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State of New Jersey v. Robert Small

July 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT SMALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-3971.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2011 Before Judges Reisner, Sabatino and Alvarez.

Defendant Robert Small, self-represented and assisted by standby counsel, was convicted after a trial by jury of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five). On January 25, 2008, the court sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3(a), imposing on count one a thirty-five-year term subject to an eighty-five percent parole disqualifier, in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), and on count five a concurrent term of eighteen months. The remaining convictions were merged into count one. Defendant now appeals. Both defendant pro se and his new counsel have submitted briefs for our review. We now affirm.

On May 23, 2005, the victim, Neal Steen, was walking to a Hess Express convenience store located at a jug handle where Route 130 intersects with Marlton Pike in Pennsauken. Although an acknowledged drug addict with two prior convictions, Steen claimed to not have been under the influence of drugs on that morning. Before Steen entered the store, defendant, a paraplegic confined to a wheelchair, "rolled up" to him and said, "Yo, let me hold something," which Steen understood to mean defendant "needed some money." Steen was casually acquainted with defendant, but told him he had no money to spare.

While defendant watched through a store window, Steen withdrew $20 from the ATM machine, purchased a pack of cigarettes, and put the change in his front pocket. As he left, defendant again asked him for money. Steen refused and walked away, heading through the intersection toward a McDonald's restaurant across the street. Defendant grabbed him from behind, and Steen fell face-down to the ground, defendant on his back.

Defendant stabbed Steen in the buttocks, legs, shoulder, and in the back of his left arm. Steen managed to turn over, coming face-to-face with defendant, who then stabbed him in the chest. An unknown person pulled defendant away, after which Steen walked to the curb and sat down, "covered in blood from head to toe." The jacket, pants, and shirt he wore that day, introduced by the State as evidence during the trial, bore numerous slash marks corresponding to the areas where Steen said he had been stabbed. Steen believed defendant must have taken the change from his $20 bill during the attack because his shirt pocket was empty.*fn1

Three eyewitnesses, all of whom identified defendant both at a show-up shortly after the incident and in court, were in the vicinity of the intersection at the moment the attack occurred. Caryn Evans was driving the third car in the middle lane of the jug handle when she saw a tall white man with silver hair walking across the street in front of her, followed by an African-American man with dreadlocks in a wheelchair. She had seen defendant struggle to get up the ramp in front of the Hess station, and "felt bad" for him. The man who was walking kept waving defendant away, and she assumed defendant was asking him for money.

The two men reached the third lane of traffic when Evans, who had a clear and unobstructed view, saw defendant "fl[y] out of" his wheelchair and knock the other man down onto his face. Defendant had his victim in a headlock and began pounding, punching, and hitting him in the face and head. Evans watched as defendant reached into his back right pocket, pulled out a silver-colored knife, with a blade approximately the size of her hand, and stabbed the other man in the shoulder area at least five or six times. She did not see defendant reach into the victim's pocket but saw the man cover his head and try unsuccessfully to push defendant away. Evans blew her car horn, hoping someone would respond, after which defendant got off the man, pulled his wheelchair over, climbed onto it, and left "as fast as he could." The victim, who appeared to be "dazed," stumbled towards a McDonald's also at the intersection. Evans called police, reported the assault, and pulled over to await their arrival.

Claudious Walker, an employee at a Valvoline Oil station across the street from the Hess station, was sitting by the shop's bay doors facing Marlton Pike when he noticed a white man walking towards him followed by an African-American man in a wheelchair wearing dreadlocks. When the two reached the middle of the intersection, defendant "nudged" the other man and knocked him to the ground as he turned. Defendant jumped on the victim, yelled "where's my money at," and punched him repeatedly in the face with a closed fist. As Walker approached to aid the victim, defendant pulled a knife, approximately seven or eight inches in length, out from his pocket and stabbed the man in the arms and legs while screaming about money. Steen, who "had blood all over him," broke free and ran towards Walker. Meanwhile, defendant scooted to his wheelchair, climbed into it, and headed toward Marlton Pike exclaiming "I got one."

The third eyewitness, Dolores Rosas, was seated in her vehicle when she saw a white man with "blondish hair" walk in front of her car, followed by an African-American man in a wheelchair, wearing a black and white bandana and dreadlocks. When the traffic light turned green, Rosas saw movement out of the corner of her eye and initially thought defendant had fallen out of his wheelchair. When she looked, she saw defendant lying on top of a man who was face-down in the street. Defendant stabbed the man in the back of the legs with a knife that had "jagged edges" and looked like a "hunter's knife." The man eventually broke free and walked toward the McDonald's, while defendant quickly headed toward Marlton Pike. She too called police.

