June 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IN-GRID VANESSA BAPTISTA, A/K/A IN-GRID BATISTA, A/K/A VANESSA BATISTA, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, XIV; N.J. CONST. ART. I, [¶] 10.
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We have considered the points raised in light of the record and applicable legal principles. Defendant's claims that trial counsel was ineffective for failing to object to the prosecutor's summation and failing to seek a mistrial or curative instruction are more appropriate for post-conviction review. Accordingly, this argument shall abide post-conviction review.
We further note the State concedes a remand is appropriate to correct the Judgment of Conviction (JOC) to reflect defendant received a three-year concurrent prison sentence on Count Four rather than a one-year custodial term. We will only address defendant's first argument, having determined his other arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
During summation, the prosecutor made the following comment:
Vanessa Batista. She got her chance to get on the stand today. What did she have to say? She ran away[.] [Y]et[,] she didn't call 911. She was told -- someone told her that they called 911. Yet Chantise Scott called 911. She's a victim[.]
[S]elf-defense[.] [W]hy not call the police and tell them what happened? She did not file a complaint against Nikita at any time, never. If what she says is true[,] why didn't she file a complaint, which is her right to do, against Nikita, Ayesha and Chantise? That is her right.
You heard from Officer Pavonis[, who] testified. You saw Officer Pavonis. The State would argue there is no more credible witness than Officer Pavonis. He's the first officer arriving on the scene, who gets on the scene, the first one assigned to the . . . apartment, Apartment 8D. He says the defendant comes out of the bedroom, she looks anxious. And I thought this was a very good way to describe the defendant's demeanor at that time, and I think it is so important to remember that. She looked angry. She was pissed. She wasn't crying.
She was pissed off. And that's why she slashed Nikita. She was angry. She wasn't crying, she wasn't sad, she wasn't -- He never said anything to her about claiming self-defense. She said one thing -- I had a fight and I cut her. That's all she told Officer Pavonis. You heard that right there on that witness stand.
Defendant raised no objection to this statement. Thus, we review the offending comments under the plain error standard, namely, whether the error was one capable of producing an unjust result. R. 2:10-2. An error capable of producing an unjust result is not simply any error but one of sufficient magnitude "to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (citations and internal quotations omitted). Measured under this standard, we conclude that contrary to defendant's argument, the prosecutor's comments did not impermissibly violate defendant's fundamental right to remain silent espoused in Muhammad, supra, and State v. Deatore, 70 N.J. 100 (1976), upon which defendant relies.
In Deatore, supra, the Court held that it was error to elicit testimony on cross-examination that the defendant failed to provide alibi information to the police when the defendant had the first opportunity to do so. 70 N.J. at 115-116. In Muhammad, supra, the Court similarly held the prosecutor's argument to the jury and answers elicited from State witnesses as to the defendant's failure to relay his exculpatory account to the police "at or near" the time of arrest was an impermissible comment on the defendant's silence, in violation of his right against self-incrimination. 182 N.J. at 573-74.
Here, the prosecutor's comments were not presented as substantive evidence of guilt but were used for impeachment purposes. Id. at 574 n.8. Because defendant testified, the prosecutor was permitted to attack her credibility by highlighting inconsistencies, including her silence. State v. Brown, 190 N.J. 144, 158 (2007).
In Brown, supra, the defendant was apprehended ten months after being charged with striking the victim with a beer bottle and stealing the victim's money. Id. at 148. At trial, the defendant claimed he acted in self-defense. Id. at 149-50. During its case-in-chief, the State elicited testimony from a detective that defendant never contacted police or filed charges against the victim. Id. at 150. On cross-examination, the prosecutor asked the defendant whether he had contacted police or signed a complaint against the victim. Id. at 151. In addition, the prosecutor argued, in closing, that the defendant's version lacked credibility. Ibid.
Although finding the trial court erred in permitting the State to elicit testimony regarding the defendant's pre-arrest silence during its case-in-chief, the Court held the error did not rise to the level of plain error because the line of questioning would have been proper on cross-examination for impeachment purposes. Id. at 159-60. The Court provided specific guidance on the conditions under which eliciting such testimony is entirely appropriate. Id. at 158. Specifically, the State may attempt to impeach a defendant using pre-arrest silence or conduct (1) after a defendant testifies, (2) where the objective circumstances demonstrate that a reasonable person in the same situation would have acted differently; and (3) when there is no governmental compulsion associated with the defendant's pre-arrest silence or conduct. Ibid.
In the present matter, the prosecutor's conduct comported with the requirements outlined in Brown, supra, in all respects. First, the issue of defendant's pre-arrest silence and conduct following the incident was introduced by the State after defendant's direct examination. Ibid. Next, given defendant's version of the incident, it is reasonable to objectively conclude that a "reasonable person in the same situation would have acted differently." Ibid. Finally, there was no evidence that law enforcement officers in any way compelled defendant's pre-arrest silence or conduct. Ibid. Indeed, during her direct examination, defendant testified she told officers, at the time of her arrest, that she acted in self-defense. During summation, the prosecutor's comments on the evidence, for impeachment purposes, was fair comment.
Turning to the sentence imposed, we are satisfied the court appropriately considered aggravating and mitigating factors in imposing the three-and-one-half-year custodial sentence. Notably, the court sentenced defendant one degree lower, as a third-degree offender, and imposed a custodial sentence at the lower range of the three-to-five-year term for a third-degree offense. N.J.S.A. 2C:43-6(3); N.J.S.A. 2C:44-1f(2). Nonetheless, we agree that we must remand to the trial court to enter an amended JOC as to Count Four. The JOC reflects a one-year concurrent sentence imposed on the weapons offense. However, the transcript of the sentence states defendant was sentenced to a three-year concurrent custodial term for the weapons offense. The oral record controls. State v. Walker, 322 N.J. Super. 535, 556 (App. Div. 1999) (citing State v. Pohlable, 40 N.J. Super. 416, 423 (App. Div. 1956)), certif. denied, 162 N.J. 487 (1999).
We affirm the conviction and sentence imposed, and we remand for correction of the JOC consistent with this opinion. We do not retain jurisdiction.