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State of New Jersey v. Robert Small

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10 .

POINT IV

IN-COURT IDENTIFICATION OF THE DEFENDANT SHOULD HAVE BEEN SUPPRESSED AS UNRELIABLE, BECAUSE THE IDENTIFICATIONS WERE TAINTED BY THE SHOWING OF A SINGLE PHOTOGRAPH OF THE DEFENDANT TO THE WITNESSES SHORTLY BEFORE TRIAL, AND THE STATE DID NOT DEMONSTRATE THAT THE IDENTIFICATIONS WERE THE PRODUCT OF AN INDEPENDENT SOURCE. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT V

THE DEFENDANT, WHO REPRESENTED HIMSELF, WAS HIGHLY PREJUDICED BY THE DENIAL OF SUFFICIENT, AND COURT-ORDERED, ACCESS TO THE LAW LIBRARY. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT VI

THE TRIAL JUDGE ERRED IN REFUSING TO RECUSE HIMSELF FOLLOWING REPORTS OF A FIGHT INVOLVING THE DEFENDANT AND THE SISTER OF A MEMBER OF THE COURT STAFF. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT VII

THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below). U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10

POINT VIII

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION OR REMAND Defendant's pro se brief asserts the following:

POINT I

THE COURT FAILED TO INSTRUCT THE JURY ON PASSION/PROVOCATION ATTEMPTED MURDER; THEREBY, DENYING DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPHS 9 & 10 OF THE NEW JERSEY CONSTITUTION[.] (Not Raised Below)

A. THE COURT FAILED TO INFORM DEFENDANT AT THE CHARGE CONFERENCE OF HIS RIGHT TO A PASSION/PROVOCATION DEFENSE.

POINT II

THE DECISION BY THE TRIAL COURT TO WITHDRAW THE INSTRUCTION ON SELF-DEFENSE WAS ERRONEOUS AND AN ABUSE OF DISCRETION REQUIRING REVERSAL.

POINT III

THE COURT'S FAILURE TO QUESTION THE JURY CONCERNING THEM SEEING DEFENDANT BEING ESCORTED BY TWO OFFICERS AND A BAILIFF WAS AN ABUSE OF DISCRETION REQUIRING REVERSAL .

POINT IV

THE COURT'S FAILURE TO ACCOMMODATE DEFENDANT'S REQUEST TO TESTIFY FROM THE WITNESS STAND, PLACING HIM AT A POINT BELOW THE EYE LEVEL OF THE JURY[,] DIMINISHED DEFENDANT'S TESTIMONY, THEREBY, DENYING HIM A FAIR TRIAL.

We first address defendant's contention that the court erred in permitting Szymkowiak, the DNA expert, to testify that his report had received favorable peer and administrative review. Defendant avers that the admission of these "testimonial statements" violated his Sixth Amendment right to confrontation as delineated in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). He further contends the court's inadequate limiting instruction failed to eliminate the prejudicial impact of this testimony. We do not agree.

Szymkowiak detailed his testing protocols, including techniques comparing DNA profiles taken from defendant's clothing and the knife to Steen's buccal swab. He opined that the specimens were found in one in 40.4 quadrillion of the Caucasian population, and that the report was reviewed for accuracy and correctness by another forensic scientist as well as administratively reviewed by his supervisor, both of whom agreed with his conclusions.

Standby counsel initially objected to admission of the report; further, he objected to testimony regarding the review of Szymkowiak's work. The basis for the objection, and the subsequent motion for a mistrial, was hearsay. Counsel did not argue the testimony violated defendant's constitutional right to confrontation. The court denied the application for a mistrial, but gave a curative instruction informing the jury they should give such weight as they deemed appropriate to the assertions "without there having been direct testimony from either of the supervisory personnel present here in court." During his brief cross-examination of the expert, defendant made the point that the DNA evidence did not establish the identity of Steen's attacker.

Significantly, defendant admitted it was Steen's blood on his gray shirt, explaining the blood stain was acquired when he rolled over to avoid being "stomp[ed]." He also acknowledged possessing the bloody knife at the time of his arrest, explaining it had been given to him by the actual perpetrator. In his testimony and in closing, he maintained he had never disputed that the blood on the shirt or the knife belonged to the victim.

