STATE OF NEW JERSEY v. AARON ELLIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AARON ELLIS, a/k/a AARON

J. ELLIS, AARON JOHN ELLIS,

AARRON ELLIS and AARON ELLOS,

Defendant-Appellant.

November 28, 2016

Submitted September 29, 2016 Decided

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-04-0470.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Aaron Ellis was convicted following a jury trial of second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).1 The judge sentenced defendant to a ten-year term of imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from his conviction and the sentence imposed, arguing

POINT I

THE CONVICTION FOR AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12-1(b)(1) MUST BE REVERSED BECAUSE THE COURT FAILED TO CHARGE LESSER-INCLUDED FORMS OF ASSAULT, DESPITE THE FACT THAT THEY WERE CLEARLY INDICATED, AND THEREBY VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (Not Raised Below).

POINT II

THE ADMISSION OF THE TROOPER'S STATEMENTS MADE DURING DEFENDANT'S INTERROGATION REGARDING DEFENDANT LEAVING THE SCENE BEFORE THE POLICE ARRIVED, DENIED [DEFENDANT] A FAIR TRIAL, AND THE FAILURE OF TRIAL COUNSEL TO MOVE TO REDACT PORTIONS OF THE STATEMENT DENIED DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARS. 1, 9, 10). (Not Raised Below).

POINT III

IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE PRESENT SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

Following review of the record and applicable law, we reject defendant's arguments. We affirm.

I.

We derive these facts from the trial record. Around 7 p.m. on December 28, 2012, K.M., of Mandy's Towing Company, went to the Joyce Kilmer Service Area on the New Jersey Turnpike to assist a group who were locked out of their minivan. While K.M. worked to unlock the minivan, defendant, an employee of Puleio's Towing, arrived in his truck. According to K.M., defendant exited his truck and walked "aggressively" towards him, carrying his own large lockout tool.

Defendant told K.M. to stop his work because this job was "his call." Apparently, Puleio's Towing had received a call from Turnpike Operations about the minivan two hours earlier. Puleio's Towing sent a message to defendant to respond to the call, but defendant did not notice the message right away. By the time defendant noticed the message about one hour later, Turnpike Operations had assigned the job to Mandy's Towing. K.M. testified he did not know Puleio's Towing had received a call about the same job, and continued to work on unlocking the minivan.

Defendant offered to charge the group a cheaper fee, if they would let him take over the unlocking job, but they declined the offer. As K.M. continued his work, defendant tried to get in his way and pushed into him. In response, K.M. called Turnpike Operations and confirmed the job belonged to Mandy's Towing, and then handed defendant the phone. As defendant spoke with Turnpike Operations, he continued pushing and trying to stand between K.M. and the minivan, so K.M. pushed defendant back with a "one-handed

. . . shove." Defendant alleged K.M. punched him twice in the face, but neither eyewitness saw K.M. punch defendant. New Jersey State Trooper Robert Kilmurray who interviewed defendant and took photographs approximately two hours after the incident testified defendant's face and jaw showed no signs he was punched.

Shortly thereafter, defendant returned to his truck and continued speaking with Turnpike Operations. According to defendant, while in his truck, he attempted to call 911, but the call failed, so he called his "grandmother-in-law" and told her to "call the cops" or "something like that." K.M. testified defendant, still seated in the truck, went into "a thrashing rage," "thrashing his arms all over inside of the truck and bouncing all over." K.M. further testified he saw defendant reach under his seat, grab a four-way tire iron, and hit the inside of the front windshield two or three times, shattering the truck windshield. Defendant denied swinging a tire iron inside his truck and denied breaking the front windshield.

K.M. testified he went over to defendant's truck to "calm him down" and say "no hard feelings," but defendant would not open the door, so K.M. walked away and returned to the minivan. Contrary to K.M.'s testimony, defendant claimed K.M. approached his truck aggressively, banged on his window, and tried to open the truck door himself. K.M. denied these allegations.

Approximately five to seven minutes later, defendant exited his truck and began walking towards K.M., swinging the tire iron. According to K.M., defendant then chased him while swinging the tire iron, eventually hitting him twice once on the left temple area of his head and once on his left hand. K.M. described dropping to his knee and bleeding "like[] a faucet" from his temple. Defendant then got back in his truck and drove away.

