STATE OF NEW JERSEY v. MORRIS A. LANGSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0827-07T40827-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MORRIS A. LANGSTON,

Defendant-Appellant.

_____________________________________________________

 

Submitted October 20, 2009 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

No. 06-02-142.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, of counsel and on the briefs).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent

(Matthew M. Bingham, Assistant Prosecutor, and David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d). The trial court sentenced defendant to a seven-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree aggravated assault, a concurrent four-year term for possession of a weapon for an unlawful purpose, and a nine-month term for unlawful possession of a weapon. The court merged defendant's conviction for third-degree aggravated assault into his conviction for second-degree aggravated assault.

Defendant's convictions were based on the stabbing of a fourteen-year-old boy in the street near the hall of the Fraternal Order of Eagles in Vineland on the evening of February 12, 2005. The victim was one of the attendees at a birthday party held at the hall that evening. The stabbing occurred while he was waiting for a cab to return home. Due to the severity of his injuries, the victim had no recollection of the stabbing.

Before the stabbing, defendant, who was nineteen years old, and two of his friends, Joseph Aponte and codefendant James Dennis, were at the home of another friend, Jesus Rosario, which was located two or three blocks from the hall, when they observed "a lot of commotion going down" outside the hall, with numerous persons "moving," "screaming," and "just fighting." Defendant, Aponte and Dennis armed themselves with knives and walked to the hall. Rosario stayed home because he was under house arrest. The State's evidence indicated that defendant was the one who stabbed the victim when the three young men arrived in the area of the Fraternal Order of Eagles' hall.

Codefendant Dennis pled guilty in accordance with a plea bargain under which he agreed to testify against defendant. Dennis testified that he gave defendant a twelve-inch butcher knife at Rosario's house before he, Aponte and defendant went to the area of the hall. He also stated that he saw the victim lying on the ground at some point. However, Dennis did not testify that he saw the stabbing.

Rosario testified that defendant returned to his home from the area of the hall before Dennis and Aponte. According to Rosario, defendant told him he had "stabbed some kid" and showed him the knife he had used in the stabbing, which had blood on it. At this point, defendant said, "he's going to put D Block back on the map." Rosario described D Block as "a group of people [who] fight together" and said that he, Dennis, Aponte and defendant were all members of that group. Defendant also told Rosario that he needed to throw the knife away so that the police would not find it. He then went to the back of the house next door and hid the knife, which the police later recovered.

After his arrest, defendant gave an oral statement concerning his stabbing of the victim. Defendant's account of the stabbing was consistent in most respects with Dennis's and Rosario's testimony. Defendant stated that Dennis gave him a knife before he, Dennis and Aponte went to the area near the hall. Defendant claimed that when they arrived on the scene, a group of people began to assault him and knocked him to the ground. To defend himself, defendant began swinging the knife Dennis had given him. At first, defendant did not believe he had hit anyone with the knife. However, when he looked at the knife and saw blood on it, he realized that he had stabbed someone. He then went back to Rosario's house and hid the knife behind the house next door. Defendant claimed that the comment about "putting D Block back on the map" was made by someone else at Rosario's house. Defendant admitted that he did not see any weapons in the hands of any of the persons who allegedly assaulted him.

Defendant called as a defense witness Detective Scott Collins of the Cumberland County Prosecutor's Office, who testified that two eyewitnesses to the stabbing, Javier Valentin and Henry Leadbetter, had identified Dennis as the person who committed the stabbing based on a photographic array of six persons. Defendant's photograph was not included in this array.

Defendant did not testify at trial.

On appeal, defendant presents the following arguments:

POINT I: DEFENDANT'S STATEMENT TO POLICE WAS

OBTAINED IN VIOLATION OF HIS FIFTH

AMENDMENT RIGHTS AND SHOULD HAVE BEEN SUPPRESSED.

POINT II: THE TRIAL COURT FAILED TO PROPERLY INVESTIGATE WHETHER A BIASED POTENTIAL

JUROR HAD TAINTED THE JURY POOL.

POINT III: THE TRIAL COURT ERRED IN NOT CHARG-

ING THE JURY AS TO ALL APPLICABLE

LESSER INCLUDED AGGRAVATED ASSAULT

OFFENSES.

POINT IV: DEFENDANT WAS PREJUDICED BY DETECTIVE

RAMOS' TESTIMONY REGARDING THE CREDI-

BILITY OF JAMES DENNIS.

POINT V: THE TRIAL COURT ERRED BY PERMITTING

THE ADMISSION OF THE VICTIM'S MEDICAL

RECORDS BY STIPULATION.

