November 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
THOMAS FREEMAN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-09-1796.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu,
Deputy Attorney General, of counsel and on the brief).
Before Judges Ostrer and Hayden.
This case involves an altercation over money between two adult brothers. Defendant Thomas Freeman appeals from his conviction, after a jury trial, of the disorderly persons offense of simple assault with a magnifying glass against his brother John Freeman, N.J.S.A. 2C:12-1a(1), as a lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and fourth-degree unlawful possession of weapons, the magnifying glass and a hammer, N.J.S.A. 2C:39-5d. Defendant was found not guilty of third-degree terroristic threats, N.J.S.A. 2C:12-3, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Defendant was sentenced to time served of 536 days on the fourth-degree conviction, concurrent with a six-month sentence on the disorderly persons conviction.
Defendant argues his conviction should be reversed because of prosecutorial misconduct. He also argues the court erred in denying his motion for acquittal. Having considered defendant's arguments in light of the record and governing principles of law, we affirm in part and reverse in part.
At the time of incident on June 9, 2009, both defendant and John lived in the home of their elderly mother, Mary, who had suffered an incapacitating stroke in 2008. Defendant was fifty-two years old. John was a couple years older. John had recently moved back to the home after marital difficulties. He also had cancer and had received chemotherapy, but was still working as an x-ray machine repairman, traveling three or four days a week. Defendant had been residing at the home for an extensive period of time; he lived there after his mother was widowed in 1984. When she fell ill in 2008, he assisted in her care.
Defendant's and John's brother James had been appointed Mary's legal guardian after her stroke. James controlled Mary's income and assets, which supported the household and Mary's nursing care. James testified that defendant often made household purchases utilizing an account that James funded with his mother's assets and income. Defendant also made household purchases with his personal credit cards and was reimbursed from his mother's funds.
In an effort to simplify his management of his mother's finances, James attempted to require defendant to use a single debit card for household purchases. In a meeting between the two on June 9, 2009, defendant objected loudly. James left without giving defendant the card.
John met James later that night at James's house. James testified that he purchased three store-specific pre-funded gift cards. James gave the cards to John and proposed that he make household purchases with them. However, John testified that he understood that the various cards were intended for defendant's use.
John returned to the family home with the cards and John and defendant engaged in an argument. John testified that defendant cursed, and loudly told him he would refuse to use the cards. John testified, "I explained to him that [James] was in contact with the family attorney and that he would be getting something in the mail." John retreated to his room and locked the door. Defendant continued to yell.
After a while, John left his room to get something to eat. John testified that defendant entered the dining room from the garage holding up a hammer and told John that if "his status changed in the house, that he was . . . going to kill me." John testified that he told defendant he was "going to get a surprise . . . from [James's] lawyer"; then defendant put down the hammer, closed the door to the garage, and "threw a magnifying glass at me and something else at me." John could not say whether the item shattered, but he insisted it "broke." He testified, "I believe it hit me, and it hit the floor." He did not say how large or heavy the item was, nor whether it was made of glass or plastic.
John said he tried to use the house telephone to call the police, but defendant pulled it off the bracket. The two men — defendant, about six-foot-five, and John, about six-foot-one — physically struggled. John asserted that as he tried to get past defendant, defendant started pushing him. John said, "I felt physically threatened, and I felt my life was in danger. So, I did what I could to try to disable him, and I grabbed him by the testicles." John also admitted on cross-examination that he punched his brother in the face; and "might have" punched him multiple times. He admitted in his statement to the police he did not disclose that he had struck his brother or grabbed his testicles, but did say he defended himself.
John testified that he was able to get by defendant, but he noticed his hand was bleeding. He did know what caused the cut, although he rejected the suggestion that he cut his hand punching his brother. John called James on his cellphone that he retrieved from his room, and went to the police station.
Without objection, James testified that John "has been very sick, and [James] was worried about him." Also without objection, John testified that he was currently disabled and unemployed at the time of the trial; and on the day of the incident, he had "physical conditions . . . that put [him] at a great disadvantage" in his fight with his brother. On redirect, John disclosed he had "multiple myeloma" when asked why he grabbed defendant's testicles. Asked how he felt, John said he had just been released from the hospital, and had fractured ribs. Defense counsel objected, and the prosecutor, without waiting for the court to rule, asked John "how [he] felt and then why [he] defended [himself] from [his] brother." John responded, "I felt weak. I had very little energy. I, again, was at a great disadvantage. I had fractured ribs."
