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State v. Bankowski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 13, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES T. BANKOWSKI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-03-0671 and 07-11-2606.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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.

A.

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 the answer to our marriage.

In further urging her to send such a letter, defendant wrote, Baby, you have to write this, I don't care what happens . . . they will make us go against each other. I will not go against you. You have to say that I wish not to testify against my husband . . . . this is a must. The more you wait, the more time will go by. These people will hold me here for -- for years here. This is no joke. Your letter is a must.

A month later, on October 25, 2007, defendant sent a fifth letter to his wife, urging her yet again to write to the prosecutor's office stating that she refused to testify and requesting that the charges against defendant be dropped. In this fifth letter, defendant asked his wife "[a]re you writing any letters to that courthouse or not? Or am I just -- just going to rot in this jail. Who are you going to help and . . . when are you going to get it through your brain [that] these people don't care if you li[v]e or die, I do."

Defendant sent one additional letter to his wife, in September 2007,*fn10 urging her to tell the prosecutor that she had been "threatened and coerced" into testifying against him earlier and that she had nothing to say. He suggested that she tell the prosecutor that she would "draw a picture of [her] past that a jury would not want to hear," and that a "fair deal" should be worked out for defendant.

During the course of receiving these various letters from her incarcerated spouse, the wife wrote back to defendant several times. In portions of those letters, the wife expressed her love and support for him. For example, in one such letter, sent on September 13, 2007, she told defendant, "I love you, miss you, baby, please come home. I'm trying, but there's only so much [that] I can do, my hands are tied." In another undated letter that presumably was sent in September 2007, she informed defendant that "[t]he assistant prosecutor told me that if I don't show up, that means all charges will be dropped. So that's my plan."

On November 14, 2007, a grand jury returned a second indictment, No. 07-11-2606, against defendant, charging him with one count of second-degree tampering with a witness, one count of third-degree aggravated assault, and one count of fourth- degree weapons possession in reference to the events of July 13, 2007. Again, defendant pled not guilty to all charges. With respect to the assault charges, he asserted both mutual combat and self-defense.*fn11

B.

The trial judge addressed a series of pretrial motions prior to empanelling the jury. Among them was a request by defense counsel--to which the State assented--to join the two indictments into a single trial and to sever two counts of the first indictment. Finding that the offenses reflected in the first two counts of the March 2007 indictment "occurred in December of 2006 and are unconnected to the other offenses that are charged in that indictment[,]" the judge severed these counts from that indictment. The judge then found that [w]ith regard to [c]ounts [three] and [four] of [the March 2007 indictment], joinder is appropriate with the charges in [the November 2007 indictment], under Rule 3:15-1(a), because there is a sufficient nexus between the charges in each indictment, and because the evidence pertaining to [the March 2007 indictment] would be substantively admissible to establish guilt on the charges in [the November 2007 indictment].

The judge also addressed evidentiary issues with respect to both defendant's letters to the wife and the wife's letters to defendant. As to the admissibility of defendant's letters to the wife, the judge determined that the letters would be admissible, so long as the letters were offered in their entirety, not in redacted form. The judge found that "the probative weight of [defendant's] letters is a matter for the jury. They should have the entire letter, not portions of the letter in order to do their job properly."

As to the wife's own letters, the trial judge advised counsel that "short of a credibility issue, I . . . don't see the letters, themselves as becoming admissible, due to the volume of irrelevant material in the letters." The judge indicated that he found the portions of those letters that referred to the wife's desire to drop all charges against defendant "clearly relevant as information important for the jury and also permissible impeachment information of a witness testifying, but [defense counsel] would have to lay the proper foundation before [he] would be able to mark the letter itself[.]"

As an additional pre-trial matter, the State moved to include the February 27, 2007 incident "as part of the res gestae of the case . . . as it relates to the tampering charge - - the second degree tampering charge [presented in the November 2007 indictment.]" The judge ruled that "based on the offer of proof, it sounds highly relevant to the issues that the jury must consider in this case and . . . based on the finding of relevance . . . it's admissible[.]" However, since defense counsel had only been provided with a copy of the police reports that morning, the judge indicated that "if defense counsel needed time just to explore further information th[a]n is provided in the police report, I would give that time, but I am admitting evidence related to that incident."

