer." He underscored the wife's legal privilege not to testify against her spouse, then detailed how she should write her letter to the Monmouth County Prosecutor.
A week later, on September 17, 2007, defendant sent the wife a third letter. This letter contained a number of drawings of eyes, which are apparently similar to certain tattoos of the wife. In this third letter, defendant told his wife:
You have a lot to say, your voice will carry a lot of weight, and, hon, that -- that letter, please write, sign, notarize, or note, but certify, mandatory, you changed your mind, recant your story, don't listen to these people who want to hurt you and me.
I will not say it no more.
On September 25, 2007, defendant sent a fourth letter to his wife from jail, however, this letter, unlike the others, was typewritten. In it, defendant again urged his wife to write a letter to the Monmouth County Prosecutor recanting her testimony. He specifically instructed her to write the following to the prosecutor:
Dear Sir, I do not wish to testify against my husband, James Bankowski. I would like to have all these charges dismissed. My husband and I would like to work out o[u]r marriage and maintain a happy relationship.
[I]n the matter against my husband, I do not want to testify against him at any court matters. I would ask this court to dismiss these charges. I have rights to an attorney, you have violated my rights and proceeded with malice and coercion.
I will ask that you please consider treatment for my husband and myself. Incarceration is not ...