August 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREA ALLOWAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-12-1042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2012
Before Judges Reisner, Simonelli and Hayden.
Following a jury trial, defendant Andrea Alloway 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); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts four and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count eleven).*fn1
At sentencing, the trial judge merged counts two, three and four with count one, and sentenced defendant on count one to a five-year term of imprisonment subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed lesser concurrent sentences on the remaining counts, imposed the appropriate assessments and penalty, and ordered restitution in the amount of $500.
On appeal, defendant raises the following contentions:
DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE CONSTITUTED BOTH A BRADY VIOLATION AND NEWLY DISCOVERED EVIDENCE.
THE PROSECUTOR'S IMPROPER TACTICS IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below).
DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT FAILED TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSES OF SIMPLE ASSAULT UNDER N.J.S.A. 2C:12A(1) AND N.J.S.A. 2C:12A(2) AND FOURTH-DEGREE AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12B(3). (Partially Raised Below).
THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE VICTIM'S EYE INJURY DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL.
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. [(U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947), ART I, PARS. 1, 10).]
THE CIRCUMSTANCES OF THIS CASE WARRANT A SENTENCE AT THE BOTTOM OF THE THIRD-DEGREE RANGE.
We reject these contentions, and affirm.
We derive the following facts from the record. Defendant and her boyfriend, Christian Petrescu, frequented a friend's home where defendant met Jamie Dehart. Dehart described defendant as "not a friendly person" and said that defendant did not like her, although she did not know why.
At approximately 3:00 a.m. on May 24, 2008, Dehart received several harassing cell phone calls from blocked numbers. When she answered, she recognized defendant's voice and the voices of two of defendant's friends. The callers said that Dehart was "a bitch and . . . a slut and they're going to fuck [her] up." Dehart's boyfriend, Justin Skirzynski, also listened to the calls and confirmed that one of the voices belonged to defendant, whom he heard screaming obscenities.
On the morning of May 25, 2008, Dehart and some friends went to defendant's house to try to resolve whatever issues defendant had with Dehart; however, they left after the police arrived. Later that evening, Skirzynski was driving with Dehart and Anthony Amantia in Dehart's mother's Nissan Sentra. Dehart was in the front passenger seat; Amantia was in the back seat on the driver's side. While driving, Skirzynski lit a cigarette, which Dehart took from him and threw out the window because she did not want him smoking in the car. Believing that the burning cigarette may have fallen back into the car, Skirzynski pulled over and he and Dehart exited the car to look for it.
As they were still outside the car, Dehart saw defendant and Petrescu approaching them in Petrescu's Nissan Altima. Defendant, who was driving, pulled up next to the Sentra and engaged in a verbal confrontation with Dehart. Dehart and defendant appeared about to engage in a fist fight when Dehart saw defendant reach down and hand Petrescu a gun. Dehart and Skirzynski heard defendant repeatedly tell Petrescu to "shoot that bitch, kill that bitch[,]" and "shoot that bitch, Christian, shoot her."
Dehart re-entered the Sentra when she saw Petrescu point the gun at her. Just as she sat down, she felt a hard impact in her left eye. She looked at her eye in the mirror and saw that it was very swollen and bleeding. Petrescu continued firing the gun as defendant drove away, shattering the Sentra's back window.
Skirzynski drove Dehart to the hospital, and called the police. A CT scan taken at the hospital revealed a five-millimeter pellet lodged between Dehart's left lobe, eyeball and eye socket. At the time of trial, Dehart suffered from blurred vision and floaters in her left eye and frequent headaches; she continued receiving treatment for the injury, and the pellet remained permanently lodged behind her eye.
Police officers investigating the incident found copper BBs at the scene, and damage to the Sentra's driver's side door and rear window. The parties stipulated that it cost $2,101.36 to repair the damage to the Sentra.
Detective Robert Diszler of the Hamilton Township Police Department interviewed Dehart on May 25, 2008, and took photographs of her eye injury that were introduced into evidence at the trial. He also interviewed Skirzynski. Later that afternoon, Petrescu came to police headquarters. The police took custody of Petrescu's Altima and found copper BBs under the floor mats. Later that evening, defendant came to police headquarters and told Det. Diszler that she was not with Petrescu at the time of the shooting and did not know what happened.
Defendant returned to the police station on May 26, 2008, and told Det. Diszler that she had lied the previous day. She admitted that she was at the scene of the shooting and knew that Petrescu had a BB gun; however, she denied telling him to shoot Dehart.