The next day, October 15, 2008, prior to empanelling the jury, the court conducted a hearing to determine the admissibility of defendant's four prior convictions pursuant to State v. Sands, 76 N.J. 127, 144 (1978). The judge ruled that: in looking at [the 19]82 and [19]83 and [19]88 [convictions], the [c]court finds [that] they are very remote in terms of their age. I also would note that while they are serious crimes, they are not crimes that go directly to the v[e]racity of someone who would testify.

So in weighing what I must, under case law, I find that those convictions are not proper convictions for impeachment. I do, however, find that the -- the guilty plea that was entered on the 2004 case*fn12 is proper for impeachment. That -- if the defendant decides to testify, the prosecutor will be allowed to use that conviction to impeach his credibility.

It will, however, be sanitized in accordance with State v. Brunson[, 183 N.J. 377, 394-95 (1993)]. So the -- so the [S]tate will be limited to the degree, not the name of the crime. The degree, the date, and the sentence that was imposed on the conviction.

C.

In his opening statement at trial, defense counsel referred to defendant's prior conviction, stating:

Now [defendant] does have a -- a criminal record. I think in 2004, he got probation for an offense, but that should not really affect what happened on the videotape and what this case is all about.

The Judge will explain to you -- what you can use that probationary conviction for, but it's not really that important in the overall scheme of things.

The prosecutor's primary trial witness was defendant's wife, who testified to all of the incidents detailed above. As part of her direct testimony, the State played the surveillance video from the bar where the January 2007 incident took place. Throughout the playing of the silent video, the prosecutor asked her to explain and to describe the events shown. During her cross-examination, the wife admitted that she was taking prescription anti-depressant medication at the time of the January 2007 incident. She also described both herself and defendant as being "active" alcoholics at that time. However, she claimed that, at the time of trial, she had been sober for a year.

With respect to the first letter to prosecutors that defendant had requested his wife to sign, the wife admitted on cross-examination that defendant "wasn't hovering over [her] shoulder, making [her] sign [her] name[.]" The wife acknowledged that she "signed it on the kitchen table" while defendant "went to the bathroom."

The wife's daughter testified as to the July 13, 2007 incident and described defendant's reaction, which she heard over the phone, when she called her mother on that date to inform her of the trial subpoena. Additionally, the State called Officer Jankowski and Officer Jillian Koehler of the Keansburg Police Department. Officer Koehler had attended to the wife during the January 13, 2007 incident in the bar. On cross-examination, Officer Koehler admitted that defendant's right eye in the photo looked "a little red." However, on redirect examination, she explained that "[h]is eyes were red because while I was processing him and fingerprinting him, he was crying." The State also called the bartender who observed the parties' argument on January 13, 2007.

After the State rested its case, the judge addressed certain issues relating to the admission of evidence in the case. The judge admitted the surveillance video of the January 13, 2007 incident, as well as the photographs of the wife's injuries from that date. The judge also admitted the photos taken on July 18, 2007 of the wife's injuries from the July 13, 2007 altercation. Additionally, the judge admitted the typed letter from late January 2007 that stated that the wife did not wish to pursue the matter against defendant.

In his own case, defendant called his mother, who lived with him and his wife during 2007. Defendant's mother stated that she had asked both parties to move out of her home at one point because the wife "would take her medication, and she was drinking, and I had asked not to have any alcohol in my home."

Defendant's mother further testified that she and the family friend transported the wife to the prosecutor's office in an effort to convince them to drop the charges. She asserted that the wife willingly accompanied her on this trip, and that she also willingly signed letters urging the prosecutor's office to drop the charges.

Defendant's mother initially testified that she had never witnessed defendant or the wife acting in an abusive manner toward one another. However, on cross-examination, she acknowledged that the wife would at times "become verbally abusive" toward her and defendant. According to his mother, defendant's response was simply to tell her to "be quiet." Defendant's mother denied ever seeing her son and the wife strike each other, and she denied ever seeing any bruises on the wife's face.

Defendant's sister testified that she observed the wife intoxicated at times and also witnessed her being verbally abusive to defendant. Although she had never seen the wife be physically abusive, she had twice noticed injuries to defendant's functional eye, which he claimed his wife had caused by "gouging" it. Defendant's sister conceded that she had never seen the wife attack her brother's eye, that she had only observed them argue once, and that that particular argument had not turned violent.