Defendant testified he grabbed the tire iron because he was anxious K.M. would strike him again, and only exited his truck because he intended to scare K.M. away. He swung the tire iron in order to defend himself and admitted he grazed K.M. with it. Notwithstanding, when K.M. asked defendant to stop, he did so. Defendant said he walked back to his truck after the incident, and K.M. picked up his glasses and completed the paperwork for the job. When K.M. appeared alright, defendant drove away.

The impact of the tire iron left K.M. with a fractured eye socket, internal eye damage, partial loss of vision, persistent jaw pain, and frequent migraines. Treatment of K.M.'s injuries included surgical implantation of titanium plates around his left eye-socket.

After speaking with K.M., Trooper Kilmurray called Puleio's Towing and obtained defendant's contact information. He called defendant and instructed him to report to the Cranbury Barracks, where he placed defendant under arrest. At 8:57 p.m., defendant gave a videotaped statement, which was played for the jury.

At sentencing, the trial court merged the two third-degree convictions into the second-degree aggravated assault causing serious bodily injury conviction. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six, N.J.S.A. 2C:44-1(a)(6) (criminal history and seriousness of conviction); and nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). The court also found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship). This appeal followed.

II.

A.

Defendant initially argues the trial court erred in failing to charge the lesser-included offenses of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3), simple assault, N.J.S.A. 2C:12-1(a)(1) and (2), as well as the petty disorderly persons offense of mutual assault, N.J.S.A. 2C:12-1(a).

Defendant did not raise this issue before the trial court, restricting our review to whether plain error exists, that is, error which was "clearly capable of producing an unjust result." R. 2:10-2. Absent plain error,

no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . . A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a . . . charge.

[R. 1:7-2.]

Generally, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004); see also N.J.S.A. 2C:1-8(e) (stating the jury shall not be charged with a lesser offense absent a rational basis for a conviction of such offense). However, "courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted," that is, "if the evidence is jumping off the page." State v. Denofa, 187 N.J. 24, 42 (2006) (second emphasis added). "[W]hen the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Ibid.; see also State v. Thomas, 187 N.J. 119, 132 (2006) (citation omitted) (holding trial judges have "no duty to instruct the jury sua sponte" on an included offense charge when the evidence does not clearly show the charge is appropriate), reversed on other grounds, 195 N.J.431 (2008).

Defendant first submits the trial court should have charged fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3), which prohibits "[r]ecklessly caus[ing] bodily injury to another with a deadly weapon." As the State correctly points out, the trial court did, in fact, charge the jury on this offense when instructing the jury on count three that is, third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). Accordingly, we see no plain error because these instructions allowed the jury to find defendant not guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), under count two, and instead find defendant guilty of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3), under count three. Thus, the jury could have easily reached the result defendant now requests, by following the court's instructions. See State v. Villar, 150 N.J. 503, 517 n.4 (1997) ("When, as here, lesser-includeds were charged as separate offenses, any error in not explaining lesser-included offenses to the jury is neutralized.").

Defendant next contends the trial court erred when it failed to instruct the jury on simple assault under N.J.S.A. 2C:12-1(a)(1) and (2) as lesser-included offenses of aggravated assault. N.J.S.A. 2C:12-1(a)(1) defines a simple assault as an attempt "to cause or purposely, knowingly or recklessly cause[] bodily injury to another." N.J.S.A. 2C:12-1(a)(2) defines simple assault as "[n]egligently caus[ing] bodily injury to another with a deadly weapon." Notably, with respect to count two, the trial court did charge the jury with a third form of simple assault, N.J.S.A. 2C:12-1(a)(3), which is defined as an "attempt[] by physical menace to put another in fear of imminent serious bodily injury." More so, with respect to count three, the trial court charged the jury with simple assault under N.J.S.A. 2C:12-1(a)(2), in which an individual "negligently causes bodily injury to another with a deadly weapon."

