STATE OF NEW JERSEY v. NADIR BAPTISTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2483-03T42483-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

NADIR BAPTISTE,

Defendant-Appellant.

__________________________________

 

Submitted: February 6, 2006 - Decided March 9, 2006

Before Judges Cuff, Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-07-0746.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, Legal Analyst, on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of possession of a weapon (a knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (Count One); third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (Count Two); and second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (Count Three). The weapons conviction and the third degree aggravated assault conviction merged with the second degree aggravated assault conviction, and defendant was sentenced to a ten-year term of imprisonment subject to the No Early Release Act 85% parole disqualifier. This term is to be served consecutive to the term defendant was then serving. The appropriate fees, penalties and assessments were also imposed. We affirm the conviction but remand for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005) (Natale II).

On February 28, 2000, Lucanasse Derival was standing in front of a liquor store on Jefferson Avenue in Elizabeth. Derival was speaking with a small group of people when defendant approached the group and an argument ensued. Defendant left the group for a few minutes. Derival and defendant had known each other for a "couple of years," had shared living accommodations, and reported no prior problems. When defendant returned, he called Derival over to a spot about one or two houses away from the liquor store. Derival approached defendant and the two stood face-to-face and then began to walk away. The two walked a short distance with defendant on Derival's left side with his arm around Derival. Defendant then stabbed Derival on the right side of his neck, just below his jaw. Derival felt himself bleeding, became weak and fell to the ground. Defendant fled when a bystander intervened. Derival observed a knife in defendant's hand when he fled the scene. At trial, Derival described the knife as a small silver kitchen knife with a black handle.

Elizabeth Police Sergeant Daniel Geddes responded in a marked police car to a call of a stabbing in progress on the 400 block of Jefferson Avenue on February 28, 2000. As Sgt. Geddes approached the scene, he observed defendant running across Jefferson Avenue and through some yards. Sgt. Geddes and his partner, Officer Paul Ciccotti, exited the vehicle and ordered defendant to stop. When he did not comply, the two officers chased defendant through yards finally apprehending defendant on Linden Street.

The police recovered from defendant his jacket, which had several dark stains that appeared to be blood. They also found a steak knife in the pocket of defendant's jacket. Defendant's left hand was also blood stained. Sgt. Geddes did not observe any cuts on defendant's hand. The parties stipulated that the blood found on defendant's jacket was consistent with Derival's blood type. The parties also stipulated that laboratory tests did not detect any blood on the knife.

Derival was taken to the hospital where he stayed for a week and a half. Derival underwent surgery on his neck and suffered a broken jaw from the stabbing. On his release from the hospital, Derival went to the police station and identified defendant as the person who stabbed him. Derival testified that he was one hundred percent sure that defendant stabbed him. Derival also testified that after the stabbing defendant apologized and that Derival forgave him.

Defendant testified that he did not commit the stabbing or see the stabbing, but that he assisted Derival when he saw him laying on the ground by using his undershirt to staunch the flow of blood from Derival's neck. Defendant testified that he called police and waited for their arrival for ten to fifteen minutes. Defendant testified that he began to walk away because he knew Sgt. Geddes was aware that defendant had a warrant out for his arrest. Defendant also claimed that he was not wearing a jacket on the day of the stabbing and that the blood on his hand was from an injury two days before, from which Sgt. Geddes made him remove the bandage. Defendant asserted that the blood stained jacket and knife were planted by Sgt. Geddes.

Defendant presented several witnesses, none of whom observed the stabbing. Nate Williams testified that defendant called the police and gave Derival a shirt to put on his neck. Williams acknowledged that he is a good friend of defendant's, used an alias and has four prior convictions. Arousse Fenelus testified that defendant gave Derival a shirt to put on his neck and called the police. Fenelus also acknowledged his friendship with defendant and his five prior convictions. Fido Rosier testified that defendant called the police. Daniel Gonzalez testified that he observed defendant holding Derival.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO BE PRESENT, AND HIS RIGHT TO A FAIR TRIAL, BY PERMITTING THE CONTENT OF A READBACK TO BE DETERMINED IN THE DEFENDANT'S ABSENCE, AND BY PERMITTING A MISLEADINGLY INCOMPLETE READBACK, NECESSITATING REVERSAL. U.S. Const. Amends. V, VI AND XIV; N.J. Const. (1947), Art. I, Par. 10.

POINT II

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING RANK HEARSAY TESTIMONY THAT PEOPLE AT THE CRIME SCENE POINTED TO THE DEFENDANT, CLEARLY IDENTIFYING HIM AS THE ASSAILANT. (Not Raised Below). U.S. Const. Amends. VI, XIV; N.J. Const. (1947), Art. I, Pars. 9, 10.