POINT VI: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.

POINT VII: THE PROSECUTOR'S COMMENTS DURING

SUMMATION DEPRIVED DEFENDANT OF A

FAIR TRIAL.

POINT VIII: THE TRIAL COURT ERRED IN ADMITTING

EVIDENCE OF GANG AFFILIATIONS.

POINT IX: THE JURY CHARGE FOR POSSESSION OF A

WEAPON FOR AN UNLAWFUL PURPOSE WAS DEFICIENT.

POINT X: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERROR.

POINT XI: THE TRIAL COURT ERRED IN REFUSING TO CONSIDER MITIGATING FACTOR FOUR WHEN SENTENCING DEFENDANT.

We reject the argument presented under Point I of defendant's brief and affirm the denial of the motion to suppress his inculpatory statement to the police substantially for the reasons expressed in Judge Farrell's June 2, 2006 oral opinion. The only other arguments that warrant discussion are the arguments presented under Points III, V, VII and VIII of defendant's brief. Defendant's remaining arguments are clearly without merit. R. 2:11-3(e)(2).

I.

Under Point III of his brief, defendant argues that the trial court erred in failing to instruct the jury regarding "all applicable lesser included aggravated assault offenses."

The court instructed the jury regarding the lesser-included disorderly persons offenses of simple assault by purposely, knowingly or recklessly causing bodily injury, in violation of N.J.S.A. 2C:12-1(a)(1), and negligently causing bodily injury with a deadly weapon, in violation of N.J.S.A. 2C:12-1(a)(2). Defendant did not request submission to the jury of any other lesser-included assault offenses. Therefore, the court had a duty to instruct the jury regarding those lesser-included offenses only if they were "clearly indicated" by the evidence. State v. Denofa, 187 N.J. 24, 42 (2006).

One of the elements of second-degree aggravated assault under N.J.S.A. 2C:12-1(b)(1) is that the defendant causes or attempts to cause "serious bodily injury" to another. Defendant argues that the court also had an obligation to instruct the jury regarding third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(7), which requires the State to show that the defendant caused or attempted to cause "significant bodily injury" to another, and fourth-degree aggravated assault under N.J.S.A. 2C:12-1(b)(3), which requires the State to show that the defendant recklessly caused "bodily injury" to another. Thus, to find defendant guilty of one of these offenses as a lesser-included offense of second-degree aggravated assault, the jury would have to have found that defendant did not suffer "serious bodily injury" but rather only "significant bodily injury" or "bodily injury."

The Code defines "[s]erious 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." N.J.S.A. 2C:11-1(b). In contrast, "[s]ignificant bodily injury" is defined 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," N.J.S.A. 2C:11-1(d), and "[b]odily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a).

The evidence presented at trial, consisting of the victim's own testimony and extensive medical records, showed that defendant stabbed the victim through his right lung and into the right ventricle of his heart, that the victim suffered a massive loss of blood at the scene of the stabbing, that he had to be transported to a hospital by helicopter, that he was comatose thereafter for a period of at least two weeks, that he has a disfiguring scar on his chest as a result of his wound that required surgery, and that he has significant permanent restrictions on his physical abilities attributable to the injury to his heart. The only reasonable finding a jury could reach based on this evidence was that defendant suffered "serious bodily injury" as a result of defendant stabbing him rather than merely "significant bodily injury" or "bodily injury."

Moreover, even though the evidence, in particular defendant's inculpatory statement, could have supported a jury finding that defendant did not purposely or knowingly stab the victim, the two simple assault charges the trial court submitted to the jury provided the option of returning a verdict for a lesser included offense if the jury found that defendant did not stab the victim knowingly or purposely. The court instructed the jury that it could find defendant guilty of a violation of N.J.S.A. 2C:12-1(a)(1) if it found that he purposely, knowingly or "recklessly" caused bodily injury to the victim, and that the jury could find defendant guilty of a violation of N.J.S.A. 2C:12-1(a)(2) if it found that he "negligently" caused the victim injury with a deadly weapon. Thus, the trial court provided the jury with a range of options of lesser-included offenses if it found that defendant's stabbing of the victim was not purposeful or knowing but only reckless or negligent. Furthermore, the court instructed the jury with respect to self defense. Consequently, if the jury credited the version of the stabbing that defendant gave in his statement to the police, and concluded that this version established self defense, it could have acquitted defendant entirely. Under these circumstances, the court's failure to submit any additional lesser-included offenses to the jury was not plain error.