Defendant testified in his own defense. He denied intentionally hurting his wife, either at the bar in January 2007 or during the July 2007 altercation, and he also denied that he had tried to coerce her not to testify against him and not to cooperate with the authorities. He asserted that his wife had ample reason to refrain from testifying on her own volition because "she had a lot to hide." He alleged that she had used physical force against him on several occasions, and that she had attacked him with a knife on July 31, 2007.

With respect to the July 13, 2007 incident, defendant testified that his wife was "throwing some plates at [him]" and "scratching up [his] face" because she was "drinking heavy" and "popping her pills[.]" He stated that it was only after she "went for [his functional] eye," that he slapped her.

D.

The jury charge, among other things, instructed the jurors on the elements of both second-degree and third-degree witness tampering, the elements of aggravated assault, and the elements of simple assault as a lesser-included offense. The judge also instructed the jurors on the elements of self-defense.

The judge reviewed the verdict sheet with the jurors, including the third-degree tampering charge relating to alleged conduct "on diverse dates between January and October of 2007." This reference led to the following oral question from a juror:

A JUROR: When you said diverse dates, it's any period between January of [20]07 and October of [20]07?

THE COURT: Correct. Okay. Does that -- did my answer –

A JUROR: Yes.

THE COURT: --- answer your question –

A JUROR: Yes.

THE COURT: --- for you good enough to make it clear?

A JUROR: Yes.

On the second day of deliberations, the jury returned its verdict and found defendant not guilty of either of the aggravated assault charges, but guilty of two counts of the lesser-included offenses of simple assault. The jury found defendant guilty of both second-degree witness tampering and third-degree witness tampering.

E.

At sentencing, the trial judge found defendant to be eligible for a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3a, and State v. Pierce, 188 N.J. 155, 169 (2006). The judge noted four prior Superior Court convictions on defendant's record--three from the 1980s and one from 2006--as well as nine municipal court convictions. Based on defendant's record, the judge found the following aggravating factors: factor three, the risk of re-offense, N.J.S.A. 2C:44-1a(3); factor six, the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and factor nine, the need for deterrence, N.J.S.A. 2C:44-1a(9).

The trial judge specifically rejected the mitigating factors proposed by defendant: factor three, that defendant acted under strong provocation, N.J.S.A. 2C:44-1b(3); factor nine, the character and attitude of defendant indicate that he is unlikely to re-offend, N.J.S.A. 2C:44-1b(9); and factor ten, defendant's likelihood of responding successfully to probation. N.J.S.A. 2C:44-1b(10). In rejecting those mitigating factors, the judge found, among other things, that defendant's expressed remorse was not genuine, and that his claim of self-defense had not been accepted by the jury.

The judge imposed a sentence of five years of incarceration with a twenty-month period of parole ineligibility for the third-degree tampering offense, and ten years of incarceration with three-and-one-third years of parole ineligibility for the second-degree tampering charge. The judge also imposed six month sentences for each of the two simple assaults. The judge ordered all four sentences to run concurrently with each other, but consecutive to the violation of probation that defendant was already serving.*fn13 This resulted in an aggregate sentence of ten years, with three-and-one-third years of parole ineligibility. As part of the sentencing disposition, the judge imposed a no-contact order upon defendant with regard to his wife.

F.

On appeal, defendant raises the following arguments through his counsel:

POINT ONE

THE TRIAL COURT OPENED THE DOOR TO A CONVICTION BASED ON ACTS NOT CHARGED IN THE INDICTMENT. (Not Raised Below)

POINT TWO

THE ADMISSION OF EVIDENCE OF LETTERS WRITTEN BY MR. BANKOWSKI IN SEPTEMBER AND OCTOBER, 2007, AND OF BAD ACTS BY MR. BANKOWSKI IN FEBRUARY, ON OR ABOUT JULY, 2007, AND AN UNKNOWN DATE, VIOLATED N.J.R.E. 404(b) AND DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR. (Not Raised Below)

A. February 28, 2007, Bad Act.

B. September and October, 2007, Bad Acts.

C. Undated Bad Act.

D. Harassment Charge.

E. Failure to Give a Limiting Instruction.

POINT THREE

THE TRIAL COURT'S RULING EXCLUDING LETTERS WRITTEN BY [THE WIFE] BUT NOT LETTERS WRITTEN BY MR. BANKOWSKI, AND THE PROSECUTOR'S MISSTATEMENT DURING SUMMATION REGARDING THESE LETTERS, PREJUDICED MR. BANKOWSKI AND DEPRIVED HIM OF A FAIR TRIAL. (Not Raised Below)

