STATE OF NEW JERSEY v. SHONDA B. HURTT a/k/a SHONDA J. HURTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0032-08T40032-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHONDA B. HURTT a/k/a

SHONDA J. HURTT,

Defendant-Appellant.

_____________________________________________________

 

Submitted June 8, 2010 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-4891.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shonda B. Hurtt appeals from the judgment of conviction and sentence imposed following a jury trial at which she was found guilty of the lesser-included offenses of simple assault, N.J.S.A. 2C:12-1(a)(1), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3) ("[r]ecklessly caus[ing] bodily injury to another with a deadly weapon"). After merging the two convictions, the judge sentenced defendant to probation for two years, with a condition that she serve 270 days in the county jail.

Defendant raises the following points on appeal:

POINT I

THE TRIAL COURT'S RULING PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE OF THE SEPTEMBER 26, 2006[] INCIDENT INVOLVING MS. HUBBARD VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND HER FIFTH AMENDMENT RIGHT NOT TO BE COMPELLED TO BE A WITNESS AGAINST HERSELF

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION (Not Raised Below)

POINT III

THE TRIAL COURT'S "ELECTION" CHARGE CONCERNING DEFENDANT'S FAILURE TO TESTIFY WAS FLAWED AND UNDERMINED HER FIFTH AMENDMENT RIGHTS (Not Raised Below)

POINT IV

THE 2 YEAR PERIOD OF PROBATION IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT TWO FOR FOURTH[-]DEGREE AGGRAVATED ASSAULT WAS MANIFESTLY EXCESSIVE

We have considered these contentions in light of the record and applicable legal standards. We affirm.

The salient evidence at trial revealed that at around 7:00 a.m. in the morning of February 22, 2007, Tracy Hubbard was withdrawing money for her fiancé, Derrick Sherin, from a Bank of America ATM in Roselle. Sherin was outside the ATM apparently arguing with defendant. Hubbard opened the door to the vestibule, and defendant and Sherin came in; Hubbard recognized defendant as Sherin's "other girlfriend."

Hubbard removed her jacket in anticipation of fighting defendant and admitted that she threw the first punch. After a few seconds, as the two women wrestled each other, Sherin intervened and pushed defendant out of the vestibule. She fled in a car as Hubbard threw a garbage can lid at her. Hubbard noticed a lot of blood on her hand, and, when she returned home, she saw that she was cut on her forehead, nose, lip and back. She was taken to the hospital by ambulance. Hubbard acknowledged, however, that she never saw defendant with any weapon.

The prosecutor led Hubbard through a description of images seen on a videotape from a surveillance camera located in the ATM's vestibule, freezing images at various points to allow Hubbard to identify what was displayed. At least one of the images showed defendant with a knife in her hand making a descending blow in the area of Hubbard's head.

Roselle police officers responded to the ATM vestibule and recovered from the blood-flecked floor a broken knife without any handle. Subsequent forensic tests revealed no fingerprints or blood on the knife.

Defendant was arrested approximately one hour later on the same day. She showed no apparent signs of injury. While being processed, defendant surrendered from her hand a gold ring with a blue stone that had blood on it. Although defendant did not testify at trial, defense counsel implied that Hubbard's injuries were not caused by a knife, but rather by defendant's ring that may have cut Hubbard accidentally during the struggle.

Defendant was initially charged with second-degree aggravated assault of Hubbard, N.J.S.A. 2C:12-1(b)(1) ("serious bodily injury"); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) ("purposefully or knowingly caus[ing] bodily injury with a deadly weapon"); and third-degree possession of a deadly weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The jury returned guilty verdicts on the lesser-included offenses of the two assault counts, and acquitted defendant of the weapons offense.

Defendant first contends that the trial judge erred by refusing to permit her to introduce evidence of a prior threat Hubbard made against her on September 26, 2006. Defendant's proffer was reflected in the contents of a police report in which she claimed Hubbard came to her home, stood in the driveway with a knife, and threatened to kill her. Other than to record defendant's version of the incident, the police took no action.

The judge agreed to hold a hearing pursuant to N.J.R.E. 104(a) while Hubbard was testifying to determine admissibility of the evidence. Outside the presence of the jury, defense counsel cross-examined Hubbard about the alleged incident. She denied it ever occurred. Defendant did not testify at the hearing.

Instead, defense counsel sought to introduce the police report in evidence. The judge viewed the proffer as "other crimes" evidence and analyzed the issue pursuant to State v. Cofield, 127 N.J. 328, 338 (1992). While determining the evidence to be relevant, the judge noted that the police report was "hearsay" and concluded that defendant failed to prove by a "preponderance" of the evidence that the event actually occurred.

Defendant argues before us that the judge "failed to apply the controlling and more expansive 'simple relevancy' standard of admissibility since [she] was seeking to introduce other bad acts evidence 'defensively . . . . '" See State v. Cook, 179 N.J. 533, 566 (2004) ("The standard for introducing defensive other-crimes evidence is lower than the standard imposed on 'the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.'") (quoting State v. Garfole, 76 N.J. 445, 452-53 (1978)). We need not decide whether the judge applied the correct standard because defendant's argument misses the obvious point -- defendant failed to proffer any admissible evidence to prove the event occurred in the first instance.