Pursuant to a plea agreement, Petrescu pled guilty to possession of a weapon for an unlawful purpose, and testified against defendant. His testimony corroborated Dehart's and Skirzynski's versions of the incident. Petrescu testified that defendant was driving the Altima on the night of the shooting because he had been drinking, the BB gun was under the driver's seat, and defendant knew it was there. He and defendant did not expect to encounter Dehart, but defendant recognized Dehart as they drove past the Sentra, and turned around and drove back to where they saw Dehart. He heard Dehart cursing at defendant, and believed that the women "were going to get out and fight."
Petrescu also testified that when Dehart started walking towards the Altima, defendant told him to "[g]rab the gun and shoot that bitch." He then "grabbed the gun, rolled down the back left window, and . . . started shooting." Skirzynski and Amantia were in the Sentra at the time. Petrescu fired over ten shots at the Sentra, and did not stop shooting until he ran out of ammunition. Defendant drove away from the scene, and he threw the BB gun into a nearby sewer. Petrescu explained that he had fired the BB gun at Dehart because defendant told him to do so and he "was in the moment."
Defendant testified that "words were exchanged[,]" between her and Dehart, and Dehart got out of the Sentra and screamed for defendant to get out and fight. The next thing defendant remembered was Petrescu pushing her back into the Altima with his left arm, and his right arm was directly in front of her firing a BB gun. She denied knowing there was a BB gun in the Altima, and that she said anything to Petrescu about it.
Defendant also testified that she initially lied to Det. Diszler because she was trying to defend Petrescu; however, she admitted that her first statement to the detective did nothing to exonerate Petrescu and, in fact, left him hanging "a little bit." In addition, cross-examination revealed other inconsistencies in defendant's statements to the police, including differing accounts about her knowledge of the BB gun in the Altima.
Defendant contends in Point One that she was entitled to a new trial based on a Brady*fn2 violation and newly discovered evidence concerning Amantia. She argues that she obtained post-trial exculpatory information from Amantia that the prosecutor possessed pre-trial, but did not disclose.
In support of her motion, defendant submitted an unsigned May 16, 2011 memorandum, purportedly from a private investigator who had interviewed Amantia post-trial. According to the investigator, Amantia said he "did not hear [defendant] saying anything during [the] confrontation other than the two women shouting at each other and calling each other bitches[,]" he did not hear [defendant] tell Petrescu to shoot [Dehart,]" and he "did not hear [defendant] making any threats about guns towards Jamie [Dehart]." Amantia also allegedly said that before the trial, he told the prosecutor that "he did not hear [defendant] tell Petrescu to get the gun or shoot [Dehart,]" and the prosecutor "told him that he was just going with [Skirzynski] then and dismissed him and did not call him to testify."
In opposition, the State submitted Amantia's videotaped statement to Det. Diszler, which Amantia gave the day after the shooting.*fn3 In the videotaped statement, Amantia corroborated Dehart's and Skirzynski's versions of the incident. He also twice confirmed that defendant told Petrescu "'to get the gun, get the gun'" and Petrescu got the gun and started shooting.
The State also submitted an affidavit from Detective Joseph Angarone of the Hamilton Township Police Department, stating that at a meeting on February 9, 2010, Amantia told the detective that he heard defendant say something to Petrescu before the shots were fired, but could not remember what she said. Amantia still could not remember defendant's exact words even after viewing his videotaped statement.
In denying the motion, the judge concluded that defendant failed to establish the three factors set forth in State v. Carter, 85 N.J. 300, 314 (1981), to warrant a new trial based on newly discovered evidence. The judge found that Amantia's potential testimony would have been merely cumulative, impeaching or contradictory and would not have impacted or altered the verdict. He explained that Amantia's statement to Det. Angarone established that defendant had said something to Petrescu before the shots were fired, this statement was neither inculpatory nor exculpatory and was cumulative of what other witnesses said, it did not dispute or refute the other witnesses' testimony or attack their credibility, and it did not demonstrate an alibi, third-party defense or help defendant generally in the denial of guilt. The judge also emphasized that Amantia's videotaped statement was inculpatory and corroborated the other witnesses' trial testimony.
The judge found Amantia's statement to the private investigator that he did not hear defendant say anything was not exculpatory, inculpatory or significant, and would not have changed the verdict. He explained that Amantia's potential testimony would not have raised a reasonable doubt as to defendant's guilt, his testimony and credibility would have been impeached by his inculpatory videotaped statement, and there was overwhelming evidence that defendant told Petrescu to get the gun and shoot Dehart. The judge also explained that Amantia's potential testimony was not material to attack the credibility of the State's witnesses because defense counsel had attacked their credibility at trial, and the jury heard, and rejected, defendant's testimony denying that she had told Petrescu to shoot defendant.