The hearsay rules do not "apply to facts that are not disputed and [are] agreed to by the parties." State v. Neal, 361 N.J. Super. 522, 534 (App. Div. 2003). A party cannot "object to the admission of impermissible hearsay when they have not objected below and where their own testimony admitted to the facts intended to be proved." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 101(a)(4) (2010).

At trial, defendant did not challenge the core of the expert's testimony; namely, that the blood evidence came from the victim. Therefore, to the extent he now objects to the admission of the testimony on hearsay grounds, it is not a basis for relief on appeal.

Defendant further objects, however, that pursuant to Crawford, admission of the hearsay statements by non-testifying persons violated the Confrontation Clause. It is true that the Confrontation Clause is implicated if hearsay statements are admitted that are testimonial in nature. Id. at 60-61, 124 S. Ct. at 1369-70, 158 L. Ed. 2d at 198-99.

The United States Supreme Court has recently held that sworn certificates of analysis reporting the results of forensic testing performed on suspected drugs are testimonial statements, and that admission of such certificates in the absence of the technician's testimony violates the Confrontation Clause. Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321-22 (2009). The Court found that the certificates were "functionally identical to live, in-court testimony," and were "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford, supra, 541 U.S. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193). The Court wrote that "[c]onfrontation is one means of assessing accurate forensic analysis. . . . [It] is designed to weed out not only the fraudulent analyst, but the incompetent one as well." Id. at ___, 129 S. Ct. at 2536-37, 174 L. Ed. 2d at 326.

Our courts also consider statements in technical or scientific reports to be testimonial in nature. See, e.g., State v. Berezansky, 386 N.J. Super. 84, 94 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008) (finding a State Police chemist's laboratory report "testimonial" under Crawford because "it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test"); State v. Kent, 391 N.J. Super. 352, 364-75 (App. Div. 2007) (holding a State Police laboratory report authored by a forensic scientist and a blood test certificate prepared by a hospital employee were testimonial statements under Crawford).

The peer review and supervisor's conclusions regarding Szymkowiak's work were arguably testimonial and subject to the requirements of Crawford.*fn4 But, as the majority in Melendez-Diaz noted, not everyone "whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Melendez-Diaz, supra, ___ U.S. at ___, 129 S. Ct. at 2532 n.1, 174 L. Ed. 2d at 322 n.1. In fact, had these witnesses been proffered, their testimony would have been objectionable pursuant to N.J.R.E. 403 as merely cumulative and running the risk of overemphasizing the damning testimony.*fn5

Even if the testimony was a violation of Crawford principles, the witness's brief mention of review by others constitutes nothing more than harmless error. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986). We reach that conclusion after consideration of "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87; see also Bullcoming, supra, 564 U.S. at ___, n. 11, ___ S. Ct. at ___, n. 11, ___ L. Ed. 2d at ___, n. 11 (noting the applicability of harmless error analysis to Confrontation Clause issues).

In this case, the only three entirely neutral eyewitnesses corroborated the victim's version. Moreover, defendant did not dispute that the blood stains on his shirt and the knife belonged to the victim. The expert's mention of the opinions of others was very brief. If, for argument's sake, we agreed with defendant that the court's instruction was not sufficient to the task, reversal does not result because the admission of the testimony was harmless error.

b.

Defendant asserts that the court erred in admitting the evidence of his prior convictions because his 1990 offense was too remote in time and his 1997 conviction for endangering the welfare of a child should have been sanitized. Again, we do not agree.

After the Sands hearing, the court found the 1990 conviction to be admissible because the three prior convictions, and corresponding terms of incarceration, established that defendant had been convicted of and incarcerated for a series of crimes over a number of years, which tied all of the offenses together.

Admission of prior convictions for impeachment purposes pursuant to N.J.R.E. 609 rests within the sound discretion of the trial judge. Sands, supra, 76 N.J. at 144. Defendant bears the burden of justifying exclusion. Ibid.

