STATE OF NEW JERSEY v. DARA WILLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6452-05T46452-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARA WILLIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 21, 2008 - Decided

Before Judges S.L. Reisner and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-09-0613.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel; Ms. Toscano and Gladys Moriarty, Special Assistant Deputy Public Defender, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Jennifer Moran, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Dara Willis, appeals from her August 19, 2005 conviction and resulting sentence for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three), following a trial by jury. On count one, the judge sentenced defendant to a five-year term of imprisonment subject to a two and one-half year term of parole ineligibility. On count three, the judge imposed a concurrent eighteen-month term of imprisonment. That sentence was ordered to run concurrently to an unrelated violation of probation sentence on a different indictment, for which the judge imposed an eighteen-month term of imprisonment. The aggregate sentence was five years imprisonment with two and one-half years of parole ineligibility. Appropriate fines and penalties were imposed. We affirm the conviction and remand the sentence for an explanation of the factors considered in imposing the period of parole ineligibility.

I.

On March 5, 2004, Andrea Chance went to an apartment on Belvedere Street in Trenton to look for her nephew who was late in arriving home. After knocking on the apartment door and receiving no answer, Chance left the building and began to walk home. As she did so, she was able to see defendant standing on the nearby corner of Belvedere and Fowler.

Chance had met defendant twice before. The first time was in late January or early February 2004 at a friend's house, but there was no interaction between the two. The next occasion was in mid-February 2004 when the two women passed each other on the street and defendant pushed Chance "real, real hard" causing her to fall to the ground.

On the night in question, as Chance approached the spot where defendant was standing, Chance slipped and fell on the wet pavement. When she fell, her keychain and a canister of mace that was attached to the keychain fell out of her hand. She tried to retrieve the mace, but before she could do so, defendant began swinging a razor blade at her. An acquaintance named Ronald intervened to try to protect Chance. Despite his efforts, defendant was able to swing the blade at Chance three times and slash her face and upper right arm. Chance was taken by ambulance to a nearby hospital where she received twenty-two stitches to the cut that ran from under her nose to the bottom of her lip and another twenty-two stitches to close the gash on her arm. The responding police officer and the medical personnel who attended to Chance both testified that she did not appear to be intoxicated.

Defendant rested without calling any witnesses. No charge conference was conducted on the record. If there was an informal discussion of the jury charge in chambers, the record does not so indicate. During his charge to the jury, the judge instructed the jury on the following subjects: 1) a prohibition on consideration of defendant's absence from the courtroom on the second day of trial; 2) defendant's right not to testify and the prohibition on drawing an adverse inference from her silence; 3) the model charge for the offenses contained in the indictment; and 4) identification. The judge also instructed the jury that its verdict must be limited to the law and the facts and that "bias, prejudice or sympathy" were to play no role in its deliberations. At the conclusion of the charge, the judge asked both sides whether there were any objections to the instructions given to the jury. Both sides answered no.

After the jury retired to deliberate, it sent the judge a note that said "can we use the defendant's demeanor in the courtroom?" After some discussion, the judge decided to send the jury a note instructing them, "You may not consider the defendant's conduct in the courtroom. The issue concerns the defendant's alleged conduct on March 6, 2004." Defense counsel agreed with that response. Before the court officer was able to photocopy the judge's proposed note to the jury, the jury notified the judge that it had reached a verdict. Without responding to the jury's inquiry about whether it could consider defendant's demeanor in the courtroom, the judge brought the jury into the courtroom for its verdict. No further discussion of the jury's question ever occurred.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE APPROPRIATE LESSER-INCLUDED OFFENSE OF FOURTH DEGREE AGGRAVATED ASSAULT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (Not Raised Below)

II. DEFENDANT DID NOT TESTIFY. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY, IN RESPONSE TO THEIR QUESTION, THAT THEY COULD NOT CONSIDER DEFENDANT'S COURTROOM DEMEANOR IN THEIR DELIBERATIONS, DENIED DEFENDANT A FAIR TRIAL.

III. THE PROSECUTOR'S COMMENTS IN SUMMATION, WHICH SHIFTED THE BURDEN OF PROOF AND DENIGRATED DEFENSE COUNSEL, DENIED DEFENDANT A FAIR TRAIL. (Raised in Part Below)

A. By telling the jury that there was no evidence to refute the victim's testimony, the prosecutor both attempted to shift the burden of proof and commented on defendant's failure to testify.

B. During his summation, the prosecutor improperly criticized defense counsel's representation of defendant.

IV. THE BASE SENTENCE IMPOSED ON THE DEFENDANT IS EXCESSIVE, THE PERIOD OF PAROLE INELIGIBILITY IS UNWARRANTED, AND A REMAND IS REQUIRED PURSUANT TO STATE V. NATALE.

