STATE OF NEW JERSEY v. CHRISTOPHER THIEME

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6355-06T46355-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER THIEME,

Defendant-Appellant.

 
______________________________

 

Submitted February 23, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-453.

Christopher Thieme, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Christopher Thieme was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). The trial judge imposed a sentence of seven years on the assault conviction subject to defendant serving 85% of his term under the No Early Release Act, N.J.S.A. 2C:43-7.2, together with statutory fines, penalties and restitution. The judge also imposed a concurrent four-year sentence on the weapons offense. Defendant appeals, and we affirm.

These facts adduced at trial are simply stated. On December 2004, Sarah Driver (Driver) was living in an apartment building known as the Highlands at Plaza Square located on 1 Richmond Street, New Brunswick. Driver had just moved to the area in the summer and knew defendant, who lived on the same floor, from previous small social interactions in the hallway where defendant would offer to carry her groceries or they chatted about their jobs. Driver thought defendant to be a "normal friendly guy[,] . . . willing to help out."

On December 30, 2004, as Driver was leaving for work, she noticed a note lodged between her door handle and the door. The note, from defendant, asked Driver if she could stop by his apartment for "a few quick moments" because he needed "a girl's opinion on something [he was] working on." The note was signed with defendant's name and apartment number. Driver reasoned that work was slow, and she saw this as "an opportunity to make a friend in the building" since she did not know anyone in the area. Driver walked to defendant's apartment and knocked on the door. Defendant answered the door, and Driver inquired about the contents of the note. Defendant invited Driver into his apartment and asked her to have a seat on the couch while he finished washing some dishes.

Driver sat on the couch with her back to defendant. A few minutes after sitting, Driver leaned forward to get up from the couch when she felt something "breeze [her] head . . . really quick . . . [and] whip through [her] hair." Driver stood, turned around and saw defendant reaching down to pick up an object, which was later identified as a pool cue. Defendant then began hitting Driver on the head with the cue stick. Driver screamed and attempted to fight defendant. At one point the cue stick broke "over [Driver's] head" and Driver was able to fight past defendant and escape the apartment. As she ran down the stairwell, a piece of the cue stick that had lodged in Driver's jacket fell out onto the stairs.

Driver eventually reached the lobby, reported the attack, and someone called the police. Patrolman Alvin Knighton and Patrolman Anthony Calogero of the New Brunswick Police Department responded to the call and arrived at approximately 8:45 a.m. The officers spoke to Driver and learned the details of the alleged attack. The officers went to defendant's apartment and knocked on the door but received no response. They obtained a master key from the management and entered defendant's apartment but defendant was not inside. In the apartment, the officers found "some pieces of wood on the floor by the sofa" and "saw a bloodstain on the ... door of the apartment." The officers also examined the staircase and found the butt end of a pool cue.

The officers continued searching the area when they received a report that someone matching defendant's description was seen near the Rutgers University campus. The officers drove to the university campus and began to search the area on foot. Officer Knighton eventually spotted defendant, tackled and arrested him. Photographs of defendant's arrest show that he has a bloody knee, blood on his shorts, smudged blood on his left hand, and marks on his wrist. Officer Knighton claimed that the scratches came as a result of tackling defendant onto the bushes, and the marks on his wrists were due to defendant being handcuffed when arrested.

Paramedics took Driver to a nearby hospital where she received eleven stitches for two lacerations on her head. Driver also had a scratch on her left hand and "a large bruise" on her left arm.

Defendant's version of the incident was markedly different. Defendant stated that his contact with Driver was more extensive than she claimed. Defendant and Driver had gone out with his friends "about eight or ten" times. Driver also visited his apartment after work "about two or three times a week." He stated that their relationship was "just a friendship." Defendant stated that he wrote the note on December 7 or 8, 2004, because he wanted Driver's opinion regarding a female friend's Christmas present. Driver went to defendant's apartment the evening of that same date and "helped [defendant] choose a nice little music box." Defendant did not see Driver until December 29, 2004, when he was returning from New York and ran into her in the hallway as she was leaving for work. He told Driver that "he had picked up a DVD set that she would be interest[ed] in . . . [and] did she want to come over" that evening. Driver agreed and came to defendant's apartment the evening of December 29, 2004, at approximately 8:30 or 9:00 p.m. They had some pizza and wine and watched a movie. According to defendant, Driver had too much to drink and fell asleep on the couch, and defendant decided to let her sleep as he went to bed.

