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State of New Jersey In the Interest of K.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 6, 2011

STATE OF NEW JERSEY IN THE INTEREST OF K.R.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2086-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 6, 2011

Before Judges Payne and Messano.

Juvenile appellant, K.R. (fictitiously, Kate), appeals from an adjudication of delinquency, following trial of charges that, if she had been an adult, would have constituted second-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). An eighteen-month term of probation, with conditions, was imposed.

On appeal, Kate raises the following arguments:

POINT I THE TRIAL JUDGE'S VERDICT OF GUILT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW.)

POINT II THE PROSECUTOR'S REFERENCES TO [L.J.], THE STATE'S EYEWITNESS, AS A WITNESS WHOM THE STATE NEVER PREPARED, INTERVIEWED OR EVEN CONFERRED WITH PRIOR TO HER SWORN TESTIMONY WAS AN ATTEMPT BY THE PROSECUTOR TO IMPROPERLY BOLSTER THE CREDIBILITY OF A STATE'S WITNESS AND CONSTITUTES PROSECUTORIAL MISCONDUCT AND IS GROUNDS FOR REVERSAL.

POINT III THE TRIAL JUDGE MISAPPLIED THE RULES OF EVIDENCE BY PERMITTING THE ADMISSIBILITY OF AN ALLEGED EXCITED UTTERANCE DURING THE TESTIMONY OF [KATE'S MOTHER].

POINT IV THE TRIAL JUDGE MISAPPLIED HIS DISCRETION IN SENTENCING THE JUVENILE TO AN EXCESSIVE SENTENCE.

We affirm.

I.

Trial of charges of robbery and aggravated assault against Kate and her co-defendant, T.S. (fictitiously, Terry), was conducted jointly in the Family Part in this matter. At that trial, evidence was presented by the victim, M.M. (fictitiously, Martha), that on April 28, 2009 at 7:45 p.m., she exited a store approximately two blocks from her home after purchasing ice cream at the request of her mother. As she stood in front of the store talking to her friend, L.J. (fictitiously, Linda), a four-door gray car with black tinted windows pulled up. Kate stepped out of the car and punched Martha in the face, causing her to fall to the ground, where the fight continued. Shortly thereafter, Terry also got out of the car and commenced kicking Martha, who remained on the ground and eventually passed out for approximately one minute. When she regained consciousness, Martha reached for her sidekick cell phone, which lay at her side. However, at this point S.S. (fictitiously, Sara) got out of the car, snatched the phone, worth approximately $265, and pulled Kate off Martha. The aggressors then returned to the car and left the scene. During the fight, Kate had grabbed a Tiffany & Co. bracelet worth approximately $700 from Martha's wrist that Martha had just received from her father as a present. Neither the phone nor the bracelet was returned.

The fight was observed by Linda who, by Martha's account, held the ice cream that Martha had just purchased. After Terry joined the fray, Linda threw the ice cream into the gutter and then assisted Martha in defending herself and in getting up off the ground at the conclusion of the fight. In a subsequent statement to the police, Martha identified Linda only by her street name, "Beetle."

At the conclusion of the fight, Martha ran home and commenced repeatedly ringing the door bell, and, while lying on the building's steps, she cried hysterically that she had been jumped by Kate and Terry. Her mother, having heard Martha's cries, helped Martha up the stairs to their apartment. The police were called and an ambulance was summoned. Martha spent approximately eight hours in the emergency room where she was treated for her injuries and discharged. On the way home, she and her mother located the gray car across the street from the residence of Sara. Martha's mother recorded the number on the car's license plate. However, Martha neglected to give that number to the police when she gave her statement several days after the attack. Additionally, Martha neglected to identify Sara as a participant in the attack, and she did not mention the loss of her cell phone.

Testimony by Martha and her mother disclosed that Martha sustained bruises to her head, back, side, knee and the side of her face. According to Martha's mother, Martha also had a "knot" on her forehead and a footprint on her back as the result of the assault. Martha remained out of school and work on account of her injuries for a period of two weeks after the attack. Martha stated that, following the attack, she suffered from migraine headaches.

Testimony by Linda, Martha's friend, essentially corroborated Martha's version of events. However, Linda testified that she thought the car was blue, that Kate and Terry exited the car together, that Terry stole Martha's phone, and that a third girl did not get out of the car.

