July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT GRANT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 a very violent past. And I was trying to protect my family. That's it." Defense counsel did not object and the court gave no curative instruction.
The testimony of Jackson's son, Christopher, varied somewhat from the testimony given by his mother. Christopher had been sleeping and "awoke to yelling." When he opened his door he saw defendant with stacks of papers in his hands, some torn, and some "still together." His mother was asking defendant to return the papers, but defendant kept saying something about a contract. The argument continued for approximately one-half hour to forty-five minutes, and then, as Jackson grabbed some of the papers from defendant, defendant "went straight for the papers" and hit Jackson in the face. She retreated to her room, and defendant grabbed a fire extinguisher, removed the pin, and threatened to spray Jackson. Christopher intervened, told defendant and his mother to stop, and led his mother into her room, where she closed and locked the door.
Defendant cursed at Jackson and insisted that she open the door. When she refused, he used the fire extinguisher first to smash a light fixture in the hallway, and then to beat on the door handle and door until "the doorsill actually cracked."
After breaking the bedroom door, defendant entered and began hitting the ceiling fan with the fire extinguisher, breaking a light bulb inside of the fan. Defendant grabbed other papers from the desk in Jackson's bedroom and went downstairs. Christopher returned to his room. Shortly thereafter, he heard footsteps on the stairs. When he opened his bedroom door, he saw defendant with his hands around his mother's neck, trying to choke her. Attempting to protect his mother, Christopher punched defendant in the jaw or neck. Defendant then went after Christopher, yelling, "I'll f---ing kill you."
While describing defendant's conduct, Christopher testified that "[h]e's made threats towards me before." Defense counsel objected and the court sustained the objection. Thereafter, Christopher explained that his mother grabbed defendant. Defendant pulled away from her, lost his balance, and ended up on Christopher's bed. Christopher found an empty Snapple bottle and began "banging on" defendant until the Snapple bottle came out of his hand. Christopher tried to hold the defendant, but they ended up on Christopher's desk, where defendant found a dessert glass that he used to hit Christopher in the back of the head. The glass broke and defendant tried to stab Christopher in the neck. Defendant next used the broken dessert dish to strike Christopher in the back. While doing so, defendant threatened to kill him.
Christopher's mother jumped on defendant's back, and Christopher ran out of the house and into his neighbor's home across the street. He peered through his neighbor's door and watched as defendant came out of Jackson's home, still holding the broken dessert dish, and yelled to Christopher's mother, "I'm going to finish this motherfucker off."
After defendant drove away, the police arrived, an ambulance came, and attendants placed Christopher in the ambulance and transported him to a hospital where he received seven stitches to close the gash in his head.
On cross-examination, Christopher acknowledged that when he first opened his bedroom door and saw his mother arguing with defendant, defendant was trying to keep her away from the papers in his hand, and was saying to her, "Stay away from me." Christopher also acknowledged that when defendant grabbed the fire extinguisher and threatened to spray Christopher, defendant said, "I'm going to spray you[,] . . . get away from me." The fire extinguisher was small, approximately one foot high and approximately three to four inches in diameter.
Christopher also acknowledged that the first physical contact between him and defendant occurred when Christopher punched defendant; that Christopher's mother was holding defendant when Christopher began hitting defendant with the Snapple bottle; and that his mother scratched defendant. Lastly, Christopher conceded that defendant's head was down, buried in Christopher's stomach, when defendant grabbed the dessert dish and began striking Christopher. Defendant could not see "where he was going to hit [Christopher] with the glass."
In addition to the testimony of Jackson and her son, the State presented the testimony of two law enforcement officers who observed the condition of Jackson's house and the injuries sustained by Jackson and Christopher.
A Middlesex County grand jury charged defendant with: second-degree aggravated assault of April Jackson, N.J.S.A. 2C:12-1b(1) (count one); second-degree aggravated assault of Christopher Jackson, N.J.S.A. 2C:12-1b(1) (count two); third-degree possession of a weapon, a glass, for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count four). At trial, the jury returned the following verdict: on count one, guilty of the lesser included disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1); on count two, guilty of the lesser included third-degree offense of aggravated assault, N.J.S.A. 2C:12-1b(7); on count three, guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and on count four, guilty of the lesser included disorderly persons offense of harassment, N.J.S.A. 2C:33-4b.
The court sentenced defendant to a five-year prison term with a two-and-one-half-year period of parole ineligibility on count two; a five-year prison term with a two-and-one-half-year period of parole ineligibility on count three, to be served concurrently with the sentence imposed on count two; a six-month prison term on count one, to be served concurrently with the sentence imposed on count two; and a thirty-day prison term on count four, to be served concurrently with the sentence imposed on count two. The court also imposed appropriate fines and penalties, and ordered defendant to make restitution to April Jackson in the amount of $3,182.00. This appeal followed.
Defendant makes the following arguments:
THE ADMISSION OF EVIDENCE REGARDING UNCHARGED PAST CRIMINAL CONDUCT WAS ERROR AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS. (Not raised below).
CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING HIS SUMMATION WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
THE TRIAL COURT'S IMPROPER INSTRUCTIONS TO THE JURY ON SELF-DEFENSE DEPRIVED DEFENDANT OF A FAIR TRIAL.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICTS OF GUILTY FOR AGGRAVATED ASSAULT AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE BEYOND A REASONBLE DOUBT. (Not raised below).
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH THE AGGRAVATED ASSAULT CONVICTION. (Not raised below).
THE RESTITUTION ORDER ENTERED BY THE COURT MUST BE VACATED. (Not raised below).
THE SENTENCE IMPOSED UPON MR. GRANT WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
DEFENDANT SHOULD HAVE RECEIVED JAIL CREDIT FOR ALL OF HIS TIME IN CUSTODY PRIOR TO SENTENCE.
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
In Point I, defendant contends that the references by Jackson and her son to his record and to prior bad acts they accused him of committing, which were not charged in the indictment, tainted his trial and require that the judgment of conviction be reversed. Specifically, defendant cites Jackson's testimony that defendant threatened to burn down her home and that of her parents, and blow up her car and her son's car; had a long record and a very violent past; had been in many fights; had slapped her around before; and had previously attempted to kill her. Defendant also cites Christopher's testimony that defendant had previously threatened him.
The State responds that Jackson's testimony that she had previously been "slapped around" was properly admitted to explain the reason why she was afraid when Jackson backed her into the corner of her room. The State also points out that Jackson did not say who had slapped her around on the previous occasions. As to defendant's threats to burn homes and blow up cars, the State contends that those statements were properly admitted as statements against defendant's interest, and constituted future threats, not past crimes.
The State also argues that because Jackson's statements that defendant previously attempted to kill her, had a long record, and had a violent history, were "elicited" on cross-examination, and were not objected to by defense counsel, they do not warrant reversing defendant's conviction.
Lastly, the State argues that Christopher's statement that defendant had previously threatened him was the subject of a defense objection that the trial judge sustained, and was also the subject of the court's instruction to the jury that they could not consider testimony if the court sustained an objection to the testimony.*fn2
We review arguments raised for the first time on appeal under a plain error standard. R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." Ibid.; see also State v. Macon, 57 N.J. 325, 337 (1971).
The testimony that defendant challenges involved explicit references to defendant committing prior bad acts that had nothing to do with the crimes charged in the indictment. Specifically, the jury heard testimony that defendant had previously tried to kill Jackson; that he had a long record and a violent past; and that he had been in many fights. Additionally, the context of Jackson's statement that she had been "slapped around before" implied that defendant had previously assaulted her.*fn3 Those instances of defendant's past conduct clearly constituted "other crimes, wrongs, or acts" circumscribed by N.J.R.E. 404(b), which provides:
Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The rule makes clear that "[e]vidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged[,]" State v. Koskovich, 168 N.J. 448, 482 (2001), or "simply to reflect negatively on a defendant before a jury in a criminal case," State v. Nance, 148 N.J. 376, 385 (1997).
"New Jersey adheres to the widespread view that other-crime evidence is highly inflammatory, having the 'unique tendency to turn a jury against the defendant[.]'" State v. Hernandez, 170 N.J. 106, 119 (2001) (quoting State v. Stevens, 115 N.J. 289, 302 (1989)). For that reason, the Supreme Court has developed a rule of general application in order to avoid the over-use of extrinsic evidence of other crimes or wrongs:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]
In the case before us, the trial court did not have the opportunity to undertake a Cofield analysis, and the State was not put to the task of proving the prior bad acts by clear and convincing evidence, because Jackson blurted out most of the statements in non-responsive answers to questions posed to her on cross-examination. Such things happen during trials. "The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). But the manner in which a jury is exposed to other-crimes evidence does not lessen the risk "that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself." State v. G.S., 145 N.J. 460, 468 (1996).
When other-crimes evidence is inadvertently conveyed to a jury, the trial court must give a curative instruction which is "firm, clear, and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). Here, the trial court gave no curative instruction either at the time Jackson blurted out the testimony or when the court gave its final instructions to the jury.
We do not suggest that in the absence of a Cofield hearing or curative instruction, the communication of other-crimes evidence to a jury always constitutes plain error. Here, however, the other-crimes evidence not only "reinforced . . . the poisonous notion that defendant was predisposed to the acts with which he was charged," Vallejo, supra, 198 N.J. at 136, but also suggested that defendant had an extensive criminal record and left the jury to speculate about the nature of defendant's prior crimes. In short, "[w]e can have no confidence that defendant's convictions . . . were based only upon admissible evidence." Id. at 137. Defendant is therefore entitled to a new trial.
Defendant argues in his fourth point that the evidence was insufficient to support the verdicts of a third-degree aggravated assault and possession of a weapon for an unlawful purpose. We find those arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In view of our disposition of defendant's first argument, we need not address his arguments in Points II and III, and V through IX.
Reversed and remanded for a new trial.