STATE OF NEW JERSEY v. GRACELIA A. MALCOLM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6981-03T46981-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GRACELIA A. MALCOLM,

Defendant-Appellant.

______________________________

 

Submitted March 20, 2006 - Decided April 21, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-10-2002B.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Two), and fourth-degree aggravated assault by spitting bodily fluid on a police officer, N.J.S.A. 2C:12-13 (Count Three); but the jury was unable to reach a verdict on the charge of aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (Count One). On May 7, 2004, the trial judge granted the State's motion to dismiss Count One, and sentenced defendant to three years probation, together with sixty days in the county jail as a condition thereof, on her conviction for resisting arrest, and a concurrent identical term on the conviction of spitting bodily fluid on a police officer. All appropriate fees and penalties were imposed. Defendant was also ordered to undergo a mental health evaluation, and to receive anger management counseling. Defendant appeals, and we affirm.

On September 30, 2004, pursuant to a telephone request for assistance, two Atlantic City police officers, John Slota and Christopher McMahon, were dispatched to the premises at 12 Belhaven Court, Atlantic City. Upon arrival, the police officers were advised by a female that she resided in the premises, and that "she wanted her sister [the defendant] out of the house, because she steals everything from everybody."

On entering the residence, the police officers heard "yelling and screaming coming from upstairs." Officer Slota went upstairs where he observed defendant "walking between the hallway and the bedroom, back and forth, saying that she [is] not going anywhere." While the officer was trying to keep defendant and her sister separated, defendant attempted to push past him to go downstairs. The officer responded by shoving defendant with both hands back into the bedroom. Defendant stared at the officer, took two steps towards him, and grabbed his shirt, trying to push past him. As the officer tried to remove defendant's hands from his shirt, defendant took hold of one of his hands and bit his thumb. Reacting to defendant's actions, the officer, using "[a] force [he] felt . . . was necessary to effectuate the release on [his] hand," pushed her in the face and nose area with his left hand. Defendant fell back onto a bed and started bleeding. While the officer advised her that she was under arrest, defendant started screaming that "she was going to sue the officer and have [his] badge."

In the interim, Officer McMahon went upstairs to assist handcuffing defendant. Defendant commenced "fighting [the officers], kicking, [and] pulling her hands away," causing the three of them to fall in between the beds. After assisting defendant off the floor, defendant was handcuffed with her hands behind her back. As the officers attempted to walk her out the bedroom door, defendant "took . . . a deep breath and just . . . spit blood [on Officer Slota]," striking his arms, uniform, and the cut on his hand where she had bitten him.

As the officers escorted defendant downstairs, other individuals on the ground floor of the house started calling them "all kinds of names . . [l]ike . . . we were dirty cops, and they were going to sue us, and things of that nature." The officers did not respond, but continued to walk out the front door, followed by the individuals from the house who were then joined by others from the neighborhood. Officer McMahon requested an ambulance for defendant and Officer Slota. While waiting for the ambulance, due to the number of people that were gathering, Officer Slota requested assistance, and two other officers responded for crowd control.

On appeal, defendant raises the following arguments for our consideration:

POINT I.

THE COURT ERRED IN ADMITTING EVIDENCE OF THE BEHAVIOR OF DEFENDANT'S FAMILY AND THE BEHAVIOR OF THE NEIGHBORS OUTSIDE AS IT WAS UTTERLY IRRELEVANT TO THE ISSUES AT TRIAL AND WAS HIGHLY PREJUDICIAL TO THE DEFENDANT. (NOT RAISED BELOW).

POINT II.

IT WAS MANIFESTLY EXCESSIVE TO IMPOSE A CONDITION OF JAIL TIME UNDER THESE CIRCUMSTANCES AND, INSOFAR AS IT IS TOO LATE TO RECTIFY THAT ERROR, IN JUSTICE, [DEFENDANT'S] PROBATION SHOULD BE REDUCED.

We have reviewed the record in its entirety based on the arguments presented by defendant, and determine that the arguments are without merit. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that the trial judge erred in admitting testimony from the police officers concerning "how the mood of the family turned ugly, how the neighbors were unhappy[,] and how the officers felt the need for backup." Because no objection was raised below, we review the argument under the plain error standard, that is, the error must be "clearly capable of producing an unjust result." R. 2:10-2. In evaluating a claim of plain error, the fundamental question to be answered is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. State v. Macon, 57 N.J. 325, 335-36 (1971). Here, not only did defendant fail to object to the testimony and fail to cross-examine the police officers concerning their testimony, but she also introduced testimony during the defense from witness Pettigay Gibbs concerning the subject.

Q. The people downstairs, at some point, got angry with the police?

A. Oh yes.

Q. That [is] what I mean by complaints. They [are] angry with the police, okay. From your observations of what you were seeing, and what you were -- what was happening, why did they get angry with the police?

A. Because my mom just called them to get her [defendant] out of the house, not to -- she was like I did [not] call you to assault my daughter, I called you to get her out.

Gibbs continued in her testimony:

Q. When [defendant] was taken outside, what happened when she got outside?

A. They brought her across the street, and . . . let her sit on the [curb].

Q. She [is] handcuffed, right?

A. Yes. He let her sit on the sidewalk. And she said something. I do [not] know what she was saying. And he was like, ["]shut your God damn mouth.["]

Q. You heard him say that?

A. Yes, he said that real loud, but I do [not] know what she was saying to him. She was saying something.

Q. In other words, it would be fair to say that the police and her and everybody was pretty upset at this point?

A. Yes.

We are satisfied from our review of the record that the admission of the officers' testimony concerning the events surrounding defendant's arrest does not constitute error. The testimony was relevant to the context in which the acts charged occurred, and its probative value was not substantially outweighed by the risk of undue prejudice. N.J.R.E. 403.

Even assuming that we were to reach a different determination concerning the admissibility of the officers' testimony as to the events surrounding the arrest, we are satisfied that its admission does not constitute plain error, requiring reversal. "Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); R. 2:10-2. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. We conclude that the other evidence in the case of defendant's guilt was overwhelming. Ibid.

We are also satisfied that the trial judge properly exercised his discretion in sentencing defendant to a term of sixty days in the county jail as a condition of probation. The defendant placed the injured police officer at risk for harm. Although defendant did not test positive for Acquired Immune Deficiency Syndrome (AIDS) or hepatitis, the officer could have become infected from defendant's saliva. We find no reason to interfere with the sentence by substituting our judgment for that of the trial judge. State v. Johnson, 118 N.J. 10, 15 (1990).

Affirmed.

 

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A-6981-03T4

April 21, 2006