The jury verdict belies defendant's contention the trial court should have charged simple assault under N.J.S.A. 2C:12-1(a)(1). Simple assault under N.J.S.A. 2C:12-1(a)(1) is similar to aggravated assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:12-1(b)(7), which the court charged, except these crimes involve "serious bodily injury" and "significant bodily injury," respectively; simple assault involves only "bodily injury." Notwithstanding, the jury convicted defendant of causing "serious bodily injury" under N.J.S.A. 2C:12-1(b)(1) and not the lesser-included "significant bodily injury" under N.J.S.A. 2C:12-1(b)(7). Accordingly, a reasonable jury could not have found defendant guilty of causing mere "bodily injury" based on the facts adduced at trial.

Defendant also submits the trial court erred when it failed to instruct the jury on the petty disorderly offense of simple assault "committed in a fight or scuffle entered into by mutual consent," N.J.S.A. 2C:12-1(a), as a lesser-included offense of aggravated assault. The trial did not produce sufficient evidence to support this theory. "[S]heer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994). Rather, the record reveals defendant swung a four-way tire iron multiple times at K.M., who was unarmed. Moreover, two eyewitnesses testified defendant chased K.M., and no witness or evidence corroborated defendant's contention he was punched in the face first. Nothing about this incident appeared mutual. Accordingly, we see no plain error with regard to the trial court's jury instructions.

B.

Defendant next argues, for the first time on appeal, the trial court should have excluded certain portions of defendant's videotaped custodial interview, which the State played for the jury. Defendant further asserts his trial counsel was ineffective for allowing the jury to hear these statements.

Defendant's argument is predicated on the following exchange between Trooper Kilmurray and defendant regarding defendant leaving the scene before the police arrived

[Defendant]: It's wrong to leave?

Trpr. Kilmurray: It's it's wrong to leave. Now, if you stayed now, if you're there and he's there, and now we have the witnesses there, we can start start working this thing out. But but as you leave, it looks really bad for you to leave.

. . . .

Trpr. Kilmurray: It it doesn't it doesn't bode well for you. It doesn't look well for you when you don t hang hang around. Because if you're in the right, if you felt I didn't do anything wrong, if I if I felt that way, I would say you know, if the guy pushed me, I probably wouldn't hit him in the face with a tire iron, but I if you know, the same as you, being a man, if someone pushed me or had punched me, I'm going to take a swing back. Now the cops show up, I'm going to I'm going to wait there until the cops get there to say he hit me first, I punched him back, I was protecting myself, ask any of these people.

That's what I would do. And I think that's what you would do, too. That's what most people that think that they're right would do. People that think that someone fucked up go, hmm I mean, I I know you're not you weren't making a run for the Canadian border to try to get out of town, but you're in your mind, you you know you you know you fucked up and you said, I got to get away from this situation and cool down before it gets worse. Is the way it seems to me.

To be honest with you. You you asked me you asked me what how it looks. That's that's how it looks to me.

. . . .

Trpr. Kilmurray: I mean, fortunately for you, this guy, he he must be a tough dude, because if I got hit in the head with a side side of the head with a tire iron, I would be and my eye was swollen swollen shut, I'd be down for the count. And he was back up on his feet talking to us when he got there, so

[Defendant]: Yeah

Trpr. Kilmurray: I mean, you got [to] be thankful he he didn't have a glass jaw or, you know, thin . . . skull, because you could have you could have killed him. Do you understand?

[Defendant]: I understand.

Trpr. Kilmurray: Or if I like, if I if I hit you in the head with my and my my met my metal thing that we carry, our our baton, that's a no-no for us. That's the same as as we might as well just shoot you, because it's the court looks at it the same way. We're not you you when you [h]it someone in the head that you could kill somebody. You know, I don't know what kind of hemorrhaging is going on inside his brain, if the brain is swelling. You know, I'm not a doctor, but he was standing up when we got there. All right?

[Defendant]: All right.

Defendant now asserts the trial court should not have allowed Trooper Kilmurray to give his opinion regarding the significance of defendant departing from the scene and of hitting someone in the head. Defendant argues they were either not relevant or unduly prejudicial.

In our review, we must determine whether the evidence complained of wrongly contributed to defendant's conviction. See State v. Bankston, 63 N.J. 263, 273 (1973). "[N]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . . ." State v. Winter, 96 N.J. 640, 646 (1984) (citation omitted). As our Supreme Court has observed

[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury."

