STATE OF NEW JERSEY v. LEVI JOHNSON

NOT FOR PUBLICATION WITHOUT THE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.

LEVI JOHNSON, a/k/a JAMES JOHNSON

and KEVIN SCOTT,

Defendant-Appellant.

________________________________

July 20, 2016

Submitted April 25, 2016 Decided

Before Judges Sabatino and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-07-1956.

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

Carolyn Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Levi Johnson of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), of his sister but acquitted him of her attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and the judge sentenced him to ten years in State prison subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals his conviction and sentence, raising the following issues.

POINT I

JOHNSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE JUDGE REFUSED HIS REQUEST FOR A CONTINUANCE TO RETAIN PRIVATE COUNSEL WITHOUT CAREFULLY CONSIDERING EACH OF THE APPROPRIATE FACTORS SET FORTH IN CASES SUCH AS STATE V. KATES.

POINT II

JOHNSON WAS DENIED HIS CONFRONTATION-BASED RIGHT TO IMPEACH A STATE'S WITNESS WITH HIS CRIMINAL RECORD.

POINT III

BECAUSE THE DEFENDANT'S PRIOR INDICTABLE CONVICTIONS WERE 21 YEARS OLD AT THE TIME OF SENTENCING, THE COURT ERRED IN WEIGHING THEM AS AN AGGRAVATING FACTOR INSTEAD OF WEIGHING IN MITIGATION THAT HE HAD LIVED A LAW-ABIDING LIFE FOR A SUBSTANTIAL PERIOD OF TIME.

Having considered each of these arguments in light of the record and the applicable law, we find them to be utterly without merit, and thus affirm his conviction and sentence.

The State accused defendant of savagely beating his sixty-three-year-old sister. He attacked her when she went to see him to discuss allowing their mentally challenged brother to stay at their deceased mother's home, where defendant lived with another of their brothers. The victim testified she had already spoken to defendant on the telephone about the arrangement, and he had angrily opposed the idea. Determining to pursue the discussion in person, the victim went to her mother's house after church on Palm Sunday and let herself in using her own key.

According to the victim, defendant was standing close by the door and punched her in the face before she could say a word to him. After she fell to the floor following several more punches, defendant dragged her by her hair into another room, where he continued to punch and kick her in the ribs while she lay in a fetal position.

She eventually lost consciousness, and when she awoke, defendant was gone. The victim dragged herself to the living room where she telephoned her fiancé for help. Her fiancé testified that after receiving the call he immediately drove to her aid, arriving within five minutes. When he got there, he said the house looked like "a scene from a horror movie; blood all over [the] place," and "articles of clothing thrown [about]." He found the victim bleeding from her head with her face and lips swollen. He immediately called 911.

A police officer responding to the scene testified to arriving at the house and observing "bloodstains on the carpet" that had begun to dry. She described the rooms she saw as "ransacked," noting the first one off the door had "picture frames thrown about," "broken glass" and "blood on the walls, the curtains, [and] clothes." As she walked into the living room, the officer found the victim "sitting in a chair . . . covered with blood."

According to the officer, the victim could barely speak and "was in a lot of pain." When the officer asked what had happened, the victim told her that "before she [could] even get a word out of her mouth she was grabbed and pulled into the house and . . . attacked." A detective testified police were unable to locate defendant until sixteen days afterwards, when they arrested him on the street.

In addition to the victim, her fiancé and the investigating officers, the State presented the victim's treating trauma surgeon at the University of Medicine and Dentistry of New Jersey and a maxillofacial surgeon. The trauma surgeon testified the victim suffered multiple fractures to her face, around her eye and cheekbone area, as well as a couple of rib fractures. He concluded, however, that her injuries were not life threatening. The maxillofacial surgeon testified the victim suffered several facial fractures, and that he wired her jaw and inserted titanium plates into her face.

The victim testified she spent a total of eight days in the hospital and had to subsist on a liquid diet for four months after her jaw was wired shut, resulting in her losing thirty pounds. She claims she still suffered from "numbness" to the left side of her face, "blurriness" in her left eye and has scars under her left eye and on her neck. The defense did not call any witnesses.

