July 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD J. HESS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-06-0572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 26, 2012 -
Before Judges Parrillo and Skillman.
A jury found defendant guilty of conspiracy to commit second-degree aggravated assault, in violation of N.J.S.A. 2C:5-2; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); and unlawful possession of a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2). The trial court sentenced defendant to eight-year terms of imprisonment for conspiracy to commit aggravated assault and aggravated assault, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2; three-year terms of imprisonment for third-degree aggravated assault and possession of a weapon for an unlawful purpose; and a one-year term of imprisonment for unlawful possession of a weapon. All of the sentences were made concurrent with each other.
The victim, Kenneth Jackson, was a co-worker of defendant's wife, Donna Hess. Jackson noticed that Donna was in a bad mood the day of the offenses, which was November 30, 2005. While they were sitting in a bar after work, Jackson asked Donna why she was in a bad mood, and Donna said defendant "had been calling her and harassing her all day." Jackson told her to give him the telephone the next time defendant called. When defendant called again about five minutes later, Jackson got on the telephone and told defendant "to stop calling [Donna] and harassing her. Leave her alone." Defendant asked Jackson who he was, and Jackson responded, "This is her new man." Defendant then got very angry and started calling Jackson names, so Jackson hung up the telephone.
Defendant called back a short while later and said he wanted to meet Jackson "in Franklinville somewhere." Jackson refused to meet defendant there, but told him that he was going to Geet's Diner to eat and that defendant could meet him at that location. While Jackson was eating dinner, defendant called and told him that he was "on his way," to which Jackson responded, "Fine[,] I'm here."
After Jackson and Donna finished eating, they went to the front of Geet's. Sometime later, co-defendant Cyndy Attanasio walked up to Jackson and said, "Are we going to do this or what?" and Jackson responded, "Let's go." Jackson followed Attanasio into the Geet's parking lot. A beige truck pulled up behind Jackson, following which a man jumped out and hit him on the head with a claw hammer. Jackson punched his assailant, knocked him down to the ground, and started "beating on him." The assailant then took an open four-inch buck knife out of his pocket and stabbed Jackson multiple times.
Jackson further testified that at some point during his encounter with his assailant, Attanasio stabbed him in the back with a drywall saw.*fn1
After receiving these wounds, Jackson got up from the ground and retreated to the side of the diner where it was lighter and there were other people. Jackson subsequently took his assailant to the ground a second time and was holding down his hands, one of which contained the hammer and the other the knife. At this point, a friend of Jackson's, Thomas Baals, came to his assistance and knocked the hammer and knife out of the assailant's hands. Jackson then let his assailant up from the ground, and the assailant ran away.
Jackson wrote down the license plate number of the car that the assailant got into, and Donna relayed that number to the police. The police later stopped a car with that plate number, being driven by defendant's friend Brian McDowell, in which defendant and Attanasio were riding as passengers.
In addition to Jackson and Baals, the State also presented testimony by Jennifer Golley and Alesa Dill, two patrons of Geet's who observed the end of the altercation between Jackson and defendant, both of whom observed Jackson's assailant exit the Geet's parking lot in a suburban truck.
Neither Jackson, Baals, Golley nor Dill was able to identify defendant as the person who had assaulted Jackson.
The only witness who identified defendant as a participant in an altercation with Jackson was McDowell, a prosecution witness declared hostile by the trial court, who testified, based largely on pretrial statements to the police, that he drove defendant and Attanasio to Geet's at defendant's request and observed Jackson and defendant fighting. However, McDowell's version of the incident was markedly different from that of Jackson and the other eyewitnesses. According to McDowell, Jackson attacked defendant and "beat [him] up." McDowell testified that defendant was not armed during the altercation. In addition, McDowell testified that Donna attacked Attanasio and "beat [her] up." Defendant and Attanasio then got back into his vehicle, and he drove away from the scene.
Based on this evidence, the jury found defendant guilty of all the charged assault and weapons offenses.