The next morning, as defendant was doing the dishes, Driver woke up and told defendant that she needed to talk to him about something. Driver then proceeded to confess that she had romantic feelings towards defendant. Defendant told Driver that he just became engaged to his girlfriend so he could not pursue anything but that he thought Driver was a "great friend." Driver continued arguing with defendant "trying to win [him] over," but defendant did not respond positively to her overtures. After a lengthy discussion, Driver left defendant's apartment claiming that she had to get ready for work. She then returned at approximately 8:45 a.m. Defendant did not want to "go over the same argument again" so he left the door open and continued washing the dishes. He told Driver to leave the apartment when he heard "the scrape of metal on metal." He turned around and saw Driver "come at [him] with a knife." Defendant raised his knee to protect himself as Driver moved to stab him in the abdomen and the knife scraped his knee. Driver attempted to stab defendant again, he reached up to try to grab her wrists, was unsuccessful, and Driver cut his left forearm. Defendant was eventually able to grasp Driver's wrists and attempted to push her towards the open door. However, he slipped and landed against his computer desk. His broken pool cue happened to be lying next to his desk. Defendant reached behind him and grabbed the first thing he could to defend himself, which was his pool cue. Defendant then hit Driver on the head with the pool cue so that she would drop the knife. Driver did not drop the knife so defendant pushed her out of the door, attempted to slam the door shut, but it bounced open. By then Driver "had already started walking off." Defendant wanted to call 9-1-1, but he could not find his cell phone. After searching for his cell phone for a few minutes, he decided to get help. He initially knocked on people's apartment doors, but no one answered so he ran to his friend's apartment complex across the street. She did not answer her door so defendant decided to walk to the Robert Wood Johnson Hospital. There was construction on the main roads so defendant decided to cut across the Rutgers University campus to reach the emergency room entrance. He was walking towards the hospital when the police arrested him.

On appeal, defendant raises the following issues:

POINT I: THE ASSISTANT PROSECUTOR UTTERLY FAILED TO ESTABLISH THE STATUTORY REQUIREMENT FOR "SERIOUS BODILY INJURY" ESSENTIAL TO JUSTIFY A CONVICTION FOR AGGRAVATED ASSAULT IN THE SECOND DEGREE (N.J.S.A. 2C:12-1(b)(1)), AND WHEN COMBINED WITH THE JUDGE'S ERRONEOUS FINDING OF A SERIOUS BODILY INJURY, A FAULTY VERDICT SHEET THAT ERRONEOUSLY COMBINED TWO DISTINCT BUT SIMILARLY GRADED OFFENSES AND THE JUDGE'S FAILURE TO LIMIT THE JURY'S CONSIDERATION TO A THEORY OF "ATTEMPT TO CAUSE SERIOUS BODILY INJURY," IT PRODUCED AN UNJUST RESULT WARRANTING REVERSAL OF THE DEFENDANT'S CONVICTION AND THE AWARDING OF A NEW TRIAL.

POINT II: FAILURE OF THE TRIAL JUDGE TO DECLARE A MISTRIAL OR TAKE REMEDIAL ACTION WHEN INFORMED BY DEFENSE OF THE STATE'S VIOLATION OF THE JUDGE'S SEQUESTRATION ORDER CREATED ENOUGH PREJUDICE TO EFFECTIVELY DEPRIVED [SIC] THE DEFENDANT OF A FAIR TRIAL.

POINT III:THE MISCONDUCT OF THE ASSISTANT PROSECUTOR, MANUEL B. SAMIERO, JR., THROUGHOUT THE PROCEEDINGS FAR EXCEEDED THE BOUNDS OF PROPRIETY AND IN THE AGGREGATE WERE SO EGREGIOUS THAT THEY DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

A. Misconduct during Trial.

B. Misconduct during Sentencing.

POINT IV: THE PROSECUTOR'S USE OF MERE ALLEGATIONS IN AN EFFORT TO DEFAME THE DEFENDANT RESULTED IN THE MISAPPLICATION OF AGGRAVATING FACTORS.

POINT V: FAILURE TO FOLLOW THROUGH WITH INVESTIGATIONS AND PRESENT CERTAIN EVIDENCE OR ARGUMENTS TO THE COURT RENDERED HIS ASSISTANCE DEFICIENT AND INEFFECTIVE.

A. Counsel's Failure to Fully Investigate Defendant's Mental Health Condition and Present it as a Defense.

B. Counsel's Refusal to investigate and argue matters related to Mitigating Factors at Sentencing after instructed to do so by Defendant.