POINT III

THE STATE COMMITTED PREJUDICIAL MISCONDUCT IN EFFECT[IVELY] ASKING THE DEFENDANT TO CHARACTERIZE THE STATE'S WITNESS AS A LIAR, AND IN MISREPRESENTING AND INVENTING FACTS IN SUMMATION, NECESSITATING REVERSAL. U.S. Const. Amend. XIV; N.J. Const. (1947), Art. I, par. 10. (Not Raised Below).

A. The Assistant Prosecutor's Cross-Examination Effectively Forced The Defendant To Characterize The State's Witness As A Liar.

B. The Assistant Prosecutor Misrepresented Trial Testimony.

C. The Prosecutor Argued From Facts Not In Evidence.

D. The Noted Improprieties, Singly And In Combination, Necessitate Reversal.

POINT IV

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.

POINT IV [sic]

THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL BECAUSE IT WAS BASED UPON AGGRAVATING FACTORS, OTHER THAN PRIOR RECORD, THAT WERE FOUND BY A JUDGE UNDER A PREPONDERANCE-OF-THE-EVIDENCE STANDARD, RATHER THAN BY A JURY AND BEYOND A REASONABLE DOUBT. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. I, par. 9.

During deliberations, the jury requested a read back of testimony. Defendant, who was representing himself pro se, insists that the trial judge should have reviewed the selected portions of the testimony with him before the jury was provided the requested testimony. This issue, as with each issue on appeal, was either not the subject of an objection at trial or was asserted too late to provide an effective remedy. Therefore, we review this and all of the other errors in accordance with the plain error standard. R. 2:10-2. Therefore, we must determine whether any error was "clearly capable of producing an unjust result. Ibid.; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 333 (1971).

When a jury requests a read back of a witness's testimony, both direct and cross examination testimony must be read back, so that the jury may be aware of any inconsistencies or impeaching material. State v. Wilson, 165 N.J. 657, 660 (2000). Defendant is not entitled to have the witness's entire testimony read back, only the portion which the jury expressed they are in doubt or disagreement about. Id. at 661. Where the jury's request is specific, the court is not obligated to compel the jury to hear a read back of testimony they did not ask for, even when a party requests a broader read back than requested by the jury. Ibid. When the scope of the jury's request is unclear, the trial court is obligated to ascertain the will of the jury. Ibid. A defendant has a right to be present during the read back to ensure that the procedure is conducted properly. State v. Brown, 362 N.J. Super. 180, 189 (App. Div. 2003). "The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996).

During deliberations the jury sent a note to the judge requesting a read back of "victim's testimony" and "policeman testimony." The court informed the jury of the length of the two witnesses' testimony, encouraged them to hear whatever testimony they wished and gave them the opportunity to make their request more specific. The jury then sent another note requesting "to hear the testimony of the victim when he was assaulted. There was a point during the victim's testimony under questioning of the State in which he was asked to give his account of the actual assault on the evening of February 28th, 2000." The court interpreted the request as follows:

Once again, I think they want the victim's description of the assault. I think they are asking anywhere where it appeared in direct, cross, redirect, recross, redirect. They are just telling us, I guess, for some guidance that it was under questioning by the State but I don't think they are limiting it to that. Anybody wish to be heard? Mr. Baptiste.

Defendant responded, "Yeah. I'm all right." The judge confirmed, "You okay with that?" Defendant again replied, "Yeah." The State then made the argument that the court should inquire further to determine if the jury only wanted to hear the State's direct examination of the witness. To which the judge responded, "No. Your request is denied." Portions of the witness's testimony were then read back to include excerpts from the direct examination, cross examination, redirect examination and recross examination. The jury then returned a guilty verdict on all counts. After the jury was dismissed and the trial was over, the following exchange took place:

MR. BAPTISTE: Did you send Mr. Littman to come see me back in the holding cell concerning that transcript what should be read to the jury?

THE COURT: I asked him to ask you if he had your authorization to sign off on that but it turned out it was unnecessary because the court reporter was able to identify everything. So neither attorney had any input into anything. There was no argument. Nothing that went on in the courtroom that you weren't present for. Go ahead.

MR. BAPTISTE: He made two -- they said actual what he said about the -- what happened. He testified more than once to what happened to him in that assault. When I asked him what happened and he seen the knife, none of that was brought out. Only what he just said. Basically what the State said, what they wanted him to say. This is bullshit, man.

Defendant's objection was then, as it is now, both belated and unmeritorious. Defendant now contends that the court should have read back defendant's cross-examination of Derival regarding his statement to the police on March 13, 2000. However, the jury's request was for a read back of the victim's testimony regarding the stabbing, not his statement to police. A broader read back than requested is not permitted. Wilson, supra, 165 N.J. at 661. Defendant does not contend that he was not present for the read back. Thus, he could have but did not object to the scope. On the contrary, when the court asked him if he agreed with the court's interpretation of the jury's request, he responded affirmatively.

Defendant should have been consulted after the court reporter identified the portions of the transcript that appeared to respond to the jury's inquiry. We conclude, however, that the error does not rise to the level of plain error. First, the portion of transcript requested by defendant was not responsive to the jury's question. Second, the evidence of defendant's guilt was overwhelming; therefore, the error was not clearly capable of producing an unjust result.