On appeal, defendant presents the following arguments:
POINT I: THE JURY INSTRUCTIONS WERE FATALLY FLAWED, IN THAT THEY DID NOT INCLUDE AN INSTRUCTION ON IDENTITY, AND THE INSTRUCTIONS ON AGGRAVATED ASSAULT, CONSPIRACY, AND POSSESSION OF A WEAPON WERE HOPELESSLY CONFUSING, MISLEADING AND ERRONEOUS, THEREBY DEPRIVING [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL. (Partially raised below).
A. The Judge Erred in Failing to Instruct the Jury on Identification Because None of the State's Credible Witnesses had Identified [Defendant] as the Assailant.
B. The Jury was Instructed to Consider a Weapon That was not Pertinent to the Possession of a Weapon Charge, and to Consider a Defense That was not in Issue.
C. The Jury Instructions on Aggravated Assault[,] Serious Bodily Injury, Aggravated Assault-Significant Bodily Injury and Aggravated Assault With a Deadly Weapon Were Erroneous and Hopelessly Confusing.
D. The Judge's Attempt to Correct the Numerous Errors was Ineffective and Further Confounded the Jury.
POINT II: TESTIMONY THAT [DEFENDANT] HAD OUTSTANDING WARRANTS AND THAT HE HAD BEEN HARASSING HIS ESTRANGED WIFE WAS INADMISSIBLE UNDER N.J.R.E. 404(b). (Not Raised Below).
POINT III: [DEFENDANT'S] SENTENCE OF EIGHT YEARS IMPRISONMENT SUBJECT TO NERA IS MANIFESTLY EXCESSIVE, AND THE TRIAL COURT FAILED TO ORDER THE REQUISITE MERGER OF OFFENSES.
A. The Sentencing Judge Inappropriately Found and Weighed Aggravating and Mitigating Factors.
B. The Trial Court Erred in Failing to Merge the Conspiracy, Third-Degree Aggravated Assault and Possession of a Weapon For an Unlawful Purpose Convictions Into the Second-Degree Aggravated Assault Conviction.
We reject these arguments, except the argument that the trial court should have merged defendant's convictions for conspiracy, possession of a weapon for unlawful purpose and aggravated assault with a deadly weapon into his conviction for aggravated assault, and affirm defendant's other convictions and sentence.
Defendant's most substantial argument is that the trial court committed plain error in failing to give the jury a special instruction regarding identification evidence.
Defense counsel argued in his summation that Jackson, Baals, Golley and Dill (and the State's other witnesses, except for McDowell) had testified truthfully, but emphasized that none of them had been able to identify defendant as the person who assaulted Jackson:
. . . If you'll listen carefully to the credible testimony in this case, and I say credible testimony, if you listen carefully to that testimony, you'll notice one common thread throughout this trial. And, that common thread throughout the trial is that not one of the State's credible witnesses ever identified this gentleman right here, my client, right here, [defendant]; not one person said that he was there when this incident occurred. Not one person identified him as being at the scene when this event occurred; not one of the credible witnesses.
Defense counsel acknowledged that McDowell had identified defendant as the other participant in the altercation with Jackson, even though his version of the incident was markedly different from that of the other witnesses, but argued that McDowell was a self-interested witness whose testimony was incredible:
Now, you might recall when I started my summation, I indicated that you heard from 13 witnesses in this trial, 12 of whom were absolutely credible witnesses. The 13th witness, the witness that [the prosecutor] wants you to rely on to convict [defendant], was the most incredible witness in this entire trial. And, that was Brian McDowell.
You saw Brian McDowell take the stand. Brian McDowell's testimony was self-serving and self-preserving. He took the stand and he was the only person in this trial with anything to gain and with everything to lose. When he took the stand, he was given immunity by the State. He was allowed to testify and say basically anything he wanted.
His testimony in this case -- his testimony has zero credibility -- zero. And, I submit to you, ladies and gentlemen, that you should give it exactly that, zero credibility. What that gentleman said on the stand is completely worthless.