POINT FOUR

THE COURT'S FAILURE TO CHARGE THAT THE STATE MUST DISPROVE MUTUAL CONSENT BEYOND A REASONABLE DOUBT DEPRIVED MR. BANKOWSKI OF DUE PROCESS AND A FAIR TRIAL. (U.S. Const. Amends. V, VI, and XIV; N.J. Const. (1947), Art. I, Pars. 1, 9, and 10.) (Not Raised Below)

POINT FIVE

THE PROSECUTOR'S IMPROPER REMARKS AT TRIAL SHIFTED THE STATE'S BURDEN OF PROOF, DENYING MR. BANKOWSKI'S RIGHT TO DUE PROCESS. (Not Raised Below)

POINT SIX

THE TRIAL COURT ABUSED ITS DISCRETION AND ASSERTED IMPROPER BIAS AGAINST THE DEFENSE BY SUA SPONTE ALLOWING INTO EVIDENCE MR. BANKOWSKI'S PRIOR CONVICTION AFTER MR. BANKOWSKI'S TESTIMONY WAS OVER.

POINT SEVEN

THE STATE VIOLATED MR. BANKOWSKI'S RIGHT TO A FAIR TRIAL BY ADMITTING INTO EVIDENCE REPEATED REFERENCES TO A RESTRAINING ORDER AGAINST HIM, AS ORDERED BY A JUDGE AS A RESULT OF A CHARGE IN THIS CASE. (Not Raised Below)

POINT EIGHT

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Defendant has also filed a supplemental pro se brief, in which he separately argues*fn14 that his trial attorney was ineffective in numerous respects, including: failing to call his previous defense attorney as a trial witness; not offering the audiotape of his wife's voicemail messages into evidence; and, not arguing that the wife had been "kidnapped" and that she had been forced to testify under duress. In addition, defendant's pro se brief alleges that the prosecutor engaged in misconduct at the grand jury and at trial; that the victim impact letter in his presentence report was contrived; that the defense was improperly restricted in using prior bad acts to impeach the wife's testimony; and, various other assertions. The State provided a supplemental brief responding to the pro se submission.

II.

A.

The first issue we consider is defendant's claim that he was deprived of his right to indictment when the trial court broadened the dates of alleged witness tampering on the verdict sheet to "diverse dates between January [2007] and October 2007." Count four of Indictment No. 07-03-0671 identified January 31, 2007, as the date of the tampering. The court's broadening of the relevant time frame allowed the jurors to consider defendant's tampering efforts as a continuing wrong that both preceded and extended beyond January 31, 2007, thereby including the letters written in January, September, and October 2007.

Defendant maintains that the court's recitation of the applicable time frame improperly denied him of his right to be indicted by a grand jury for each of the charged criminal acts. We perceive no wrongful denial of that right, as defendant, through his counsel, acquiesced to the expansion of the charged acts without the necessity of further grand jury proceedings and additional indictments.

We recognize that, as a general proposition, a criminal defendant has the right "to be informed of the nature and cause of the accusation" against him. N.J. Const. art. I, ¶ 10. "[T]his guarantee embraces the [defendant's] right to have his guilt or innocence determined only upon the basis of the accusation which he is called upon to face[.]" State v. Begyn, 58 N.J. Super. 185, 201 (App. Div. 1960), aff'd, 34 N.J. 35 (1961), overruled on other grounds by State v. Savoie, 67 N.J. 438 (1975). Nevertheless, a court may amend an indictment: to correct an error in form or the description of the crime intended to be charged . . . provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits.

[R. 3:7-4.]

See also State v. Grothmann, 13 N.J. 90, 94-95 (1953).

Where, as here, subject matter within an indictment involves a continuing offense, an amendment that "merely enlarges without breaking the pleaded period of continuity, by substituting an earlier day of commencement of the nonfeasance for that laid in the indictment" is an amendment in form only. State v. Witte, 13 N.J. 598, 605 (1954). Such an amendment does not charge "a new and separate and distinct offense not comprehended in the indictment returned by the grand jury." Ibid.; see also State v. Wright, 154 N.J. Super. 174, 178 (App. Div. 1977).

