October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARCIA M. COKE, a/k/a DOREEN M. COKE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1128.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Maven.
In May 2010, an Essex County grand jury charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (Count Two); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (Count Three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six).
A jury found defendant guilty of second-degree burglary (Count Three), but acquitted on all other charges. A trial judge sentenced defendant to five years imprisonment with a three-year term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were imposed.
Defendant Marcia Coke appeals from a May 27, 2011 judgment of conviction and sentence. We affirm.
There was conflicting testimony at trial among defendant, the victim, and one eyewitness, defendant's boyfriend. We summarize the facts, acknowledging each side's version without detail that is unnecessary for our review.
Defendant and Lavana Clarke (Clarke), the victim, were simultaneously involved in a sexual relationship with Warrington Ford (Ford). Prior to this incident, defendant and Ford shared his basement apartment, but both had moved out some time prior to the event in question. Ford, however, continued to socialize with his friends at the apartment.
Defendant testified that on December 26, 2009, at around 9:00 p.m., she arrived at the basement apartment, only to find Clarke there with several other people. Defendant and Ford went into the kitchen where defendant confronted him about Clarke. Defendant testified that she began to walk away, but Ford grabbed her and held her arms back. Clarke then entered the kitchen and began cursing at defendant. Defendant further testified that while Clarke was yelling at her, Clarke picked up a glass cup and slashed defendant's face. Defendant denied that anyone picked up a knife during the altercation.
Clarke testified that she went into the kitchen to clean out an ashtray when defendant began to yell at her. Clarke stated that defendant picked up a knife and began to move towards her. Clarke admits to having thrown a can at defendant during the altercation, but denies injuring defendant.
Ford corroborates Clarke's testimony, stating on the record that defendant picked up a knife after Ford admitted to having a relationship with Clarke. Ford testified that he took the knife from defendant and threw it behind the refrigerator. Ford, however, testified that he had retrieved the knife from defendant before Clarke entered the kitchen.
After the altercation, defendant left the apartment with Ford to attend a party at his uncle's home. Defendant and Ford both testified that Ford left the party without telling defendant, at which point Ford returned to the basement apartment. A few hours later, between 3:00 a.m. and 4:00 a.m. on December 27, 2009, defendant returned to the apartment where she saw Ford's car outside. Defendant testified that she went back to the apartment to talk to Ford about the altercation that had occurred the prior evening.
At trial, defendant stated that she knocked on the basement windows and called out Ford's name for approximately ten minutes. Clarke and Ford were in the apartment together. They both testified that they heard defendant calling out Ford's name, but neither answered her. Clarke testified that defendant banged on the window and screamed "Warren, open the door. I know you're down there with that [Bitch]."
Defendant testified on direct that after receiving no response, she opened an unlocked window and entered the apartment so to talk to Ford. Clarke and Ford testified that the window was locked. Clarke stated that she heard defendant using a rock to break through the window. Defendant later admitted on cross-examination that she did in fact use a rock to break open the window.
Nonetheless, defendant testified that she entered the apartment foot first, at which point she felt a bottle hit her leg. Clarke testified that she tried to use a mirror to block defendant from entering the apartment and later hit defendant's leg with a bottle. Defendant eventually slid into the dark apartment. The parties agree that Ford had already left through a back door before defendant entered the apartment.
Both defendant and Clarke testified that once defendant entered the apartment, Clarke tried to run. The women met in a central hallway in the apartment where they engaged in a physical altercation. Defendant, however, testified that Clarke had a knife with her when she came into the hallway. Meanwhile, Clarke testified that as they were wrestling on the floor, she saw defendant holding a knife.
Clarke testified that once she saw the knife, defendant began stabbing her in her side. According to Clarke, defendant then attempted to stab Clarke in her neck while saying "Two years me and him together. I'm not about to let some young girl take him away from me." Clarke stated that she screamed for help, and said to defendant, "I don't want him. I don't want him. You can have him."
