STATE OF NEW JERSEY v. JAMES SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4275-04T44275-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES SMITH,

Defendant-Appellant.

 
 

Submitted April 26, 2006 - Decided

Before Judges Weissbard and Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Ind. No. 03-05-1091.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated Counsel,

of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Smith appeals from his conviction on seven counts of an eight-count indictment as to which an aggregate prison term of seven years with three and one-half years of parole ineligibility was imposed. We affirm defendant's conviction but modify his sentence.

The indictment charged the following offenses: second- degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree significant bodily harm aggravated assault, N.J.S.A. 2C:12-1b(7) (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three); fourth-degree recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d (count six); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count seven); and third-degree hindering apprehension, N.J.S.A. 2C:29-3a(7) (count eight).

Just prior to trial, the judge granted the State's unopposed motion to amend count one to assert only attempted aggravated assault and to make certain changes to counts five and eight. On defendant's motion, the trial court dismissed count seven during trial.

Defendant was tried on the remaining charges, and on January 15, 2004, a jury found him not guilty of count one (second-degree aggravated assault) and count two (third-degree aggravated assault) but convicted him on both counts of the lesser included offense of simple assault. It also convicted him on counts three, four, five, six and eight.

On March 4, 2005, the judge merged count one into count two, count four into count three, and count six into count five. He granted the State's motion to sentence defendant as a persistent offender with respect to count three of the indictment and imposed the presumptive term of seven years. He also imposed a three and one-half year period of parole ineligibility. On count one, defendant was sentenced to a concurrent six-month term for simple assault, which had been merged into count two; a concurrent four-year term was imposed on count five for third-degree possession of a weapon for an unlawful purpose; and a concurrent nine-month term on count eight for fourth-degree hindering apprehension.

I

Dina Kaufman testified at trial that on Sunday, January 12, 2003, defendant lived with her at her home at 130 Park Avenue, Englewood. The previous night, Kaufman had thrown a birthday party at Chuck E. Cheese's for her daughter, A'lelia. Defendant's daughter, niece, and nephew, who normally resided with defendant's mother, slept overnight at Kaufman's after the party. In her later police statement, Kaufman said that defendant did not return home that night and came in about 5:30 in the morning. He immediately went to sleep.

At around 6:30 a.m., Kaufman called defendant's mother to tell her that she was bringing the children home. Between 7:30 and 8:00 a.m., she ordered a taxi cab and took the children home to Hackensack. She left A'lelia, who was seven at the time, sleeping on the couch in the apartment where defendant was still sleeping.

When Kaufman returned to her apartment, defendant woke up and asked her where the children were. She told him that she had taken them home. At this point, the story that Kaufman told at trial varied from the one she had told to police and the grand jury.

In her initial police statement, made at about 9:30 a.m. that morning, she said that defendant "went crazy" and asked her "why you taking my daughter home! I can't spend time with my daughter!?"

She told the police that defendant told her to go to the bedroom, at which point,

he laid it on me. He started punching me all over my body, in my face, on my head. I grabbed a pillow and covered my face so I could just take the body blows. Then he picked up this broomstick.

. . . .

He was swinging full force. Hit my ribs, my face, my head, my legs. Everywhere! I thought I was going to die. I think I blacked out a few times. At one point he was twisting my neck.

. . . .

He had me on the ground. He was choking me. I couldn't breathe. He was trying to twist my neck all around, like all the way around. I thought I was really gonna [sic] die.

He then told her to "get out of his face." She ran out of the house, down the street and to the first house that she saw. She said a man opened the door, and his wife called the police for her.

Marvin Yelverton was at home at 105 Park Avenue on January 12, 2003. Between 8:15 and 8:30 a.m., he was upstairs in his bedroom watching television with his wife, Josefina, and their daughter. He heard a loud banging and yelling coming from his front door. He thought at first that someone might be playing a prank, but the banging was persistent. He went downstairs and opened the door and saw Kaufman banging on his screen door. She was saying "help me, help me, he's hitting me." She continued to say this in a loud and panicky way. He also noticed that Kaufman's face was red and looked bruised, and that she had been crying. She was not wearing a coat and may have been wearing slippers. She was carrying either a pillow or a pillow case.