The tampering originally charged in Indictment No. 07-03-0671 concerned defendant's preparation of the letter to the prosecutor for his wife's signature, on or about January 31, 2007, and his efforts to get her to sign and mail that correspondence. After that particular indictment issued, the State became aware of defendant's ensuing attempts to stifle his wife's cooperation with prosecutors, including the numerous letters that he sent her through October 2007 urging her not to cooperate or testify.

As we have noted, defendant did not object at trial to the admission of his letters to his wife, his counsel acknowledging the lack of objection twice on the record. When these letters were presented at trial, the assistant prosecutor noted on the record that, during a pretrial conference, the State indicated its intention to re-indict defendant to incorporate the additional letters. In response, defendant's attorney assented to the State's use of those letters at trial. According to the prosecutor's representation, defense counsel agreed to allow the letters to be deemed within the scope of the existing indictment because he "didn't want another indictment pending against his client." Moreover, the State also could have argued that the letters, even if not within the dates specified in the indictment, constituted admissible prior "bad acts" under N.J.R.E. 404(b). Consequently, as the prosecutor represented to the court, the parties had "agreed that these letters would be coming in as part and parcel of this trial."

Subsequently, when the trial court finalized the verdict sheet during the charge conference, it recognized that the various letters that defendant wrote to his wife through October 2007 constituted a continuing course of tampering conduct. In light of that fact, and to conform the verdict sheet to the proofs adduced at trial, the court decided to phrase the charge so as to encompass "diverse dates between January and October 2007." The judge specifically asked counsel if they had any objection to that phrasing, and both attorneys replied that they did not. Accordingly, the verdict sheet was finalized in that manner, and the jurors were so instructed.

Defendant now belatedly challenges the verdict sheet's phrasing on appeal, arguing that he was deprived of the right to indictment on each and every criminal act adduced at trial. We reject his argument for two reasons. First, defendant explicitly acquiesced to the admission of the post-January letters and to the phrasing used in the verdict sheet, having a strategic motivation to avoid further indictment. His acquiescence to the court's handling of these matters now precludes him, under the doctrine of invited error, from complaining. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010); see also State v. Jenkins, 178 N.J. 347, 358-59 (2004).

Second, even disregarding defendant's acquiescence to the expanded charges before and during trial, there was no error in the court considering defendant's post-January 2007 letters and other coercive behavior as part of a continuing wrong of tampering. See Witte, supra, 13 N.J. at 605. Although we need not utilize the label "res gestae" to describe those related and continuing acts, they were a relevant part of the "subject matter of the action being tried," and properly before the jury. State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div.), certif. denied, 130 N.J. 6 (1992) (internal citations omitted). We reject defendant's related argument that the trial court misapplied its discretion in admitting the September and October letters, and other alleged "bad acts" under N.J.R.E. 404(b), and that the court was obligated to issue a limiting instruction under that Rule. The letters and other conduct*fn15 directed by defendant against his wife through the fall of 2007 was not only part and parcel of a related series of criminal acts, but also was evidence of defendant's state of mind, intent, and other matters readily falling within the ambit of Rule 404(b). A limiting instruction was not necessary in these particular circumstances, where the actions were so intertwined and close in time and where there were relevant grounds to admit the proofs independent of Rule 404(b).

B.

We next turn to defendant's arguments respecting the letters that his wife sent to him. Defendant contends that the trial court erred and caused him undue prejudice by restricting the presentation of those letters to the questioning of witnesses by counsel, and in disallowing the wife's letters to be admitted as exhibits into the jury room.

Although the trial judge found that portions of the wife's letters were relevant to impeach her credibility and to weaken the State's theory of intimidation and tampering, the judge determined that the letters comprised "extrinsic evidence" that should not be admitted into evidence. The judge distinguished defendant's letters, which were admissible against him as his own declarations, see N.J.R.E. 803(b), from the hearsay writings of the wife. The judge also concluded, from his review of the letters as a whole, that they largely contained irrelevant material, which had the capacity to distract and confuse the jurors.