Thus, the thesis of defense counsel's summation was that the State had not presented credible evidence that defendant was the person who committed the assault upon Jackson.*fn2
In State v. Green, 86 N.J. 281, 291-93 (1981), the Court held that upon request of the defendant, a trial court must give the jury a special instruction regarding its consideration of evidence identifying the defendant as the perpetrator of the charged offense.
In State v. Davis, 363 N.J. Super. 556, 559-62 (App. Div. 2003), we held that it was plain error for a trial court not to give the jury a special instruction regarding its consideration of identification evidence even though defendant had not requested such an instruction. We acknowledged that the State had a "strong case" against defendant for selling drugs to an undercover DEA officer because a "local detective who served as a backup to the DEA officer drove by the sale location shortly after the drugs were sold and recognized defendant, whom he had known previously." Id. at 560. We also acknowledged that "defendant did not specifically request a charge on identification." Ibid. Nevertheless, we concluded that the trial court's failure to give such an instruction sua sponte constituted plain error requiring a reversal. Id. at 561-62. In reaching this conclusion, we stated:
[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue. The failure to give such a charge or to give an adequate charge is most often reversible error. While in some instances it may not be necessary to present an extended charge on identification, nevertheless, the complete absence of any reference to identification as an issue or as an essential element of the State's case is improper. That is the situation in the present case. Although the trial court gave general instructions on such things as credibility and the elements of the crimes charged, there was no specific instruction on the State's burden to prove identification beyond a reasonable doubt. The defense's claim of misidentification, although thin, was not specious. A jury is at liberty to reject a meritless defense, but trial courts are not at liberty to withhold an instruction, particularly when that instruction addresses the sole basis for defendant's claim of innocence and it goes to an essential element of the State's case. [Id. at 561-62 (citations omitted).]
In State v. Cotto, 182 N.J. 316, 325-26 (2005), the Court adopted our view, as expressed in Davis, of the need for a special instruction regarding identification, even when not requested by the defense, stating:
When identification is a "key issue" the trial court must instruct the jury on identification, even if defendant does not make that request. Identification becomes a key issue when "[i]t [is] the major . . . thrust of the defense[.] . . ."
Failure to issue the instruction may constitute plain error. The determination of plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing.
Thus, the Appellate Division . . . held that the State may sometimes present such overwhelming corroborative evidence that the "failure to give an identification instruction does not constitute error," but such cases are the exception. Rather, the trial court is required to issue a "specific instruction" even when defendant's misidentification argument is "thin." [Citations omitted.]
In State v. Gaines, 377 N.J. Super. 612, 624-27 (App.
Div.), certif. denied, 185 N.J. 264 (2005), we relied on Cotto in concluding that even though the trial court had failed to give the jury a special identification instruction, that error was not plain error requiring a reversal of the defendant's conviction because the State presented strong corroboration of its identification evidence. Id. at 625.
In this case, as indicated by the previously quoted passages from defense counsel's summation, "the major . . . thrust of the defense" was identification, id. at 325, that is, that neither the victim, Jackson, the friend who came to assist him, Baals, nor the two patrons of Geet's who observed the end of the assault, Golley and Dill, could identify Jackson's assailant and that McDowell was not a credible witness. Consequently, the trial court should have given an identification instruction even though it was not requested by defense counsel. However, the court failed to give the jury any form of identification instruction. The question is whether, notwithstanding the trial court's failure to give the jury such an instruction, there was sufficiently strong corroboration of McDowell's identification of defendant as a participant in the altercation with Jackson, albeit a very different form of altercation than the one described by the State's other witnesses, that the omission of this instruction did not rise to the level of plain error.
Even if McDowell's testimony were discredited, the State presented strong evidence that defendant was the person who committed the assault upon Jackson. Jackson, Baals, Golley and Dill all testified that the assailant left the parking lot in the vehicle subsequently identified as McDowell's vehicle.
