On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-10-0884 and 08-01-0005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Axelrad and Sapp-Peterson.
Following a jury trial, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count One), two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and (7) (Counts Two and Three), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Four). After finding one aggravating factor, the need to deter, N.J.S.A. 2C:44-1a(9), and four mitigating factors, the court sentenced defendant, on the second-degree aggravated assault conviction, as a third-degree offender, and imposed an aggregate custodial sentence of three and one-half years. Although raising other errors, the crux of defendant's appeal surrounds the prosecutor's comments during summation relating to her pre-arrest silence. Relying upon State v. Muhammad, 182 N.J. 551 (2005), defendant claims her Fifth Amendment privilege against self-incrimination was violated when the prosecutor commented on her pre-arrest silence. We are not persuaded by defendant's arguments.
The evidence at trial revealed defendant was involved in a fist fight with Nekeda*fn1 Gilchrist. The fight escalated, and defendant stabbed and slashed Gilchrist with a box cutter, causing stab wounds on "the base of the right neck[,]" a second stab wound that extended from the "sternal notch . . . across the breast bone . . . to the right breast," and a third stab wound "underneath the armpit." Defendant testified she acted in self-defense, claiming she had been jumped by Gilchrist and two others, and while she was "on the ground[,]" she "heard something fall" and make a "clin[k]" sound. She then heard one of her attackers say "cut that bitch." Defendant subsequently picked up the object that had fallen, "closed [her] eyes and . . . swung it[,]" striking Gilchrist. That object turned out to be a box cutter.
On direct examination, Gilchrist admitted that she had thrown the first punch, striking defendant "like around two times" and claimed she was "getting the better of [the] fight." Gilchrist testified further that she "didn't think nothing else was going to happen" and the next thing she knew, she "was cut[.]" Shantice*fn2 Scott, called as a witness on behalf of the State, testified that she and Gilchrist are best friends and that on July 31, 2007, she observed Gilchrist punch defendant twice. Aisha*fn3 Herbert, another witness called by the State, also testified that she and Gilchrist are best friends and that she observed Gilchrist punching defendant "[t]wo to three times." Detective Scott Pevonis testified on direct examination that when he encountered defendant shortly after the incident, she "blurted out that she was involved . . . in a fight . . . and that she cut someone." However, on cross-examination, Pevonis conceded that this statement did not appear in any report filed at the time of the incident either by him or his partner.
On appeal, defendant raises the following points for our consideration:
COMMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO . . . DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HER. (NOT RAISED BELOW).
DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A DIRECTED VERDICT.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HER BY THE U.S. CONST., AMENDS. VI, ...