STATE OF NEW JERSEY v. KEITH WEST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5664-07T45664-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH WEST,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 9, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-01-0114.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keith West appeals from his January 25, 2008 conviction, following a trial by jury, on charges of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count one); and third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2(a)(3)(a) (count two). The judge sentenced defendant to a three-year term of probation, which included, as a special condition of probation, a requirement that defendant serve 364 days in the county jail. We reject defendant's contention that his conviction must be reversed because: 1) the State's examination of an uncooperative witness resulted in the jury hearing impermissible hearsay evidence; 2) a police officer characterized defense witnesses' testimony as lacking in credibility; and 3) the prosecutor's closing argument contained instances of prosecutorial misconduct. Defendant also asserts that the judge improperly denied his motion for a judgment of acquittal on count one. We reject these contentions and affirm.

I.

On April 23, 2005, New Jersey State Trooper Augustus Nyekan was dispatched to investigate a complaint in Fairfield Township that juveniles were throwing rocks at a house and at the homeowner's animals. After Nyekan reviewed the homeowner's videotape that depicted the conduct in question, the homeowner informed him that she did not wish to press charges, but hoped the officer would speak to the juveniles and their parents. After walking through the homeowner's backyard to the property where one of the juveniles lived, Nyekan encountered Kenneth West, the father of defendant. While speaking with West, a group of other individuals arrived on foot, while defendant, Keith West, arrived on a golf cart along with several juveniles.

Nyekan testified that there was a can of beer in the golf cart and he could tell that defendant had been drinking and, in fact, was intoxicated. When defendant asked Nyekan why he was there, the trooper responded that he was dispatched to investigate the homeowner's complaint of juveniles throwing rocks. Defendant responded that the homeowner "had been flashing the kids, and the kids didn't do shit." Nyekan described defendant's demeanor as irate, adding that defendant continued to drink beer while speaking with him. When Nyekan mentioned the videotape, defendant responded by saying, "show me the f---ing tape." When defendant disregarded Nyekan's instruction to lower his voice and refrain from cursing because children were present, Nyekan ceased his conversation with defendant and began speaking with Michael Passarella in hopes of resolving the situation.

Nyekan testified that while speaking with Passarella, defendant remained in the background, uttering obscenities such as "you f---ing troopers don't know shit," as well as racial slurs at Nyekan, who is African-American. According to Nyekan, defendant also said "why don't you come see me outside of that uniform, and we will see how tough you are." When pressed by Nyekan, defendant denied that his statement was a threat.

At that point, Nyekan asked one of the persons present, T. Jay Hummel, to escort defendant away because the situation was continuing to escalate. While defendant was being escorted away, he turned around and said, "I'll kill you, you f---ing trooper nigger." At that point, Nyekan told defendant he was under arrest, and directed him to put his hands behind his back. According to Nyekan's testimony, defendant did not comply with those instructions, instead raising his hands in a fighting position, at which point Nyekan radioed for backup. After defendant repeatedly ignored Nyekan's instructions to put his hands behind his back because he was under arrest, Nyekan sprayed defendant with pepper spray, after first issuing a verbal warning.

While waiting for backup officers to arrive, Nyekan attempted to grab defendant's wrists to apply the handcuffs, but defendant resisted, flailing his arms. Nyekan testified that defendant grabbed him by his shoulders and threw a punch at him, which he was able to block with his forearm. At that point, Nyekan grabbed defendant by the collar, and finally was able to gain control of defendant only by pushing him against a fire pit. According to Nyekan, even while defendant was on the ground, defendant repeated his threats to kill Nyekan and continued to take swings at the trooper's face. Nyekan could not handcuff defendant because he continued to struggle, and Nyekan sat on him until a backup officer arrived. In fact, in an effort to stand up, defendant grabbed Nyekan's shirt, causing it to rip. Only after Trooper Frank Restuccio arrived were the two able to finally handcuff defendant.

Nyekan sustained a scrape to his right knee, which did not require medical attention. At 9:00 p.m., approximately two and one-half hours after the incident in question, a local hospital measured defendant's blood alcohol level (BAC) as 0.17 percent.

The State presented the testimony of Michael Passarella, who identified himself as defendant's brother-in-law. When Passarella testified that defendant did not use the "n-word" until he was "probably at least 100 feet away," the prosecutor asked Passarella whether he had declined to provide a taped statement to law enforcement. Passarella responded that he did not recall ever being asked to do so. At that point, the prosecutor showed him a police report summarizing the remarks he had purportedly made to Detective Norbuts, who was investigating the incident, and asked him if that report refreshed his recollection. Passarella answered "no."

