On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-07-1164.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Baxter and Nugent.
Following a four day trial in January 2008, a jury convicted defendant Lamont Grant of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); disorderly persons simple assault, N.J.S.A. 2C:12-1a(1); third-degree possession of a weapon, a glass, for an unlawful purpose, N.J.S.A. 2C:39-4d; and harassment, N.J.S.A. 2C:33-4b. For those offenses defendant was sentenced to an aggregate prison term of five years with twoand-one-half years of parole ineligibility. He appeals from the judgment of conviction, arguing, among other issues, that the admission of evidence of his past criminal conduct was plain error and requires a new trial.
We conclude that the victims' testimonial statements concerning defendant's long record, violent history, and prior bad acts, admitted without a hearing and with no limiting or curative instruction, was plain error. We reverse.
We derive the facts from the trial testimony of the two victims.*fn1 According to April Jackson, she had shared a romantic relationship with defendant for approximately eight months in 2005, and "maintain[ed] contact" with him after the romantic relationship ended. In February 2007, after Jackson signed a contract to purchase a home at a foreclosure sale, defendant threatened to break out the windows with a sledge hammer the day before the scheduled closing if she did not sign a paper saying that he was a one-half owner of the property. Jackson apparently closed on the house without incident, but it needed considerable work before she could occupy it, so in February 2007 she paid defendant $6,000 to repair it and make it livable for her, her daughter, and her three sons.
Jackson and her children moved in on March 1, 2007. On April 8, 2007, at approximately 1:00 a.m. or 2:00 a.m., defendant appeared at Jackson's home to wash laundry. Approximately four hours later, they became embroiled in an argument that escalated into a physical altercation.
Jackson testified that defendant precipitated the argument when he found the contract she had signed when she purchased the house. He insisted that he was a partial owner. As the argument escalated, defendant entered Jackson's bedroom and grabbed from her desktop personal documents, including social security cards and birth certificates. As he began tearing some of the documents, he said that if he could not have partial ownership of the house he would destroy Jackson's entire life, burn down her house and her parents' house, and blow up her car and her son's car.
When Jackson attempted to grab the papers from defendant, the argument became physical. Defendant, "look[ing] very angry," cursed at her and backed her into the corner of her bedroom. Jackson testified, without objection, that she was afraid "[b]ecause [she] had been slapped around a lot before."
She told defendant that he had to stay away from her and she put up her finger, gesturing for him to stop. Defendant grabbed her finger and broke it, Jackson screamed, and defendant left the room. Jackson shut and locked the door.
After leaving Jackson's room, defendant pulled a fire extinguisher from its mount on a hallway wall and began smashing things. He shattered a new lighting fixture in the hall, smashed the door to Jackson's bedroom, entered, and then began striking a ceiling fan. Defendant threatened to push Jackson "right out of this f---ing window." She jumped across the bed and attempted to flee, but he struck her in the jaw, causing her to fall back on the bed. She kicked at him, fled from the bedroom, grabbed her purse and cell-phone from the hallway, and put them in her eleven-year-old son's bedroom.
Jackson re-entered the hallway where defendant was standing with the fire extinguisher. When her twenty-year-old son, Christopher, ran between her and defendant yelling "no, no," defendant pushed her down and attacked her son.
Defendant entered Christopher's room, pushed him against a window, then struck Christopher in the head with a glass dessert dish that had been on Christopher's desk, causing a gash in Christopher's head that required seven stitches. When defendant struck Christopher in the head, the dessert dish broke. Using a broken piece of the glass dish, defendant attempted to stab Christopher in the jugular vein, and then stabbed Christopher in his side, causing a cut that resulted in a scar.
Christopher managed to free himself, and he ran from the house. Defendant followed, telling Jackson, "I'm going to finish him off." Defendant then drove away in his van, but before leaving, told Jackson that he would not live without her, would return, and would kill her and then kill himself.
Shortly after defendant drove away the police and an ambulance arrived, and the ambulance attendants transported Christopher to a hospital. Jackson called her parents who took her other children to their home.
Jackson identified photographs of the bruising that resulted from defendant beating her, the damage that defendant caused with the fire extinguisher, and the injuries to her son.
During cross-examination, Jackson conceded, among other things, that she had slept with defendant the night before he assaulted her, that the living room furniture in her home belonged to him, and that defendant frequently came to the house and interacted with her children. When defense counsel asked Jackson when her dating relationship with defendant had ended, she replied, "The day he tried to strangle me and kill me."
Defense counsel did not object and the court gave no curative instruction.
When cross-examining Jackson about the assault, defense counsel asked, "At no point, did Mr. Grant choke you, did he?" Jackson responded, "Not this time. The last time he tried to kill me." Defense counsel did not object and the court did not give a curative instruction. Later, after Jackson stated that she could not recall if she punched and kicked defendant, defense counsel asked, "So you don't know whether you kicked him or you punched him?" Jackson responded, "I don't know what I did honestly. All I know was my child was being attacked by someone with a long record, and ...