Yelverton asked Kaufman whether she wanted him to call the police. He was with her for about five minutes and then his wife came down with the cordless phone. He thought Kaufman would be more comfortable with a woman, so he left her with his wife and went back upstairs until the police arrived. He said that she cried the entire time she was in his house.

Josefina Yelverton corroborated her husband's story. She testified that they were in bed watching television when they heard wild knocking at their door. Her husband went downstairs to answer the door. She followed behind him and saw Kaufman crying and saying "he's hitting me" and "he's hitting me with a broom." They let her into the living room, and Mrs. Yelverton called the police. She said that Kaufman was very upset and that she was crying constantly. Mrs. Yelverton estimated that the police arrived within three to four minutes.

Officer Robert L. Drakeford, a patrolman with the Englewood Police Department, received a call to respond to 105 Park Avenue in Englewood. It took him approximately three minutes to get there. He met with Kaufman and the Yelvertons.

When he arrived, Kaufman was crying and had fresh bruises on her face and scratches on her neck. Drakeford asked her what had happened to her, and she told him that her boyfriend had beaten her. He asked her if she wanted an ambulance, but she refused treatment because her daughter was still at her home. Officer Garcia, another patrolman, went to Kaufman's home to pick up her daughter.

Sergeant Kevin Barrett also went to the Yelverton's home. Drakeford spoke to him, and then Barrett and Garcia proceeded to Kaufman's house. At around 8:40 a.m., Barrett knocked and a man opened the door. Barrett asked him his name and he said "James Erp." Barrett asked "Erp" if James Smith was there. "Erp" replied that Smith was not there and that he had run down the block after Kaufman.

Drakeford remained at the Yelverton home with Kaufman for approximately ten to fifteen minutes. He put her in his patrol car and drove to her home, which was about 400 feet away from the Yelverton home. The trip took about a minute. Drakeford parked in front of the house with Kaufman. He told her to remain in the car and went to speak with Garcia and Barrett, who were on the front stoop talking to a male. Drakeford joined the group and spoke with them for about a minute. He then returned to the car and asked Kaufman if the man was James Erp. She told Drakeford that the man was defendant, her boyfriend, who had attacked her.

Drakeford then arrested defendant, who was "removed from the scene." Drakeford and Kaufman entered the house to get Kaufman's daughter. While in the house, Drakeford observed welts and marks on Kaufman's back where her sweater rode up. He asked her how she got the marks on her back. She told him that she was beaten by defendant. She said that he "grabbed her, punched her and took a piece of tube, aluminum tubing, and hit her with it."

Kaufman went into the bedroom and retrieved the tubing from the floor. Drakeford described it as an aluminum tube that was two and a half feet long, with a red plastic handle on it. He said he saw splotches of blood on the handle. He took this tubing to headquarters, logged it, and placed it into evidence storage.

At around 9:00 a.m. on January 12, 2003, Officer Sandra Mitchell was assigned to the assault case and asked to photograph the victim. According to Mitchell, Kaufman was "borderline hysterical," and she was crying, sobbing and hugging herself, shaking, hunched over and babbling.

Mitchell escorted Kaufman into the women's bathroom. She asked her to disrobe so that she could photograph her. She took fourteen pictures of her and testified that Kaufman was "covered from head to toe in contusions, welts, bloody gashes." While she was being photographed, Kaufman became even more hysterical. Mitchell said that she repeatedly stated, "I thought I was going to die, I thought he was going to kill me."

At trial, Kaufman admitted that four months after the assault, on May 14, 2003, she had testified before the Bergen County Grand Jury. During her testimony there, she had confirmed the statement she gave to the police.

When she testified before the trial jury, Kaufman admitted that she had told the grand jury that defendant had used the broomstick to hit her. The trial judge excused the jury so that the State could attempt to refresh Kaufman's recollection about what she had said to the grand jury concerning her police report.

The prosecutor proceeded to read portions of the grand jury transcript to Kaufman outside the presence of the jury. Kaufman also confirmed that she signed the police report about her attack and testified before the grand jury that everything in that statement was true. She admitted to having testified to the grand jury that she wanted to put these events behind her and that defendant had remorse for what he had done to her. She told the grand jury that "he knows the incident that he did to me was very wrong and he's been very wary about a lot of things in his life and he - one of the things that he has been wary about and regrets is putting his hands on me and being - being a violent person to me." She also said that defendant bought a car for her so she could "get back and forth to work."