Terry, who testified on her own behalf, acknowledged that, despite a prior friendship, there was bad blood between her and Martha at the time of the fight, that Martha had previously obtained a restraining order against her, and as a result, they did not attend the same school. She admitted that she did not like Martha. However, she denied that she was involved in the April 2009 attack. Terry testified that at the time of the alleged fight, she was six months pregnant and, on one occasion, she testified that she was very big at the time, but later suggested that she did not become so until the last month of her pregnancy. Terry testified that she delivered her baby on July 15, 2009. However, this fact was not acknowledged at any point by Martha or Linda.

Kate also testified. She, too, denied the incident at issue had occurred, but admitted that she had previously instigated a fight with Martha in the principal's office and had been kicked out of school as a result.

Sara, Kate and another friend, K.M., all testified that, on the day in question, they had met at Sara's house on the afternoon of April 28, assembling at 4:15 p.m. and then walking to K.M.'s house, arriving there at 5:00 p.m. They remained there until 9:00 p.m., at which time K.M.'s mother sent Kate and Sara home, stating that it was a school day.

At the conclusion of the trial, the Family Part judge adjudicated Kate delinquent, determining that the State had proven beyond a reasonable doubt both charges against her.*fn1 In doing so, the judge found Martha, as corroborated by Linda, to have presented the most credible version of the events that had occurred. He found the discrepancies between the stories offered by Martha and Linda to have been minor and unimportant. The judge found that Martha's testimony was further corroborated by her mother's testimony regarding Martha's condition when she reached home and regarding Martha's statements at that time, which the judge characterized as excited utterances.

The judge rejected the alibi evidence presented by Sara, K.M. and Kate as incredible, noting particularly that the details of their stories matched too closely to be believable. He stated:

In order to accept the juveniles' version I would have to believe that the victim was beaten by someone else, since she was clearly beaten. That she and [Linda] conspired together to false[ly] accuse these juveniles because of bad blood between them.

It is simply not a credible scenario.

The judge acknowledged that Terry was pregnant at the time of the attack. However, he found the testimony at trial regarding her condition to have been irrelevant because inconsistent testimony was offered by Terry regarding her size at the time that the attack occurred.

After giving his decision in the matter, the judge sentenced Kate to eighteen months of probation, required that she complete an anger management counseling course, and ordered that she have no contact with Martha. Kate was told that if she violated the terms of her probation, she would be prosecuted and sentenced to Jamesburg Training School for Girls. An order of disposition was signed by the judge on November 20, 2009. This appeal followed.

II.

On appeal, Kate first argues that the verdict was against the weight of the evidence. We disagree, determining that the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). In reaching that conclusion, we have considered the elements of the crime of second-degree robbery, N.J.S.A. 2C:15-1, and have concluded that the State's evidence satisfied each. Competent proof was offered through the eye-witness testimony of Linda that Kate committed a theft upon Martha by taking her bracelet, and evidence established that she failed to return it. Further, proofs offered by Martha herself, Linda and Martha's mother established that, in the course of committing the theft, Kate inflicted bodily injury upon Martha, commencing with the blow to her face that felled her and continuing thereafter. As a final matter, there was evidence that, in engaging in the conduct at issue, Kate acted knowingly, as that term has been defined by N.J.S.A. 2C:2-2b(2). See also N.J.S.A. 2C:2-2c(3) (imposing the scienter requirements of N.J.S.A. 2C:2-2b(2) in instances in which the governing statute does not set forth the culpable mental state required). While there was testimony to the contrary, the trial judge found that testimony to be incredible. We defer to that finding, noting that the judge had the "opportunity to hear and see the witnesses and to have the 'feel' of the case," Johnson, supra, 42 N.J. at 161, which we lack.

We are also satisfied that the State met its burden of proof in establishing that Kate committed an aggravated assault upon Martha that, if committed as an adult, would have constituted a violation of N.J.S.A. 2C:12-1b(1). That statutory provision states: b. . . . A person is guilty of aggravated assault if [s]he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]

"Serious bodily injury" is defined in N.J.S.A. 2C:11-1 as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

Although the evidence in this case may have been insufficient to establish that serious bodily injury actually occurred,*fn2 it was sufficient to establish, as the trial judge found, that such injury was attempted to be inflicted by Kate, and that is legally sufficient. State v. Green, 318 N.J. Super. 361, 371 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000). In that regard, there was evidence that Kate and Terry purposely targeted Martha as the victim of their aggression at a time when bad blood still existed between them. Kate knocked Martha to the ground with a blow, and thereafter, continued to inflict blows upon her of sufficient strength to cause Martha to momentarily lose consciousness. Testimony by Martha suggested that the assault continued for a period of five to ten minutes before Sara pulled Kate off of Martha and the attack ended. As the result of the aborted attack, substantial bruising and swelling to Martha occurred. We find this evidence to be sufficient to satisfy the relevant statutory standard. State v. Locurto, 157 N.J. 463, 471 (1999).