II.

Under Point V of his brief, defendant argues that the trial court erred in admitting the records of the victim's hospitalization in accordance with a stipulation between the prosecutor and defendant and in its instructions to the jury regarding this stipulation.

Initially, we note that hospital records are generally admissible in evidence as business records under N.J.R.E. 803(c)(6). See Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006). Therefore, even if defendant had not stipulated to their admission, the records of the victim's hospitalization, or at least substantial portions of those records, would have been admissible. Moreover, even if some portion of those medical records would not have been admissible under the business records exception to the rule against hearsay, a party may waive an objection to the admission of evidence on hearsay grounds. See State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). A stipulation to the admission of evidence constitutes such a waiver. See State v. Neal, 361 N.J. Super. 522, 534 (App. Div. 2003).

We also note that defendant had sound strategic reasons for stipulating to the admission of defendant's medical records. It is clear from the trial record that the stabbing caused the victim horrendous injuries, consisting of a perforation of his lung and the right ventricle of his heart, that he was comatose for a period of at least two weeks as a result of those injuries, and that he now has significant permanent restriction on his physical abilities attributable to his injuries. Defendant's trial counsel could reasonably have concluded that it was in defendant's best interest for the jury to be informed of the seriousness of those injuries, which was essentially uncontested, through dry medical records rather than the live testimony of a doctor or other medical professional. Therefore, the trial court properly allowed the parties to stipulate to the admission of those records.

The trial court gave the jury the following instruction regarding that stipulation:

Before we begin the defense case, I believe there's just a few things I want to address with you.

One is, there is a stipulation. There is an item that you have not heard us refer to yet in the trial. It is S-26, which would be a compilation of the medical records relating to Mr. Allen's diagnoses and treatment, relating to the injuries that are the subject of this trial.

The parties have agreed that they can be admitted into evidence without going through testimony establishing that they are what they say they are. And accordingly, those items were -- have been admitted into evidence and they'll come back to the jury room for your review, if you choose to do so.

I need to tell you that the parties have agreed to these facts and to the stipulation of this evidence into -- these items into evidence. The jury should treat these facts as undisputed. That is, that the parties agree that they are true.

As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict. Which simply means, you can review those items and you can decide whether to accept them, reject them, give whatever weight you deem appropriate to them.

Defendant did not object to this instruction.

The part of this instruction that told the jury it should "treat these facts," referring to the contents of the medical records, "as undisputed," and that "the parties agree that they are true[,]" was incorrect because it implied the jury was bound by any facts set forth in the medical records. However, the conclusion of this instruction clearly informed the jury that it was not bound by the factual statements contained in those records:

As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict. Which simply means, you can review those items and you can decide whether to accept them, reject them, give whatever weight you deem appropriate to them.

Therefore, the court's instructions regarding the jury's consideration of the victim's hospital records, considered as a whole, were not misleading and certainly did not rise to the level of plain error, particularly in light of the fact that the seriousness of the victim's injuries was essentially undisputed.

III.

We turn next to defendant's argument that the trial court abused its discretion under N.J.R.E. 403(a) in allowing the State to introduce evidence that defendant belonged to a group called "D Block."

N.J.R.E. 403(a) provides in pertinent part that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" The determination whether to exclude evidence under this rule is committed to the trial court's "broad" discretion. State v. Covell, 157 N.J. 554, 569 (1999). "Only where there has been 'a clear error of judgment' should a N.J.R.E. 403 determination be overturned." Ibid.

During Rosario's direct examination, the prosecutor elicited the following testimony:

Q. Now, are you familiar with a group of individuals that associate and call themselves D Block?

A. Yeah.

Q. What is D Block?

A. It's a group of people that, we fight together.

Defense counsel objected on N.J.R.E. 403 grounds to this line of questioning. The trial court overruled this objection, stating:

[T]his is not a case where Mr. Langston is accused of a robbery and there is no mention nor any relevance of a group called D Block. And then the State wants to bring in that he's a gang member in a organization called D Block.

This is a situation where, according to the alleged statements that have already come into the record, Mr. Langston acknowledges that he's part of D Block.

And that I think a reasonable inference, the jury could draw a reasonable inference, that part of the reason he allegedly stabbed the victim was because it had something to do with D Block. Because of the comment, tonight we put D Block or you put D Block on the map.

So for those reasons, I do find that it is prejudicial but it's prejudicial -- it's

un -- it's res [gestae], basically. It's put into the case by statements of the Defendant and I'll permit it.