As defendant correctly contends, sanitization is not limited to similar offenses, but ideally should eliminate references to other prior crimes where to do otherwise would expose a defendant to the risk of undue prejudice. See State v. Hamilton, 193 N.J. 255, 268-69 (2008).

But as the Supreme Court cautioned, it was not suggesting that State v. Brunson, 132 N.J. 377 (1993), required sanitization for all prior convictions, or even a particular subcategory of offenses, such as those that do not involve "dishonesty, false swearing and the like." Id. at 269. In any event, Hamilton was not decided until after defendant's trial. Furthermore, the opinion also recognized that obvious prejudice accompanies all prior conviction evidence. Id. at 256.

Sanitization is only necessary to "control undue prejudice." Id. at 269. Defendant has not demonstrated that the endangering conviction, which bore no resemblance to the charges at trial, unduly prejudiced him. Moreover, the trial court gave the appropriate model jury instruction, telling the jury that it should only consider the evidence in assessing credibility. See Model Jury Charge (Criminal), Credibility - Prior Conviction of a Defendant, revised Feb. 24, 2003. The jury was told not to use the prior convictions as evidence of defendant's guilt.

c.

Defendant also claims that he was entitled to either a mistrial or, at a minimum, an inquiry of jurors, after two members of the panel observed him being escorted by sheriff's officers in a private hallway within the courthouse.

Defendant was not in handcuffs nor in any way restrained. He was not wearing jail attire. Two jurors stopped and watched while one sheriff's officer pushed defendant's wheelchair and the other walked in front of him. When defendant made his application to the trial judge, the prosecutor responded by reminding the court that the jury panel had been initially advised that defendant might have to be escorted to the "disabled facilities" during breaks, and that in any event defendant had told the jury that he was incarcerated.

The encounter was accidental. The jurors had been forewarned that defendant might be assisted by sheriff's officers to the disabled facilities; defendant himself informed the jury that he was in custody. The court's decision denying the motion for a mistrial was certainly warranted. It is an extraordinary remedy granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995); State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973).

Defendant contends that for the jury to see him escorted while in a wheelchair is equivalent to seeing him in shackles or other restraints. Factually, there is no similarity. The encounter was fleeting and accidental. The point does not warrant further discussion. R. 2:11-3(e)(2).

d.

By way of introduction, we note that prior to trial, defendant, against the advice of standby counsel, asked the court not to conduct a Wade*fn6 hearing. Defendant said he did not want the court to suppress the show-up identifications because at trial his strategy would be to attack the eyewitnesses' testimony as "inaccurate."

Nonetheless, the prosecutor requested that a Wade hearing be conducted because defendant was challenging the eyewitness identifications and because show-ups are considered inherently suggestive. After the hearing, the court found that the identifications were sufficiently reliable for a number of reasons. The identifications were made by the eyewitnesses independently of each other, immediately after the crime, defendant matched the "relatively unique description" of the assailant, the eyewitnesses had ample opportunity to observe, and a clear view of, the incident, demonstrated a high level of certainty, and defendant was apprehended in close proximity to the scene wearing bloody clothing and carrying a knife bearing the victim's DNA.

Defendant urges us to find that the court erred in denying his application to suppress eyewitnesses' in-court identifications, and for a mistrial, as a result of the prosecutor showing the eyewitnesses his photograph during trial preparation. While meeting with the prosecutor individually about two or three weeks before trial, Evans, Walker, and Rosas were asked if they could describe defendant. After they indicated they could, the prosecutor showed them defendant's photograph. They uniformly denied that their in-court identification was influenced by seeing this photo prior to trial. The prosecutor represented that the photo was displayed during routine trial preparation, not intended in any way to influence the witnesses.

The court denied the motion for a mistrial because the display of one photo of defendant to the eyewitnesses, if anything, went only to the weight of their in-court identifications. Nothing about the display of the photo in this case is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); State v. Herrera, 187 N.J. 493, 502 (2006).