The court then ruled on the objection, stating, "Okay. That's not responsive to the question. . . . The jury is to disregard Mr. [John] Freeman's statements regarding any conditions that he indicated he had. They're not part of the case. He can describe how he felt that day." John then proceeded to say he was weak, in pain, and suffered from nausea and diarrhea.
Defendant moved unsuccessfully to dismiss the count charging third-degree aggravated assault, consisting of an attempt to cause, or purposely or knowingly causing bodily injury with a deadly weapon. It was apparently understood that the count as charged would only pertain to the magnifying glass, although the indictment had charged the deadly weapon as the hammer and/or the magnifying glass. Defendant also moved unsuccessfully to dismiss that part of the weapons possession count as it pertained to the magnifying glass, but not as it pertained to the hammer. Defendant argued there was no evidence regarding the size or nature of the item, nor was John even certain that he suffered his cut because of the magnifying glass.
The court denied the motions. The judge himself observed there was no evidence upon which the jury could determine the size or composition of the magnifying glass — noting the item could have been the kind attached to a key-chain. The judge nonetheless found that there was some evidence for the jury to conclude the item contained glass. He concluded a jury could determine that the magnifying glass was a deadly weapon, in that it was capable of causing serious bodily injury, in particular, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. The judge also reasoned that if the magnifying glass could be deemed a deadly weapon for purposes of the aggravated assault count, it necessarily could be deemed a weapon for the unlawful possession count.
Defendant declined to testify in his own defense and presented no witnesses.
During his summation, the prosecutor referred to John's "very ill" state during the incident, and stated that "John who, by his own words, was not a well man. John, by [James's] words, who was not a well man." He again referred to John as "not a well man" later in the summation. Defense counsel did not object during or after the State's closing argument.
In its charge, the court instructed the jury that if it found defendant not guilty of third-degree aggravated assault with a deadly weapon, it should consider the lesser-included offense of simple assault, that is, whether defendant "purposely or knowingly or recklessly caused bodily injury to John Freeman with the alleged magnifying glass or attempted to cause bodily injury to John Freeman with the alleged magnifying glass."
Defendant appeals and presents the following points for our consideration:
I. ELICITING TESTIMONY THAT JOHN FREEMAN HAD CANCER WAS IRRELEVANT, UNDULY PREJUDICIAL, AND CONSTITUTED HARMFUL PROSECUTORIAL "OVERZEALOUSNESS"
II. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS TWO AND THREE
Defendant asserts his conviction should be reversed because the prosecutor engaged in misconduct by eliciting testimony from John that he had cancer, contrary to the court's in limine determination to bar mention of John's disease. We are unpersuaded.
A prosecutor engages in misconduct if his conduct is "so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994) (internal quotation marks and citation omitted). To reverse a defendant's conviction, "the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 438 (2007) (internal quotation marks and citation omitted). In addition, this court must consider "[(1)] whether defense counsel made a timely and proper objection, [(2)] whether the remark was withdrawn promptly, and [(3)] whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987).
Having carefully reviewed the record, we are unconvinced John's mention of his myeloma denied defendant a fair trial under the circumstances. Applying the Ramseur test, we recognize that defense counsel lodged a prompt objection to the mention of myeloma, and the witness's remarks were not immediately withdrawn. However, the court promptly ordered the jury to disregard the testimony identifying John's illness, instructing the jury that it could consider only the evidence of John's physical condition. See Wakefield, supra, 190 N.J. at 452 (stating that improper comments did not deprive defendant of a fair trial in part because "the comment was the subject of an immediate curative instruction"). We presume the jury followed the judge's instructions. See State v. Burris, 145 N.J. 509, 531 (1996) (holding that courts must "presume that juries will understand and abide by the court's instruction as to the correct use of evidence").