Rosario then gave the following testimony:

Q. . . . [W]ith respect to the three guys that came to your house on February 12, 2005; Dennis, Aponte and Mr. Langston, all three of them -- you testified that all three of them associated themselves with this group called D Block?

A. Yes.

Q. As well as yourself?

A. Yes.

Q. Okay. Now, when Mr. Langston came back from the fight and showed you the bloody knife, did he make any comment or make -- or say anything to you regarding

D Block?

A. Yes.

Q. What did he say to you?

A. He said he's going to put D Block back on the map.

The critical factual issues in this case were whether defendant was the person who stabbed the victim, and if he was, his state of mind at the time of the stabbing, that is, whether he committed the stabbing purposefully or knowingly, or acted only recklessly or negligently, or even stabbed the victim in self-defense. Rosario's testimony that defendant said when he showed him the bloody knife used in the stabbing that "he's going to put D Block back on the map" was highly probative of both the fact that defendant was the person who committed the stabbing and that he did so purposefully or knowingly rather than with a less culpable state of mind or in self-defense. Moreover, Rosario's description of "D Block" as "a group of people that . . . fight together," and his identification of the other persons who went from his house to the area of the hall, Dennis and Aponte, as also members of D Block, was necessary to explain the significance of defendant's statement after the stabbing that he was "going to put D Block back on the map." Therefore, Rosario's testimony regarding D Block was highly probative of defendant's guilt of the charge of second-degree aggravated assault. Although the evidence of defendant's membership in this group may also have been prejudicial, the trial court did not abuse its discretion in overruling defendant's objection to the admission of this evidence on the ground that its probative value was not "substantially outweighed by the risk of . . . undue prejudice." N.J.R.E. 403(a).

Under the same point heading as his argument regarding the D Block evidence, defendant also argues that the trial court erred in allowing evidence of another Vineland gang called "A unit." This evidence was limited to the following re-direct examination of the victim:

Q. Now, you said during cross-examination that Mr. Dennis was a member of D Block.

A. Yes.

Q. Do you remember saying that?

A. Yes.

Q. And [defense counsel] asked you about a couple of friends that you know and he asked you if they were part of any gang and you said no?

A. Yes.

Q. Are you aware of another gang in the City of Vineland called A unit?

A. Yes.

Q. Do you know any of its members?

A. No.

Q. So if any of these other people were part of that gang affiliation, you don't have knowledge of it.

A. No, I don't have knowledge of it.

Defendant did not make any objection to this testimony.

Although we are unable to perceive any probative value in this testimony, we are also unable to perceive how it could have prejudiced defendant. To the contrary, if the prosecutor's questions regarding the "A unit" suggested to the jury that the victim or other persons involved in the melee outside the Fraternal Order of Eagles' hall were members of a rival gang, rather than just innocent young attendees at a birthday party, it may have lent credence to defendant's statement to the police that he was assaulted and knocked to the ground before the stabbing and therefore provided some support for a jury finding that he acted in self-defense or with a lesser-degree of culpability than required to support a conviction for second-degree aggravated assault. Therefore, the brief series of questions regarding "A unit," to which no objection was raised, did not constitute plain error requiring a reversal of defendant's convictions.

IV.

Finally, we consider defendant's argument, presented under Point VII of his brief, that the prosecutor's comments in summation deprived him of a fair trial.

Initially, we note that "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). Thus, a prosecutor is "entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Accordingly, a "prosecutor may suggest legitimate inferences from the record," so long as he or she does "not go beyond the facts before the jury." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Moreover, a prosecutor does not err when he or she makes comments as part of a measured response to comments made in a defendant's closing argument. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001). Nor does a prosecutor err in arguing that a "witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). Prosecutorial misconduct in the form of improper comments made in summation "can be a ground for reversal [only] where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

In the present case, defendant did not object to any part of the prosecutor's summation.

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the [trial] court of an opportunity to take curative action.

[Id. at 83-84.]

Defendant argues that there was no evidential support for the prosecutor's statement that the victim excluded Dennis as the person who stabbed him. The part of the prosecutor's summation to which defendant now objects reads as follows:

But if you remember when [the victim] testified, he said James Dennis and I, we're friendly. We've known each other for years. James Dennis said, I know [the victim].

I've seen him at church. I've seen him in the neighborhood. He knows my family. I know his family. We're friendly. He says, I have -- he's cool and I have nothing -- no beef with him.