Before the jury, however, Kaufman testified that the beating never occurred and that defendant had said it was fine that she took the children home. Defendant then saw bruises on her face and asked her what happened to her.

She told defendant that she had gone out to a local bar looking for him because he had not come home. He was not there, but she did encounter his daughter's mother and her friends, who attacked her. This was in retaliation for an altercation that had taken place on December 26, 2003 at defendant's mother's house. One of the women had hit her on December 26 and had warned her, "when I see you in the street I'm going to catch you."

Kaufman was very angry that she had been attacked and was screaming and arguing with defendant about it. She was also angry that defendant had stayed out all night. She said "I didn't even know if he was with who he said he was with or he was with one of his - a woman or whatever. I was just - I was - didn't know where he was all night. And I was home with the kids." He was trying to calm her down and he was getting upset, so she left the house impulsively, without thinking. She said to herself "I'm going to get him for this," and she was being very spiteful because she felt scorned. She said she would call the police on him and that she would tell the police he beat her; she did not think that it would lead to his arrest and trial.

She said that she was "angry and upset and probably out of control that day." She claimed that she did not recall retrieving the broomstick from her bedroom but said that she gave the broomstick to the police because "it was in the house" and because she was mad at defendant. She also testified that she had told the Yelvertons that she and defendant had a fight and that he had hit her. She admitted to leaving the house without a jacket on, but not to being in slippers or barefoot. She remembered a police officer coming to the Yelverton's house, and she remembered talking to him.

She testified that she had lied before the grand jury and that she had "never been in front of a grand jury before." She was "freaked out" and "everything was going crazy that day." She said, "I didn't know what to do or how to say anything. It was terrifying."

During the State's redirect examination of Kaufman, the trial judge, at defense counsel's request, again dismissed the jury so that the State could attempt to refresh Kaufman's recollection about her grand jury testimony. Kaufman said that she was mad at the defendant because he had been "fooling around during that time" and the woman had come to her home. This was one of the reasons that she decided to confirm her police statement at the grand jury proceedings.

Out of the presence of the jury, the judge questioned Kaufman about the change in her testimony. Kaufman reiterated that she was now saying that she was angry with the defendant on the day of the attack because she thought that he had been out with another woman all night. The following exchange occurred between the judge and Kaufman:

THE COURT: Four months later - four months later, you go to the grand jury and you give basically the identical testimony.

THE VICTIM: Yes.

Q: Okay? You knew you were going to a grand jury hearing. You knew that there was a legal proceeding.

A: Yes.

Q: And at that hearing you gave testimony indicating that [defendant], in fact, had hit you. Did you not?

A: I gave the testimony that was on the police statement, yes, because I was - like you said, I was upset with him because I thought he was out with another woman and the statement that I gave to the grand jury was the same statement that was on the police report.

Also because he was fooling around during that time, too, when I went -

Q: This is four - this is four months later?

A: He's - yes. He was - I had a woman come to my home. And I was upset and I went to the grand jury and I said, you know what, I'll just give the same testimony that I gave to the police.

Q: Let me see if I understand this correctly. Is it your testimony that because he had been out with another woman four months later that this was one of the reasons for your giving this testimony at the grand jury?

A: Yes.

II

On appeal defendant presents the following issues for our consideration:

POINT I

THE TRIAL COURT FAILED TO APPROPRIATELY INSTRUCT THE JURY REGARDING TESTIMONY WHICH IT DEEMED ADMISSIBLE PURSUANT TO N.J.R.E. 803(a)(1). (Not raised below)

POINT II

THE TRIAL COURT'S INDEPENDENT QUESTIONING OF DINA KAUFMAN CAST ITSELF INTO THE ROLE OF AN ADVOCATE BY ESSENTIALLY PROJECTING ITS OWN DISBELIEF OF HER TRIAL TESTIMONY. (Not raised below)

POINT III

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM A POLICE OFFICER AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(c)(2).

POINT IV

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT V CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT III CHARGING AGGRAVATED ASSAULT BY CAUSING BODILY INJURY WITH A DEADLY WEAPON. (Not raised below)

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VI

ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

POINT VII

THE JUDGMENT OF CONVICTION AND THE TRIAL COURT'S SUPPLEMENTAL OPINION MUST BE CORRECTED TO ACCURATELY REFLECT THE MERGER BETWEEN COUNTS I AND II, DELETING ANY REFERENCE TO ANY SENTENCE IMPOSED.

