July 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BLACKNALL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1722.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011
Before Judges Wefing, Payne and Koblitz.
Defendant, Michael Blacknall, was convicted of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He received a mandatory extended-term sentence of ten years on the assault conviction. The remaining convictions were merged. The judge found aggravating factors 3 (the risk of commission of another offense), 6 (the extent of defendant's prior record) and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(3), (6) and (9), as well as mitigating factor 5 (the victim induced or facilitated the crime), N.J.S.A. 2C:44-1b(5). The aggravating factors were found to substantially outweigh the mitigating factors.
Defendant has appealed his conviction and sentence, raising the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S QUALIFICATION OF A STATE'S FACT WITNESS AS AN EXPERT IN "CUTS" EVEN THOUGH NEITHER PARTY PROFFERED HER AS AN EXPERT, THERE WAS NO HEARING, NO EXPERT WITNESS REPORT, NO NOTICE, AND NO OPPORTUNITY TO RESPOND WITH A DEFENSE EXPERT.
POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE VAGUE, ERRONEOUS, AND IMCOMPLETE INSTRUCTION ON THE LAW OF EXPERT WITNESSES. (Not Raised Below)
POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL HEARSAY EVIDENCE.
POINT IV THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING BARRING THE DEFENDANT FROM CROSS-EXAMINING AND IMPEACHING THE STATE'S KEY WITNESS ABOUT HIS BIAS AND EXPECTATIONS OF LENIENCY ARISING FROM A HISTORY OF PROBATION VIOLATIONS IN THE CONTEXT OF HIS PENDING VOP SENTENCE. POINT V THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF NEGLIGENTLY CAUSING BODILY INJURY WITH A DEADLY WEAPON. (Not Raised Below)
POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON EACH AND EVERY ELEMENT OF THE CRIME OF AGGRAVATED ASSAULT. (Not Raised Below)
POINT VII THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT VIII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO CONDUCT A PROPER INQUIRY IN RESPONSE TO THE DEFENDANT'S MOTION TO PROCEED PRO SE. (Not Raised Below)
POINT IX THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS.
POINT X THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE MISINFORMATION HE RELIED ON IN MAKING HIS DECISION TO REJECT THE PLEA OFFER.
POINT XI THE SENTENCE IS EXCESSIVE.
A. TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
The record discloses that, during the evening of April 24, 2007, a fight took place between defendant and Danny Rosales over Doreen Martin, a woman who was presently Rosales's girlfriend and had previously been defendant's girlfriend. The fight was witnessed by Donald Martin, Doreen's brother and a nephew, Richard Lane. During the course of the fight, Rosales fell to his knees, scraping them. Additionally, he sustained injuries to his scalp, nose and lip. The fight ended when the combatants erroneously thought the police had arrived on the scene. After calling 9-1-1, Rosales was taken to Riverview Hospital by Red Bank police officer, Beau Broadley, where he was treated by physician's assistant Nilla DeFazio, who stitched the nose and lip wounds and utilized three staples to close the scalp wound. As a result of the fight, a complaint with the police was filed by Rosales.
At trial, the parties sharply contested who had commenced the fight and whether a knife or other sharp object had been utilized by defendant to inflict the wounds on Rosales. Defendant, who represented himself with the assistance of backup counsel, claimed that Rosales incited the fight and that noweapon had been used. Rosales testified that he saw defendant reaching into his pocket and pulling out something metal which he placed between his fingers, but he did not know what the object was. In statements to the police and at the hospital, he stated that the object was a knife.
As previously stated, defendant was convicted by the jury, after a relatively long period for deliberation and an initial deadlock, of aggravated assault with a deadly weapon, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. This appeal followed.
In his first two points on appeal, defendant argues that the trial judge erred in declaring physician's assistant DeFazio to be an expert when she was called by the State as a fact witness, and he complains that there was "no hearing, no expert witness report, no notice, and no opportunity to respond with a defense expert." Defendant also challenges the adequacy of the judge's instructions to the jury regarding DeFazio's testimony.