Golley immediately called the police and provided them with the license plate number of that vehicle. A short while later, the police apprehended defendant, Attanasio and McDowell in the vehicle with that license plate number. In addition, Jackson testified that before he went to Geet's he spoke to a person identified as Donna's husband, that is, defendant, exchanged angry words with him, and arranged to meet him at Geet's. Moreover, in a statement given to the police shortly after his apprehension, defendant admitted he had asked McDowell to drive him to Geet's after "he was contacted by a male on Donna Hess's cell phone" because he did not want his own vehicle to be seen. Therefore, we conclude, as the Court did in Cotto, that "the strength and quality of the State's corroborative evidence rendered harmless" the trial court's failure to give any form of identification instruction "and precludes a finding of plain error." 182 N.J. at 327.
Defendant's other arguments, except for his argument regarding the merger of his convictions, are clearly without merit and only require brief discussion. R. 2:11-3(e)(2).
Defendant argues that the court's instructions regarding the charges of possession of a weapon for an unlawful purpose and third-degree aggravated assault with a deadly weapon were erroneous in certain respects and confusing in others. However, as the State properly concedes, those convictions should have been merged into defendant's conviction for second-degree aggravated assault. Therefore, those convictions will be vacated, and there is thus no need to consider the adequacy of the jury instructions relating to possession of a weapon for an unlawful purpose and aggravated assault with a deadly weapon. See State v. Pennington, 273 N.J. Super. 289, 295-96 (App. Div.), certif. denied, 137 N.J. 313 (1994).
Insofar as defendant's argument is directed at the court's instructions regarding second-degree aggravated assault, we are satisfied that the court adequately explained the elements of that offense.
Defendant also argues that a new trial is required because the trial court allowed the jury to hear two kinds of "other crimes or wrongs" evidence that is inadmissible under N.J.R.E. 404(b).
First, defendant claims that Jackson's testimony that Donna told him defendant was making harassing telephone calls to her was inadmissible under this rule. However, this evidence was not admitted to establish "the disposition [of defendant]" to make harassing telephone calls, N.J.R.E. 404(b), but rather for the purpose of showing the circumstances under which Jackson first communicated with defendant -- that is, telling Donna to give him the telephone the next time defendant called -- which resulted in a verbal altercation between the two men and their both going to Geet's, where the assault occurred. Consequently, this evidence did not fall within the ambit of N.J.R.E. 404(b).
Second, defendant claims that Jackson's testimony that defendant initially told him he could not meet him at Geet's because he had outstanding warrants against him was inadmissible under N.J.R.E. 404(b). However, this testimony was elicited during defense counsel's cross-examination. Moreover, Jackson's reference to defendant's other warrants was fleeting, and defense counsel did not seek a mistrial or request any form of curative instruction. Under these circumstances, this testimony was not sufficiently prejudicial to require a new trial. See State v. Yough, 208 N.J. 385, 397-98 (2011).
In addition, defendant argues that the trial court inappropriately found aggravating and mitigating sentencing factors and that the sentence imposed upon defendant was manifestly excessive. However, we are satisfied, in light of the aggravated nature of the assault and the very serious injuries inflicted upon the victim, that the sentence did not constitute an abuse of discretion. See State v. Kromphold, 162 N.J. 345, 358 (2000). We also note that the trial court identified hardship to defendant's twelve-year-old son, who lived with defendant, as an applicable mitigating factor, but gave that factor limited weight in light of the applicable aggravating factors. Compare State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1992).
Finally, the State properly concedes that the trial court should have merged defendant's convictions for conspiracy, possession of a weapon for an unlawful purpose and aggravated assault with a deadly weapon into his conviction for second-degree aggravated assault.
Accordingly, we vacate defendant's convictions for those offenses on the basis of merger and remand to the trial court for entry of an amended judgment of conviction that reflects those mergers. We affirm the judgment of conviction in all other respects.