STATE OF NEW JERSEY v. AMY ORTIZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0736-08T40736-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMY ORTIZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2046.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a non-jury trial, defendant Amy Ortiz was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d) (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). The judge found her not guilty of attempted murder, as charged in count one of the indictment. On count two, even though defendant had been convicted of a second-degree crime, the judge sentenced her in the third-degree range, imposing a three-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On count three, the judge sentenced defendant to a concurrent three-year term of imprisonment and merged counts four and five with count three.

On appeal, defendant raises a single claim:

I. AS THE JUDGE WAS BOTH JUDGE AND FACTFINDER, THE DEGREE OF HIS INTERFERENCE IN THE TRIAL IMPEDED THE ADVERSARIAL PROCESS AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

We disagree and affirm.

I.

On March 3, 2006, Stephany Waddell and her boyfriend Micah Adams were at home in their apartment when they heard their car alarms sounding. When Waddell looked out the window, she saw defendant standing next to her car. Waddell knew defendant from a Honda car club that Adams founded and of which he was the president. For reasons not relevant to this appeal, friction had developed between the two women in the months preceding the night in question.

After seeing defendant standing next to her car, Waddell ran outside and punched defendant in the face. The two fell to the ground, with defendant on the bottom and Waddell on top of her. Waddell testified that defendant grabbed her by the neck and she had trouble breathing. Almost immediately, she felt "a hot, tingling feeling in [her] neck." When defendant released her hold of Waddell's neck, Waddell realized she was bleeding. At that point, Waddell looked in defendant's hand and saw defendant holding a knife. Waddell, who was unarmed, unsuccessfully attempted to pry the knife loose from defendant's grasp, but did not succeed. Her fingers were cut as she continued to attempt to grab the knife away from defendant. Defendant then stabbed Waddell in the leg and abdomen, at which point Waddell screamed to Adams, "Micah, this bitch stabbed me. Micah, this bitch stabbed me." At that point, Adams intervened and separated the two women.

After the attorneys had completed their direct and cross-examination of Waddell, the judge stated that he "want[ed] to ask a few questions since this is a bench trial." At that point, he questioned Waddell about whether she had actually seen the knife, what the lighting conditions were like, when she had first seen the knife, what it looked like, how much of the metal blade she had observed, how wide the blade was, whether she had known defendant prior to that night and how long she had known her. The judge also asked Waddell a series of questions concerning her employment as a model and as an installer of special equipment on cars.

Notably, the judge asked Waddell whether she had ever, prior to the night in question, seen defendant with a knife, to which Waddell answered "yes." After Waddell testified she had indeed seen defendant in possession of a knife on a prior occasion, the judge asked "what type of knife was it that you saw her with? This is 404(b) information." Waddell answered, "a hand knife."

During Waddell's testimony, the State presented a videotape showing all of her scars in detail. The State also presented the testimony of Martina Harmon, who lived across the street from Waddell and Adams. After hearing a loud argument, she went outside where she saw Waddell in a fight with another woman. She testified she heard Waddell yell that she had been stabbed and observed bloodstains on Waddell's blouse.

Adams testified that because Waddell, at least at the beginning, appeared to be the stronger of the two, he had not interfered. In fact, he explained that he let the two fight until he heard Waddell yell that she had been stabbed and that she believed she was dying. Adams also maintained that although blood was pouring out of several wounds on Waddell's body, he had not seen a knife in defendant's hand because his attention had been distracted by the many car club members who had arrived, some of whom he did not know. Adams testified that "somebody" hit him and that he was preoccupied with "trying to prevent everybody from getting past him." Adams admitted using a baseball bat to smash the window of the car in which defendant had been riding. Her children were in the car at the time.

After presenting the testimony of other members of the car club, who were also present during the fight between Waddell and defendant, the State called Dr. Richard Burns, a trauma surgeon at Cooper Medical Center, who treated Waddell when she was admitted. Burns testified that Waddell was bleeding from multiple stab wounds and was in considerable distress. Although some of the five stab wounds were superficial and were cleaned and sutured in the operating room, the wounds to her neck and abdomen were serious and required surgery. According to Burns, due to the location and apparent depth, "[b]oth of these wounds had the potential to injure vital structures." Burns also testified that Waddell had wounds on her hands, which he described as consistent with defensive wounds. Burns explained that Waddell had lost so much blood that she received a blood transfusion. She remained hospitalized for eight days.