II.

In Point I, defendant argues that the trial judge committed reversible error by failing to instruct the jury on the lesser included offense of fourth-degree aggravated assault by recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(3). In particular, she argues that a jury instruction on the lesser-included fourth-degree charge was required by the following evidence in the record: the street was slippery; the event in question occurred in the middle of the night; Chance had consumed alcohol earlier that night; Chance was carrying a can of mace; and the two women had a "history" of unpleasant encounters in the weeks prior to the night in question.

The State disagrees and argues that in circumstances such as these, where a defendant does not request a jury instruction on the lesser-included offense, a court is not required to sift through the record to search for potential lesser included offenses. The State contends that because the evidence did not "clearly raise" an issue that required the judge to charge the jury on recklessly causing bodily injury with a deadly weapon, the judge's failure to do so was not error.

Where, as here, a defendant fails to object to the charge at the time it was given, there is a presumption that the failure to object reflected the defendant's assessment that the charge was not error and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333-34 (1971). Accordingly, any claim of error concerning a jury charge is reviewed under the plain error standard and will be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

In order to give "full force to the reasonable doubt standard and to preserve defendants' rights to have the jury consider all defenses supported by the evidence, . . . a defendant is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). The applicable statute, N.J.S.A. 2C:1-8(e) provides, however, that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."

Even if a defendant does not object at trial to the absence of such a charge, whether due to neglect or to strategic considerations, a trial judge has "an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). However, where the facts do not "clearly raise" the issue, and there is no request, the failure to charge the jury on the lesser included offense is not error. State v. Savage, 172 N.J. 374, 400-01 (2002). Indeed, the Court held that a judge is "not required . . . to meticulously sift through the entire record . . . to determine if some combination of facts and circumstances might rationally sustain [the lesser] charge. The duty of the trial court to provide that charge arises only when the facts 'clearly indicate' the appropriateness of that charge." State v. Purnell, 126 N.J. 518, 540-41 (1992)(quoting State v. Powell, 84 N.J. 305, 318 (1980)).

Here, we agree with the State that the evidence did not "clearly indicate" the appropriateness of a charge on fourth-degree recklessly causing bodily injury with a deadly weapon. The only difference between the charged offense and the lesser included offense is defendant's state of mind. In particular, in order to prove defendant guilty of the charged offense, the State was required to prove that she either purposely or knowingly caused bodily injury with a deadly weapon. In contrast, the lesser-included offense would require the State to prove only a mental culpability element of reckless conduct. We agree with the State's argument that the record does not clearly present evidence of recklessness on defendant's part, but instead presents evidence of knowing or purposeful behavior.

In particular, it was clear from the evidence at trial that it was defendant who had a grievance against Chance, not the other way around. Specifically, defendant had had a hostile and confrontational attitude toward Chance ever since mid-
February 2004 when, without any provocation, she pushed Chance to the ground. Additionally, the undisputed testimony established that at the time defendant started swinging the razor blade at Chance, Chance no longer had access to the mace canister. Even though Chance's acquaintance Ronald intervened to try to protect Chance from the attack, defendant kept swinging the razor blade at Chance and did so approximately three times even though Ronald positioned himself between the two. Moreover, nothing in the evidence suggested that Chance pushed defendant, fought with her or did anything else that would have caused defendant to recklessly slash her with the razor blade. Although the evidence established that Chance had consumed some alcohol earlier on the night in question, the State's two independent witnesses testified unequivocally that Chance was not intoxicated. Thus, any inference that Chance herself was belligerent and somehow precipitated an attack or engaged in combative conduct consistent with a reckless response on defendant's part was unwarranted.

The evidence in the record is inconsistent with reckless conduct and thus did not "clearly indicate" the need for a jury charge on the lesser included offense. Accordingly, the judge's failure to so charge was not plain error.

III.

In Point II, defendant argues that the trial judge's failure to instruct the jury, in response to its question, that it could not consider defendant's courtroom demeanor during its deliberations denied her a fair trial. We begin our analysis by agreeing with defendant's argument that a judge is obligated to answer a jury's question. Savage, supra, 172 N.J. at 394-95. The record reflects that the court made every effort to do so. After consulting with both attorneys, the judge drafted a written answer. The jury chose not to wait for the judge's answer before reaching a verdict. Because the defense did not object to taking the jury's verdict without the question being answered, and did not request that the jurors be interviewed to see if perhaps they improperly used defendant's courtroom demeanor in their deliberations, our review of this issue is evaluated under the plain error standard. We will disregard any such error unless it was clearly capable of producing an unjust result. R. 2:10-2.