In contrast, defendant testified that when she saw Clarke holding the knife, she tried to grab Clarke's wrists and twist them behind Clarke's back. Defendant maintained that she was trying to prevent herself from being stabbed. Defendant further testified that she forced herself on top of Clarke to try to control her. During that process, according to defendant, Clarke began yelling that she was bleeding.
An upstairs tenant entered the basement, took hold of defendant, and told Clark to leave the apartment. Clarke went upstairs while defendant remained in the basement alone until the police arrived. Defendant later accompanied the police to the Irvington Police Department where she gave a statement.
The jury evidently credited Clarke's version of events and convicted defendant of second-degree burglary. On appeal, defendant raises the following issues for consideration:
I. THE TRIAL COURT ERRED WHEN IT FAILED TO ISSUE A JURY CHARGE ON CRIMINAL TRESPASS AS A LESSER INCLUDED OFFENSE TO BURGLARY, WHICH WARRANTS REVERSAL OF THE DEFENDANT'S CONVICTION (Not Argued Below).
II. THE TRIAL COURT ERRED IN EXCLUDING THE PURPORTED VICTIM MS. CLARKE'S ASSAULT RECORD BECAUSE N.J.R.E. 404 RENDERS THIS EVIDENCE ADMISSIBLE TO SUPPORT DEFENDANT'S REASONABLE BELIEF IN HER NEED FOR SELF-DEFENSE AND TO CORROBORATE THAT MS[.] CLARKE WAS THE AGGRESSOR.
III.THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REQUEST FOR A CLAWANS CHARGE.
IV. THE TRIAL COURT ERRED WHEN IT FAILED TO DOWNGRADE THE DEFENDANT'S CONVICTION TO THIRD DEGREE BURGLARY.
Having considered defendant's arguments in light of the applicable legal principles, we affirm.
We first consider whether the trial court should have instructed the jury on criminal trespass as a lesser-included offense to burglary. Defendant argues that the trial court erred by failing to sua sponte charge criminal trespass when the evidence clearly indicated that the charge was appropriate. We disagree.
When a defendant fails to contemporaneously object to a given jury charge below, we review the alleged error under the plain error standard. State v. Nero, 195 N.J. 397, 407 (2008). "[P]lain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). In the context of a court's jury charge, "'any finding of plain error depends on an evaluation of the overall strength of the State's case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).
Where a defendant has not requested an instruction of a lesser-included offense, "a trial court has an independent obligation to instruct [the jury] on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). The judge "has no duty to meticulously sift through the entire record to uncover some facts that might support a lesser included offense instruction." State v. Singleton, 290 N.J.Super. 336, 341-42 (App. Div. 1996). (citations omitted)(internal quotation omitted).
"A person is guilty of burglary if with purpose to commit an offense therein or thereon" the person "enters a . . . structure" without "license or privilege to enter." N.J.S.A. 2C:18-2(a). Second-degree burglary requires additional proof that the defendant "purposely, knowingly or recklessly" inflicted or attempted to inflict, or threatened to inflict bodily injury upon another person. N.J.S.A. 2C:18-2(b)(1). The crime of burglary is complete upon a defendant's unauthorized entry into the premises with the requisite criminal purpose. State v. Mangrella, 214 N.J.Super. 437, 441 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987).
Criminal trespass, commonly regarded as a lesser-included offense to burglary, occurs when a person "knowing that he is not licensed or privileged to do so . . . enters or surreptiously remains in any . . . structure . . . ." N.J.S.A. 2C:18-3(a). This is a fourth-degree offense if committed in a dwelling, N.J.S.A. 2C:18-3.
Here, the trial court did not err by failing to sua sponte instruct the jury on the lesser-included offense of criminal trespass because the record does not clearly indicate that a jury could convict on the trespass charge while acquitting on the burglary offense. Defendant testified that her sole purpose for entering the apartment was to talk to Ford, however she forcibly entered the apartment, even after discovering that Ford had left the premises through the back door. Once inside, defendant's vengeful words and aggressive actions resulted in Clarke's significant injuries. Given our careful review of the record, we conclude there was no basis for the criminal trespass instruction.
