STATE OF NEW JERSEY v. JOHN WHITE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6601-05T46601-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN WHITE,

Defendant-Appellant.

_______________________________

 

Submitted October 7, 2008 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

05-04-00568.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Shara Saget, Assistant Deputy

Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant James White was tried before a jury and convicted of third-degree aggravated assault, causing the victim significant bodily injury, N.J.S.A. 2C:12-1b(7), as a lesser included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The court sentenced defendant to a term of five years, with two and a half years of parole ineligibility. We affirm the conviction and remand for re-sentencing. These are the salient facts.

On October 12th, 2004, at approximately one o'clock in the morning, forty-eight-year-old Robert Jenkins was watching television in his room at the Howard Johnson Motel in New Brunswick, when he heard someone knocking at the door. He responded to encounter his neighbor who asked to borrow a can-opener. Jenkins gave the neighbor the can-opener with the expectation that he would return it within minutes. After waiting for more than ten minutes, Jenkins decided to walk over to his neighbor's nearby room to get back his can-opener.

Jenkins occupied room 138; he described the motel as a two-story structure consisting of a lower level and an upper level. As soon as he stepped outside his room, Jenkins immediately came upon "a young man banging on the door next door to my door." Because his neighbor's room was two doors away, he walked around the man knocking to get to his neighbor's door. After knocking several times without a response, he decided to return to his room.

As Jenkins walked back to his room, the young man pointed at a nearby truck and said: "I have some girls. . . And I have some alcohol. Let's party in your room." Jenkins declined the invitation and continued on his way. As he reached the door of his room, the young man jumped on his back, pulled up Jenkins's shirt, and stabbed him "as hard as he could."

The two men then began to struggle. According to Jenkins, he managed to get his assailant in front of him, while at the same time saying: "why are you doing this?" But the man "never said a word." As they struggle, the two men rolled down a few steps, eventually stopping at the landing. Jenkins gave the following description of what transpired next:

When we get to the landing, I try to get underneath the nearest car that was there. And by that time his friend came, and his friend started stomping me. And at that time said I said to them, you know, to please don't hurt me or please don't kill me or whatever it was, you know. . . I was actually pleading for my life . . . I said why are you doing this? And they still didn't say anything. (Emphasis added.)

According to Jenkins, the beating continued for about three minutes. At this point, the attack stopped, and the two men walked toward the nearby truck "laughing;" they got in the vehicle and drove away. Jenkins specifically testified that the "second man" took an active part in "stomping me as hard as he could, kicking me." Jenkins described the second assailant as an African American man, approximately five feet nine inches tall, "much taller than me."

After the attack, Jenkins crawled back to his room and called the motel manager for help. Inexplicably, the manager apparently failed to appreciate the seriousness of the situation, and did not react to Jenkins's pleas for assistance. He eventually dragged himself to his neighbor's room, who immediately called 911. He was taken to Robert Wood Johnson and admitted to the intensive care unit (ICU), where he remained for the next seventeen days. He was diagnosed as suffering from a perforated diaphragm and liver, and had lost a great deal of blood. He was intubated to permit him to breath, and a catheter was inserted to permit him to urinate. The attending physician testified that Jenkins sustained life-threatening injuries that would have led to his death if left untreated.

Christian Sheridan, the occupant of the motel room next to Jenkins's room, gave a description of the truck to the responding police officers. A short time thereafter, officers from the Highland Park Police Department stopped a truck matching Sheridan's description. Inside the vehicle were defendant and a man subsequently identified as Ioannis Tsampis, the individual who initially attacked and stabbed Jenkins. The police also found a silver and black knife behind the driver's seat.

Tsampis pled guilty to second-degree aggravated assault a month before the commencement of this trial. Jimmy Rodgers, the driver of the truck, also pled guilty to an accusation charging him with hindering the apprehension of Tsampis and defendant. N.J.S.A. 2C:29 3a. At the plea hearing, Rodgers testified that he saw Tsampis stab Jenkins, and saw defendant throw Jenkins to the ground. Rodgers also testified at trial as a witness for the State.