[The victim] says, James Dennis is cool. I have no problems with him. So why would anybody believe, given those two pieces of testimony that absolutely match, the victim himself who doesn't believe he was stabbed by James Dennis.

Why wouldn't you believe the victim when he says he's my friend? He's a guy that I know and we're friendly.

Why wouldn't you believe the victim himself, who experienced this horrific injury, when he excludes James Dennis as the person that stabbed him, even though he doesn't remember it. He remembers some things that led up to it and he remembers seeing other people out there.

But you know what? He never remembers seeing James Dennis out there, up to the point where he got stabbed and he lost consciousness.

[Emphasis added.]

On direct examination, the victim gave the following testimony regarding Dennis:

Q. Okay. Well, let me ask you; do you know a person by the name of James Dennis?

A. Yes.

Q. How do you know James Dennis and how long have you known James Dennis?

A. I just know him because I seen him around. I seen him around. I know him. Like, he cool. Like, whatever. And I knew him for like two, three years.

Q. Okay. It was two to three years at the time that this happened to you; the stabbing?

A. Um-hum.

Q. Okay. Do you know any of his family or does he know any of your family? (inaudible).

A. Yeah. Yeah.

Q. And how do you consider Mr. Dennis?

A. As a person?

Q. Yeah.

A. He's all right. He cool.

Q. Is he somebody that you've ever socialized with?

A. I've been around him.

Q. And are you friendly toward each other?

A. Yeah.

Q. You never had any problems with each other?

A. No, not at all.

On cross-examination, the victim gave the following additional testimony regarding Dennis:

Q. Now Leonard, you've heard of Mr. Dennis; correct? And you're friendly with him; correct?

A. Yes.

Q. And you know he entered a plea in reference to this matter; correct?

A. Yes.

Q. Indicating that he had some culpability in reference to this incident; correct?

A. Yes.

Q. Okay. How does that make you feel about Mr. Dennis now? You guys still cool?

A. He's still the same person. He wasn't the one that stabbed me.

Q. You don't actually know who stabbed you; correct?

A. Yeah, you're right about that.

[Emphasis added.]

This testimony provided an adequate foundation for the part of the prosecutor's summation relating to Dennis. Although the victim was not in a position to exclude Dennis as the person who stabbed him, he in fact testified that "[Dennis] wasn't the one that stabbed me." The prosecutor was entitled to draw the jury's attention to this testimony in his summation.

Defendant also argues that the prosecutor improperly suggested that the stabbing of the victim occurred during the course of inter-gang fighting. The part of the prosecutor's summation upon which this argument is based related to the identifications of Dennis as the person who stabbed the victim by Leadbetter and Valentin, which reads as follows:

There really is little evidence against Mr. Dennis that he did the stabbing. You can say well, wait a minute. We just heard Detective Collins talk about two people that identified Mr. Dennis. Now, we only know about why it was shown to Mr. Valentin because he added gratuitously that he said, "He stabbed Leonard."

But with Mr. Leadbetter, you don't even know why that photo lineup was shown to Mr. Leadbetter. But you know what you do know? If you remember, Detective -- or Officer McManus from the Vineland Police Department, he testified I believe it was yesterday morning. He was one of the first witnesses.

And he got up and said when all of this chaos was happening, during all of this melee, during all of this fighting while we were trying to get things under control, Henry Leadbetter comes running up to me and he was excited. He wanted to tell me who stabbed [the victim].

And what did the detective -- did Officer McManus tell you that in that state of excitement, that Henry Leadbetter says who did it? He said it was a Hispanic male. He said there were a group of 14 or 15 Hispanic people, both male and female.

And one of those people came out of the crowd and that's the person who chased Leonard and that's the person who stabbed Leonard. And he didn't know who the person was; just that it was a Hispanic male.

So any photo identification that Mr. Leadbetter makes the next day, James Dennis, an African-American male, what is that worth? When he said the day before he didn't know who the person was.

And he said the day before he was Hispanic, from a group of Hispanic people, who were at there at the time with everybody else that was fighting.

Do you know what else was real telling about Henry Leadbetter? Remember what Officer McManus said happened when he was trying to get this information from him? What did Mr. Leadbetter do while Officer McManus was still trying to interview him?

He ran away. He ran away to go engage in some more fighting. He saw another fight breaking out and Henry Leadbetter ran to go fight. He's a combatant. He's one of the people out there fighting that night.

So do you think it's odd that Mr. Leadbetter and Mr. Valentin, when they look at photo arrays of six people and the only person in that photo array is James Dennis, who is a member of D Block, the other side, the other people that we're fighting. Do you think it's unusual that they say oh, yeah, it's James Dennis?