Defendant also contends that Sgt. Geddes, one of the responding police officers, was able to communicate to the jury that several bystanders at the scene pointed at defendant. He asserts that the introduction of this inadmissible hearsay requires a reversal. We disagree. The record reveals that this testimony was elicited by defendant during his cross-examination of defendant. Trial error induced, encouraged, acquiesced in or consented to by defense counsel or a defendant appearing pro se does not form the basis for reversal. State v. Pontery, 19 N.J. 457, 470 (1955); State v. Roscus, 16 N.J. 415, 428 (1954); State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

Defendant also contends the prosecutor committed various errors that require reversal. He argues that the prosecutor erred when he asked defendant during cross-examination to characterize the veracity of the victim's testimony, and misrepresented trial testimony and commented on evidence not in the record during summation. Although the prosecutor erred, none of the errors, singly or combined, rise to the level of plain error.

Neither the prosecutor nor defense counsel should ask the witness to assess the credibility of another witness. However, where the evidence of defendant's guilt is substantial and the trial court properly instructs the jury that they are to determine the credibility of the witnesses, then such conduct is not "'so egregious that it deprive[s] defendant of a fair trial.'" State v. Bunch, 180 N.J. 534, 549 (2004) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987); accord State v. T.C., 347 N.J. Super. 219, 237-38 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).

Here, the judge gave an appropriate charge reminding the jury that it was the sole judge of the facts and the sole evaluator of the credibility of the various witnesses. Furthermore, the prosecutor's questioning must be evaluated in the context of the entire trial. Defendant engaged in the same behavior during his cross-examination of the victim.

During his summation, the prosecutor told the jury that Nate Williams, one of defendant's witnesses, had used four aliases in the past and had four prior convictions. Williams admitted to using only one alias, but avoided directly answering a question about another, denied using a second and never answered the question about a fifth alias. Williams' confusing and ambiguous testimony did not provide the basis for an unequivocal statement, but it also did not provide a basis to find error by the prosecutor. Furthermore, we discern no inaccuracy about the discussion of Williams' prior convictions.

Defendant also argues that the prosecutor erred when he offered reasons for the absence of blood on the knife during his summation. There was no evidence that a knife jabbed quickly in and out of a victim would not contain traces of blood. However, the trial judge intervened immediately and provided a prompt and appropriate curative instruction. The trial judge's timely intervention effectively addressed the error.

Finally, defendant contends that the verdict was against the weight of the evidence. We have previously commented throughout this opinion that the evidence of defendant's guilt was overwhelming. We decline to address the issue further because it is clearly without merit and does not warrant further discussion. R. 2:11-3(e)(2).

Defendant is serving a ten-year term of imprisonment subject to an 85% parole disqualifier, the maximum term for a second degree offense. In support of the sentence, the judge cited aggravating factors 3, 6, and 9 (N.J.S.A. 2C:44-1A(3), (6), and (9)), and also discussed the severity of the injury and the risk of harm to the victim. Because the aggravating factors were based on factors, other than prior convictions, not presented to a jury, the sentence should be vacated and remanded for resentencing.

In Natale II, the New Jersey Supreme Court applied the holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to New Jersey's sentencing guidelines, eliminating presumptive terms. Natale II, supra, 184 N.J. at 465-66. Previously, under New Jersey's Code of Criminal Justice, a judge had to find one or more aggravating factors in order to sentence a defendant to a term above the presumptive term, but still within the sentencing range. See N.J.S.A. 2C:44-1(f)(1). Natale II held that such a sentencing scheme, which allowed a judge to impose a sentence above the presumptive term "based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. This holding applies retroactively to all cases on direct appeal raising Blakely claims at the time of the decision. Id. at 494.

In Abdullah, decided the same day as Natale II, the Court held that aggravating factors (3), (6), and (9) of N.J.S.A. 2C:44-1a are "inextricably linked to the recidivism exception." State v. Abdullah, 184 N.J. 497, 506 (2005). This exception grows out of the earlier holding in Apprendi, that a prior conviction may be used to increase the penalty for a crime beyond the statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000).

Defendant's prior record is significant. The current conviction is his seventh indictable conviction. Here, however, the judge considered factors beyond the prior criminal record to raise the term beyond seven years. We are constrained to remand for reconsideration of the sentence in accordance with Natale II.

Affirmed in part; remand for reconsideration of sentence.

 

N.J.S.A. 2C:43-7.2.

Initially Derival testified that defendant was "standing on the right side," but when asked to stand and show the court he demonstrated that defendant was actually on his left side.

The jury also made a more specific request for Sgt. Geddes testimony, however defendant does not appeal that portion of the read back.

The transcript does not recite the actual read back, it simply cites the pages and lines from the transcript, which were read to the jury.

(continued)

(continued)

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A-2483-03T4

March 9, 2006