January 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PONTELL C. BRYANT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-12-1389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued December 15, 2011
Before Judges Messano and Yannotti.
Following a jury trial, defendant Pontell C. Bryant was convicted of fourth-degree aggravated assault by throwing bodily fluid at certain law enforcement officers, N.J.S.A. 2C:12-13, and sentenced to eighteen months in prison with a nine-month period of parole ineligibility. Defendant raises the following issues on appeal:
THE DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS IN DENYING HIS REQUEST FOR A CONTINUANCE TO PRODUCE DEFENSE WITNESS MR. WESLEY BETHANY FOR TESTIMONY AT TRIAL
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION We have considered these arguments in light of the record and applicable legal standards. We affirm.
We briefly recite the substantial evidence of defendant's guilt adduced at trial.
On September 27, 2008, defendant was an inmate at the Albert C. Wagner Youth Correctional Facility, where he was assigned to work in the kitchen daily between the hours of 8:00 a.m. and 10:00 a.m. Sergeant Brian Darcy discovered defendant in the area of the kitchen before his shift began and ordered him to return to his wing. Defendant left the immediate area but was soon discovered in a stairwell of the facility. Darcy decided to initiate disciplinary action against defendant and handcuffed him with the assistance of Officer Ronnie Livingston.
In accordance with institutional procedures, Livingston and two other officers took defendant to the medical wing of the facility where he was evaluated and cleared to be taken to detention. As the officers escorted defendant to the detention area, he was able to loosen their grip on his arms. Defendant ran toward Darcy, who was standing at a podium, and spat in his face. Darcy, Livingston, and a third officer, Tracy Generals, all testified to these events.
Defendant and his grandmother, Paulette Bryant, testified as defense witnesses. Defendant admitted arriving at work early, not returning to his cell as Darcy commanded and waiting, instead, in the stairwell. He claimed that when he slowed down to speak to Darcy at the podium, the other officers immediately slammed him to the floor. He denied spitting on Darcy.
Paulette Bryant testified to a conversation she had with Livingston in a local Home Depot store. Livingston told her defendant was a "big guy," that Livingston was only trying to "shield him," and that "nothing [was] going to happen to" her grandson. All the testimony was completed within the first day of trial on Thursday, March 11, 2010, before Judge Jeanne T. Covert.
Defendant intended to call a third witness, Wesley Bethany, the since-retired civilian supervisor of the kitchen at the prison, and had served him with a subpoena on March 3. Defense counsel indicated at sidebar that Bethany was unavailable because "[h]is wife had surgery yesterday," but he would be available on Tuesday, March 16. Judge Covert dismissed the jury with instructions to return on that day and then considered the prosecutor's objection to Bethany's testimony.
Defense counsel had served the prosecutor with an investigative report as to Bethany's expected testimony which clearly indicated that Bethany had not witnessed the spitting incident. Defense counsel clarified the proffer by noting that Bethany and Darcy had a prior confrontation involving defendant's work in the kitchen, and that Bethany believed Darcy was "interfering with the kitchen." Counsel continued, [Bethany is] being called for the purpose of establishing the fact that Mr. Bryant works in the kitchen, that it was a habit of Mr. Bryant to come early, it was never a problem for him to come early, and then to rebut testimony of Sergeant Darcy about problems that had taken place.
Judge Covert concluded Bethany was "not an objectionable witness per se. The parameters have to be tightly observed. . . . [H]e can't testify about what anybody else thinks or feels."
When the trial reconvened on the morning of March 16, defense counsel explained that Bethany had called the day before and advised he would be unable to come to court. Defense counsel acknowledged that the "[c]court had bent over backward to accommodate [Bethany]," but the witness said that "he was not coming and . . . we could send the sheriff's officers for him because he was not going to appear."
The trial transcript reflects a series of recesses, after which the judge set forth all she had done to compel Bethany's appearance. Judge Covert then asked, "Is there anything from either attorney before we proceed any further? I think that's pretty much all I can do at this juncture." Defense counsel asked that Bethany be held in contempt, but made no other request.
Judge Covert conducted a charge conference, the prosecutor and defense counsel gave their summations, and the judge charged the jury. After deliberating for most of the day, and asking for read back and posing a number of questions, the jury returned its guilty verdict early in the morning of March 17.
Defendant's motion for a new trial was supported by the certification of defense counsel setting forth the events regarding Bethany's failure to appear. Counsel certified that he "requested a continuance" when the officers could not locate Bethany, but the judge "denied our request to delay the trial and entered an [o]rder of [c]ontempt." Citing State v. Garcia, 195 N.J. 192 (2008), defendant argued that the judge abused her discretion in denying an adjournment to compel Bethany's appearance.
In an oral decision, Judge Covert reviewed the procedural history set forth above. She noted that on the morning of March 16, after advising the attorneys of the unsuccessful efforts of the Sheriff and police officers, she "made the decision to carry on with the trial." However, the judge "contest[ed]" whether "a request for a further continuance was made" by defense counsel, noting she did not "have the record." Nevertheless, finding that to be immaterial, Judge Covert considered the merits of defendant's motion for a new trial.
Judge Covert stated:
While the law outlined in Garcia is certainly applicable to the present case, the facts are significantly distinguishable. In . . . Bryant's case defense counsel did subpoena . . . Bethany on March 3rd[,] . . . notwithstanding the Court did allow a continuance to accommodate . . . Bethany's presence. The trial was adjourned a number of days to give . . . Bethany a convenient opportunity to testify. . . . [R]ecognizing that the State was objecting to this all along, . . . the Court allowed the adjournment.
