NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-07-0674 and 09-04-0684.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Fasciale.
Following a jury trial, defendant Rodney F. Edison was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), as a lesser included offense of second-degree aggravated assault; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from defendant's assault of Darrin Shefton with a large stick. In a separate trial, the same jury found defendant guilty of fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a.
The trial judge granted the State's motion to impose an extended-term sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to an aggregate eight-year term of imprisonment with four years of parole ineligibility on the first convictions and a consecutive eighteen months with nine months of parole ineligibility on the second conviction.
The record reveals that between 1:00 p.m. and 2:00 p.m. on January 5, 2009, Shefton was walking with his friend, Pam, on a street in New Brunswick. Shefton saw defendant, whom he knew, holding a "big stick, " which Shefton described as a piece of wood approximately three inches in diameter and approximately two and one-half to three feet long. Shefton denied the stick was a two-by-four and did not know where that description of the stick came from.
Shefton stopped to use a pay phone and Pam stopped to talk to a friend. While Shefton was on the pay phone, defendant approached him and asked angrily, "you got my money?" Shefton responded, "what are you talking about. I don't have any money. Get out of here." Defendant replied, "I think you got my money, " and struck Shefton in the leg with the stick. Defendant then ran away with Shefton in pursuit. Defendant stopped and struck Shefton in the forehead, causing a two-inch laceration. When defendant tried to strike Shefton again, Shefton blocked the blow, grabbed the stick, and threw it toward defendant as defendant ran away. The stick missed defendant and landed underneath a parked car. Although the police searched the area later on, the stick was never found.
Shefton told the two police officers who had responded to the scene what happened and gave defendant's nickname and a description. He subsequently gave the police a videotaped statement and identified defendant from a photo array. Defendant was arrested and, after waiving his Miranda rights gave a videotaped statement. Defendant admitted he had kicked Shefton in the leg, but claimed they had engaged in a mutual fight without weapons. Defendant denied he struck Shefton in the head with an object, and gave a cavalier and mocking response when asked about Shefton's forehead injury.
Shefton was bleeding profusely from his forehead wound and believed he might bleed to death. He instructed Pam to call 9-1-1. The State sought to introduce the 9-1-1 call to show how the term "two-by-four" came to describe the stick, not to prove that defendant had used a two-by-four. The judge ruled the call was admissible because Pam's comments were "clearly to assist in an emergency, to assist [an] individual who was hurt"; there was nothing indicating that Pam "would reasonably believe [the call] would later be used at trial"; and Pam's comments were non-testimonial. Thereafter, with defendant's consent, a six-second redacted version of the ...