The judge also found that defendant could have discovered Amantia's potential testimony through reasonable pre-trial diligence. The judge emphasized that defendant knew Amantia was in the Sentra at the time of the shooting, Amantia was named as a victim in the original complaint, in the indictment,*fn4 and in pre-trial discovery, and Dehart, Skirzynski and Petrescu had mentioned him during their trial testimony.
The judge also concluded that defendant failed to establish the three Brady elements. He found that Amantia's videotaped statement was inculpatory; Amantia's statement to Det. Angarone was neither exculpatory nor inculpatory, and thus, not favorable or material to defendant's case and would not have changed the verdict; the State was not actively or constructively aware that Amantia's potential testimony would be exculpatory; and the State did not suppress Amantia's identity. Finally, in denying the motion, the judge concluded that it was procedurally barred by Rule 3:20-2 because defendant filed it beyond the ten-day period.
A trial judge may grant a motion for a new trial "if required in the interest of justice." R. 3:20-1. We review the trial court's decision on a motion for a new trial based on a Brady violation or newly discovered evidence under an abuse-of-discretion standard. State v. Russo, 333 N.J. Super. 119, 136-37 (App. Div. 2000); State v. Nelson, 330 N.J. Super. 206, 215 (App. Div. 2000).
"In every criminal case the prosecution must disclose to the defendant all evidence that is material either to guilt or to punishment." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). The rule established in Brady applies regardless of the prosecution's good faith or bad faith or whether the defendant specifically requested the exculpatory evidence. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001).
"In order to establish a Brady violation, defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." Nelson, supra, 330 N.J. Super. at 212. As to the first factor, the "disclosure rule applies to information of which the prosecution is actually or constructively aware." Id. at 213. The lack of actual awareness does not relieve the State of its Brady obligations because the prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf. Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995).
The second Brady factor is often presumed and few courts have considered exactly what must be shown in order to establish that withheld evidence is favorable to the defendant. Evidence found to be favorable has generally involved information that impeaches the testimony of a government witness. See State v. Henries, 306 N.J. Super. 512, 533 (App. Div. 1997). Favorability is not limited to impeachment, however, and it has been recognized in cases where evidence simply bolsters a defendant's claims. See Nelson, supra, 155 N.J. at 497.
The third Brady factor involves the materiality of the evidence that was withheld. Parsons, supra, 341 N.J. Super. at 454-55. "[E]vidence is material for Brady purposes 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 156 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Nelson, supra, 155 N.J. at 500 (internal quotation omitted). As the Court has stated, "[a] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Rather, the question is whether in the absence of the undisclosed evidence the defendant received a fair trial, "understood as a trial resulting in a verdict worthy of confidence." [Ibid. (quoting Kyles, supra, 514 U.S. at 434, 115 S. Ct. at 1565-66, 131 L. Ed. 2d at 506).]
In applying the materiality test "where a conviction has followed a full trial, we assess the strength of the State's case, and determine whether introduction of the suppressed evidence would probably have changed the jury's verdict." Parsons, supra, 341 N.J. Super. at 455.
In order for newly discovered evidence to warrant a new trial, that evidence must be "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." Carter, supra, 85 N.J. at 314. All three prongs must be satisfied before a new trial is warranted. State v. Ways, 180 N.J. 171, 187 (2004). The defendant bears the burden to establish each prong. State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959).
"[A] new trial analysis premised upon a Brady violation and a new trial analysis premised upon newly discovered evidence, are different[.]" Henries, supra, 306 N.J. Super. at 534 (citing Carter, supra, 85 N.J. at 314). "Whereas the test of materiality for the granting of a new trial under a Brady analysis is simply whether the suppressed evidence might have affected the outcome of the trial, . . . the test to be satisfied under a newly discovered evidence approach is more stringent." Carter, supra, 85 N.J. at 314. In order to be material, newly discovered evidence must be of the sort that probably would change the jury's verdict if a new trial were granted. Ways, supra, 180 N.J. at 188-89. "The power of the newly discovered evidence to alter the verdict is the central issue[.]" Id. at 191.