The first issue we address is defendant's claim that the trial court violated his Sixth Amendment right to counsel of his choice when it denied him an adjournment on the trial date to retain private counsel. A defendant is entitled to receive "a fair opportunity to secure counsel of his own choice," so long as he does so on his own and does not require counsel to be appointed by the court. State v. Miller, 216 N.J. 40, 62 (2013) (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162 (1932)), cert. denied, ___, U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). The right to counsel of one's choice is not absolute, however, as the court must weigh "defendant's request against the need 'to control [the court's] calendar and the public's interest in the orderly administration of justice.'" State v. Kates, 216 N.J.393, 397 (2014) (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985)).

After the process of selecting a jury on the third trial listing1had begun, the public defender who had represented defendant for over a year, announced to the court that defendant wanted a thirty-day adjournment to retain private counsel. The public defender expressed his understanding that defendant had spoken to a criminal defense lawyer "and was to pay the retainer when [defendant] made bail and actually went to see him." Defendant, after spending eighteen months in custody, had posted a reduced bail of $45,000 four weeks previously. He had not, however, secured his release as he was serving out a municipal sentence, which he represented to the court would be ending the following week.

Judge Peter Vasquez immediately sent the jurors downstairs and placed a call to the criminal defense lawyer to whom defendant claimed he had spoken. The judge shortly came back on the record to advise that the lawyer claimed defendant had not contacted him. The public defender then explained defendant's conversation was with someone from the lawyer's office and had apparently occurred shortly after defendant's arrest, eighteen months before. In response to Judge Vasquez's question as to when defendant had determined to hire private counsel, defendant said he had "planned it all along." He was only waiting to post bail "so [he] could really work on [his] case." Defendant had no explanation as to why he had never told the court over the many conferences in the case that he wanted to hire an attorney.

The judge next asked how much the attorney would cost and where was defendant planning to get the money. Defendant told the judge the lawyer wanted a $2500 retainer that his girlfriend was going to help him with. The judge explained that while a lawyer might have been willing to take the case for a $2500 retainer shortly after defendant's arrest, "that's not gonna get you an attorney to try this case because now it's a trial."

Notwithstanding, the judge carried the case until the following day explaining, "if you can convince me tomorrow that someone actually has talked to a lawyer, actually has a real price for trying the case as opposed to . . . whatever, . . . and if the money is available to pay that then I'll consider the adjournment." When defendant replied that he could "guarantee" the court he would secure private counsel upon his release, the judge stated

I can't accept that guarantee.

If you can't tell me where the money is, where it's coming from, who these people are that spoke to the attorney, and who these people are that are gonna get you your money, like your girlfriend you mentioned, if [the public defender] can bring her in here tomorrow morning and she can show me that she has collateral to borrow the money, a home equity loan, money in the bank, and that's she ready to give that money to your lawyer, who she had already spoken to, fine.

When defendant responded by saying "[t]hat's . . . not gonna happen," the judge replied, "Well, if that's not gonna happen then I have no confidence that you're ever gonna get a lawyer."

The following morning, the public defender advised the court he had spoken to a friend of defendant's who had been assisting him with his bail and explained the judge was requiring his presence in court. The man said he would appear, but had not done so and was not answering his phone. The public defender further advised that defendant had his own independent funds to hire counsel. The court proceeded to query defendant about the funds he had available to hire counsel.

Defendant explained he "used the funds that [he] was intending to hire the attorney to bail [himself] out." He also claimed he posted bail for one of his children while awaiting his own trial and provided a retainer to a lawyer for another child facing federal charges. He claimed he would, however, have another $2500 available to him at the start of the following month.

Judge Vasquez concluded defendant had not demonstrated he had the means to retain counsel to try an attempted murder case then on its third listing. He explained to defendant

First you told me that [friends and family] already contacted [private counsel] and they were hiring him.

. . . .

After I called him[,] I found out that was not true.

Then you told me your girlfriend was gonna assist you in posting the bail. When I inquired further and told you that we had to bring her in here this morning to testify to that[,] you said, "Don't bother. That wouldn't happen. She wouldn't do that."

Then you told [the public defender] you have another friend. He called the friend, the friend said yes[,] he'd come, and here we are 10:15 no friend, no . . . indication that there's any money to hire the personal attorney.

. . . [Y]ou knew about hiring a personal attorney in [August] 2012. . . .

. . . .