Specific instances of a victim's violent conduct are not admissible to prove a character trait for violence making it more likely that the victim, not the defendant, was the aggressor. State v. Jenewicz, 193 N.J. 440, 457-62 (2008). However, specific instances of the victim's violent conduct known to the defendant are admissible to show that defendant acted with the reasonable belief that force was necessary to defend himself. Id. at 462-63. Here, evidence that Hubbard had previously threatened defendant with a knife was relevant on the issue of whether defendant acted with a reasonable belief that force was necessary to defend herself during the confrontation in the ATM vestibule.

However, the only proof that defendant proffered was the self-serving police report that contained her hearsay version of the alleged events from the prior September. The contents of the document were not independently admissible to prove the threat. See State v. Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979) (noting that a police report is not "admissible to prove the truth of the contents of that report since members of the public, whether targets of investigation, witnesses or victims, are not under a duty, in the nature of a business duty, to make an honest and truthful report"). As a result, the judge correctly determined that the police report was inadmissible and defendant adduced no proof that the event had actually occurred.

Defendant next contends that the prosecutor's misconduct during summation requires reversal. In her comments, the prosecutor referenced the testimony of Dr. Marie Schreiber who treated Hubbard at the hospital emergency room. Schreiber had described the lacerations suffered by Hubbard as "linear." In her summation, the prosecutor suggested that an object with a jagged edge, such as defendant's ring, could not cause the injuries. The prosecutor also argued that the assault resulted in serious bodily injury because of the proximity of the wounds to Hubbard's eyes, neck and "carotid artery." Defendant contends these comments were improper because they "require[d] the presentation of supporting expert testimony."

Defendant did not object to any of the comments. Therefore, we must consider whether the alleged error amounts to plain error, i.e., that it was "clearly capable of bringing about an unjust result . . . ." R. 2:10-2.

"[P]rosecutors occupy a unique position in the criminal justice system and . . . their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988) (citing State v. Ramseur, 106 N.J. 123, 320 (1987); State v. Farrell, 61 N.J. 99, 104 (1972)), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). A "prosecutor's duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006) (citing State v. Frost, 158 N.J. 76, 82 (1991)).

"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. 76, 83 (1999)) (citations omitted); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of [her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted).

The prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006) (holding "prosecutor's comments . . . placed an unforgiving and harsh glare on . . . defense" but were permissible); see also State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) (holding prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence") (citations omitted), certif. denied, 177 N.J. 572 (2003). The prosecutor's comments "must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Any "failure to object" to the prosecutor's remarks at the time they were made "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.

Here, the prosecutor fairly commented on the evidence and rebutted defense counsel's explicit invitation to the jury to find reasonable doubt based upon defendant's bloody ring. The prosecutor did not express any opinions that required medical expertise. Rather, she asked the jury to use its "common sense" and consider whether the jagged edges of the ring were the likely causes of Hubbard's lacerations, or whether it was more likely the injuries were caused by the straight edge of the knife shown in the videotape. As to the prosecutor's comments regarding the location of the wounds, if there was error, it was harmless, since the jury rejected the State's theory that Hubbard's wounds amounted to "serious bodily injury," and accepted only that they amounted to "bodily injury." We find no basis for reversal.

Defendant next challenges the judge's charge regarding her election not to testify; she lodged no objection at trial. The judge followed the then-existing model criminal jury charge:

The defendant is entitled to have the jury consider all of the evidence, and she is entitled to the presumption of innocence even if she chooses not to testify.

[(Emphasis added).]

The model charge has been amended since defendant's trial, and now reads in relevant part that a defendant "is presumed innocent whether or not he/she chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009) (emphasis added). We have already concluded that use of the prior model charge does not amount to plain error. State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010). There is no basis to reverse defendant's conviction on this ground.

Defendant lastly argues that the judge failed to find two mitigating factors, improperly balanced the aggravating and mitigating factors as a result, and that she should have more appropriately been sentenced to "the statutorily[-]authorized minimum 1 year probation." We find no mistaken exercise of the judge's broad discretion in this regard, and we affirm defendant's sentence.

The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), based upon defendant's extensive criminal record. He also concluded that mitigating factor ten, N.J.S.A. 2C:44-1(b)(10) (defendant would likely respond to probation), existed. Defendant argues that the judge should also have found mitigating factors three and four -- N.J.S.A. 2C:44-1(b)(3) (that she "acted under a strong provocation"); and (b)(4) (that "substantial grounds tend[ed] to excuse or justify [her] conduct, though failing to establish a defense"). Neither mitigating factor was expressly advanced by defendant at sentencing. The judge thoroughly reviewed the evidence and the jury's verdict, and implicitly rejected the mitigating factors defendant now contends were applicable.

 
As the Court has recently noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). The probationary sentence imposed upon defendant does not shock our conscience.

Affirmed.

Defendant argues that her Fifth Amendment right not to testify was violated because the judge indicated that he might reconsider his ruling "if . . . defendant wishe[d] to get on the stand and say this [threat] happened . . . ." However, we note that N.J.R.E. 104(d) provides that "[b]y testifying upon a preliminary matter, the accused does not become subject to cross-examination as to other issues in the case." Thus, defendant could have taken the witness stand and testified regarding the alleged threat without fear of being cross-examined as to the actual charges contained in the indictment, but she chose not to. In any event, her Fifth Amendment rights were not violated.

We are advised that defendant served the custodial condition of her probation and was released from jail in December 2008.

(continued)

(continued)

12

A-0032-08T4

July 20, 2010