III

Defendant argues that the trial judge should have molded the jury instructions on Kaufman's prior inconsistent statements to the police and grand jury "within the context of the particular facts of the case." He argues that the judge should have instructed the jury on the fifteen factors set forth in State v. Gross (Gross I), 216 N.J. Super. 98, 109-110 (App. Div. 1987), aff'd 121 N.J. 1 (1990) (Gross II), so that the jury could assess "the credibility and probative worth of the statement." He argues that the trial judge's references to the facts of the case were insufficient, that the judge failed to instruct the jury that the Gross guidelines applied to Kaufman's police statement and grand jury testimony, and that if the jury decided these statements were unreliable, it could not use them for any purpose. Defendant did not raise this issue below, requiring that we review it in the context of the plain error rule. State v. Timmendequas, 161 N.J. 515, 576 (1999). Defendant must therefore establish "not only that there was error, but also that it was clearly capable of producing an unjust result." State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000). See also State v. Macon, 57 N.J. 325, 336 (1971). The failure to object "suggests that counsel perceived the alleged error to be of no moment, and deprived the trial judge of an opportunity to consider the objection and, if appropriate, remedy the instructions." Swint, supra, 328 N.J. Super. at 257.

Because Kaufman had recanted her testimony, the trial judge proposed a jury charge for prior contradictory statements. During the charge conference, the State advised the court that it had "reviewed the Court's draft of prior contradictory statements of witnesses not defendants" and that it had "no objection to that charge as drafted by the Court." Defense counsel did not object.

During a second charge conference, the judge again reviewed the charge for prior contradictory statements of witnesses not defendants. Defense counsel did not object to the charge, but instead objected to the use of Kaufman's testimony within the charge. Defense counsel requested that the judge not list Kaufman's reasons for changing her story. Specifically, defense counsel did not want the trial judge to state that Kaufman was mad at defendant because he was "philandering."

After this language was stricken from the charge, the judge confirmed with both the State and defense counsel that the rest of the charge was acceptable. Both agreed that it was.

The judge gave the jury the standard credibility instructions and also instructed it on prior inconsistent statements as follows:

Evidence, including a witness's statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness's testimony at the trial may be considered by you for the purpose of judging the witness's credibility.

It may also be considered by you as substantive evidence. That is, proof of the truth of what is stated in the prior contradictory statement.

Evidence has been presented showing that at a prior time a witness has said something or has failed to say something which is inconsistent with the witness's testimony at the trial.

This evidence may be considered by you as substantive evidence of the proof of the truth of the prior contradictory statement or omitted statement.

However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness, you may - you will want to consider all of the circumstances under which the statement or failure to disclose occurred.

You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility.

You may consider such factors and where and when the prior statement or omission occurred and the reasons, if any, therefore.

In regard to the testimony of Dina Kaufman on examination, inconsistencies were admitted between the prior statements and those given on the stand. The witness gave reasons therefore [sic] saying that such prior statements or omissions were untrue.

The extent to which inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and relationship to her entire testimony and all the evidence in this case, when and where and the circumstances under which they were said or omitted and whether the reasons she gave you therefore [sic] appear to be to you believable and logical.

The charge delivered by the judge was identical to the Model Charge for Prior Contradictory Statements (Not Defendant), except for the paragraph where the judge may insert specific reasons advanced for the witness's inconsistent statements.

However, there is another Model Charge, Recanting Witness (Substantive) that includes the fifteen factors set forth in Gross I and affirmed in Gross II, as follows:

1. [Name of declarant-witness]'s connection to and interest in the matter reported in his/her prior statement;

2. The person or persons to whom he/she gave the statement;

3. The place and occasion for giving the statement;

4. Whether [name of declarant-witness] was then in custody or otherwise the target of investigation;

5. The physical and mental condition of [name of declarant-witness] at the time;

6. The presence or absence of other persons;

7. Whether [name of declarant-witness] incriminated himself/herself or sought to exculpate himself/herself by the statement;