Moreover, we do not view the prosecutor's conduct as so "clearly and unmistakenly improper" that it constituted prosecutorial misconduct. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks and citation omitted). The prosecutor did not ask John why he felt ill, which would reasonably have been expected to elicit an answer disclosing John's specific illness. Rather, the prosecutor asked John why he grabbed defendant's testicles. The question could reasonably be expected to elicit a permitted answer that John felt weak and outmatched. Any further discussion of this point is not warranted in a written opinion. R. 2:11-3(e)(2).
We turn next to defendant's challenge to the court's denial of his motions for acquittal. In deciding a motion for judgment of acquittal, the court must view the State's evidence in its entirety, and "giv[e] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." State v. Reyes, 50 N.J. 454, 459 (1967). The appellate court will apply the same standard as the trial court to evaluate whether the trial judge should have acquitted a defendant. State v. Moffa, 42 N.J. 258, 263 (1964).
Defendant first argues the court erred in denying his motion of acquittal, at the close of the State's case, of the charge of third-degree aggravated assault with a deadly weapon. Defendant argues that there was insufficient evidence upon which the jury could conclude that the magnifying glass was a deadly weapon. As we have noted, the State apparently abandoned, although it did not formally dismiss, the charge that the third-degree aggravated assault was also committed with the hammer.
We agree that there was insufficient evidence for the jury to find, beyond a reasonable doubt, that the magnifying glass was a deadly weapon. For purposes of applying the statute governing aggravated assault, N.J.S.A. 2C:12-1b, a deadly weapon is:
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
See State v. McLean, 344 N.J.Super. 61, 72 (App. Div. 2001) ("The definition of 'deadly weapon' which is seemingly applicable to N.J.S.A. 2C:12-1b(2) is that in N.J.S.A. 2C:11-1c . . . ."), certif. denied, 172 N.J. 179 (2002); N.J.S.A. 2C:11-1 (stating that definition of "deadly weapon" found in N.J.S.A. 2C:11-1c governs N.J.S.A. 2C:11 to 2C:15 "unless a different meaning plainly is required").
We recognize that otherwise lawful items may be deemed deadly weapons. See State v. Villar, 150 N.J. 503, 513-14 (1997) (stating that a beer stein can be considered a deadly weapon); State v. Harmon, 104 N.J. 189, 210 (1986) (quoting N.J.S.A. 2C:11-1c) (golf club or baseball bat may be considered a deadly weapon as "each is 'capable of producing death or serious bodily injury'"); State v. Dishon, 222 N.J.Super. 58, 62 (App. Div. 1987) (stating that a piece of pipe was a deadly weapon), certif. denied, 117 N.J. 147 (1989). We have no doubt that if there were evidence that the magnifying glass in this case were, say, twelve inches long, a pound in weight, with a glass lens that could shatter into dangerous shards, surrounded by a metal frame that could also become a cutting or bruising instrument, the item could be deemed a deadly weapon.
However, there was no such evidence that the magnifying glass here was the sort of "material object that can be used or [is] intended to be used in such a way as to cause death or serious bodily injury or is so fashioned to lead the victim to believe it has that capacity." State v. Riley, 306 N.J.Super. 141, 146 (App. Div. 1997) (finding that a pocket knife, under the circumstances was not a deadly weapon); see also Connor v. Powell, 162 N.J. 397, 411-12 (2000) (holding that a plastic fork, as distinct from a metal fork, was not a deadly weapon).
John, the only witness who claimed to see the magnifying glass, did not describe it. He was unsure it even hit him. He said it broke, but he did not describe how. Although John suffered a cut to his hand, he did not assert that the magnifying glass was the cause. John had also punched his brother in the face, and "might have" punched him multiple times. Defendant suffered a swollen lip. Thus, there was a significant possibility John cut his hand punching his brother. There also was no evidence that the magnifying glass was "fashioned" in such a way as to "lead the victim to reasonably believe it to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1c.
Nonetheless, the issue as to whether the court erred in denying defendant's motion to acquit the charge of aggravated assault with a deadly weapon was rendered moot, when the jury acquitted defendant of the charge. See State v. Pickett, 241 N.J.Super. 259, 265 (App. Div. 1990). The jury apparently rejected the proofs that the magnifying glass was a deadly weapon, as it also acquitted defendant of the lesser-included charge of fourth-degree aggravated assault by recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(3); and the jury also acquitted defendant of the lesser-included disorderly persons offense of simple assault by negligently causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1a(2). Instead, the jury found defendant guilty of causing or attempting to cause bodily injury with the magnifying glass, without characterizing it as a deadly weapon — also a disorderly persons offense. N.J.S.A. 2C:12-1a(1).
