STATE OF NEW JERSEY v. GREGORY SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY SMITH,

Defendant-Appellant.

_________________________________

November 18, 2013

 

Submitted November 12, 2013 Decided

 

Before Judges Harris and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-08-0466.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Public Defender, of counsel and on the brief).

 

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory Smith appeals from an April 13, 2012 judgment of conviction for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Smith argues that the trial court misled jurors with respect to the burden of proof related to self-defense, failed to merge Smith's possession of a weapon for an unlawful purpose conviction with his aggravated assault conviction, and imposed an excessive three-year sentence. We affirm in part, and reverse and remand in part.

I.

On June 16, 2010, a violent encounter occurred between Smith and victim Joseph Lassiter when Smith returned to the South Bound Brook apartment of Crystal Williams Smith's former girlfriend to retrieve some belongings that he had left behind following the dissolution of their relationship the week before. Upon entering the apartment, Smith viewed Lassiter asleep in Williams's bed. Believing Lassiter to be Williams, Smith demanded the return of $340, and proceeded to bludgeon Lassiter with a rubber mallet. Following this battering, Smith left the apartment and drove off.

The following day, Smith agreed to meet with Detective Justin Berger of the Somerset County Prosecutor's Office, where Smith waived his Miranda1 rights, and confessed to the assault upon Lassiter, but asserted that Lassiter had first attacked him with the mallet when Smith walked into Williams's bedroom.

The jury rejected Smith's assertion of self-defense, and found him guilty of the aforesaid two third-degree crimes. Subsequently, the trial judge imposed an aggregate three-year sentence, and this appeal followed.

II.

On appeal, Smith presents the following issues for our consideration:

POINT I: THE VERDICT SHEET MISLEADINGLY INDICATED THAT DEFENDANT HAD THE BURDEN OF PROOF ON SELF-DEFENSE, IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

 

POINT II: THE CONVICTION FOR POSSESSILON OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR AGGRAVATED ASSAULT.

 

POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We conclude that Smith's arguments are meritless, except for his contention that his convictions should have merged, which the State concedes.

Smith contends, for the first time on appeal, that the verdict sheet incorrectly indicated that he had the burden of proof on self-defense, which violated his right to both due process of law and a fair trial under the United States and New Jersey Constitutions. He further argues that the trial judge's oral instructions incorrectly informed jurors that Smith possessed the burden to prove self-defense before he could be found guilty of any of his charges.

Because there was never a trial objection by the defense to either the verdict sheet or the jury instructions, we review any putative error under the plain error doctrine, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). A conviction will be reversed under this standard only if the error is "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.), certif. denied, 208 N.J. 335 (2011).

Our review of the record convinces us that no error, much less plain error, arose from the trial court's treatment of self-defense. See State v. Chapland, 187 N.J. 275, 288-89 (2006) (analyzing the defendant's belated challenge to an allegedly faulty jury instruction on a plain error basis).

In general, a jury verdict sheet "is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161, 196 (2010) (citing State v. Reese, 267 N.J. Super. 278, 287 (App. Div.), certif. denied, 134 N.J. 563 (1993)). While a jury verdict sheet may list all of the elements of each offense, or none at all, our "inquiry focuses on whether the jury understood the elements as instructed by the judge, and was not misled by the verdict sheet." Id. at 196-97. Where it is found that "the oral instructions of a [trial] court were sufficient to convey an understanding of the elements to the jury, and where [the] [reviewing] [court] also find[s] that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless." Id. at 197; State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.), certif. denied, 134 N.J. 480 (1993).

N.J.S.A. 2C:3-4(a) provides that the use of force is justified "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." "Assuming there is evidence that a defendant acted in self-defense, the jury decides whether his belief was honest and reasonable." State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div.), certif. denied, 188 N.J. 489 (2006) (citing State v. Burks, 208 N.J. Super 595, 604 (App. Div. 1986)). It is the State's burden to prove beyond a reasonable doubt that a defendant's claim of self-defense does not accord with the facts. State v. Josephs, 174 N.J. 44, 101-02 (2002) (noting that "if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts").

The trial judge in the present case provided two instructions regarding self-defense. Related to the possession of a weapon for an unlawful purpose charge, the judge instructed the following:

If you find that the defendant had a lawful purpose, for example to use the rubber mallet to protect himself or another against the use of unlawful force, or to protect his property, or if you have a reasonable doubt as to the defendant's purpose, then the State has failed to carry it[s] burden of proof on this element beyond a reasonable doubt.