After Passarella denied that he heard Nyekan advise defendant that he was under arrest, the prosecutor asked Passarella if he recalled telling detectives, a few days after he had given his initial statement, that he had indeed heard Nyekan advise defendant "multiple times that he was under arrest." Passarella answered "yes." The prosecutor also asked Passarella if he recalled telling an investigating detective that Nyekan warned defendant that if he "kept it up," he would be arrested for drunk and disorderly conduct. Again, Passarella answered "yes." Not until after the State had rested did defendant interpose any objection to the questions posed to Passarella that brought Passarella's out-of-court statements to police before the jury.

After the State rested, defendant not only objected to the portions of Passarella's testimony that we have described, but also moved for a judgment of acquittal on both counts. The judge denied the motion for acquittal and held that the cross-examination of Passarella was proper because the State merely confronted him with prior inconsistent statements.

Defendant presented four witnesses, Mary Ann Schmitt, Hummel, Tina Williams, and defendant's father, Kenneth West, each of whom provided an account of the incident that was substantially at odds with the testimony of Passarella and Restuccio. Specifically, Schmitt testified that defendant never raised his fists in a fighting stance, and only raised his hands to wipe his eyes after Nyekan sprayed him with pepper spray. Hummel testified that the troopers kept saying "you want to fight?". Hummel also testified that defendant used a racial slur only once, and denied having told the trooper who took his statement that defendant had used such a term three times. Hummel also testified that he did not hear defendant make any threats to Nyekan.

Williams described Trooper Nyekan's demeanor as short-tempered and aggressive. Williams also asserted that the trooper never told defendant he was under arrest. Kenneth West testified that defendant did not utter any racially-charged remarks. West also asserted that when defendant was almost home, having been escorted by Hummel, Trooper Nyekan for no reason threw his papers down on the ground and charged toward defendant yelling "What did he say?".

Defendant's final witness was Dr. Richard Saferstein, who testified as an expert in forensic psychology. Saferstein opined that defendant's BAC at the time of the incident would have been 0.17 percent because defendant had been drinking beer for a considerable period of time. Saferstein also opined that a person with a 0.17 percent BAC would be highly impaired, and would experience a significant deterioration in judgment and self-control. According to Saferstein, a person with that BAC level would not "use caution properly, or self-restraint, and their ability to use appropriate reasoning and proper cognitive functions [would be] impaired."

The State called Detective Sergeant Richard Norbuts as a rebuttal witness. Norbuts had interviewed Hummel, and testified that Hummel advised him that defendant had used a racial slur three times. Norbuts also testified that Hummel told him that Nyekan had behaved as a gentleman, and defendant should have obeyed the trooper rather than become confrontational and belligerent.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A PRETRIAL HEARING PURSUANT TO N.J.R.E. 104(a) REGARDING ALLEGED PRIOR INCONSISTENT STATEMENTS OF THE STATE'S WITNESS, MICHAEL PASSARELLA, THEREBY CAUSING THE JURY TO HEAR IMPERMISSIBLE HEARSAY EVIDENCE (Partially Raised Below).

II. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO HEAR IMPROPER OPINION TESTIMONY REGARDING THE CREDIBILITY OF THE DEFENSE WITNESS (Not Raised Below).

III. DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).

IV. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

II.

We turn first to Point I, in which defendant argues that the trial court's failure to conduct a N.J.R.E. 104(a) hearing concerning the prior inconsistent statements of the State's witness, Passarella, wrongly permitted the jury to hear highly prejudicial hearsay evidence. In particular, defendant maintains that because Passarella was a State's witness, and his out-of-court statements to law enforcement were neither tape-recorded nor contained in a signed statement, the State was prohibited from introducing Passarella's out-of-court statements unless the State was surprised by his in-court testimony.

As defendant correctly argues, N.J.R.E. 607 provides that the party calling a witness "may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised." The State concedes that Passarella's out-of-court statement was not "in a form admissible under Rule 803(a)(1)," ibid., because it was neither sound-recorded nor signed by Passarella. Under those circumstances, Passarella's out-of-court statements were admissible only if the State, as the party calling the witness, was surprised. N.J.R.E. 607.