Defendant did not request to redact the wife's letters to cull out the extraneous matters. Instead, defendant's trial counsel pressed to have the wife's letters moved into evidence in their entirety. The court rejected that request, and only permitted the wife's letters to be read aloud by counsel in the course of cross-examination. Defense counsel took advantage of this opportunity, quoting several key passages from the wife's letters when cross-examining her, and also liberally referring to those passages in summation.

Defendant maintains that the trial court abused its discretion in restricting the manner in which the wife's letters could be presented evidentially. Defendant asserts that the letters were highly relevant to the credibility of the wife's testimony, and more generally to oppose the State's theory that defendant had repeatedly attempted to stifle the wife's desire to aid law enforcement in her husband's prosecution. Defendant further argues that the court's refusal to allow the wife's letters into the jury room violated N.J.R.E. 106 and principles of evidentiary completeness.

A trial court's evidentiary rulings are generally entitled to substantial deference on appeal. When a trial court has excluded proof in order to avoid confusing or misleading jurors, we will sustain such determinations unless the appellant has demonstrated a "clear error." State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); see also N.J.R.E. 403.

Given the particular context in which the wife's letters were proffered, we discern no "clear error" in the trial court's evidentiary treatment of that correspondence. It is undisputed that substantial portions of those letters discussed topics that are not germane to the indictments. It was reasonable for the trial court to conclude that such extraneous matters had the capacity to mislead and confuse the jurors. See N.J.R.E. 403. Defense counsel was allowed to zero in on the relevant portions of the wife's letters, both in cross-examination and also in his closing argument. The trial court did not misapply its discretion in limiting the use of the wife's letters in that fashion.

Defendant's reliance upon N.J.R.E. 106, the so-called "rule of completeness," is unavailing. The principles underlying N.J.R.E. 106 are commonly invoked in situations involving two writings or recorded statements from the same individual, not different statements by different individuals. See Biunno, Current N.J. Rules of Evidence, comment to N.J.R.E. 106 at 93-95 (2010). Although we do not foreclose the potential application of N.J.R.E. 106 to separate writings created by different authors, the objective of the Rule to place recorded statements into their proper context was sufficiently achieved here, as defense counsel was permitted to use the wife's letters on cross-examination. Since the pertinent portions of the wife's letters were placed before the jurors, albeit in oral form, there was no error in the court's handling of the issue. While we appreciate defendant's strategic desire for the jurors to have the wife's letters in the jury room in equivalent tangible form as defendant's own letters, no manifest injustice flowed from the trial court's handling of this issue, and any error that may have been committed was harmless.

C.

Defendant challenges, for the first time on appeal, the jury charge with respect to his affirmative defense as to the assault counts. Defendant argues that the charge did not explicitly advise the jurors that the State had the burden of disproving defendant's claim of "mutual consent" beyond a reasonable doubt. This argument has no merit.

Any claimed error in the charge must be "sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Wakefield, 190 N.J. 397, 473 (2007) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008). "Challenged portions of a jury charge must not be read in isolation; rather, 'the charge should be examined as a whole to determine its overall effect.'" State v. Biegenwald, 106 N.J. 13, 43 (1987), (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)). Here, the trial court repeatedly and emphatically instructed the jury that the State had the burden of proving every element of the charged offenses. The court specifically instructed that "the burden of proving each element of a charge beyond a reasonable doubt rests upon the State. The burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence."

Considering the jury charge as a whole, the fact that the trial court did not reiterate the reasonable doubt standard and the State's burden of proof in specific relation to the defense of mutual consent is not error having "the clear capacity to bring about an unjust result." Wakefield, supra, 190 N.J. at 473. The proofs identified by defendant as supportive of his "mutual consent" defense were minimal. They were vastly overshadowed by the State's competing proof that defendant had deliberately exerted physical force against his wife as part of his overall pattern of intimidation and belligerence. Even recognizing that the wife herself at times responded to defendant's aggressive behavior in kind, defendant's claim that he only struck her as part of a mutual plan of combat strains credulity. We are confident that the jury's implicit rejection of that defense argument was unaffected by the absence of yet another reminder in the jury charge as to the State's burden of proof.

D.

Defendant further alleges that he was deprived of a fair trial because of allegedly excessive and improper comments by the prosecutor in defendant's cross-examination and also in his closing arguments.