Defendant testified in his own defense. He admitted to being at the motel at the relevant time, and to being "a little drunk." He saw Jenkins wrestling, but denied seeing Tsampis stab Jenkins; denied hitting Jenkins or assaulting him in any way; and denied aiding Tsampis in the stabbing. He also did not see any blood on the ground. He attempted to intervene in the struggle between Jenkins and Tsampis, but claimed that Jenkins "would come back raging toward the guy." The fight at some point stopped, and he and Tsampis drove off.

Defendant also called Tsampis as his witness. He admitted stabbing Jenkins, and denied that defendant took part in the assault. Tsampis also told the jury that he pled guilty to the stabbing and was facing a five-year sentence with an eighty-five percent period of parole ineligibility.

Against this backdrop, defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT WHITE'S PRETRIAL AND POST-TRIAL MOTIONS TO DISMISS THE INDICTMENT.

A. Pretrial Motion to Dismiss Indictment.

B. Post-trial Motion to Dismiss Indictment.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT UNDULY EMPHASIZED CERTAIN INSTRUCTIONS AND INSTRUCTED THE JURY TO DETERMINE WHITE'S "GUILT OR INNOCENSE." (Not Raised Below)

POINT III

THE TRIAL COURT ERRED WHEN IT DENIED WHITE'S MOTION FOR RECONSIDERATION OF SENTENCE.

Defendant's arguments attacking his conviction lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief remarks.

The record here amply supports the trial court's decision to deny defendant's pretrial motion to dismiss the charge of second-degree aggravated assault. N.J.S.A. 2C:12-1b(1) defines second degree aggravated assault as "[a]ttempt[ing] to cause serious bodily injury to another, or caus[ing] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly caus[ing] such injury[.]" A serious bodily injury is an "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." N.J.S.A. 2C:11-1b.

The injuries sustained by the victim, as described by Jenkins himself and his treating physician clearly fall within this statutory definition. Based on the concept of accomplice liability, the jury was free to ascribe to defendant a level of culpability commensurate to the person who actually wielded the knife.

The trial judge ably explained to the jurors, as part of his instructions, the essence of accomplice liability:

And the law simply says a person is guilty of an offense if it's committed by his own conduct or the conduct of another person for which he is legally accountable or both. And under our law a person is legally accountable for the conduct of another person when he is an accomplice of another person in the commission of an offense. A person is considered an accomplice when with a purpose to promote, facilitate or make the commission of that offense easier, he aids or attempts to aid such other person in committing it.

We also reject the argument that the trial judge's fleeting remark to the jury that its job was "to decide the defendant's guilt or innocence on these various charges that are before you," warrants reversal of defendant's conviction. We agree that this phraseology is not appropriate because "[a] verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof." State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003). Here, the court's fugacious remark was made only once, at the end of delivering an otherwise carefully worded and legally correct charge. In this light, we discern no basis to overturn the conviction.

Defendant's argument with respect to the sentence imposed by the court, however, is meritorious, thus requiring a remand for re-sentencing. In making his findings, the trial judge found aggravating factor N.J.S.A. 2C:44-1a(2), which provides as follows:

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

The court found this factor applied because defendant participated in a "rather vicious, unprovoked attack on an older man." While this may have been the court's assessment of the injuries sustained by the victim, defendant was convicted of third-degree aggravated assault based on having inflicted "significant bodily injury." N.J.S.A. 2C:11-1d defines significant bodily injury as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses."

Based on the jury's verdict, there is no factual support for the court's characterization of the injuries. Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 2537-38, 159 L. Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458, 465 (2005). Finally, although at age forty-eight, Jenkins was twenty-nine years older than defendant, this age disparity alone does not make the victim "particularly vulnerable or incapable of resistance due to advanced age." N.J.S.A. 2C:44-1a(2). The consideration of an inappropriate aggravating factor by the trial court requires that the sentence be vacated, and the matter remanded for re-sentencing. State v. Kromphold, 162 N.J. 345, 355 (2000).

On remand, the court is to re-weigh the remaining aggravating factors, and then determine an appropriate sentence. After completing this process, the court may conclude that the length of the original sentence remains appropriate.

Defendant's conviction is affirmed. The case is remanded for re-sentencing. We do not retain jurisdiction.

Defendant was nineteen years old at the time he committed this offence.

Although not clearly identified by number, the record of the sentencing hearing shows that the court found aggravating factors N.J.S.A. 2C:44-1(3),(6), and (9).

(continued)

(continued)

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A-6601-05T4

April 21, 2009