We agree with defendant's contention that the judge should have deferred taking the jury's verdict until after the jury had an opportunity to read and consider the judge's written instruction that it should disregard defendant's demeanor in the courtroom. Nonetheless, we agree with the State that the failure to do so was not clearly capable of producing an unjust result. The State's case was strong and its proofs were straightforward and essentially undisputed, which militates against a finding of plain error. See State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 128 S. Ct. 1064, 169 L. Ed. 2d 817, ___ U.S. ___ (2008).

Moreover, we note that the judge instructed the jury that it must "decide the case free of any bias [or] prejudice." The judge continued, "we all have our bias, we all have our prejudices. . . . We are entitled to them. What we are not permitted to do is to let bias [or] prejudice . . . play any part in our determinations in the jury room." Unquestionably, such an instruction, although more general than the written answer the judge intended to give the jury in response to its question, nonetheless instructed the jury in no uncertain terms that bias and prejudice had no place in its deliberations. That instruction should have alerted the jury to its obligation to disregard any adverse inferences it might have drawn from defendant's unpleasant behavior in the courtroom. Jurors are presumed to follow a judge's instructions. State v. Farrell, 61 N.J. 99, 107 (1972). Accordingly, we conclude that the judge's failure to provide the jury with an answer to its question before accepting the verdict was not plain error.

IV.

In Point III, defendant raises two claims of prosecutorial misconduct. First, she argues that the prosecutor's comments in summation impermissibly shifted the burden of proof, thereby denying her a fair trial. In particular, she points to the prosecutor's remark that there was no evidence to refute the victim's testimony. She maintains that because she did not testify or present witnesses, the jury could only have interpreted that remark as an impermissible comment on her right to remain silent. "A prosecutor should not either in subtle or obvious fashion draw attention to a defendant's failure to testify." State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991). In Engel, the prosecutor commented that the jury might wish to "ask" defendant why he would kill his former wife. Id. at 381. Although we "deplored" that remark, ibid., we did not reverse defendant's conviction on that ground. Viewing the summation as a whole, "we [could] not fairly say that the prosecutor's errant remark was so egregious as to deny defendants a fair trial." Id. at 382. The prosecutor's comment in Engel created a much stronger danger that the jury would draw an improper inference from defendant's failure to testify than the prosecutor's remark here.

Moreover, because defendant here failed to object to the comment during trial, "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Id. at 377. "The failure to make a timely objection not only indicates the defense did not believe the remarks were prejudicial at the time they were made, but also deprives the judge of the opportunity to take the appropriate curative action." State v. Murray, 338 N.J. Super. 80, 87-88 (App. Div.), certif. denied, 169 N.J. 608 (2001). The prosecutor's remark that there was no evidence to refute the victim's testimony was made only once and defendant did not object to that remark. Consequently, the court was not afforded the opportunity to instruct the jury to disregard it. Because of the lack of objection, we review the prosecutor's remark for plain error and disregard it unless it was clearly capable of producing an unjust result. R. 2:10-2. Here, as in Engel, this single remark, when considered in the context of the entire trial, was not clearly capable of producing an unjust result.

Defendant also argues in Point III that the prosecutor's closing denigrated defense counsel. She asserts that "the prosecutor wondered aloud, in several different ways what the defense in the case was, and criticized defense counsel for his advocacy." In particular, defendant argues that the prosecutor "alternately criticized and mocked defense counsel's cross-examination of Ms. Chance." The first portion of the summation about which defendant complains is:

So again what does she do? She goes right back to the hospital once again and speaks to medical personnel explaining and also to an officer and [defense counsel] pointed out to you that she appeared agitated on the stand during cross-examination and, ladies and gentlemen, I submit to you that first and foremost and was apparent to me that some of the questions I would argue to you that she didn't completely either understand or understand how they were being asked. With respect to that she may not be as educated as [defense counsel], she --

The court overruled defendant's objection after which the prosecutor continued with his summation and argued:

But she may not be as eloquent, but does that, you have to ask yourself does that mean she is lying. No, [sic] does not mean she is lying. Also you're dealing with a woman who was slashed to the face and received an injury that she has to look at for the rest of her life. She is placed on this witness stand and she is being questioned after this happening to her, now she has to be subject to questioning by an individual who it is obvious is stating to her or by his questions is insinuating she's lying or it didn't happen.

Defendant again objected and this time the court sustained the objection. Defendant did not seek a curative instruction and the court did not issue one.

Defendant correctly argues that "prosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel." Wakefield, supra, 190 N.J. at 446 (quoting State v. Nelson, 173 N.J. 417, 461 (2002)). As the Court observed in Wakefield, "the issue for resolution is two-fold: whether the prosecutor committed misconduct, and, if so, 'whether the prosecutor's conduct constitutes grounds for a new trial.'" Ibid. (quoting State v. Smith, 167 N.J. 158, 181 (2001)). In order to satisfy the second part of that test, a prosecutor's misconduct "must have been 'so egregious that it deprived defendant of a fair trial.'" Ibid. To warrant a new trial, the prosecutor's comments "must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid.