Defendant next contends that the jury rendered an inconsistent verdict when it found defendant guilty of second-degree burglary, but acquitted on all other charges, including attempted murder, aggravated assault, recklessly causing bodily injury, terroristic threats, and unlawful possession of a weapon.
Inconsistent verdicts are permissible in our criminal justice system. See State v. Grey, 147 N.J. 4, 11 (1996). An inconsistent verdict is sustainable "so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). Such verdicts only become vulnerable when "an incomplete or misleading jury instruction causes an unfair trial." Id. at 55.
Generally, however, this Court must "accept [an] arguably inconsistent verdict, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted." Id. at 56; see also State v. Muhammad, 182 N.J. 551, 578 (2005) (citing State v. Federico, 103 N.J. 169 (1986)) ("In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty.").
Although inconsistent, the jury's verdict in the case at bar is sustainable because there was a sufficient evidential basis in the record to support defendant's second-degree burglary conviction. While we will not speculate as to the jury's findings, the fact that the jury returned a guilty verdict on the burglary charge suggests that the jury believed that defendant possessed the requisite criminal intent. Additionally, as previously explained, the trial court's omission of a criminal trespass charge was neither misleading nor erroneous. Therefore, the jury's inconsistent verdict does not warrant reversal of defendant's conviction for second-degree burglary.
We now turn to defendant's claim that the trial court erred by denying defendant's request to admit evidence concerning Clarke's prior instances of violence. The court below considered the admissibility of Clarke's prior conduct related to a 2004 disorderly persons conviction for simple assault and an unlawful possession charge that was dismissed in 2007. Defendant sought to introduce these records to show Clarke's propensity for violence in support of defendant's self-defense claim. See N.J.S.A. 2C:3-4(a).
"Determinations on the admissibility of other-crime evidence are left to the discretion of the trial court." State v. Marrero, 148 N.J. 469, 483 (1997). Because of its intimate knowledge of the case, the trial court is in the best position to balance the probative and prejudicial nature of such evidence. Ibid. (citations omitted). Our review of a trial court's evidentiary ruling is therefore entitled to deference and "is to be reviewed under an abuse of discretion standard." Ibid. Such rulings will not be upset unless there has been a clear error of judgment. State v. Koedatich, 112 N.J. 222, 313 (1988) (citations omitted), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989).
"In self-defense cases, evidence of a victim's violent character serves two general purposes." State v. Jenewicz, 193 N.J. 440, 457 (2008). First, such evidence "demonstrates the victim's propensity for violence, which tends to support an inference that the victim was the initial aggressor." Ibid. Second, "where the accused has knowledge of the victim's prior violent acts, " such evidence "tends to show the reasonableness of the accused's belief that the use of self-defense against the victim was necessary." Ibid.
With respect to the former purpose, N.J.R.E. 404(a) provides that a criminal defendant may introduce evidence of a pertinent trait of character of the victim. Comment five to this rule, however, specifically provides:
A criminal defendant may support a claim of self defense by offering evidence of the victim's prior assaultive crime (as reflecting the victim's violent or aggressive character) only if the defendant claiming self defense was aware of that character trait of the victim at the time of the alleged offense.
[Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 404(a)(2) (2013) (emphasis added) (citing Jenewicz, supra, 193 N.J. at 459)).]
But see State v. Aguiar, 322 N.J.Super. 175, 184 (App. Div. 1997) ("Personal knowledge of the victim's propensity for violence is not a prerequisite for admission of victim character evidence under N.J.R.E. 404(a)(2).").
Here, the trial court found that there had been no showing that defendant was aware of Clarke's prior criminal history at the time of the incident. The record indicates that the only time defendant was made aware of Clark's alleged violent propensities was during the initial altercation between the two women the evening before the stabbing. Evidence of this altercation was presented to the jury, thus rendering Clarke's prior criminal history unnecessary to support defendant's suggestion that Clarke was the initial aggressor. Therefore, the trial court did not abuse its discretion in excluding Clarke's prior criminal history at trial.