The dominant issue on this appeal is set forth in Point I of defendant's brief. Defendant's argument is twofold - whether the State established sufficient evidence to support a finding of "serious bodily injury" and whether the judge erroneously combined on the verdict sheet both the substantive offense and "attempt."

Defendant argues that the trial judge erred by not limiting the jury charge to the theory of an attempt to cause serious bodily injury because the evidence was insufficient to prove that Driver's injuries constituted serious bodily injuries as defined by N.J.S.A. 2C:11-1(b).

N.J.S.A. 2C:12-1(b) states in pertinent part that

[a] person is guilty of aggravated assault if he (1) [a]ttempts 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[.]

N.J.S.A. 2C:11-1(b) defines "serious bodily injury" as "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[.]"

Ordinarily, the severity of the injury is a jury issue. State v. Sloane, 111 N.J. 293, 298-99 (1988) (holding that it is the jury's function to determine whether the evidence presented meets the statutory definition of "serious bodily injury" or lesser included offense of "bodily injury"). However, in State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999) aff'd, 163 N.J. 140 (2000), we held that the trial judge committed plain error by providing jury instructions on a theory of the infliction of serious bodily injury and attempt to inflict serious bodily injury when the injuries did not meet the statutory definition under N.J.S.A. 2C:11-1(b), to support a finding that the defendant caused serious bodily injury.

In Green, the trial court provided a jury instruction for aggravated assault based on both a theory of actual infliction and attempt to inflict serious bodily injury. Green, supra, 318 N.J. Super. at 372. The victim had suffered "lacerations to both hands, cuts to some of his fingers, . . . a bruise on his left leg[, and] was left with a scar on his palm approximately an inch and a half long." Id. at 368. Unlike here, the State conceded that the injuries did not meet the definition of "bodily injury" under N.J.S.A. 2C:11-1(b). Id. at 371. We concluded that the trial court erred by not limiting the jury instruction to the theory of attempt to cause serious bodily injury and the error "had the clear capacity to confuse the jury and therefore constitute[d] plain error since it was clearly capable of producing an unjust result." Id. at 372-73. We reversed the conviction for aggravated assault and ordered that on retrial, "[t]he jury should not be charged alternatively under a theory that defendant actually caused serious bodily injury to [the victim]" but rather, "the charge to the jury should focus on an attempt to cause serious bodily injury to [the victim]." Id. at 373.

Here, the trial judge correctly distinguished Green by noting that unlike Green, the State did not concede that Driver's injuries failed to meet the definition of serious bodily injury. Rather, the State argued that the charge based on a theory of inflicting serious bodily injury was appropriate because "[two] large lacerations on the head that required thirteen stitches" constituted serious bodily injury. The judge determined that it was appropriate for the jury to decide whether defendant inflicted serious bodily injury to Driver. The problem in Green was that the attempt was a discrete charge from the actual assault where the State conceded no "serious bodily injury." We agree that here both the attempt and the nature of the injury were properly before the jury, and the trial judge do not err in submitting the issue to the jury for its consideration.

We have reviewed the other claims of error and conclude that they are without merit. R. 2:11-3(e)(2). We add the following comments.

As to defendant's claim that the officers violated a sequestration order, the judge held a hearing and concluded that there had been no such violation. The judge's factual findings were supported by the record, State v. Adams, 194 N.J. 186, 203 (2008); State v. Locurto, 157 N.J. 463, 470-71 (1999), and we reject defendant's argument to the contrary.

We reach the same result regarding the prosecutor's comments during his opening, trial and summation. Most of his comments were proper and in those instances where he overstated issues or used inappropriate examples, the judge quickly stepped in and corrected the matter. We find that the prosecutor's conduct does not warrant our intervention.

Finally, we defer to another day defendant's assertions of ineffective assistance of counsel. His claims are beyond the scope of the present record and are more appropriate for consideration if defendant files an application for post-conviction relief. State v. Preciose, 129 N.J. 451 (1992).

 
Affirmed.

Subsequent to the filing of the notice of appeal, defendant indicated that he wished to represent himself on the appeal. We temporarily remanded the matter for a waiver of counsel hearing. Following a hearing in the Law Division, Judge Rea found defendant had properly waived his right to counsel and entered an order on February 13, 2008, reflecting that determination. That decision is not challenged in this appeal.

Driver actually required eleven stitches.

(continued)

(continued)

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A-6355-06T4

 

May 19, 2009