At the conclusion of Burns's testimony, the judge asked him a series of questions designed to elicit further detail about the wounds and the surgery. Defendant did not object to the judge's questioning of Burns.

Defendant testified on her own behalf. She explained that on the night in question, she was driving with her boyfriend, Edwin Rivera, when she decided to drive to Fifth Street to visit her cousin Jessica. According to defendant, she did not realize that Jessica's home was adjacent to Waddell's. As soon as Rivera parked the car, Adams began smashing the windshield with a baseball bat. It was at that point that Waddell approached her and punched her in the face. With that, the two women began fighting.

Defendant claimed she did not have a knife, did not stab Waddell and, when the fight was over, there was no blood on Waddell. Defendant also denied that Waddell ever yelled to Adams that she had been stabbed.

At the conclusion of defendant's testimony, the judge asked her a series of questions about the car club and the clothes, hats and stickers worn by its members. None of the questions the judge asked her concerned her fight with Waddell. Defendant did not object to any of the questions the judge asked.

After both sides rested, the judge directed counsel to present their closing arguments. Shortly after defense counsel began his summation, the judge interrupted him, stating:

Listen, I don't want to waste a lot of time here. The victim and her boyfriend are irrational active aggressors. Their conduct was reprehensible. . . . And I don't know why they weren't charged because as far as I'm concerned they gave enough statements against their interest here to convict [Adams] of criminal mischief, aggravated assault, attempted aggravated assault [and] endangering the welfare of a child . . . . Horrendous conduct. Absolutely atrocious conduct.

Defense counsel resumed his argument, commenting that Waddell had attacked defendant without any provocation. At that point the judge interrupted him, stating:

I can tell you this right now. I don't find that [defendant] attempted to murder. I don't care what the State says to me. She didn't purposely attempt to cause the death of the victim. She didn't purposely attempt to cause serious bodily injury to the victim.

Without affording defense counsel an opportunity to continue with his closing, the judge made detailed findings of fact explaining his conclusion that the stab wounds Waddell sustained to her neck, her stomach and her leg constituted serious bodily injury within the meaning of N.J.S.A. 2C:12-1(b)(1). He then commented to defense counsel that the only remaining issue pertinent to the State's ability to prove defendant guilty of aggravated assault by causing serious bodily injury was defendant's state of mind. In particular, the judge commented, the question was whether the State had proven beyond a reasonable doubt that defendant acted with a criminally culpable state of mind. At that point, the following discussion occurred between the judge and defense counsel:

JUDGE: Don't even waste your time on purpose or knowing. Let's talk about recklessness because that's the only state of mind I find to be applicable because do I believe under the circumstances of this fight that's ongoing here, that's happening rather quickly, that [defendant's] purpose was to cause serious bodily injury as defined by law? Do I find that it was knowing? That that was a result? No. The only state of mind I'm concerned about is recklessness.

If you want -- I'm sorry to be a pain again. That's what I'm asking you to address, recklessness.

[DEFENSE COUNSEL]: I had not intended to make an argument that it was a serious injury. That was not my argument.

JUDGE: I know. I have to make some findings. I'm trying to eliminate and focus on the real issues of the case.

[DEFENSE COUNSEL]: Well, I think the real issue, Judge, is whether or not the State has proved this case beyond a reasonable doubt that [defendant] stabbed anybody. I'm going to tell you why I'm making that argument, Judge.

Once that discussion concluded, defense counsel proceeded to make a lengthy argument, uninterrupted by the judge, explaining why the State's witnesses were not credible. After listening to defense counsel's argument for quite a while, the judge interjected, asking: if defendant did not stab Waddell, "[h]ow else did she get stabbed? Two people are rolling around in the street. Undisputedly, no one else is around. Unless [Adams], when he went to break them apart, took a knife and stabbed his girlfriend."

The following discussion ensued:

[DEFENSE COUNSEL:] Can I ask you a question, Judge? Is it my obligation to solve the crime or is it their obligation to prove it beyond a reasonable doubt?

JUDGE: I'm not asking you to solve the crime. I'm trying to focus on the issue that you're focusing on.

[DEFENSE COUNSEL]: It could have been anybody, Judge. It could have been the guy who was left, Chello, who was still there. It could have been somebody we didn't see. We heard about another car that somebody saw. We can't explain what happened, but we can say, we didn't do it.

If this court is going to take the position that because we can't suggest who else might have done it, that she's guilty beyond a reasonable doubt, then I beg to disagree.