With respect to the latter purpose, N.J.R.E. 404(b) generally provides that "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 comformity therewith." Such evidence, however, "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." N.J.R.E. 404(b).
For present purposes, the rule "permits defendants alleging self-defense to produce prior acts evidence that speaks to the issue of reasonableness of the defendant's belief that deadly force was necessary." Jenewicz, supra, 193 N.J. at 462. Importantly, however, it is only when the defendant has "actual knowledge of the specific acts to which a witness testifies is specific-acts testimony probative evidence of the defendant's reasonable belief. Id. at 463 (citing State v. Gartland, 149 N.J. 456, 473 (1997)).
Here, the trial court concluded that defendant only sought to introduce Clarke's prior bad acts to show her propensity for violence, contrary to the tenets of Rule 404(b). At no point did defendant offer the evidence for some alternative purpose pursuant to the rule. Moreover, the record indicates that defendant did not possess personal knowledge of Clark's prior offenses, as required under Rule 404(b). Finally, in exercising its discretion, the trial court appropriately excluded the evidence because of its minimal relevance and unduly prejudicial nature. See N.J.R.E. 403. In light of the record and relevant law, the trial court did not abuse its discretion in excluding Clarke's prior criminal history.
Defendant further argues that the trial court erred in refusing to provide an adverse inference against the State pursuant to State v. Clawans, 38 N.J. 162 (1962) for the State's failure to call Clarke's best friend as a witness. Defendant maintains that she was never provided this friend's full name and address during discovery. Defendant argues that the court should have instructed the jury that it could draw an inference that the friend's testimony would have been unfavorable to the State.
The State counters that defendant does not meet the requisite conditions for a Clawans charge. Specifically, the State asserts that this individual was available to both parties had either one wanted to call her as a trial witness, and her testimony regarding the December 26 confrontation between the parties would have been cumulative.
In Clawans, the Court stated:
For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.
For obvious reasons the inference is not proper if the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him, or a person whose testimony would be cumulative, unimportant or inferior to what had been already utilized.
[Id. at 171 (citations omitted).]
Here, the trial court denied defendant's request for the Clawans charge in part because:
[t]his witness was . . . equally available to both parties. [The Prosecutor] says she didn't want to bother with her. She didn't have her name, or identification, or [the] place she lives because she didn't need that witness. That's her election, trial strategy involved. I don't see any basis for having any kind of adverse inference against any party based upon those facts.
Although the friend's exact location was unknown, the court determined that either party could have investigated and called this person as a witness. We see no error in the trial judge denying a Clawans charge. Moreover, any possible error would have been rendered harmless, as the court did not preclude defense counsel from referencing the absence of this friend's testimony in her summation.
Finally, defendant challenges the trial court's refusal to downgrade her sentence under N.J.S.A. 2C:44-1(f)(2) from second-degree burglary to third-degree burglary. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). A sentence will be upheld if a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Criminal Code, and the individual sentence does not shock our conscience. Id. at 608.
Here, defendant's sentence was not the result of the trial court's mistaken exercise of its discretion. The trial court properly applied the sentencing guidelines to sentence defendant to a five-year term of imprisonment, the minimum ordinary base term for the second-degree conviction, see N.J.S.A. 2C:18-2b)(1), and the lowest possible period of parole ineligibility mandated by NERA, N.J.S.A. 2C:43-7. Such a sentence is within the range for a second-degree offense and does not shock our judicial conscience.
Additionally, N.J.S.A. 2C:44-1(f)(2) provides "that where a sentencing court is clearly convinced that the mitigating factors outweigh the aggravating factors and the interest of justice demands, a court may sentence a defendant who had been convicted of a first or second degree crime to a term appropriate to an offense one degree lower." State v. Megargel, 143 N.J. 484, 487 (1996).
We see no error in the trial court's finding that the mitigating factors did not outweigh the aggravating factors. The court's application of aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(1); three (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3); and nine (the need to deter others from violating the law), N.J.S.A. 2C:44-1(a)(9), is supported by the record. For the foregoing reasons, this Court finds that the trial court properly sentenced defendant.