Sergeant Michael Basileo and Detective William Wheeler arrived within ten minutes of the report. They spoke to the witnesses and obtained a description of the assailant, while a patrolman broadcast the description on police airwaves. Shortly thereafter, Patrolman Scott Gehring detained defendant approximately one mile from the crime scene. Patrolman James Sanders, who also identified defendant at trial, arrived seconds after Gehring. Both testified defendant wore dreadlocks, was seated in a wheelchair, wore a gray shirt and white pants, and had blood on his hands, shirt, and pants. When Gehring asked defendant about the knife, defendant retrieved a bloodied seven-inch folding knife from his right front pocket. At trial, Gehring demonstrated the knife could be flipped open with only one hand, making a clicking sound similar to a switchblade, and Evans and Walker identified it as the weapon defendant used to stab Steen.

Gehring and Sanders read defendant his Miranda*fn2 warnings, handcuffed him, helped him into the back of the patrol car, and placed his wheelchair in the trunk. The officers drove him to a more secure location to which Evans, Walker, and Rosas were separately driven. Each positively identified defendant as the assailant.

At police headquarters, defendant was placed in a holding cell after being advised of his Miranda rights a second time. When Detective Brian Polaski attempted to fingerprint him, defendant refused to cooperate, making an obscene gesture and a vulgar comment. After Polaski left the room, defendant called out to Basileo and asked "if the guy [who was stabbed] survived?" When Basileo responded, defendant expressed disappointment, saying he thought he "had his first body." Basileo said he thought "you guys knew each other," to which defendant replied that the victim owed him money.

As defendant was changing into a jumpsuit, a pen fell from his wheelchair to the floor. Defendant then looked at Polaski saying, "I could have stabbed that n----r-hater too," a comment overheard by Basileo and Wheeler. No money was found in defendant's clothing.

When interviewed at the hospital, Steen, who appeared oriented, said defendant attacked him from the front, not from behind, and that he was missing $7. He had at least ten stab wounds to his torso and extremities; the most significant injury being one that penetrated his chest wall, causing a potentially fatal pneumothorax, or collapsed lung. Dandrea Joseph, M.D., the trauma surgeon who treated Steen at the hospital, testified this wound resulted from the use of great force because the weapon pierced several layers of skin, muscle, and tissue in addition to the pleura, a membrane surrounding the lungs.

Approximately eighteen months after the stabbing incident, from October 29 to November 3, 2006, defendant and Steen were imprisoned together, on unrelated charges, in a "medical unit confined area." Steen said he attempted to be courteous to defendant because he was afraid of him; however, he denied ever saying he would not testify against him or that defendant was not the man who stabbed him.

Christopher Szymkowiak, a forensic scientist, testified as the State's DNA expert. Within a reasonable degree of scientific certainty, he concluded Steen was the source of the

DNA profile obtained from defendant's gray shirt, the knife, and the flesh found on the knife. He also testified his conclusion was subject to peer review by another forensic scientist and to administrative review by his supervisor, both of whom agreed with his conclusion.

At a pretrial Sands*fn3 hearing, the State presented proof defendant had been convicted of drug distribution and aggravated assault on a police officer in 1990. In 1997, some three years after his release from prison, he was convicted of child endangering in Pennsylvania. The court ruled that only the drug and child endangering convictions could be presented to the jury. On the stand, defendant acknowledged his drug distribution offense and resulting four-year imprisonment, as well as the child endangering and the eleven-to-fifty-nine-month sentence imposed by the Pennsylvania court.

Defendant testified to a quite different version of events, which we recount in detail. Defendant alleged he gave Steen a $50 bill to purchase a pack of cigarettes and some other items for him, as he could not use the handicapped ramp into the Hess store. At the time, he was wearing a gray shirt over a white t-shirt, a green, white, and black bandana, and white or tan sweatpants. After Steen left the store, he gave defendant only $5 in change, insisting defendant had given him a $20 and not a $50 bill. The men argued as a result.

Defendant claimed that suddenly a young, light-skinned African-American man interjected himself into the dispute and said he had just seen Steen hand the clerk a $50 bill. Steen told the young man to mind his own business, and the two began to push and punch each other. The young man pulled out a knife and stabbed Steen repeatedly. When he let Steen go, he told defendant to stay put as he would be right back, and ran across the street to the McDonald's.