The record discloses that DeFazio had been a licensed physician's assistant for ten years, working at Riverview Hospital for six years. Although she worked under the supervision of a physician, she was "trained and credentialed to work independently." In addition to providing medicaltreatment, she was authorized to prescribe medications. On a given night, she would treat approximately forty emergency room patients with injuries and illnesses such as cuts, broken bones and colds. As a result, she had no independent recollection of treating Rosales, and she based her testimony on information recorded in his chart.
The chart contained a description of what had occurred, presented from the perspective both of Rosales and DeFazio. It stated:
I was involved in a physical altercation with . . . ex-girlfriend's boyfriend where he had a knife and cut the patient [sic] to the nose, lip and scalp. No loss of consciousness, no headache, no vomiting. Fell onto the ground, scraping both knees and tetanus is not up to date.
DeFazio explained the significance of the reference to tetanus, stating that "[w]hen somebody sustains a cut, if it's a dirty wound, there's a potential to get a bacteria, and the bacteria can kill you." A tetanus vaccine protects against that possibility.
DeFazio testified on direct examination that Rosales sustained a two-centimeter laceration to the scalp, a one-andone-half-centimeter laceration to the bridge of his nose, and a one-and-one-half-centimeter laceration to his right upper lip. When asked whether she had to treat any damage for a crushing wound or for a bruise or contusion to the head, DeFazio responded: "no." DeFazio stated that she looked inside Rosales's nose and inside his mouth and checked for swelling on his face, but the cuts were all he had.
On cross-examination, defendant elicited testimony that DeFazio had both a bachelor's and a master's degree, achieved after completing a three-year post-graduate program. He then commenced a series of questions regarding the characteristics of lacerations caused by knives and those caused by blows, eliciting testimony that, in DeFazio's medical opinion, the injuries sustained by Rosales were consistent with having been inflicted by a knife. If they had been caused by blows, the injuries would have shown features such as maceration of the tissue, a star-shaped wound, swelling and bruising, and in the case of his nose, internal bleeding that were absent here. If those features had been present, they would have been noted on Rosales's chart. However, what she observed was "just a clean cut." When asked whether a bare-knuckle boxer could cause injuries of the sort sustained by Rosales without the use of a weapon, DeFazio testified that she did not know. She stated that she was not an expert in that field.
At the charge conference, the judge informed the parties that he intended to give the model criminal charge on expert testimony in connection with the testimony of DeFazio. The judge stated:
She was asked about her opinion as to the - the nature of the wounds and the cause of the wounds.
She was entitled, no one objected to it, but even if they had, she was entitled, based on her many years of experience, to offer opinions about that, which were, clearly, within her special knowledge, experience, and training to offer opinions about them, but the charge indicates that, like all witnesses, the jury can evaluate her credibility, particularly, in light of the cross-examination, as they would with any witness.
No objection to giving the charge was raised.
At the conclusion of the evidence, the judge gave the standard expert charge, identifying DeFazio as the expert, but not identifying her area of expertise. However, after the jury commenced its deliberations, it requested a transcript of DeFazio's testimony, which was replayed in its entirety, and it asked: (1) "Is DeFazio considered an expert witness?" and (2) "On cuts and lacerations." With respect to the two questions, the judge determined, despite defendant's objection, to answer "yes" to each.
On appeal, defendant argues that the State opened the door regarding DeFazio's medical qualifications, and that his cross-examination merely addressed the limits of those qualificationsby demonstrating that she was not an expert regarding the nature of injuries suffered as the result of techniques employed by persons engaged in bare-knuckle boxing. However, these lacerations were not suffered in a boxing match, and no evidence was presented that defendant possessed the expertise to employ bare-knuckle boxing techniques. Therefore DeFazio's lack of expertise in that area is not relevant.*fn1
Moreover, our examination of the record in the matter demonstrates that the primary thrust of defendant's cross-examination was to obtain an admission that injuries of the sort sustained by Rosales could have been caused by a punch with a fist, not a slice with a knife or similar object. However, DeFazio's opinions were to the contrary.
Defendant additionally objects to the fact that, when DeFazio's opinions were solicited without objection, the judge sua sponte recognized her status as an expert, gave an instruction on her status and the proper consideration of her opinions, and then affirmatively answered the jury's question whether she was an expert on cuts and lacerations.