There also is no basis presented for concluding that "overcharging" aggravated assault with a deadly weapon prejudiced defendant in the jury's consideration of the lesser-included charge of simple assault. A party arguing jury-overcharge "must present cognizable evidence that an error occurred, " such as that "evidence that would have been inadmissible in respect of the lesser-included charge on which defendant was convicted was admitted because of the overcharge." State v. Wilder, 193 N.J. 398, 418 (2008) (stating that Rule 2:10-2 governs alleged overcharging errors).
Defendant also argues that the court erred in denying his motion for acquittal as to the charge that his possession of the magnifying glass constituted fourth-degree unlawful possession of a weapon. N.J.S.A. 2C:39-5d. We agree.
A defendant commits a fourth-degree offense if he or she "knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses." N.J.S.A. 2C:39-5d. "Weapon, " for purposes of this offense, includes "anything readily capable of lethal use or of inflicting serious bodily injury" in addition to specifically listed items. N.J.S.A. 2C:39-1r. The provision reads:
"Weapon" means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.
The definition specifically pertains only to offenses found in chapters 39 and 58, N.J.S.A. 2C:39, 2C:58. N.J.S.A. 2C:39-1.
The State misplaces reliance on State v. Lee, 96 N.J. 156, 162 (1984), for the over-broad proposition that N.J.S.A. 2C:39-5d criminalizes possession of otherwise lawful objects that have been employed in circumstances that pose a likely threat of harm to others. N.J.S.A. 2C:39-5d criminalizes possession of a "weapon under circumstances not manifestly appropriate for such lawful uses." (Emphasis added). The statute does not criminalize possession of objects without regard to their inherent properties. N.J.S.A. 2C:39-5d applies when "someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The goal is to prevent the threat of harm." State ex rel. G.C., 179 N.J. 475, 480 (2004) (internal quotation marks and citation omitted) (holding that paintball gun was "weapon" where it was possessed for the purpose of damaging property).
A review of our caselaw reflects that items deemed a "weapon" must possess inherent properties that made them "readily capable" of killing or seriously injuring another, even if they also had common non-lethal or non-injurious uses. Lee involved a conviction under N.J.S.A. 2C:39-5d for possession of "scissors taped into a stiletto, " an item that unquestionably falls within the definition of weapon, because it was readily capable of lethal use or of inflicting serious bodily injury. Supra, 96 N.J. at 163, 166. The beer stein in Villar, supra, was likewise an item of such heft that it was readily capable of causing, and did cause, serious injury. 150 N.J. at 513-14. A baseball bat, a golf club, or a carving knife — other items identified by the Villar Court — are also patently items "readily capable" of causing death or serious injury. See also State v. Brown, 185 N.J.Super. 489, 492-93 (App. Div.) (quoting N.J.S.A. 2C:39-1r) ("We have no doubt that the boning knife which defendant possessed while attempting to shoplift and when arrested was 'readily capable of lethal use or of inflicting serious bodily injury, ' and thus a 'weapon enumerated in section 2C:39-1r.'"), certif. denied, 91 N.J. 265 (1982); State ex rel. T.E.T., 184 N.J.Super. 324, 329-30 (App. Div. 1982) (deeming a steak knife a weapon), certif. denied, 94 N.J. 508 (1983), overruled on other grounds by Lee, supra, 96 N.J. at 164.
One simply cannot say the same about the magnifying glass in this case. In view of the absence of proofs of its attributes, we cannot perceive how a jury could find, beyond a reasonable doubt, that it was "readily capable" of killing or seriously injuring someone.
Nonetheless, our conclusion does not warrant reversal of defendant's conviction. The indictment charged defendant with violating N.J.S.A. 2C:39-5d by possessing a hammer and/or the magnifying glass. The jury unanimously found defendant guilty based on his possession of the hammer, as well as the magnifying glass. However, we are compelled to remand for the trial court to reconsider its sentence, in view of our judgment that defendant unlawfully possessed one weapon, not two.
Affirmed in part, and remanded in part. We do not retain jurisdiction.