. . . Here we are October of 2013, with a jury walking through the door and that's the . . . next time that you tell your attorney or the [c]ourt that you [want to] hire . . . a private attorney, and it's the third trial date already.

. . . .

[Addressing defendant's public defender]: His choices [are] his choices. They're whatever his choices are. So he could have retained an attorney. He had the funds to retain an attorney and he decided not to do that. He decided to use the fund[s] to help his friends on the street. He decided to use his funds to hire an attorney for his [child] . . . . He decided to use his funds to post his own bail.

. . . .

. . . [E]nough is enough. He's had opportunity, he's not used it, to hire an attorney. This is the third trial date. The jurors are waiting. . . . I'm not convinced that even if I adjourned the case for 30 days, as you requested, he'd have more than $1500, plus the thousand he says he got from somebody else to hire an attorney, which would not be enough to hire an attorney in an attempted murder case that has to go to trial immediately. So, we're gonna proceed.

Having reviewed the record, we are satisfied Judge Vasquez did not abuse his considerable discretion to weigh "defendant's request against the need 'to control [the court's] calendar and the public's interest in the orderly administration of justice.'" Kates, supra, 216 N.J.at 397 (quoting Furguson, supra, 198 N.J. Super. at 402 (adopting analysis of United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979))).

Defendant's request came after jury selection had already begun on the third trial listing eighteen months after his arrest, and followed adjournment of the second trial listing on the morning scheduled for trial to allow him to investigate a potential alibi witness, a defense never pursued. Further, defendant had eighteen months to secure counsel, never mentioning any desire to do so to the court until the third trial listing.

Notwithstanding those circumstances, the judge properly carried the case for one day to allow defendant an opportunity to demonstrate his financial ability to retain counsel to try the case, were the court to grant his request to adjourn the trial for thirty days to allow him to secure private counsel. Only after the judge was satisfied defendant did not have private counsel ready to try the case and demonstrated no financial ability to do so, did the judge order the trial to proceed. See State v. McLaughlin, 310 N.J. Super. 242, 260 (App. Div.) (finding no abuse of discretion in the trial court's denial of the defendant's motion to adjourn in order to retain private counsel, brought on the first day of his trial), certif. denied, 156 N.J.381 (1998).

Because Judge Vasquez conscientiously "engaged in a reasoned balancing of factors including . . . defendant's lack of diligence, the failure to assert the financial capacity to retain private counsel, and a demonstrated inconvenience to the court or witnesses," we find no abuse of discretion and no error in the denial of defendant's request for a continuance. SeeState v. Kates, 426 N.J. Super. 32, 50 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).

We likewise find no error in the court's refusal to allow defense counsel to impeach the victim's fiancé with an eighteen-year-old conviction for fraud, bribery and corruption pursuant to N.J.R.E.609. Although acknowledging that the type of conviction "goes to [a witness's] credibility," the judge found its remoteness outweighed its relevance and barred its use to impeach the victim's fiancé. Defendant claims the ruling denied him his Sixth Amendment right to an "opportunity for effective cross-examination." See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 89 L. Ed. 2d 674, 683 (1986). We disagree.

A trial court's evidentiary rulings are subject to only limited appellate scrutiny. State v. Harris, 209 N.J. 431, 439 (2012). We review evidentiary rulings only for abuse of discretion, meaning that we do not set such rulings aside unless it appears that "there has been a clear error of judgment." State v. J.A.C., 210 N.J.281, 295 (2012). We must be convinced that "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." Ibid.

As argued by the State at trial, the victim's fiancé's testimony was limited. He testified only to the condition of the house and the victim when he entered, facts corroborated by the investigating officer, and what the victim told him about how defendant's attack on her started. The defense conceded the first point and focused its cross-examination on the second. The cross was brief, however, as the fiancé readily confirmed his statement to the police that the victim told him she was attacked when she "put the key in the door."2

Van Arsdall, on which defendant relies in support of his Sixth Amendment argument, addressed cross-examination designed to show bias on the part of a prosecution witness. 475 U.S.at 674, 106 S. Ct. at 1432, 89 L. Ed. 2d at 680. Defendant concedes the issue here was not bias, however, but general credibility. The United States Supreme Court has never held "'that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his [prior] convictions.'" State v. Balthrop, 92 N.J.542, 547 (1983) (quoting Davis v. Alaska, 415 U.S. 308, 321, 94 S. Ct. 1105, 1112-13, 39 L. Ed. 2d 347, 356 (1974) (Stewart, J., concurring)). Our own Supreme Court has long held "where impeachment evidence bears remotely upon the credibility of the witness, its admission 'must be left to the discretion of the judge, otherwise the jury might be confused by the multitude of collateral issues.'" State v. Hamilton, 193 N.J.255, 264 (2008) (quoting State v. Sands, 76 N.J. 127, 140 (1978)).