In particular, defendant contends that the tenor of the prosecutor's cross-examination and summation unfairly implied to the jurors that the State did not have the burden to discredit defendant's claim of self-defense. Defendant argues that the prosecutor improperly highlighted defendant's failure to call any witnesses to corroborate his theory of self-defense. We detect no such implication or impropriety.

We are mindful of a prosecutor's duty to act fairly in the quest for justice. Nevertheless, that responsibility does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. Ramseur, supra, 106 N.J. at 320. Criminal trials often create a "charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety." Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 367 U.S. 910, 78 S.Ct., 1157, 2 L.Ed. 2d 1160 (1958)).

Viewed within the context of this hard-fought trial--which pitted an allegedly-victimized wife against her husband--and considering the intensity of the disputed issues, we do not perceive that either the prosecutor's cross-examination of defendant, or his closing arguments, had the clear capacity to deprive defendant of a fair trial. The prosecutor's questioning and summation attempted, within the bounds of reasonable advocacy, to impeach the credibility of defendant's testimony and his asserted theories of justification of mutual combat and self-defense. In fact, defendant tellingly admitted on cross-examination that his claim of self-defense was "a little lame."

Nor do we detect prejudicial error stemming from the prosecutor's argument to the jury that the wife's letters were not relevant to defendant's guilt under the witness-tampering statutes, as the court's jury charge made plain that the trial testimony (which included passages from the wife's letters) was evidence, and that the comments of counsel themselves were not evidence.

In sum, defendant has failed to establish prosecutorial misconduct, or that such alleged misconduct was "so egregious that it deprived [him] of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).

E.

Defendant's next point is that the trial court erred in raising, sua sponte, the State's failure to impeach defendant on cross-examination with his admissible prior indictable conviction. Defendant further objects to the trial court's ruling that either defendant would be called back to the witness stand to allow him to be asked about that prior conviction or, alternatively, that the parties enter a stipulation that informed the jurors of the conviction.

This issue, which came into focus immediately after the State had cross-examined defendant, grew out of the fact that defense counsel had already injected his client's prior conviction into the case by referring to it in his opening argument. This opening reference was a natural consequence of the court's pretrial ruling under N.J.R.E. 609--one which defendant has not appealed--that the conviction in 2006 for the 2004 offense was admissible to impeach his credibility. However, the court determined that the specific details of that conviction would be sanitized under State v. Brunson, supra, 132 N.J. at 394-95, so that the jurors would only be informed of the date, the degree of the crime, and the sentence that was imposed. For reasons that are not clear to us, the prosecutor neglected to ask defendant about the prior conviction during the course of his cross-examination. That omission led the trial judge, essentially as a housekeeping concern, to inquire whether he had "missed" a reference to the conviction and, if not, whether "counsel want[ed] [the court] to handle it by stipulation."

Defense counsel did not disavow his opening reference to his client's prior conviction. Nevertheless, he suggested that the trial court "just ignore" the prosecutor's omission, a suggestion that the prosecutor understandably opposed. Faced with this unfolding situation, the trial judge encouraged counsel to "[w]ork out something real fast" in a stipulation; otherwise, the court would permit defendant to be recalled to the witness stand by the State for the limited purpose of adducing his prior conviction. The parties subsequently fashioned such a stipulation, which tersely informed the jurors that defendant had been convicted in 2006*fn16 for an unspecified third-degree offense, and that he had been sentenced to probation. The court went on to properly instruct the jurors that they could consider that prior conviction only for impeachment purposes, and could not use it as substantive evidence that defendant had a propensity to reoffend.

Defendant argues that the trial court was obligated to treat the prosecutor's failure to mention the conviction on cross-examination as a waiver of its right to use the prior conviction for impeachment. He submits that the court acted unfairly in resurrecting the issue and in requiring either a stipulation or recalling defendant to the stand. We discern no reversible error in the court's handling of the prosecutor's omission.

Trial judges have considerable discretion in assuring the orderly presentation of evidence to the fact-finders. See N.J.R.E. 611. For example, under Rule 611, a trial judge specifically has the discretion to allow redirect examination of a witness on subject matters that were not raised on cross-examination and which should have been elicited originally on direct examination. Ibid. In the realm of trial management, judges serve as "gatekeepers," not only in deciding what proofs may be admitted to a jury, but also in generally keeping track during a trial of what proofs have been admitted so far and which ones have not. In doing so, judges endeavor to ensure that the proofs are presented in an orderly, sensible, and non-repetitive manner. As they carry out that important gatekeeping role, particularly in a multi-day trial, judges understandably may need to confirm with counsel whether certain anticipated evidence has or has not already been elicited. These are reasonable and commonplace midtrial inquiries, and counsel has an ethical obligation to respond honestly to the court's questions on such matters.