Defendant also urges us to find the State engaged in prejudicial prosecutorial misconduct in failing to disclose this procedure in discovery prior to trial. Records regarding outof-court identification procedures are discoverable. State v. Delgado, 188 N.J. 48, 63-64 (2006). Even though standby counsel acknowledged the omission was not the result of bad faith on the part of the prosecutor, and conceded the display of a photo to an eyewitness prior to trial was a common practice, defendant now claims this asserted violation of the discovery rules warrants a new trial.

Unfortunately, defendant does not point to the prejudice resulting from the State's failure to advise him of a procedure that had no impact on trial proofs. The court did not err in denying defendant's application for a mistrial, or in permitting the eyewitnesses to identify defendant in court.

e.

Pre-trial, defendant filed a motion for direct access to the inmate law library for four hours per day, three days per week. The application was denied, and defendant now contends this too was reversible error. Defendant was not permitted to go to the inmate law library because he was in isolation as a result of an infraction committed some two or three weeks prior. The court, sua sponte, asked the county to participate in the hearing on defendant's application.

County counsel explained that defendant was a security risk with an extensive disciplinary record, including thirty-nine separate charges for various infractions of jail rules and policies. In fact, defendant had recently been placed in isolation for assaulting another inmate, but would be released into administrative segregation in twenty-five days. The county jail did not provide access to the law library to inmates who were in isolation or administrative segregation, but inmates could, despite this classification, request material from the librarian. Defendant also had available research conducted by his standby counsel. In the relevant time span, despite his lack of direct access, defendant filed numerous pretrial motions.

Furthermore, county counsel represented that the jail warden agreed that once defendant was released from isolation, if he remained infraction-free, he would be granted access to the library one hour per day, three times per week, the same as every other inmate.

The court determined that a defendant who chooses to represent himself does not thereby acquire a constitutional right to unlimited access to an inmate law library. Since the county agreed to extend library privileges to defendant the same as any other inmate once he was released from isolation, there was no necessity for defendant to be granted additional relief. In light of defendant's indirect access to materials through standby counsel and upon request to the law librarian, nothing further was required.

During a scheduling conference some months later, standby counsel raised the subject as defendant was still in segregation. He was not permitted to go to the law library, but continued to be allowed to request materials and had them available through a standby counsel. Defendant conceded that he had "tons of paperwork in his cell." As a result, the court instructed counsel to supply defendant with his own copy of the New Jersey Court Rules and the Rules of Evidence. But because defendant continued in isolation, presumably as a result of further disciplinary infractions, no further relief was granted. As the court said, defendant had the keys to the library. If he stopped committing disciplinary infractions, he would then acquire direct access.

Defendant takes the position that, even though the Supreme Court has not recognized a pro se defendant's federal constitutional right to direct access to the law library, we should interpret our State Constitution more broadly and find that such a right exists. We decline the invitation as in this case, defendant's own conduct created the limitation and, in actuality, any materials he needed were available through standby counsel and the inmate law librarian in addition to retaining materials in his cell, including the Court Rules and Rules of Evidence. Defendant does not explain the additional benefit he would have gained from direct access given these other resources. Instead, he merely claims he was denied "an adequate opportunity to prepare," an allegation not supported by the record.

f.

Defendant argues that the judge erred by refusing to recuse himself after he learned defendant had been involved in an altercation at the jail with a relative of a member of the judge's clerical staff. The judge did not know the relative, and explained that the staff member, who had worked with him for approximately ten months, was one of eight or ten people assigned to him on a daily basis. For purposes of this trial, he directed that the clerical person not have any contact with anyone in the case. This allegation is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

g.

Because of defendant's use of a wheelchair and the design of the courtroom, he was not able to safely testify from the witness stand. As a result, he testified from a table he claims was below the jury's eye level.

On two occasions, while cross-examining a witness but before his own testimony, defendant fell out of his wheelchair and had to be assisted back into it by a sheriff's officer. Prior to his testimony, the judge asked defendant to select a location, noting he could testify either from the middle of the floor in front of the jury or from the witness stand. It was only after the sheriff's officer expressed concern about defendant's safety that the judge decided that he could not testify from the witness stand. There was a more handicapped accessible courtroom in the building; however, it was being used for another trial.