In response, the judge began to summarize the direct and circumstantial evidence that he had heard and remarked "[t]hat's an awful lot of circumstantial evidence." The judge then afforded defense counsel the opportunity to respond to his conclusion that there was a considerable amount of circumstantial evidence against defendant. Defense counsel argued:

No, I don't think it is [a lot of circumstantial evidence], Judge, and I'll tell you what you didn't hear. You didn't hear one piece of evidence by an expert produced by the State as to the angle of the wounds, whether they could have been done by somebody on their back.

In your colloquy with me, you still haven't explained how she could have gotten the knife out of her pocket, opened up the knife, stabbed her, and still be holding the woman by the hair or hands.

. . . .

Maybe [defendant] didn't do it. Maybe she didn't take a knife out and stab her. Maybe [Waddell] decided to blame her for it --

A considerable amount of back and forth discussion then ensued between the judge and defense counsel, during which the judge observed, referring to the testimony of the police officer:

And you think that officer was credible? I said informally to you, I said I can't believe this guy's testimony. I really couldn't believe it. . . . You want to talk about a defense attorney's dream? If this guy is testifying against you, what a defense attorney's dream. He bore no credibility. I gave absolutely no weight to what he said.

The dialogue between defense counsel and the judge continued. At one point, defense counsel apparently became frustrated and remarked, "I thought I was making a closing. I'm obviously in a debate." The judge responded, stating, "with these bench trials, I really prefer to do it this way. I'm just trying to flesh out the testimony."

After permitting the State to make brief remarks, the judge proceeded to make findings of fact and conclusions of law, ultimately concluding that defendant had recklessly caused serious bodily injury to Waddell and was therefore guilty of second-degree aggravated assault as well as the related weapons offenses.

After finding defendant guilty, the judge remarked that he believed he had developed "a good handle on what happened." He then explained that he was "sadden[ed]" by the outcome, commenting:

Like I said, maybe I'm wrong. I'm not perfect. But I find beyond a reasonable doubt that that's what happened. But it just saddens me because I'm in the position where, morally, does it feel right? No, legally is it right? Yes. Morally I have some difficulty with it, quite frankly, but, unfortunately, I took an oath. When I take that oath, I have to take that oath seriously.

After asking the parties "when is Easter," the judge selected a sentencing date six weeks hence because he wanted to give defendant the opportunity to spend the Easter holiday with her family.

At the time of sentencing, the judge concluded that the mitigating factors so outweighed the aggravating factors as to justify sentencing defendant a degree lower. In particular, the judge imposed a sentence in the third-degree range even though defendant had been found guilty of second-degree aggravated assault. Moreover, he imposed the bare minimum third-degree sentence, by sentencing defendant to a three-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2.

Thus, the judge: acquitted defendant of the most serious charge of attempted murder; without any request from defense counsel, took the initiative of postponing the sentencing proceeding until after Easter; and imposed a vastly reduced sentence for the second-degree aggravated assault conviction.

On appeal, defendant argues that the judge's interference in the proceedings denied her a fair trial. She frames her argument as follows:

Throughout this trial, the judge consistently put himself in the role of a participating attorney. The judge asked a multitude of questions - not just to clear up a murky point, but to bring out new evidence that neither attorney had elicited. Furthermore, the judge did not permit counsel to present a proper summation. Rather the summations were debates with the court as they went on. In both these ways, the judge hindered the proper working of the adversarial process that safeguards the rights of the accused in a criminal proceeding.

. . . .

[T]he summations were not summations -- they were dialogue with the court, or rather, they were debates. . . . It is clear that counsel was not permitted to present a closing argument in which he would be free to advocate his client's position. At the end of almost each witness's testimony, the judge asked his own questions as if he, too, was a party to the case and without regard to the position of the defense. The trial court simply ran amok.

The court prevented defense counsel from doing his job in an effective manner. As to the court's many questions, the court acted as a second prosecutor. During summations, the court decided what it wanted to hear and then framed the issues and actually prevented counsel from arguing any other issues that the defense had wanted to raise.

It cannot be said that [defendant] received effective representation as the trial judge took over the trial in all respects and counsel's hands were bound. Counsel tried to break free of the court, but simply was not permitted. The judge in this case removed defense counsel as a viable advocate for defendant. As such, this conviction must be reversed and the matter remanded for further proceedings.