When . . . Bethany failed to appear, the Court personally called him. The Court produced an order compelling . . . Bethany to testify or he would be held in contempt. And the Court sent out law enforcement officers to bring . . . Bethany to court. Law enforcement officers did attempt to bring . . . Bethany to court and still he refused. Short of breaking down . . . Bethany's door and shackling the elderly and retired gentleman and leaving his very ill and elderly wife alone in the process, the Court took every reasonable measure to bring the reluctant . . . Bethany to court to allegedly testify on . . . defendant's behalf . . . .
This in direct contrast to the measures taken in Garcia[,] where the trial court did nothing to assist the defendant in obtaining his witness and instead directly stated that it was putting the entire burden on the defendant. Additionally[,] the witness in Garcia was in jail and thus the Court had the complete control over producing him at trial. Further the Court in Garcia noted that there has to be some balance between the right to compulsory process and the effective administration of a criminal trial. This Court struck that balance through the actions it took and it was not reasonable to delay the trial any further when it became obvious that . . . Bethany had no intention of testifying on behalf of the defendant.
A new trial is additionally unwarranted because the proffer as to . . . Bethany's testimony did not contain any information that would have been relevant and admissible at trial . . . . [T]he Court in Garcia noted that the right to compulsory process is limited in a number of ways, one of which is that the defendant does not have the right to call witnesses who offer irrelevant testimony . . . .. . . .
Even if . . . Bethany had testified in accordance with the proffer such testimony would have been completely irrelevant. The proffer does not include information that . . . Bethany was in the kitchen on the day of the incident or saw anything that took place. Further such testimony would not be an attack on . . . Darcy's credibility . .. since all it shows is that . . . Darcy and . . . Bethany had a disagreement about the workings of the kitchen staff.
After denying the motion for a new trial, Judge Covert sentenced defendant. She found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the possibility that defendant would commit another offense), based upon defendant's "extensive history" that included thirty-three juvenile and forty-four adult arrests, thirteen municipal court convictions and six indictable convictions. Judge Covert also found aggravating factor six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and seriousness of offenses for which he had been convicted), noting his prior convictions for "eluding," "possession of CDS within a school zone," and "aggravated assault." Lastly, the judge found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence), and no mitigating factors, N.J.S.A. 2C:44-1(b). She imposed the sentence we referenced above.
Defendant argues that Judge Covert abused her discretion in denying "defense counsel's request for additional time to produce" Bethany. We reject this argument and affirm substantially for the reasons set forth in Judge Covert's oral opinion. We add only the following brief comments.
"Criminal defendants possess not only the right to call witnesses, but also the right to the government's assistance in compelling the attendance of favorable witnesses at trial." Garcia, supra, 195 N.J. at 202 (citation and internal quotation marks omitted). "The right to compulsory process, however, is not absolute, and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Ibid. (citation and internal quotation marks omitted). "Our courts must strike a fair and careful balance between honoring the constitutional right to compulsory process, which is integral to ensuring a fair trial, and the interest in the effective administration of a criminal trial." Id. at 203.
In Garcia, the Court was unable to ascertain the proffered testimony from the absentee witness, id. at 206, but noted that "[t]he key question is whether [the witness's] testimony would have proven favorable to defendant." Ibid. However, the Court additionally said, "a defendant does not have a right to call a witness who will offer irrelevant testimony." Id. at 203.
In this case, Judge Covert correctly recalled that defense counsel never sought another continuance on the morning of March 16, and defendant did not object when the judge said she intended to continue with the trial. Defense counsel asked that Bethany be held in contempt, and the judge agreed to do so. Moreover, the judge accommodated defendant's request to adjourn the trial from Thursday to the following Tuesday to accommodate Bethany's personal schedule. The jurors were dismissed and instructed to return the following week. In doing so, we believe the judge "str[uck] a fair and careful balance between honoring the constitutional right to compulsory process . . . and the interest in the effective administration of a criminal trial." Id. at 203. She was not required to do more.
Additionally, Judge Covert determined the proffered testimony from Bethany was irrelevant. "Our standard of review requires us to give 'substantial deference to a trial [judge's] evidentiary rulings.'" State v. Goodman, 415 N.J. Super. 210, 224 (App. Div. 2010) (quoting State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)), certif. denied, 205 N.J. 78 (2011).
We agree with Judge Covert that had Bethany testified, he would have provided no information regarding the events of the day in question. At best, Bethany would have described defendant's habit of regularly reporting early for work, something that violated the facility's rules and procedures, and that Bethany and Darcy had previously discussed the situation.
We assume the inference defendant would have urged was that Darcy held a grudge toward him. However, defendant was not asked about this when he testified, and Darcy could not recall having had any discussion with Bethany regarding the kitchen workers. The testimony would not have rebutted the substantial testimony regarding defendant's conduct. In short, Bethany's testimony "would not have advanced any viable defense," and any error that resulted by his absence from the trial was "harmless beyond a reasonable doubt." Garcia, supra, 195 N.J. at 207 (citation and internal quotation marks omitted). We affirm defendant's conviction.
Defendant also contends his sentence was excessive. We find this argument to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
We only note that our review of the trial judge's sentence is limited. An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Id. at 608; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Judge Covert clearly followed the appropriate sentencing guidelines, and defendant's sentence was not excessive.
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