When the judge asked defendant if he wanted to testify in front of the jury, he indicated that he did. When the judge asked if defendant needed a table to do so, he said he wanted one. Both these requests were granted. Certainly under the Americans With Disabilities Act (ADA), 42 U.S.C.A. § 12101-12213, as well as state law, N.J.S.A. 10:5-4, courts are required to ensure equal access to disabled individuals. In fact, the judiciary's ADA policy statement, available at http://www.judiciary.state.nj.us/services/aocada.htm, states that the judiciary is required to extend equal access to everyone.

Nonetheless, trial judges have broad discretion in exercising control over their courtrooms, so long as they do so reasonably and within constitutional bounds. State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). This discretion includes the authority to control the location and movement within the courtroom of a criminal defendant. See State v. Cook, 330 N.J. Super. 395, 415 (App. Div. 2000).

The trial judge reasonably accommodated defendant's disability in light of the genuine concern for defendant's safety. Defendant's request that he be permitted to testify from the witness stand was only refused after the judge considered the safety issue presented by the configuration of the witness stand in light of defendant's prior falls from his wheelchair. Moreover, the jury had already heard from defendant while he was in front of them in opening arguments. No prejudice resulted from the denial of defendant's first choice. This issue has no merit.

h.

Defendant states that the trial judge erred by failing to charge, sua sponte, passion/provocation attempted manslaughter. He further asserts that the court's decision to "withdraw" the charge on deadly force self-defense constituted error.

N.J.S.A. 2C:1-8(e) provides "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "[W]hether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006). "[S]heer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994). "The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." Id. at 118-19.

Courts are not required to issue instructions sua sponte unless the facts clearly indicate the appropriateness of the charge. State v. Savage, 172 N.J. 374, 397 (2002); accord State v. Jenkins, 178 N.J. 347, 361 (2004) (noting trial courts have "an independent obligation to instruct on lesser-included charges when facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense"). An instruction on passion/provocation manslaughter, a lesser-included offense of attempted murder, would have been inappropriate in this case.

Criminal homicide constitutes passion/provocation manslaughter when "[a] homicide which would otherwise be murder under section [N.J.S.A.] 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). There are four elements to passion/provocation manslaughter: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990).

The first two elements are objective and thus, if supported by the evidence, the court should so instruct, leaving the last two subjective elements for the jury. State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Robinson, 136 N.J. 476, 491 (1994)). Even viewing the evidence in the light most favorable to defendant, Mauricio, supra, 117 N.J. at 412, Steen's alleged refusal to give him the correct change and/or possible theft of his $50 was not adequate provocation. No jury could have reasonably found this disagreement constituted adequate provocation. See id. at 413-14. Therefore, the court did not err by failing to charge, sua sponte, passion/provocation attempted manslaughter.

Defendant also asked the court to charge self-defense. The State objected on the basis of lack of notice and lack of evidence. Despite the objection, the court gave the instruction since defendant alleged that Steen was the aggressor. The judge gave the justification self-defense November 2006 Criminal Model Jury charge, including the reference to "deadly force." Standby counsel objected to the instruction on defendant's behalf, asserting defendant requested the instruction only as to punching the victim and denied stabbing him. The judge therefore reinstructed the jury - explaining that it had been brought to his attention that he mistakenly included language regarding deadly force. He clarified that the jury was to consider the self-defense instruction only as to the punching and hand-to-hand altercation defendant had described. This correction was sufficient to clarify to the jurors that self-defense related only to the fisticuffs, not to the stabbing.

If defendant's objection is that the issuance of the self-defense instruction was a mistake in its entirety, the doctrine of invited error undercuts any such claim. A disappointed litigant cannot argue on appeal that an error was committed by the court when that party "urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996); see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). The instruction was given, and then corrected, at defendant's request.

In this case, in any event, the defense of self-defense was of dubious provenance. The charge was not supported by the version of events given by the three independent eyewitnesses. Since the charge was not supported by the evidence, the instruction telling the jury to disregard a portion of it was clearly incapable of producing an unjust result.

i.