 

I instruct you that for the purpose of this offense if defendant honestly believed he needed to use a rubber mallet to protect himself the law does not require that this belief be reasonable. In other words, if the defendant had an honest . . . though unreasonable belief that he needed to use the weapon to protect himself, this negates the purposeful mental state required for this offense.

 

On the aggravated assault charge, the trial court instructed the jury as follows:

The indictment charges that the defendant has committed the crime of aggravated assault. The defendant contends that if the State proves he used or threatened to use force upon the other person that such force was justifiably used for self-protection.

 

. . . .

 

The burden of proof the State has the burden of proof to prove to you beyond a reasonable doubt that the defense of self-defense is untrue. This defense only applies if all the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.

 

During deliberations, the jury requested clarification about the self-defense issue. Its first note indicated that it was "requesting a more thorough explanation or a definition of what self-defense is." The second note posed the question that if jurors "can not agree on self-defense or not, can we go on and deliberate about the two counts Gregory Smith was charged with?"

In response to the first inquiry, the trial judge repeated the earlier instruction given to the jury on self-defense. Related to the second inquiry, the judge reissued the verdict sheet and stated:

All right. Basically, self-defense comes first. And as you can see, it says if you find, yes, the defendant's use of force on or towards another person was justifiable you end your deliberations. That's because self-defense, it would be a complete defense to both of the indictable charges against the defendant, and you've done your job if you found that there was justifiable force used. But it does have to be unanimous. Just like everything else you do, it has to be unanimous. But so you can't go ahead before making the determination as to self- defense. If you find there is self-defense, as I said you're done. If you answer no to that question, then you're going to go to count one, the first aggravated assault, which is the attempted serious bodily injury. And make a decision as to whether the defendant is guilty or not guilty of that charge and then the lesser includeds. Those were the additional crimes I charged you with. They basically only come if each one before it is not guilty.

 

Subsequent to this clarification, the jury asked no further questions related to the self-defense instruction. It is clear from the trial judge's instruction that the State shouldered the burden of proof to demonstrate that the defense of self-defense was not true in this case. The judge's reiteration of the burden of proof after the jury was unclear on certain aspects of the self-defense charge indicates that the instructions remained consistent in explaining that the State possessed this burden. There is no ambiguity on this point that the burden may have passed to Smith.

The lack of ambiguity regarding the burden of proof is further demonstrated in the verdict sheet itself. There is no evidence that the verdict sheet possessed any ability to confuse or mislead the jury. Regarding self-defense, the verdict sheet asked, "Was the use of force upon or toward another person justifiable because the defendant reasonably believed that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion?" The verdict sheet makes no mention of the burden of proof that could have potentially sidetracked jurors or contradicted the trial judge's oral instructions. Indeed, jurors were even provided with a written copy of the self-defense charge to bring into the jury room following their inquiries. Therefore, any theoretical confusion regarding the burden of proof was cured by the jury's copy that it possessed at the time of its deliberations.

With respect to the merger issue, Smith and the State agree that because neither the evidence nor the jury instructions allowed for a verdict that Smith had a broader purpose for possessing the mallet than assaulting Lassiter, the possession of a weapon for an unlawful purpose conviction should have merged with the conviction for aggravated assault. See State v. Tate, ___ N.J. ___, ___ (2013) (slip op. at 15); State v. Diaz, 144 N.J. 628, 636 (1996). We agree, and accordingly, the matter shall be remanded for the entry of a corrected judgment of conviction.

Smith's final argument relates to what he claims is an excessive three-year sentence. We discern nothing amiss in the trial judge's imposition of the sentence, and we will not disturb it, except as necessary and appropriate to facilitate the merger of the convictions.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (internal quotation marks omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984); State v. Cassady, 198 N.J. 165, 183-84 (2009).

With the foregoing in mind, we are satisfied that the imposition of Smith's sentence followed the law. It is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65.

Affirmed in part, reversed in part, and remanded for the entry of a corrected judgment of conviction to reflect that Smith's conviction under N.J.S.A. 2C:39-4(d) merges with the conviction under N.J.S.A. 2C:12-1(b)(7).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).