STATE OF NEW JERSEY v. STAN BRAXTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4024-04T44024-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STAN BRAXTON,

Defendant-Appellant.

______________________________________________________________

 

Submitted May 16, 2006 - Decided May 31, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Cumberland County, 01-07-00505-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jerry Soffer, Assistant Deputy

Public Defender, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (G. Harrison Walters,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Stan Braxton, was tried before a jury and found guilty on one count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and four counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(5). The sentence for the second degree offense was imprisonment for nine years with 85% parole ineligibility. For each of the third degree offenses, the sentence was four and one-half years concurrent to the sentence on the second degree offense.

Defendant appeals, contending (1) that the judge erred in denying his motion for acquittal, made at the end of the State's case, on the second degree aggravated assault because the State failed to prove the element of serious bodily injury; (2) misconduct by the prosecutor during his summation rendered the trial unfair.

After carefully considering the briefs and record, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(2). Nonetheless, we add the following comments.

When the incident occurred, defendant was an inmate in Southwoods State Prison. While taking a shower, he opened the shower curtain, pointed to his penis, and said to a female guard, "Suck this dick you white bitch." The guard called for assistance, six guards came to her assistance and ordered defendant to dress and come out. Defendant refused, and told one of the guards that if he touched him he would "hurt" him. When the guards tried to place handcuffs and leg irons on defendant, he resisted, fighting back and cursing. One officer sustained "multiple scratches and redness" on his right forearm; his right wrist and one of his fingers were puffy and reddened. He was unable to make a tight fist with his right hand. Another officer suffered injuries to his ear, right wrist, and right hand. Another officer had a seven-inch red scratch on his head and sore ribs. Another officer injured his forehead and face. The most serious injury was sustained by Corrections Officer Stewart Richardson, Jr. He said the confrontation became physical when defendant lunged at Sergeant Taylor. Richardson stepped between defendant and the sergeant. Defendant hit Richardson in the face with his elbow. When the other officers tried to help Richardson, defendant began "kicking, punching, thrashing, [and] yelling." Richardson suffered a deviated septum and a fracture of his left eye orbit. As a result of the nose injury, Richardson had "difficulty breathing through the right side" of his nose. Initially, he was out of work for a week. His deviated septum had to be corrected by surgery that involved the administration of general anesthesia, and he was out of work for about a month after the surgery.

Defendant's motion for acquittal, made at the end of the State's case pursuant to R. 3:18-1, was expressed in the following manner:

Defendant asks for a judgment of acquittal. The state has failed to meet its burden of proof beyond a reasonable doubt with respect to the five charges of aggravated assault inasmuch as the testimony fails to meet the state's burden with respect to all of the officers who are alleged victims.

The judge inferred that as to Richardson, defendant was arguing that the deviated septum and the fracture of the orbital bone did not constitute serious bodily injury, and he ruled that a jury could reasonably find that they were serious bodily injuries, thereby justifying a finding of guilt on the second degree offense arising from the attack on Richardson. There was no discussion by counsel or the judge about the reasonableness of a jury finding that defendant had attempted to cause serious bodily injury.

N.J.S.A. 2C:12-1b, in pertinent part, provides that "[a] person is guilty of aggravated assault if he: (1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" This form of aggravated assault is a crime of the second degree. N.J.S.A. 2C:12-1(b). Serious bodily injury means "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

The indictment charged defendant with both attempt to cause and causing serious bodily injury. The jury was charged on all forms of this offense, and might well have convicted defendant because it was satisfied that defendant had caused or had attempted to cause serious bodily injury, or both.

On the motion for acquittal, the trial judge was obliged to decide

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

As the State acknowledges, in State v. Kane, 335 N.J. Super. 391, 399 (App. Div. 2000), we held that a broken nose is not necessarily serious bodily injury. But that case involved a guilty plea, and the only injury evidence submitted by the State were x-rays showing the break. Id. at 394. Here, by contrast, the evidence showed that the victim's breathing was so impaired that general surgery was required to restore him to good health. In State v. Turner, 246 N.J. Super. 22, 27 (App. Div. 1991), we commented on the effect of medical treatment in the context of determining whether a victim had suffered a substantial risk of death:

[W]e are satisfied that a determination of whether the victim was subjected to a substantial risk of death requires the primary focus to be upon the nature and extent of the injury rather than on the effectiveness of medical treatment, unless of course, the quality of care becomes a substantial intervening cause of harm.

That principle is equally applicable in the context of serious bodily injury.

We are inclined to believe that the jury was entitled to find that defendant had caused serious bodily injury in light of the impairment of Richardson's ability to breathe naturally and the necessity for surgery under general anesthesia to correct the condition. But we need not resolve that point, which is the only one raised by defendant on this aspect of the case, since the jury was clearly entitled to find that defendant had attempted to cause such injury, given his threat, his initiation of the struggle, the manner in which he struck the victim, and the way in which he further resisted the efforts of the guards to subdue him.

Defendant made no objection at trial to the State's summation. Now he claims that we should reverse as a matter of plain error, R. 2:10-2, because the prosecutor made the following remarks:

Now if you believe Mr. Braxton there's this conspiracy between Officer DiMatteo, Officer Felice, Richardson, Sergeant Taylor, Banks, and Smith and some other officers. So if you believe his theory then these officers must have conspired to create this atmosphere where they could get and Mr. Parrish says knock Mr. Braxton down a peg.

. . .

. . . He himself even said that Sergeant Taylor tried to handcuff me, I pulled my hands away. I don't believe that, ladies and gentlemen, and I submit to you that it's not true.

. . .

It doesn't take someone (sic) to realize that a small infraction can build into something serious, and that to control these inmates, it has to be pretty tough. You can't be running around doing nothing because the numbers are against the corrections officers. Purely mathematical. The numbers are stacked against them. One guard to 124 inmates. It's almost insane sometimes because they are there by themselves. Okay?

We see nothing wrong with the first statement. The second statement is improper insofar as it expresses the prosecutor's personal opinion about a question of fact. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). Since there was no objection, and since the opinion did not suggest that it was based on facts not before the jury, see, e.g., State v. Josephs, 174 N.J. 44, 125 (2002), and since the evidence of guilt was quite substantial, we are satisfied that the erroneous remark fails to satisfy the plain error standard, which is that the statement was clearly capable of causing an unjust verdict.

R. 2:10-2. The third remark also should not have been made because there was no evidence in the case of ratio of the guards to inmates. But, that isolated remark was not capable of causing an unjust verdict.

Defendant also complains for the first time about the prosecutor's repeated comments respecting defendant's failure to present evidence, other than his own testimony. He argues that the remarks improperly implied that defendant had failed in a relevant burden of proof. We do not agree that that implication was present, and, in any case, the judge clearly charged the jury that the burden of proving defendant's guilt rested solely on the State.

 
Affirmed.

(continued)

(continued)

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A-4024-04T4

May 31, 2006