Defendant argues that the cumulative effect of trial errors, which may independently may be harmless, deprived him of his rights to a fair trial pursuant to State v. Orecchio, 16 N.J. 125, 129 (1954). We do not agree. There were no errors, much less cumulative errors, that would have together deprived defendant of a fair trial.

j.

Lastly, defendant claims the court imposed an excessive sentence. The court found four aggravating factors: the nature and seriousness of the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9), and no factors in mitigation. The court imposed an extended term, pursuant to the persistent offender statute, N.J.S.A. 2C:44-3(a).

We review sentencing decisions not to substitute our own judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). When a trial court's aggravating and mitigating factors are supported by the record, where the sentencing overall complies with the Criminal Code, and where the individual sentence does not shock our conscience, a sentence will be upheld. Ibid.

The statutory prerequisites for the imposition of an extended term were met and, as the court reasoned, sentencing defendant to an ordinary term for an unwarranted and incomprehensible attempted murder would not suffice in order to protect the public. The court weighed statutory aggravating and offsetting mitigating factors in order to determine the base term. The length of parole ineligibility was essentially dictated by NERA. The court considered the bottom of the ordinary-term range, but having found sufficient evidence of the need for public protection, rejected that option. Thus the court properly applied the sentencing principles set forth in the Criminal Code and imposed an appropriate extended term. See State v. Pierce, 188 N.J. 155, 164 (2006); see also State v. Dunbar, 108 N.J. 80, 90-91 (1987).

Defendant also challenges the judge's weighing of aggravating factors, but we do not substitute our assessment of those considerations for that of the trial court. Bieniek, supra, 200 N.J. at 608. In our view, the weighing process was based on substantial evidence in the record.

Defendant avers that the court double-counted aggravating factor N.J.S.A. 2C:44-1(a)(1) because the attempt to inflict a fatal wound was an element of first-degree attempted murder. To the contrary, the court explained applying that factor was not double-counting because to be stabbed ten separate times was especially "heinous, cruel and depraved." Only one was necessary for an attempt - here, ten wounds were inflicted. State v. Pillot, 115 N.J. 558, 564 (1989) (preventing sentencing courts from utilizing only "criminal conduct" which has been "factored into the offense with which [the] defendant is charged" in finding aggravating factor one); State v. Briggs, 349 N.J. Super. 496, 504-05 (App. Div. 2002) (noting that death of victim cannot be used to support finding of aggravating factor one in manslaughter case); State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div.) (supporting sentencing court's finding of factor one where killing was "brutal[] and [] went on for a long time") (internal quotation omitted), certif. denied, 170 N.J. 202 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494, 504 (2005).

Defendant also argues that the court improperly considered the extent of his prior criminal history. In fact, in order to avoid double-counting, the court stated it would not consider defendant's convictions within ten years because they had been utilized to impose the extended term. The court went on to conclude that defendant's criminal record beyond ten years justified the factor. As was developed the day of sentencing, defendant had been convicted of more offenses than was previously known, in fact, five indictable crimes.

The court made a reasoned and qualitative assessment of defendant's future risk to reoffend. This was reasonably found to be especially important to deter the type of senseless violence that occurred here.

Defendant asserts the court failed to consider that his imprisonment would entail excessive hardship to himself, the mitigating factor embodied in N.J.S.A. 2C:44-1(b)(11). The court addressed this consideration as well, stating that defendant committed the crime while bound to a wheelchair, and it therefore did not seem unreasonable to compel him to serve a term of incarceration while similarly situated. There was no evidence that defendant had any dependents. Nothing in the record indicates that defendant had novel medical needs which could not be met while he was incarcerated. See State v. M.A., 402 N.J. Super. 353, 371 (App. Div. 2008).

Based on the written submissions of both counsel, the court set forth his sentencing analysis, announced the sentence, and only then asked defendant to exercise his right of allocution. Defendant made a statement, and the court also heard argument from standby counsel. Clearly, a defendant is usually heard prior to the court announcing its sentence, and that did not occur here. But the court provided defendant with ample opportunity to speak after considering written submissions. Accordingly, we see no error in the sentencing procedure.

Affirmed.


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