We find no reversible error by the trial judge. The testimony offered by DeFazio regarding Rosales's injuries, their treatment and their cause clearly exceeded the scope of lay opinion testimony admissible pursuant to N.J.R.E. 701 and was expert in nature. To be admissible as such, the testimony must concern a subject beyond the knowledge of the average juror, the field must be at a state of the art sufficient to render the testimony reliable, and the witness must have sufficient expertise to offer the testimony. N.J.R.E. 702; State v. Jenewicz, 193 N.J. 440, 454 (2008). At trial, defendant challenged only DeFazio's expertise. However, having examined DeFazio's testimony, we find that DeFazio possessed expertise sufficient to warrant admission of the testimony at issue for consideration by the jury under the liberal standards applicable in this context. Ibid. In the circumstances presented, we find no reversible error in the judge's failure to specifically qualify DeFazio as an expert witness while she was on the stand. State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).
Additionally, we find no reversible error in the judge's affirmative response to the jury's question whether DeFazio was an expert in cuts and lacerations. While it may have been preferable to determine whether the jury referred in its question to treatment or causation, because DeFazio exhibited expertise in each, Stigliano v. Connaught Labs, Inc., 140 N.J. 305, 314 (1995), the judge's response did not mislead the jury into assuming expertise in an area in which it was absent.
Further, defendant objects to the lack of prior notice, the absence of a report, and his consequent inability to retain an opposing expert. However, this argument ignores the fact that the State did not offer DeFazio as an expert. As the record reveals, all testimony of an expert nature was elicited by defendant himself on cross-examination. Thus, if the procedures set forth in the rules were not followed, it was as a consequence of defendant's own actions in conducting the cross-examination of DeFazio in a manner that elicited expert opinions that were not solicited by the State. State v. Kemp, 195 N.J. 136, 155 (2008).
As a final matter, we are satisfied that the judge did not commit plain error when he did not instruct the jury that it should not give special weight to DeFazio's factual testimony.
R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). In reaching this conclusion, we distinguish State v. Jackson, 278 N.J.
Super. 69, 78 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). In that narcotics case, defendant challenged the use by the State of an arresting officer as both a fact and expert witness at trial. In that circumstance, we observed:
when a narcotics officer who has given eyewitness testimony with respect to an observed transaction is also offered as an expert to express an opinion that the observed transaction involved the sale of drugs, the dual nature of the testimony can create a special risk that the jury may infer the opinion about the criminal nature of the conduct is based on knowledge of the officer about the defendant beyond the evidence produced at trial. [Ibid.]
See also State v. McLean, 205 N.J. 438, 454 (2011).
We are satisfied that the testimony given by DeFazio did not pose the type of risk that we envisioned in Jackson. She was not an eyewitness to a crime, and she did not testify about the criminality of defendant's behavior. Rather, she simply gave an account of her treatment of Rosales and, on cross-examination, opined as to the cause of his injuries - matters commonly addressed in cases involving medical treatment without need for special jury instructions. See, e.g., Stigliano, supra, 140 N.J. at 314.
Defendant argues next that the trial judge erred in admitting Rosales's hearsay statement, contained in the Riverside Hospital records, that his injury was caused by a knife. We disagree, finding the statement admissible pursuant to N.J.R.E. 803(c)(4) as a statement for purposes of medical diagnosis or treatment. See Bober v. Indep. Plating Corp., 28 N.J. 160, 170-72 (1958); Greenfarb v. Arre, 62 N.J. Super. 420, 426-27 (App. Div.), certif. denied, 33 N.J. 454 (1960) (admitting statements as to cause of injury when relevant to treatment). In this regard, we note that DeFazio testified that the information was utilized by the hospital in determining to administer a tetanus vaccine to Rosales. Additionally, she testified that she relied, in part, on that statement in determining that there was a need for additional diagnostic treatment. In this regard, the following exchange with the prosecutor occurred:
Q . . . When you treated the injuries to [Rosales's] head, the injury to his nose and to his mouth, did you have to treat any damage for a crushing wound or for a bruise or - or a contusion to any of those spots? A I would have to say no, because otherwise I would write it. That's one of the reasons that you ask how it happened.