8. Whether the writing is in [name of declarant-witness]'s hand;

9. The presence or absence, and the nature of, any interrogation;

10. Whether the [sound recording] [writing] contains all, or only a portion or summary, of what [name of declarant-witness] said;

11. The presence or absence of any motive to fabricate;

12. The presence or absence of any explicit or implicit pressures, inducement, or coercion for making the statement;

13. Whether the use to which the authorities would put the statement was apparent or made known to [name of declarant-witness];

14. The inherent believability or lack of believability of the statement;

15. The presence or absence of any corroborating evidence.

See Gross I, supra, 216 N.J. Super. at 109-10; Gross II, supra, 121 N.J. at 10. Additionally, this Model Charge suggests that the court instruct the jury that: "If you decide that the statement is reliable, then you may consider it for its truth and weigh it along with all the other evidence in the case. However, if you decide that the statement is not reliable, then you may not consider it for any purpose."

In Gross II, the Court determined that the evidentiary rule on prior inconsistent statements "is designed 'to limit substantive admissibility of prior inconsistent statements [of the proponent's witness] to those statements given in a form and under circumstances importing special reliability.'" Gross II, supra, 121 N.J. at 9 (quoting Gross I, supra, 216 N.J. Super. at 107). The Gross factors are relevant to the determination of reliability. Ibid.

According to N.J.R.E. 803(a)(1), the following is not excluded by the rule against hearsay:

(a) PRIOR STATEMENTS OF WITNESSES. A statement previously made by a person who is a witness at a trial or hearing, providing it would have been admissible if made by the declarant while testifying and the statement:

(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand-jury proceeding, or in a deposition.

N.J.R.E. 613(b) permits the trial court to exclude evidence of a prior inconsistent statement unless the witness is afforded the opportunity to explain or deny the statement and is subject to cross-examination.

In Gross II, the Court affirmed that "the declarant's presence in court and the opportunity for cross-examination obviate any special requirement to demonstrate the reliability of the prior statement." Gross II, supra, 121 N.J. at 12. This accords with the contemporary evidence rule on prior inconsistent statements, "which stresses the efficacy of in-court examination to test the veracity of a witness's out of court statement," id. at 13, because in-court examination is a reliable way to "explore and to expose" the circumstances surrounding the prior inconsistent statement. Ibid. In fact, cross-examination is the most effective way to test the truth of the out-of-court statement. Id. at 14.

Accordingly, where a witness is cross-examined regarding a prior inconsistent statement that was made under oath, the circumstances surrounding the inconsistencies will be adequately fleshed out. Under such circumstances, if the jury charge is "accurate and thorough and adequately explain[s] the law" and the judge gives a general charge on credibility, the trial court need not summarize inconsistencies between in-court testimony and out-of-court statements given soon after the commission of a crime, Swint, supra, 328 N.J. Super. at 259, because:

There is a significant difference between a trial judge's explaining the applicable law to the jury and in providing guidance to the jury concerning its fact-finding responsibilities. Thus, there is a greater need to relate jury instructions to the facts of the case regarding the legal concepts the jury will be required to apply than the evaluation of witness credibility.

[Ibid. (citations omitted).]

Here, Kaufman testified regarding both her police statement, which she gave the night the attack occurred, and her grand jury testimony, which she gave four months after the attack. Her statements were consistent on both of these occasions. At the grand jury, she swore that the statement she gave to the police was true, and that the testimony she was about to give was also true.

Moreover, she was subject to cross-examination regarding her change of story. She had an opportunity to explain in court why her prior inconsistent statements were not true and why her current statement was the truth. Between direct and cross-examination, the jury had the opportunity to assess all of the facts surrounding the police statement and her grand jury testimony, and why she recanted that testimony.

The trial judge gave a general credibility instruction, and also instructed the jury to consider all of the circumstances under which Kaufman's prior inconsistent statement occurred, where and when the prior statement occurred and the reasons for that statement. These instructions encompassed Gross factors one through thirteen.

Importantly, defense counsel had specifically requested that the trial judge limit the number of reasons it read to the jury. In accordance with his wish, the judge gave a general statement to the jury that Kaufman gave certain reasons for her actions and that the jury must determine whether the reasons Kaufman gave for her prior inconsistent statements were "believable and logical." This instruction covered Gross factor fourteen. The jury was also instructed to compare her statements to "all the evidence in this case," which would include the corroborating testimony of the Yelvertons and the police officers who responded to the 911 call. This instruction covered Gross factor fifteen.