Here, we agree with the trial judge that defendant's motion based on Brady was procedurally barred by Rule 3:20-2. The jury rendered its verdict on April 5, 2011, defendant learned of Amantia's statement to her investigator on May 16, 2011, and defendant filed her motion on June 10, 2011, well beyond the ten-day period.
We also agree for the reasons the trial judge expressed that defendant failed to establish entitlement to a new trial based on a Brady violation or newly discovered evidence. There is no question that the State openly identified Amantia pre-trial as a potential witness with knowledge of the shooting, and thus, did not suppress his identity. There also is no question that the State was not actually or constructively aware of any exculpatory evidence, Amantia's potential testimony was not favorable to the defense or material, and it was discoverable prior to trial. There also was no reasonable probability that Amantia's testimony would have changed the jury's verdict. Amantia would have testified that he did not "hear" defendant say anything or tell Petrescu to shoot Dehart. This testimony would not have established that defendant said nothing at all to Petrescu. In addition, the jury could have interpreted Amantia's testimony to mean that defendant did not say anything, or that Amantia simply did not hear her say anything. Thus, the jury still would have to weigh the credibility of Dehart's, Skirzynski's and Petrescu's testimony that defendant told Petrescu to get the gun and shoot Dehart against defendant's contrary testimony. Further, the State could have impeached Amantia's testimony with his videotaped statement, thus seriously compromising his testimony and bolstering the evidence supporting the jury's verdict. Accordingly, there was no abuse of discretion in the denial of defendant's motion.
We have considered defendant's contentions in Points Two, Three, Four, Five and Six in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion beyond these brief comments. R. 2:11-3(e)(2).
The prosecutor's summation comments did not deprive defendant of a fair trial. The prosecutor did not misstate the law on defendant's burden of proof, the comments were consistent with the Model Jury Charge on the burden of proof, and the comments did not suggest that defendant had the burden of producing exculpatory evidence. In addition, the judge instructed the jury on the applicable law and that the jurors must accept his instructions as to the law and disregard counsel's comments on the law. The jury is presumed to follow the court's instruction absent evidence to the contrary. State v. Burns, 192 N.J. 312, 335 (2007). There is no such evidence here.
The prosecutor did not improperly denigrate defendant or express a personal opinion about her guilt by calling her a liar and deceiver. During her testimony, defendant repeatedly said that she had lied to the police. The prosecutor's comments were, therefore, fair commentary on the evidence. See State v. Michaels, 264 N.J. Super. 579, 641 (App. Div.), certif. denied, 134 N.J. 476 (1993), aff'd, 136 N.J. 299 (1994).
The prosecutor did not encourage the jury to send a message to defendant and the community when he asked the jury to hold defendant responsible. Reading the prosecutor's summation as a whole, it is clear that he was addressing the theory of accomplice liability when he made the comment, and arguing that defendant should be held equally responsible for the crime. This was permissible argument under the facts of this case and the applicable law.
There was no rational basis for a charge on the lesser included offense of simple assault under N.J.S.A. 2C:12-1a(1) and (2), which defendant requested at trial. The evidence also did not clearly indicate the appropriateness of a charge on the lesser included offense of fourth-degree reckless aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3), which defendant did not request at trial. State v. Savage, 172 N.J. 374, 396-98 (2002). Dehart suffered a serious and significant bodily injury to her left eye, the gun was a deadly weapon, and the evidence established that defendant did not act negligently or recklessly. Compare N.J.S.A. 2C:12-1a(1) and (2) with N.J.S.A. 2C:12-1b(1) and (7).
The judge did not abuse his discretion in admitting photographs of Dehart's eye injury. The photographs, which were not particularly gruesome, were highly relevant to determining the nature and extent of Dehart's injury, and hence the degree of assault that had occurred. In addition, their probative value substantially outweighed any risk of undue prejudice. N.J.R.E. 401, 403; State v. Johnson, 120 N.J. 263, 297 (1990); State v. Thompson, 59 N.J. 396, 421 (1971).
We discern no error in defendant's sentence. The record amply supports the judge's finding and application of aggravating factors and rejection of certain mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010). Defendant's five-year sentence is at the low end of a sentence for a second-degree conviction, N.J.S.A. 2C:43-6a(2), was in accord with NERA and the Graves Act, N.J.S.A. 2C:43-6c and -7c, and there was no compelling reason for a downgraded sentence. State v. Megargel, 143 N.J. 484, 502 (1996). Defendant committed a very serious crime and her sentence does not shock our judicial conscience. Id. at 500; State v. Roth, 95 N.J. 334, 364 (1984).