During the State's direct examination of Passarella, defendant objected only once, arguing that a question about defendant fighting with Nyekan was leading. Not until after the State had rested its case, did defendant argue, for the first time, that the State's questioning of Passarella impermissibly brought Passarella's out-of-court hearsay statements before the jury. After observing that the objection should have been imposed while Passarella was still on the witness stand, the judge nonetheless considered the objection on the merits and overruled it, reasoning:

[i]t is clear . . . that Mr. Passarella's answers to questions were somewhat different, materially different, than what he told the police, apparently, during his statements[.] [H]e was backing off some of the statements he made to the police, or description of the event; [sic] was being somewhat evasive in his answers [to] some extent, and as a result, some leading questions were asked at that time, because he was appearing to be hostile, or changing his version of what happened or didn't happen[], from what he had told the police shortly after the event.

Thus, as is evident from the judge's remarks, he specifically found that Passarella had "chang[ed] his version of what happened or didn't happen." While the judge did not expressly conclude that the State was surprised by Passarella's testimony, we discern from his remarks that very conclusion. The judge's observation that Passarella "was backing off some of the statements he made to the police" and was "changing his version" clearly bespeaks a conclusion that the State was surprised by Passarella's uncooperative testimony. Accordingly, we conclude that that the requirements of N.J.R.E. 607 were satisfied, and we reject the claim defendant advances in Point I.

III.

In Point II, defendant argues that the judge erred

by allowing the jury to hear improper opinion testimony from Detective Norbuts regarding the credibility of defense witnesses T. Jay Hummel and Kenneth West. During a portion of his direct testimony, Norbuts was asked why he had not made a tape recording of their statements, to which he responded that "[b]y the time I finished interviewing each of them, I felt that it wasn't going to be necessary to go on tape because I felt that their stories were changing to try to protect [defendant] . . . ." Because defendant interposed no objection to this testimony at the time of trial, we will not reverse on this basis unless the error was clearly capable of producing an unjust result. R. 2:10-2.

If there was any error, it was harmless. The jury heard the testimony of Hummel and Kenneth West and had a clear opportunity to make its own judgment about their credibility. More importantly, Norbuts had already testified, without objection, that on a prior occasion both Kenneth West and Hummel had provided statements to law enforcement that were markedly different from their in-court testimony. Under those circumstances, Norbuts's testimony that Hummel and West were altering their accounts to protect defendant added little, if anything, to what the State had already presented. Thus, any error was harmless and will be disregarded. We thus reject the claim defendant advances in Point II.

IV.

We turn to Point III, in which defendant argues that the prosecutor exceeded the legitimate bounds of proper argument during his summation when he: 1) referred to "showing" Passarella the police report, which, in defendant's view, "strongly implied that Passarella was lying for [defendant and] the truth was contained in the police report"; and 2) contended that Dr. Saferstein "primarily or partly" relied on the police report of what Passarella allegedly told police. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Suffice it to say, Saferstein testified that the police report describing Passarella's interview was not a major factor in the formation of his opinion because he relied primarily on defendant's hospital records. Thus, the prosecutor's reference to Saferstein's use of that police report was harmless. The prosecutor's reference to "showing" Passarella the police report is also harmless in light of our conclusion that the prosecutor was surprised by Passarella's testimony and was therefore entitled to confront him with his prior inconsistent statement.

V.

Last, we consider defendant's argument in Point IV that the judge erred when he denied defendant's motion for a judgment of acquittal on count one. In particular, defendant maintains that because the State failed to prove that Nyekan suffered any injury, the judge was obliged to grant defendant's motion for acquittal on the charge of aggravated assault on a police officer.

In considering a defendant's motion for a judgment of acquittal at the end of the State's case, the motion must be denied if, "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, 459 (1967). Trooper Nyekan testified that he "scraped [his] knee." To establish a defendant's guilt on a charge of aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5), the State must prove beyond a reasonable doubt that the defendant inflicted bodily injury on a law enforcement officer who was in the course of performing his official duties. Bodily injury means "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). After Nyekan testified that he scraped his knee during the scuffle, the prosecutor asked whether the scrape had caused him "physical pain or discomfort." Nyekan responded "yes, sir." Nyekan's testimony was thus sufficient to satisfy the "physical pain" portion of the statutory definition of "bodily injury" contained in N.J.S.A. 2C:11-1(a). Consequently, the denial of defendant's motion for a judgment of acquittal was proper. Reyes, supra, 50 N.J. at 459. We thus reject the claim defendant advances in Point IV.

 
Affirmed.

At trial, defendant moved for an acquittal on both counts; however, his argument on appeal is confined to count one.

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A-5664-07T4

December 4, 2009