Finally, the judge instructed the jury that it must determine the importance of the inconsistencies on the "overall testimony of the witness as bearing on his or her credibility." Therefore, the judge referenced the general credibility charge within the charge on prior inconsistent statements.

As a result, we conclude that the judge's failure to specifically list the Gross factors was not error, let alone plain error. Beyond doubt, the result here was not manifestly unjust.

IV

We reject defendant's contention that the judge improperly intervened in the trial by questioning Kaufman in a manner that projected his disbelief in Kaufman's trial testimony, thereby prejudicing defendant's case which turned on Kaufman's credibility. As the State points out, the challenged questioning by the judge took place outside the jury's presence and could not, therefore, have impacted on the jury's assessment of Kaufman's credibility.

V

Defendant claims that the trial judge improperly ruled that the statement Kaufman made to Officer Mitchell - "I thought I was going to die, I thought he was going to kill me" - was an exception to the rule against hearsay. He says that the judge improperly determined that the statements were made while she was under the stress of a "startling event" that afforded her no opportunity to fabricate her statements. He argues that the judge improperly determined that this made her statements inherently reliable.

Over defense objection, the judge permitted Mitchell to testify regarding the statements Kaufman made while she was being photographed. The judge ruled that "given the testimony of [Mitchell] and the fact that [Kaufman] had been excited, it was made at that time, it would fall under the excited utterance exception and your objection is overruled."

We conclude that the judge properly ruled the statements admissible because the record is clear that Kaufman was suffering great physical and emotional trauma as a result of the attack. Her statements to Mitchell occurred just over an hour after the attack took place, and the record shows that she was in hysterics at the time she made them.

An excited utterance is an exception to the hearsay rule, permitting evidence of a statement relating to a startling event or condition that is made while the declarant was under the stress or excitement caused by the event or condition, and before he or she had the opportunity to deliberate or fabricate. N.J.R.E. 803(c)(2). The determination of whether to admit hearsay under the excited utterance exception is left to the trial judge's discretion. State v. Lyle, 73 N.J. 403, 413 (1977).

The court must consider "'whether the declarant had the opportunity for deliberation, reflection, or misrepresentation before he made the statement, or whether the statement was truly spontaneous and made solely under the stress of excitement.'" State v. Lazarchick, 314 N.J. Super. 500, 522 (App. Div.) (quoting Biunno, New Jersey Rules of Evidence, comment 1 on N.J.R.E. 803(c)(2)(1997)), certif. denied, 157 N.J. 546 (1998). The passage of time between an event and the statement "does not render the excited utterance doctrine inapplicable if [the witness] was, in fact, 'still in a state of excitement and the psychological guarantee of trustworthiness was still present.'" State v. Conigliaro, 356 N.J. Super. 54, 63 (App. Div. 2002) (quoting State v. Simmons, 52 N.J. 538, 542 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969)).

The record in this case clearly supports the trial court's conclusion that Kaufman's statements to Mitchell were excited utterances. According to the Yelvertons, Kaufman arrived at their house at approximately 8:30 a.m., still crying from the attack. When the police arrived several minutes later, she was still crying. She gave her statement to Mitchell at the police station at 9:50 a.m. Her photographs were taken around this time, and, according to Mitchell, she was in hysterics and her hysteria worsened.

There is no evidence to suggest that Kaufman had recovered from the trauma of the attack. In fact, she made the same statements to the police that she made to the Yelvertons: that defendant had beaten her, that he was hitting her, and that she thought he was going to kill her. There is no evidence that she calmed down enough to fabricate a story. Her story simply did not change between the Yelverton's home and the police station.

We reject defendant's argument and conclude that the trial judge's evidentiary ruling was correct.

VI

Having rejected defendant's arguments on the fairness of his trial, we affirm his convictions. We turn to defendant's sentencing arguments which encompass the remainder of his issues on appeal.

A.

Defendant argues that count five, charging possession of a weapon (the broom handle) with purpose to use it unlawfully against another, should have been merged into count three, which charged second-degree aggravated assault. The State agrees. Because the only asserted unlawful purpose in possessing the broom handle was to commit the assault, the counts should be merged. State v. Parolin, 171 N.J. 223, 228 (2002).

