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State of New Jersey v. James E. Greishaber

November 21, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES E. GREISHABER, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-06-172.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2012

Before Judges Sabatino and Fasciale.

Defendant appeals from his conviction for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). Defendant contends primarily that the judge deprived him of fairly asserting the affirmative defense of self-defense by excluding evidence that the victim had acted violently toward another person in the past. Although the exclusion of this testimony was conceivably erroneous, we nevertheless conclude that defendant was not deprived of a fair trial as a consequence of that exclusion.

The State's proofs showed that the alleged victim,*fn1 who had dated defendant's then-girlfriend, was walking home when defendant yelled at him from across the street. Defendant and the victim engaged in a heated verbal exchange and defendant then punched the victim in the face multiple times. Three witnesses testified that defendant was the aggressor. The victim sustained a cut on his chin and under his eye, a split lip, and a bump on the back of his head. Defendant sustained small lacerations. The two had a history of violence with one another.

Defendant asserted the defense of self-defense. He testified that the victim was the aggressor and stated that "[i]t's almost like [the victim] bent to punch me, but he changed his mind and just went to push me instead and . . . his hand kind of slid off my face. And I basically swung at the same time." Defendant admitted that he punched the victim one or two times and then, once the victim fell to one knee, defendant "pushed [the victim] with [his] foot," in a way that was "[k]ind of . . . but not really" a kick. Defendant did so "to knock him off balance" and to keep him from "coming at me" again.

Defendant further testified that he stood his ground in defending himself because he had walked away "many times before and [he] felt that [the victim] was just threatening [him] once again and how many times c[ould] [he] run from [the victim]?" Defendant claimed that the victim had been harassing him "for about two and a half years," and that his relationship with his girlfriend, the victim's former girlfriend, caused "a lot" of problems with the victim.

The judge conducted a three-day jury trial in December 2010. The State produced testimony from five witnesses and the victim. Defendant testified at the trial and called one witness. The jury found defendant guilty of third-degree aggravated assault, as a lesser-included offense of second-degree aggravated assault. Thereafter, [t]he judge sentenced defendant to three years in prison. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL JUDGE INAPPROPRIATELY BARRED DEFENDANT FROM INTRODUCING EVIDENCE THAT THE VICTIM HAD ACTED VIOLENTLY TOWARD ANOTHER IN THE PAST -- EVIDENCE THAT WAS INTRODUCED TO BOLSTER DEFENDANT'S CLAIM THAT HE ACTED OUT OF SELF-DEFENSE IN FEAR FOR HIS SAFETY; THE JUDGE INCORRECTLY LIMITED SUCH EVIDENCE TO A

A-0084-11T1

PRIOR FIGHT WHICH THE VICTIM HAD WITH THE DEFENDANT, DISALLOWING EVIDENCE THAT THE VICTIM HAD ATTACKED ANOTHER MAN, IN A SEPARATE INCIDENT, WITH A CROWBAR.

POINT II

THE JURY INSTRUCTIONS ERRED BY REPEATEDLY TELLING THE JURY TO RETURN A GUILTY VERDICT SOLELY IF THE JURORS FOUND DEFENDANT HAD CAUSED OR ATTEMPTED TO CAUSE THE REQUISITE LEVEL OF INJURY WITH THE REQUISITE MENS REA -- A POINT WHICH WAS NOT THE MAJOR ISSUE IN DISPUTE WHEN SELF-DEFENSE WAS THE SOLE DEFENSE IN THE CASE -- AND THEN THE ERROR WAS COMPOUNDED WHEN THE JUDGE OMITTED ANY REFERENCE TO SELF-DEFENSE FROM THE RE-CHARGE ON AGGRAVATED ASSAULT. (NOT RAISED BELOW). POINT III

DEFENDANT SHOULD HAVE BEEN AWARDED JAIL CREDIT FOR TIME HE SPENT IN CUSTODY IN PENNSYLVANIA AFTER HE WAIVED EXTRADITION, BUT BEFORE THE ACTUAL TRANSFER TOOK PLACE.

I.

We begin by addressing defendant's contention that the judge erred by preventing him from testifying that he feared the victim because the victim had previously attacked another man with a crowbar, an incident about which defendant had no personal knowledge. Defendant argues that the crowbar incident is relevant to his defense of self-defense and constitutes admissible other crimes evidence pursuant to N.J.R.E. 404(b). As a result of excluding such evidence, defendant asserts that the judge deprived him of a fair trial.

We review evidential rulings of a trial court under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483-84 (1997). "A trial court's ruling will not be upset unless there has been an abuse of that discretion, i.e., there has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied sub nom. Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless it has the capacity to give us a reasonable doubt about the verdict. R. 2:10-2. Although the judge may well have misapplied evidentiary principles in excluding the crowbar incident testimony, any error or abuse of discretion in that ruling, for the reasons we shall explain, was inconsequential.

The admission of evidence of "other crimes, wrongs, or acts" is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "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." Ibid. "Although N.J.R.E. 404(b) enumerates certain instances when other crime evidence will be admissible, the specification of particular instances is only illustrative." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b) (2012).

Although courts generally apply N.J.R.E. 404(b) to evidence of "other crimes, wrongs, or acts" of the defendant in a criminal case, the rule is readily applicable to "other crimes, wrongs, or acts" of a prosecution witness. See State v. Gookins, 135 N.J. 42, 46 (1994). "[A]n accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978). Thus, a defendant may "defensively" use evidence of "other crimes, wrongs, or acts" of a state's witness "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." Ibid.

The Supreme Court has stated that

[t]he standard for introducing defensive other-crimes evidence is lower than the standard imposed on "the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple ...


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