As the Court's analysis in Wakefield makes clear, the complained-of comments cannot be considered in isolation. Id. at 446-47. Our review of the record leads us to conclude that the prosecutor's comments in summation were not an assault on defense counsel and were not improper. When the prosecutor's comments are read in context, it is apparent that the prosecutor's remarks were in response to defense counsel's repeated statements that Chance had an ax to grind with defendant and that was the reason she was blaming defendant for this assault. In a different portion of his summation, defense counsel questioned whether Chance's injuries could "have happened in different incidents from different people." Defense counsel made the same argument later in his summation when he maintained it was possible that the injuries "were sustained at different times and she went back [to the hospital] the second time for a wound that she received somehow [sic] else four hours later, three hours later, whatever it is. It just doesn't hang together. It doesn't make sense." We agree with the State that through these remarks, defense counsel strongly suggested that someone else was actually responsible for Chance's injuries, but she was blaming the assault on defendant because she had some unexplained hostility toward her.

As in Wakefield, we conclude that "[t]aken in context, each of the challenged comments was fair comment in response to defendant's presentation." Id. at 469. Because the comments were not improper, we need not determine whether the prosecutor's remarks constitute grounds for a new trial. Id. at 446.

V.

Finally, defendant makes a number of claims respecting the sentence the judge imposed. She argues that the base term the judge imposed was excessive, the period of parole ineligibility was unwarranted, and a remand is required pursuant to State v. Natale, 184 N.J. 458 (2005). Before beginning our analysis of these three claims, we emphasize that our review of a claim of excessive sentencing is limited. So long as the sentence imposed is within the applicable statutory framework and the aggravating and mitigating factors are based upon competent and credible evidence in the record, we will not disturb a sentence unless "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005)(quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

Here, the judge found three aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6) and (9), which are, respectively, the risk the defendant will commit another offense, the extent of defendant's prior record and the need to deter. The judge also found two mitigating factors: "the defendant has a long-standing drug and alcohol addiction problem and . . . suffers from depression." After weighing the aggravating and mitigating factors, the judge concluded that the aggravating factors "clearly and substantially outweigh the mitigating factors." For that reason, the judge imposed the maximum base term of five years imprisonment and also imposed the maximum period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b).

The judge's finding of aggravating factors 3, 6 and 9 was justified in light of defendant's prior record, which includes four prior indictable convictions: aggravated assault in 1997; two convictions for unlawful possession of a weapon, one in 1997 and the other in 2001; and a conviction for criminal mischief in 2001. Moreover, under the circumstances presented, where the State was required to prove only that defendant purposely inflicted bodily injury with a deadly weapon, the proofs here demonstrate that the injuries defendant inflicted on Chance were far more serious than "physical pain, illness or any impairment of physical condition," which is the definition of "bodily injury." N.J.S.A. 2C:11-1(a). The judge properly found the existence of two mitigating factors.

We do not quarrel with the judge's conclusion that the aggravating factors clearly and substantially outweighed the two mitigating factors. Accordingly, the five-year base term does not shock the judicial conscience. Dalziel, supra, 182 N.J. at 501.

As to defendant's argument that the parole ineligibility term is not justified and must be vacated, we are satisfied the judge's conclusion that "the aggravating factors clearly and substantially outweigh the mitigating factors" is a paraphrase of the statutory criteria that are contained in N.J.S.A. 2C:43-6. That statute provides that a period of parole ineligibility may be imposed "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors." We observe, however, that a judge is required to do more than simply recite the statutory standard. He must also explain why he reached that conclusion by making specific findings about the qualitative and quantitative weight he applied to each aggravating and mitigating factor. State v. Kruse, 105 N.J. 354, 359-60 (1987). We therefore remand the matter for re-sentencing to permit the judge to make the findings that are required by Kruse.

Next, we reject defendant's argument that she is also entitled to re-sentencing pursuant to Natale. Her sentencing occurred after Natale was decided. She is therefore not in the Natale "pipeline" and a remand for reconsideration of a sentence that exceeds the former presumptive sentence is therefore not required. Natale, supra, 184 N.J. at 494. Accordingly, the sentencing remand shall be limited to providing a statement of reasons for the imposition of the parole ineligibility term.

Affirmed in part. Remanded in part. We do not retain jurisdiction.

The conviction on count two, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), was merged with the sentence on count one. No separate sentence was imposed.

(continued)

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A-6452-05T4

April 29, 2008