B.

Defendant contends that his sentence was excessive, both with respect to the imposition of a discretionary extended term and the length of the term, as well as imposition of a parole disqualifier.

(1)

There was no doubt that defendant qualified for extended term sentencing as a persistent offender. N.J.S.A. 2C:44-3(a). The only question is whether the judge followed the mandate of State v. Dunbar, 108 N.J. 80 (1987). In that regard, defendant argues, as he did at sentencing, that his prior criminal history, taken together with the present offense, did not provide an adequate basis for concluding that an extended term was necessary for protection of the public. Id. at 87-91. Our review of the sentencing transcript reveals that the judge was cognizant of Dunbar, the applicability of which the parties had briefed, and concluded "that an extended term is warranted in this case." While the judge did not spell out his findings in support of that conclusion, he did state that the "public safety must be protected," and we are satisfied that the record, including the arguments of counsel, support the judge's decision to sentence defendant to an extended term.

(2)

Having made that determination, the judge proceeded to the aggravating and mitigating factors. Id. at 91-92. The judge found present aggravating factor one, N.J.S.A. 2C:44-1a(1) ("nature and circumstances of the offense . . . including whether it was committed in an especially heinous, criminal, and or depraved manner"), two, N.J.S.A. 2C:44-1a(2) ("gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim . . . was particularly vulnerable"), three, N.J.S.A. 2C:44-1a(3) (risk of another offense), six, N.J.S.A. 2C:44-1a(6) (extent of prior record), nine, N.J.S.A. 2C:44-1a(a) (need to deter), and eleven, N.J.S.A. 2C:44-1a(11) (imposition of non-jail term would be perceived as a cost of doing business). The judge found that the aggravating factors substantially outweighed the sole mitigating factor eleven, N.J.S.A. 2C:44-1b(11) (excessive hardship to others), which the judge initially discounted. However, after hearing an emotional plea from Ms. Kaufman, the judge ultimately gave weight, although not full weight, to mitigating factor eleven. Although he had initially considered a ten-year term, the judge imposed a presumptive seven year sentence after accounting for that factor, "even though a term in excess of the seven years would be justified." As noted, the judge also imposed a maximum period of parole ineligibility noting that "this is one of those cases [where] it is justified under the circumstances."

As defendant contends, and the State concedes, aggravating factor eleven was clearly inapplicable here. Indeed, where a jail term must be imposed, that factor has no role in sentencing. State v. Dalziel, 182 N.J. 494, 502 (2005) (citing State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003)). We also conclude that aggravating factor two was inapplicable. The judge's only finding in that regard was that the victim was especially vulnerable because she was a woman. While we do not deprecate the seriousness of defendant's assault, which adequately, albeit marginally, satisfied aggravating factor one, the statute only references the victim being "particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth," N.J.S.A. 2C:44-1a(2); it does not include gender. If the judge's rationale were followed, every offense against a woman would automatically satisfy this aggravating factor. Such a determination is best left to the Legislature.

Even if these two factors are stricken, the record provides ample support for the seven-year presumptive sentence, which only requires that the aggravating and mitigating factors be in equipoise. Nevertheless, we are unable to conclude that the parole ineligibility term is also sustainable in these circumstances. Rather than remand for reconsideration of the sentence, we choose to exercise our original jurisdiction, R. 2:10-5, to conclude the matter. In doing so, we have taken into account that defendant was found not guilty of the more serious assault charges and that although his prior record was extensive, his last conviction before the present offense was in March 1995, nearly eight years earlier. Even measured from his release from confinement, there was a five-year gap with no offenses. Given our admonition that periods of parole ineligibility should not be routinely imposed, State v. Kruse, 105 N.J. 354, 359 (1987) (quoting State v. Martelli, 201 N.J. Super. 378, 382-83 (App. Div. 1985), we modify the term of parole ineligibility to two years.

C.

Finally, we reject defendant's invocation of State v. Natale, 184 N.J. 458 (2005). Defendant received a presumptive term; therefore Natale is inapplicable.

Conviction affirmed; remanded for entry of an amended judgment of conviction consistent with this opinion.

 

Delay in sentencing was due to defendant's flight during jury deliberations.

(continued)

(continued)

31

A-4275-04T4

May 26, 2006