So, if it's something like a knife, you wouldn't worry about a crush injury as if he was punched, if he was - he had an object, then you would have a crush injury and you would get an x-ray.
As a consequence, we reject defendant's evidentiary argument, finding no abuse of discretion on the part of the trial judge in admitting Rosales's statement. State v. McLaughlin, 205 N.J. 185, 205 (2011).
Defendant argues additionally that the judge erred in barring him from confronting Rosales about his history of probation violations so as to affect his credibility and limiting him to inquiries about his then-pending violation of probation, as to which he had pled guilty and was awaiting sentencing at the time of defendant's trial. However, we have held previously that "[s]ince a probation violation is not a criminal conviction, it cannot be used for impeachment purposes under N.J.R.E. 609." State v. Jenkins, 299 N.J. Super. 61, 75 (App. Div. 1997).
In contrast to his prior violations, defendant sought to use the present one to show bias or interest on the part of Rosales in his testimony and his likely expectation that he would receive a more lenient sentence in light of his cooperation with the State. The judge properly permitted use of the evidence in this fashion. State v. Spano, 69 N.J. 231, 235 (1976).
Defendant next claims that the judge committed plain error in failing to instruct the jury on the lesser included offense of negligently causing bodily injury to another with a deadly weapon. N.J.S.A. 2C:12-1a(2). According to defendant:
If the jury found that the defendant possessed and used a deadly weapon, the only option they had to hold the defendant accountable for the assault was to convict him of aggravated assault. The jury should have been given the option of finding that the defendant possessed the deadly weapon but did not intentionally use it.
We do not accept defendant's position. A judge is required to instruct a jury, sua sponte, with respect to a lesser included crime only when it is "clearly indicated" by the evidence. State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1203 (2004); see also State v. Denofa, 187 N.J. 24, 42 (2006). Here, defendant's defense was that he did not have a weapon, not that he had a weapon that he used negligently. Indeed, the only direct evidence with respect to the use of a weapon, Rosales's testimony that he saw defendant take an object from his pocket and place it between his fingers just before Rosales was cut, clearly suggests intentional conduct on defendant's part.
Defendant also challenges the instructions given to the jury with respect to aggravated assault on the ground that they were incomplete and did not set forth every element of the crime. Defendant notes that the trial judge instructed the jury that N.J.S.A. 2C:12-1b(2) provides: "A person is guilty of aggravated assault if he or she attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or attempted to cause bodily injury to another with a deadly weapon." However, in the remainder of his instruction, the judge focused on the elements of a completed aggravated assault, not an attempted one. According to defendant, the judge erred in not providing a full instruction with respect to an attempted assault.
We find this argument to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Evidence of injury to Rosales made any instruction with respect to an attempt superfluous.
Defendant claims, as well, that his motion for a judgment of acquittal should have been granted. Again, we disagree. Under the standard established by State v. Reyes, 50 N.J. 454, 459 (1967), the judge was required to view the State's evidence in its entirety in a light most favorable to it, and then determine whether a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt. The judge employed that standard and denied defendant's motion.
We regard that decision to have been correct. Although the evidence in this case was not overwhelming, Rosales testified, as we have previously noted, that he saw defendant reach into his pocket and then to place an object between his fingers shortly before Rosales was cut. Further, DeFazio testified that Rosales's injuries appeared to have been inflicted by a knife or similar instrument, not by blows. We are satisfied that this evidence was sufficient to permit its consideration by a jury.
We regard defendant's argument, set forth in Point VIII of his brief, that the court failed to conduct a proper inquiry in response to defendant's motion to proceed pro se, to have been abandoned in light of his failure to address it substantively in a reply brief following the production of the transcript of the relevant hearing.
Having found no error in the conduct of the trial, we reject defendant's cumulative error argument.