And that's the only evidence that you would have that it's James Dennis. Other combatants from the other side saying it's James Dennis, in a photo array where only one member of D Block is in it.

There was in fact testimony that Leadbetter was an active combatant in the melee during which the victim was stabbed. One of the officers who responded to the scene of the stabbing testified that as he was interviewing Leadbetteer, he ran off because another fight had begun. Although there was no direct evidence that Leadbetter was a member of a rival gang, the jury could have drawn that inference from his participation in the fighting. Moreover, as noted in section III of this opinion, defendant's statement to the police that he was knocked to the ground before the stabbing and then began waving his knife to protect himself may have seemed more believable if the jury inferred that the other persons outside the hall were members of a rival gang rather than just innocent young attendees at a birthday party who were attacked by defendant and other members of D Block. Most significantly, the State presented overwhelming testimony, consisting of Dennis's and Rosario's testimony and defendant's statement to the police, that defendant was the one who stabbed the victim, and that Valentin's and Leadbetter's identifications of Dennis as the perpetrator were erroneous, regardless of their motives. Therefore, even if the evidence was insufficient to support an inference that Leadbetter and Valentin were members of a rival gang, this part of the prosecutor's summation did not deprive defendant of a fair trial.

Defendant also argues that the evidence did not support the prosecutor's statement in summation that the blood on the knife showed that the victim suffered a deep wound to the heart. Initially, we note that the bloody knife was introduced into evidence at trial. Therefore, the prosecutor was entitled to comment upon what this physical evidence allegedly showed. Moreover, defendant told the investigating officers that the ten- to twelve-inch knife he used to stab the victim was covered in blood, which was confirmed by the officers when they found the knife. Most importantly, whatever the knife may have indicated about the depth of the victim's stab wound, the medical records that were stipulated into evidence and other evidence presented at trial established that the knife had penetrated the victim's lung and heart, thus showing beyond dispute that the wound was deep and the injuries serious. Therefore, the prosecutor's comment regarding what the blood on the knife allegedly showed did not deprive defendant of a fair trial.

Defendant also makes various other arguments regarding the prosecutor's summation, all of which are clearly without merit. R. 2:11-3(e)(2).

Affirmed.

 

Second-degree aggravated assault also may be committed if the defendant "recklessly" causes serious bodily injury "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1(b)(1); see State v. Pigueiras, 344 N.J. Super. 297, 306-13 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002). However, the trial court did not instruct the jury that it could find defendant guilty of second-degree aggravated assault based on such reckless conduct. Therefore, if the jury found that defendant did not stab the victim "purposely" or "knowingly" but instead "recklessly," the only offense that it could have found defendant to have committed was simple assault, in violation of N.J.S.A. 2C:12-1(a)(1).

In his opening and closing statements, defense counsel virtually conceded the severity of the victim's injuries, as those injuries were set out in the hospital records.

Those records are 555 pages long and consist in large part of handwritten notations that are quite difficult to read.

We note, however, that Rosario did not indicate that "D Block" was engaged in any criminal activity other than "fighting."

Although defendant's argument is based solely on N.J.R.E. 403(a), we would reach the same conclusion under N.J.R.E. 404(b). Even assuming that defendant's membership in D Block would be considered "evidence of other crimes, wrongs, or acts" within the intent of this rule, his statement that the stabbing was "going to put D Block back on the map" would be admissible as "proof of motive, . . . intent, . . . identity [and] absence of mistake or accident." See Covell, supra, 157 N.J. at 570 (stating that "evidence of motive or intent" requires "a very strong showing of prejudice to justify exclusion" under N.J.R.E. 404(b) or N.J.R.E. 403(a)). Moreover, the limitations that N.J.R.E. 404(b) imposes upon the admission of evidence of "other crimes" do not apply to statements by a defendant that are "part and parcel of the crimes for which he [is] standing trial." State v. Martini, 131 N.J. 176, 240 (1993), cert. denied,

516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995). Consequently, if the State presents evidence of statements made by the defendant around the time of the charged offense to establish a motive for that offense, rather than to establish the commission of another uncharged offense, "there is no need to conduct a Rule 404(b) analysis." State v. Long, 173 N.J. 138, 161 (2002). Under this authority, Rosario's testimony that defendant told him after the stabbing that "he's going to put D Block on the map" and Rosario's description of D Block did not constitute "other crimes" evidence.

(continued)

(continued)

2

A-0827-07T4

January 19, 2010