III.

Prior to the commencement of trial in this matter, counsel for Terry informed the judge that the State intended to call as a witness the person who had been referred to in Martha's statement to the police as "Beetle." Counsel objected, stating that: "No information was ever given to either defense attorney as far as an address or a name for this person, contact information, whatsoever, much less a proffer as to what she's saying." Counsel for Kate joined in the objection. The prosecutor responded that the witness had been subpoenaed, but had never contacted him. He stated that, prior to trial, he was unsure that the witness would appear, but she had, and he stated that he had no objection to an interview of the witness by defense counsel. The judge indicated that the trial schedule would probably permit such an interview to occur. Trial then commenced with the testimony of the victim, Martha.

At the conclusion of Martha's testimony, the State called as its next witness Linda, the person identified in Martha's report to the police as "Beetle." A further objection was offered by defense counsel, and a colloquy then ensued regarding the State's failure to inform counsel regarding Linda's name and contact information. During it, the following exchange occurred:

[PROSECUTOR:] Your Honor, the State has never obtained any information from this witness. The State has never been able to get a hold of this witness. I didn't have a phone number for her. I've never talked to her. I could not reach her. . . . I asked the . . . victim and her mother if they saw her. They said no. I asked if they reached . out to her --

THE COURT: So you have no idea what she's going to testify to today.

[PROSECUTOR:] I talked to her for two minutes when she, when she walked in here this morning. I have no further information that Defense counsel has.

At that point, the judge offered to permit defense counsel to interview Linda during the lunch break, and that in fact occurred.

On appeal, Kate has construed the prosecutor's statements to the judge, and a later, similar statement in his closing argument as improper attempts to bolster Linda's credibility that constituted prosecutorial misconduct of sufficient magnitude to warrant reversal. We disagree. We do not view the prosecutor's statements prior to Linda's testimony regarding his lack of knowledge as to what Linda would say on the stand to be an attempt to bolster Linda's credibility. In context, they simply suggested that the State and defense counsel were equally ignorant as to the nature of Linda's testimony, and they had no capacity to lead to an unjust verdict under standards set forth in cases such as State v. Harvey, 151 N.J. 117, 216 (1997) and State v. Ramseur, 106 N.J. 123, 322 (1987). The prosecutor's similar statement in closing argument constituted nothing more than the truth.

IV.

Kate argues additionally that the trial judge misapplied the rules of evidence by permitting Martha's mother to testify regarding Martha's statement that she had been jumped by Kate and Terry. The judge admitted this hearsay evidence, determining that it constituted an excited utterance. See N.J.R.E. 803(c)(2). We find no abuse of discretion in this regard. State v. Morton, 155 N.J. 383, 453 (1998) (according deference to a trial judge's evidentiary rulings); State v. Kemp, 195 N.J. 136, 149 (2008) (utilizing abuse of discretion standard in reviewing admission of evidence).

To be admissible as an excited utterance, "[a} statement relating to a startling event" must have been made "while the declarant was under the stress of excitement caused by the event . . . and without opportunity to deliberate or fabricate."

N.J.R.E. 803(c)(2).

To determine whether a statement constitutes an excited utterance, judges are required to evaluate the following factors:

(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement: (2) the circumstances of the event: (3) the mental or physical condition of the declarant; (4) the shock produced; (5) [the] nature of the statement: and (6) whether the statement was made voluntarily or in response to a question. [State v. Buda, 195 N.J. 278, 294 (2008) (quoting Truchan v. Sayreville Bar & Restaurant, 323 N.J. Super. 40, 48-49 (App. Div. 1999)), cert. denied, ___ U.S. ___, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).]

In the present case, the statements made by Martha on her doorstep were uttered immediately after a vicious assault had concluded and she had run the two blocks from the scene of that fight to her home. According to both Martha and Linda, no conversations had occurred between them after Kate, Terry and Sara left the scene. And according to Martha's mother, Martha was in an hysterical and injured state when she accused Kate and Terry of jumping her. Finally, the statements were spontaneously uttered by Martha, not in response to a question. In these circumstances, we perceive no error in their admission pursuant to N.J.R.E. 803(c)(2).

V.

As a final matter, Kate contests her sentence of eighteen months of probation as excessive. We regard that argument as being moot, the sentence now having been served.

Affirmed.


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