Steen stood up and continued to argue, demanding defendant identify the assailant, and threatening to falsely accuse him instead. When defendant persisted in demanding that Steen return his change, Steen allegedly pulled him from the wheelchair, into the third lane of traffic, and kicked him. Defendant grabbed Steen's foot, wrestled him to the ground and began to punch him. Steen got up and tried to "stomp" on defendant, who rolled away on the bloody ground, thus explaining the presence of Steen's blood on the back shoulder of his shirt.

According to defendant, the young man, knife in hand, saw that Steen was attacking defendant a second time and again came to his aid. This time Steen ran toward the Valvoline station. The young man helped defendant into his wheelchair, pushed him toward Marlton Pike, and asked him to hold the knife, dropping it into his lap. He fled in a car driven by an unidentified girl. Defendant closed the knife, put it in his pocket, and proceeded on to Marlton Pike, thinking "nothing of it" because he had no idea he would be suspected of stabbing Steen.

In support of his account, defendant produced several witnesses. First, Wade Tyler said he had been at the Hess station on the date in question and heard defendant arguing with Steen about his $50. Further, he saw a light-skinned African-American young man engage in a pushing match with the victim, saying words to the effect of "Why don't you just give him his money." Someone then screamed "oh s--t, he stabbed him," at which point Tyler left the scene because he had outstanding warrants, was driving illegally, and hated the Pennsauken police. Tyler had four prior convictions, a 2006 third-degree using false identification, N.J.S.A. 2C:21-2.1, a 1999 fourth-degree falsifying records, N.J.S.A. 2C:21-4(a), a 1995 third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5, and a 1994 third-degree receiving stolen property, N.J.S.A. 2C:20-7.

Defendant also called Polaski, who testified Steen initially gave his name as Blaine D. Steen, an alias the victim sometimes used. In contrast, Sampson, whom defendant also called, said Steen gave his correct name. Sampson spoke to three witnesses, Rosas, Walker, and a Steven DeShields, who did not testify at trial, and each told him defendant was wearing a gray, not a white, shirt. Defendant called Gehring for the purpose of having him say that the radio dispatch described the assailant as a "black male wearing a gray shirt with dreadlocks and a wheelchair."

Defendant claimed that when he and the victim were "confined" in the same unit approximately eighteen months after the stabbing, Steen said he had informed police that defendant was not the assailant, and that Steen assured him that he would not testify against him at trial. During this time, they played chess, reminisced about old friends, and generally had a good time together.

Defendant presented Antonio Rodriguez and Luis Lopez on the subject of Steen's "recantation." Both had prior convictions and had been in the "confined area" with Steen and defendant. They corroborated defendant's version of his discussions with Steen about the charges. In fact, Rodriguez said he heard Steen ask defendant why he was "still being incarcerated for a violent act." Steen allegedly told Rodriguez that defendant was not the person who stabbed him and that he was suing McDonald's for his injuries.

Lopez testified Steen did not appear fearful of defendant and even played chess with him while confined. Lopez also heard Steen stating that defendant was not his assailant, and that he had not accused him of the crime.

Finally, defendant called several witnesses to testify as to the victim's reputation for untruthfulness in the community. Eric Bullock said he had smoked crack cocaine with Steen, known on the streets as "Dougie the Con Man," and that he was considered a "flim-flam artist," although this remark was stricken. Samuel Pierson reported he had smoked crack cocaine with Steen, and that he was known to be untruthful. Ramon Rivera, who sold oils and incense for defendant on the streets of Camden, said Steen lived in abandoned houses and a trailer, and that a lot of people did not like him because he was a thief. Rivera, who resided with his father in a crack house, also testified he often saw Steen and defendant at his father's home "laughing, joking, [and] playing cards." Bullock, Pierson, and Rivera all had criminal histories.

Defendant's brief on appeal raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO CONFRONTATION, AS SET FORTH IN CRAWFORD v. WASHINGTON, WAS VIOLATED BY TESTIMONY THAT THE STATE'S DNA REPORT HAD BEEN APPROVED BY PERSONS WHO DID NOT TESTIFY, AND BY THE TRIAL COURT'S FAILURE TO TAKE EFFECTIVE REMEDIAL ACTION. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT II

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN ADMITTING A REMOTE PRIOR CONVICTION AND IN REFUSING TO SANITIZE DEFENDANT'S PRIOR ENDANGERING CONVICTION. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT III

THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, IN DENYING A MISTRIAL, OR SUFFICIENT INQUIRY OR REMEDIATION, CONCERNING AN INCIDENT IN WHICH THE DEFENDANT EVIDENTLY WAS SEEN BY JURORS WHILE BEING ESCORTED BY OFFICERS. ...


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