The State disagrees, pointing out that the judge's involvement in the trial was even-handed and did not intrude upon defendant's closing argument any more than it had intruded upon the State's. The State maintains that, in fact, the judge acquitted defendant of attempted murder without giving the prosecutor any opportunity to argue in support of a conviction on that charge. The State also observes that with one minor exception, defendant never objected to any of the questions the judge asked any of the witnesses and that the only time defense counsel objected to the judge's handling of the trial was during the defense summation when defense counsel commented that he felt he was "in a debate" rather than "making a closing." The State also notes that the judge asked no questions of Adams, Harmon, the detective or the two car club members who testified. The State maintains that the judge expressed sympathy for defendant and conducted this bench trial with "[t]he utmost impartiality, good faith, fairness and respect for defendant and her counsel" and urges us to affirm defendant's conviction.

II.

"[S]ubject to the right of a party to make timely

objection," the judge "may call a witness and may interrogate any witness." N.J.R.E. 614. Indeed, "it is entirely proper for judges to ask witnesses questions to clarify their testimony." State v. Taffaro, 195 N.J. 442, 450-51 (2008). "Our courts have long rejected the arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed." State v. Medina, 349 N.J. Super. 108, 130 (App. Div.) (internal quotation and citation omitted), certif. denied, 174 N.J. 193 (2002). In Medina, we explained the authority of the judge to intervene in the trial and question witnesses, observing:

The intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial conducted in an orderly and expeditious manner. Trial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion. The discretionary power of a judge to participate in the development of proof is of high value, because a fair trial is his responsibility.

[Id. at 130-31 (internal quotations and citations omitted).]

Moreover, even if the judge's questioning of a witness leads to the disclosure of evidence that might be inadmissible, "[a] judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision making process. Trained judges have the ability to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention." Id. at 130 (internal quotations and citations omitted).

Nonetheless, "there is a point at which the judge may cross that fine line that separates advocacy from impartiality" because a trial judge "may so take over the entire proceedings as to create prejudicial error." Id. at 131 (internal quotations and citations omitted).

Our examination of the record does not support defendant's claim that the judge assumed the role of advocate and asked impermissible questions of the State's witnesses to bolster the State's case. We are satisfied that the judge acted appropriately in his interrogation of witnesses. As in Medina, "[h]is questions were clearly designed to clarify issues and ascertain the truth." Id. at 132. With one exception that we shall discuss momentarily, the questions the judge posed to Waddell, Burns and defendant elicited no prejudicial material, which is evident from the absence of any objection from the defense. The only material the judge elicited that was prejudicial and potentially inadmissible was Waddell's statement that she had previously observed defendant in possession of a knife. This evidence, as the judge himself recognized, was likely inadmissible under N.J.R.E. 404(b), which prohibits the admission of evidence of prior bad acts. Nonetheless, as we observed in Medina, "'[a] judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision making process. . . .'" Id. at 130 (quoting State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999)). For that reason, the question the judge posed to Waddell about defendant's prior possession of a knife was not considered by the judge and played no role in his findings of fact and conclusions of law. Thus, nothing in the judge's questioning strikes us as in any way interfering with defendant's right to a fair trial.

While we agree that the judge's involvement in defense counsel's closing argument might have become at times more intrusive than was necessary, and while we recognize that defense counsel at one juncture believed the judge's constant comments and questions were impeding his ability to deliver his closing, we must review the summation as a whole and not focus only on individual segments. Id. at 132. So viewed, we are satisfied that the judge afforded defense counsel a full opportunity to present his closing arguments. The defense was able to, without interruption, attack the credibility of the State's witnesses and was able to discuss the critical evidence that the State had failed to present.

Moreover, we have no reason to doubt the judge's good faith and impartiality. Without any urging from defendant, on his own initiative, the judge acquitted defendant of the most serious charge of attempted murder. He exercised his discretion and imposed what can best be described as a very lenient sentence in light of the charge on which he found defendant guilty and he made certain that the sentencing date would occur after Easter so that defendant could spend that occasion with her family. Additionally, this was a bench trial and there was thus "no danger that undue emphasis would be placed by a jury on the questions propounded by the judge." Ibid. We are satisfied that the judge "maintained an impartial role by propounding questions for the sole purpose of aiding his understanding of the witnesses' testimony. We find no error in the manner in which the proceedings were conducted." Ibid.

 
Affirmed.

(continued)

(continued)

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A-0736-08T4

August 25, 2010