Here, the trial judge expressed to counsel, quite explicitly and on the record, his uncertainty as to whether he had "missed" a reference to defendant's prior conviction in the prosecutor's cross-examination. The judge had a legitimate concern as to whether counsel had decided to omit such impeaching proof from defendant's cross-examination and instead to have the judge inform the jurors of the prior conviction through some form of agreement or stipulation. The uncertainty was affirmed by the prosecutor's initial response that he thought, in fact, that he had covered the prior conviction in his cross-examination.

When the omission of the conviction soon became clear, the judge reasonably had concerns that the jurors would be unsure or confused since a prior conviction already had been mentioned in defense counsel's opening. Rather than leave the jurors to speculate about what that prior offense might be, the judge took reasonable corrective action. Although it might have been preferable for the judge to have been less forceful in precipitating a stipulation to remedy the omission, we find no abuse of discretion in the judge's extemporaneous handling of this problem. Moreover, since defense counsel had already divulged the conviction to the jury in his opening statement, the judge rightly perceived a need to give the jury a limiting instruction.

F.

Defendant objects to the fact that the restraining order temporarily issued against him after this first indictment was divulged to the jurors during the State's examination of his wife. Defendant maintains that this revelation was highly prejudicial to him. We disagree.

The reference to the restraining order was contained in a statement by defendant himself, in one of his own letters that was admitted into evidence. The reference was fleeting, and not emphasized in the prosecutor's summation. Such a fleeting reference was insufficient to compel reversal of defendant's conviction. See, e.g., State v. Harris, 156 N.J. 122, 172-73 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001). Moreover, defense counsel substantially neutralized the reference by establishing that the restraining order initially had been sought by the State, not by defendant's wife, and that it was subsequently dissolved at her request.

G.

Defendant claims that his ten-year custodial sentence was manifestly excessive, and that the trial court misapplied the pertinent aggravating and mitigating factors. To the contrary, we are satisfied that the sentence is a reasonable one, and that it was legally imposed.

Our Supreme Court has recently "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in the statute, N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Id. at 608. Applying these well-settled review standards here, the trial court's sentencing disposition must be sustained.

Under N.J.S.A. 2C:44-3a, the State may move, in appropriate cases, for a persistent offender to be sentenced to "an extended term of imprisonment." Pierce, supra, 188 N.J. at 161-62. There is a rebuttable presumption of consecutive term sentencing whenever a defendant commits an offense while on probation. See State v. Sutton, 132 N.J. 471, 484 (1993).

Defendant admitted that he qualified as a persistent offender under N.J.S.A. 2C:44-3a, and thus he was eligible for an extended term of incarceration for conviction of a second-degree and a third-degree crime. See N.J.S.A. 2C:44-3. The trial judge properly took this into account when he sentenced defendant to ten years for second-degree tampering, a sentence well within the established range for such a crime. As the Supreme Court recognized, "[t]he persistent problem of witness intimidation in New Jersey cannot be denied." State v. Byrd, 198 N.J. 319, 341 (2009) (noting the public policy reasons for adopting a "forfeiture-by-wrongdoing" exception to the hearsay rule). Defendant's extended sentence for such a pernicious offense is reasonable under the circumstances, particularly given his record of multiple prior indictable convictions. The sentence is affirmed in all respects.

H.

We have fully considered the balance of defendant's substantive arguments, including the assorted points raised in his pro se supplemental brief, and conclude that they lack sufficient merit to warrant discussion in this written opinion. See R. 2:11-3(e)(2). To the extent that certain of defendant's pro se arguments allege the ineffective assistance of his trial attorney, such arguments are best reserved for a future application for post-conviction relief ("PCR") rather than on this direct appeal, see State v. Preciose, 129 N.J. 451, 459-60 (1992), and those particular claims of ineffectiveness consequently are so reserved if defendant timely seeks such PCR relief. All other arguments presented by defendant are rejected.

Affirmed.


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