At a plea cut-off hearing prior to trial, a different judge discussed with defendant whether he wished to accept the State's plea offer of three years in custody, to be served concurrently with a sentence on another matter. The judge informed defendant that he was probably facing a maximum six-and-one-half-year sentence as the result of his third- and fourth-degree crimes, and that he qualified for a "discretionary" extended term. The judge also informed defendant that he could impose a period of parole ineligibility equal to one-half of the sentence.
After hearing this information, defendant rejected the plea offer. As we have previously stated, following trial, defendant was found qualified for a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1(b), and he was sentenced to ten years in custody.
Counsel argues on appeal that, because the judge informed defendant that he was exposed to a discretionary, not mandatory, extended term, defendant should be permitted to reconsider the plea offer. However, he offers no evidence that defendant relied on the judge's representation that the extended term was discretionary in making his decision to reject the plea, and no evidence that he would have accepted the plea had he been correctly informed of his sentencing exposure. Cf. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (holding in the context of an untimely petition for post-conviction relief that petitioner must offer something more than a bare allegation to support his claims), certif. denied, 162 N.J. 199 (1999). In fact, when confronted at sentencing with the State's motion for imposition of a mandatory extended term, defendant argued only that the extended term should be discretionary, not mandatory. He did not argue that if he had known of the applicability of a mandatory extended term, he would have accepted the plea or that he had calculated the chances of imposition of a discretionary extended term in determining to reject the plea. Without evidence of that fact, we are unwilling to conclude that the judge's mistake in stating the certainty of defendant's eligibility for an extended term should permit defendant, now, to retroactively accept the State's final plea offer.
In his last arguments, defendant claims that his sentence is excessive and that the sentence is illegal because the judge improperly found facts to support the imposition of an enhanced sentence, not the jury.
Our review of the sentencing transcript satisfies us that the trial court properly considered applicable aggravating and mitigating factors in reaching its determination with respect to defendant's sentence, and that those factors cited "were based upon competent credible evidence in the record." State v. Roth, 95 N.J. 334, 364-65 (1984). Given defendant's extensive record, which included prior convictions for kidnapping, criminal sexual conduct, aggravated assault, resisting arrest, drug possession and two parole violations, we find no double counting involved in considering defendant's record both for purposes of imposing an extended term sentence and for calculating the length of the term to be served. Without doubt, defendant had been convictedof more crimes than those required for the imposition of an extended sentence pursuant to N.J.S.A. 2C:43-7.1(b).
We are also satisfied that the judge did not fail to find mitigating factors that were clearly supported by the record. State v. Dalziel, 182 N.J. 494, 505 (2005). Although defendant urges that we find that he did not cause serious harm, N.J.S.A. 2C:44-1b(1), we find that factor inapplicable, given the fact that the force of defendant's blows knocked Rosales to his knees and the fact that Rosales required medical attention, including stitches to lacerations on his face and staples to his scalp wound. Defendant also claims that he did not contemplate that he would be causing serious harm. N.J.S.A. 2C:44-1b(2). However, if Rosales's testimony is credited - and it must have been by the jury - defendant purposefully armed himself with a sharp object that he used to commit an assault on Rosales. Further, the evidence suggests that defendant's assault was terminated only because he thought that the police had arrived, and therefore he fled. As a consequence, we find mitigating factor 2 to be inapplicable.
Defendant also argues on appeal that he cooperated with the police in the investigation of the crime and thus the judge should have found mitigating factor 12. N.J.S.A. 2C:44-1b(12). However, he did not claim the benefit of that factor at trial, and the factual basis for its invocation, now, is unclear to us. Thus, we find no error on the judge's part. Instead, we find that sentencing was accomplished in accordance with the principles most recently set forth by the Court in State v. Bieniek, 200 N.J. 601, 608-09 (2010) and that, in light of defendant's criminal history, his sentence does not "shock the judicial conscience." Roth, supra, 95 N.J. at 364-65.
We reject defendant's argument that the judge improperly made findings of fact in citing aggravating factors 3, 6 and 9 in support of an enhanced sentence. See State v. Pierce, 188 N.J. 155, 162-63 (2006) ("The finding of the fact of prior convictions does not constitute prohibited fact-finding under Apprendi*fn2 or Blakely."*fn3 ).