N.J.R.E.609, as constituted at the time of this trial, provided, "[f]or the purpose of affecting the credibility of any witness, the witness's conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Here, Judge Vasquez determined the probative value of the fiancé's isolated eighteen-year-old conviction, even though a crime of dishonesty, was outweighed by its remoteness.

That decision was one for the trial court to make, and defendant has provided us no basis on which we could find it abused its discretion in doing so. The amendments to N.J.R.E.609 adopted in 2014, after this trial, providing that a conviction over ten years old "is admissible only if the court determines that its probative value outweighs its prejudicial effect" and shifting the burden of proof to the proponent, only underscores the soundness of the analysis undertaken by the trial court.

Finally, even were we to entertain doubts as to the trial court's decision to prohibit use of the conviction for impeachment of the fiancé, which we do not, it is not possible to conclude the limitation on his cross-examination, even assuming it implicated defendant's rights under the Sixth Amendment, contributed to the guilty verdict. Because we are confident on this record that any error was harmless beyond a reasonable doubt, we reject defendant's constitutional claim. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); State v. Cabbell, 207 N.J. 311, 338 (2011).

Defendant's claims as to his sentence require no extended discussion. He argues the court was quick to dismiss a prosecution's witness's eighteen-year-old conviction as remote and of little relevance, but took a markedly different view of defendant's similarly distant prior convictions in imposing a maximum ten-year sentence. Specifically, defendant claims the court erred in failing to apply mitigating factor seven, N.J.S.A.2C:44-1b(7), that defendant has led a law-abiding life and further erred in failing to weigh mitigating factor four, N.J.S.A.2C:44-1b(4), substantial grounds tending to excuse or justify the defendant's conduct. We reject those claims.

Defendant was fifty-seven years old at sentencing. He had five prior indictable convictions, including two for aggravated assault and three weapons convictions. His first conviction for aggravated assault was in 1974 and the last occurred in 1991. He also had several municipal convictions for simple assault, the most recent occurring in 2002.

Judge Vasquez found aggravating factors one, the nature and circumstances of the offense, including whether or not it was committed in an especially heinous, cruel, or depraved manner, N.J.S.A. 2C:44-1a(1); three, the risk the defendant will commit another offense, N.J.S.A.2C:44-1a(3); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); nine, the need for deterring the defendant and others from violating the law, N.J.S.A.2C:44-1a(9), twelve, that the defendant committed the offense against a person who he knew or should have known was sixty years of age or older, N.J.S.A.2C:44-1a(12); and no mitigating factors. In imposing sentence, the judge stressed the seriousness of defendant's extended assault against his sister, someone he obviously knew was over sixty years old, and his extensive criminal record, although several times acknowledging the age of his prior convictions.

We see no parallel in the victim's fiancé's single eighteen-year-old conviction for a crime involving dishonesty and defendant's over fifteen-year record of aggravated assaults and weapons convictions. Thus we cannot fault the trial court for viewing them differently, leaving aside the very different contexts in which they were considered. The court did not abuse its discretion in finding defendant's several convictions spanning two decades, although more than two decades old, weighed in favor of aggravating factor three and not mitigating factor seven. SeeState v. Fuentes, 217 N.J. 57, 70 (2014). Although defendant's mental condition was argued, there were no facts in the record to support the alleged diagnosis.

We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.

1 The case had been adjourned on the second listing the month before when defendant advised his attorney that morning of a potential alibi witness.

2 The defense argued in summation that the victim was unhappy with defendant allowing other people to stay at the house and complained to defendant about it. The defense's theory was that the victim was attacked by one of these other people. Defense counsel argued to the jury that the attack occurred too quickly for the victim to ascertain it was her brother who punched her but held him responsible anyway for opening the house to violent strangers.