[State v. Yough, 208 N.J. 385, 397 (2011) (quoting Winter, supra, 96 N.J. at 646).]

"[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (quoting R. 2:10-2); see also Winter, supra, 96 N.J. at 648.

Here, the trial judge explained how the jury should consider Trooper Kilmurray's statements, stating, "Toward the end of the statement, the trooper had expressed an opinion about defendant's actions," and "the trooper's opinion is irrelevant." The trial court further explained, "It's your opinion about the facts and defendant's conduct that matters . . . . You cannot make an inference about defendant's conduct merely because the trooper came to a particular opinion." See State v. Burns, 192 N.J. 312, 335 (2007) (highlighting "[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions").

Although the trooper's comments should have been excluded, we do not find plain error. When deciding whether inadmissible evidence may be cured by a cautionary or limiting instruction or requires the more severe response of a mistrial, the decision "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 647; State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). "Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court." Winter, supra, 96 N.J. at 647. A trial court's curative instruction is adequate when it precludes "a reasonable doubt as to whether the [evidence] led the jury to a result it otherwise might not have reached." Ibid. (citation omitted). Given the relatively benign nature of the trooper's statements as well as the trial court's thorough curative instructions which defense counsel approved defendant's trial was not "clearly capable of producing an unjust result." R. 2:10-2.

Defendant argues defense counsel's failure to object to the trooper's comments amounted to ineffective assistance of counsel. We decline to consider on direct appeal defendant's claim of ineffective assistance of trial counsel. New Jersey courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (citation omitted). Such claims generally "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012) (citations omitted). We therefore dismiss defendant's ineffective-assistance-of-counsel claim without prejudice to a proper PCR petition and an evidentiary hearing if appropriate.

C.

Defendant also challenges the sentence imposed as excessive, arguing the judge failed to consider an applicable mitigating factor and relied exclusively on defendant's criminal record in applying the three aggravating factors.

In any sentencing determination, our review is limited to whether there is a "clear showing of abuse of discretion." State v. Bolvito, 217 N.J. 221, 228 (2014) (citation omitted). A sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation omitted).

The Supreme Court has emphasized, "In fixing a sentence within the statutory range, a judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must also explain its weighing process. Id. at 65; State v. Fuentes, 217 N.J. 57, 73-74 (2014). The Court has also emphasized

Mitigating factors that "are called to the court's attention" should not be ignored, State v. Blackmon, 202 N.J. 283, 297 (2010), and when "amply based in the record . . . , they must be found," State v. Dalziel, 182 N.J. 494, 504 (2005). In short, mitigating factors "supported by credible evidence" are required to "be part of the deliberative process." Dalziel, supra, 182 N.J. at 505.

[Case, supra, 220 N.J. at 64.]

In addition to mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship), defendant now contends the judge should have also found mitigating factor three, N.J.S.A. 2C:44-1(b)(3) (strong provocation). Specifically, defendant avers the trial court should have considered that K.M. acknowledged "he pushed defendant and that he followed [defendant] to his truck and thereby escalated the confrontation." Notwithstanding, the sentencing judge found defendant was "unprovoked" and approached K.M. "without any reason." The sentencing judge further concluded, "I don't find that the victim did anything to facilitate the commission of this . . . offense. The victim, in fact, tried to calm the defendant."2 Given the sentencing judge's reasoning, the notion defendant acted under strong provocation is not "amply based in the record." Case, supra, 220 N.J. at 64.

We conclude the sentencing judge properly identified and balanced all applicable factors, which were fully supported by sufficient credible evidence in the record. The imposed sentence is within the applicable range for the offense and does not shock our judicial conscience. Accordingly, we have no basis to interfere with the judge's reasoned and appropriate exercise of discretion. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

Affirmed.

1 The jury found defendant not guilty of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2, and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1).

2 The record does not show defense counsel requested mitigating factor N.J.S.A. 2C:44-1(b)(3) (defendant acted under strong provocation) at sentencing. However, he argued for the related mitigating factor N.J.S.A. 2C:44-1(b)(5) (victim induced or facilitated defendant's conduct), which the court considered and rejected.