STATE OF NEW JERSEY v. DANIEL L. TERREL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0705-04T40705-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL L. TERREL,

Defendant-Appellant.

________________________________

 

Submitted: September 26, 2006 - Decided October 26, 2006

Before Judges Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 03-01-0081.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel Terrel was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and third-degree terroristic threats, N.J.S.A. 2C:12-3b. On August 6, 2004, defendant was sentenced to a seven-year custodial term with a three-year period of parole ineligibility for possession of a weapon for an unlawful purpose and a concurrent four-year term for unlawful possession of a weapon, with the other counts merged. Appropriate fees and penalties were also imposed.

Defendant's neighbor, Ms. Dorset Rowe, testified that she observed defendant approach his elderly father on the sidewalk and begin yelling at him that he was going to kill him with the gun defendant was holding. Defendant then began fighting with his father, hit him in the head with the gun, and the victim fell, hitting his head on a car parked near her house. Rowe went over to help, and defendant ran away.

Responding police officer Richard Rogers testified that when he arrived, the victim was hysterical and bruised. The victim told the officer his son had hit him in the head with his own handgun and had threatened to kill him. The victim was transported to the hospital. The officer further testified that pursuant to the victim's request, he obtained a Temporary Restraining Order (TRO) pursuant to the Prevention of the Domestic Violence Act on behalf of the victim against defendant from Judge Maisto. The officer told Judge Maisto the information contained in the complaint, which served as the basis for the TRO, more particularly the factual recitation that "Danny Terrel assaulted his father Willie Terrel by striking him in the head with a .32 caliber handgun and stating 'I'm going the kill you with your own gun'" and the predicate offense box he checked of "assault." Over defendant's objection, the complaint/TRO was admitted into evidence. The court further denied defendant's request for a limiting instruction as to the document.

The victim did not testify, there being no explanation given other than his age.

Defendant testified he was protecting his father from himself. He claimed he found his father walking around with his handgun and pursued his father outside to take the gun away from him. Defendant testified that after he took the gun, his father tried to grab it and, as a result, he pushed his father away, causing him to slip and fall.

Defendant asserts the following arguments on appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ADMITTING THE TEMPORARY RESTRAINING ORDER INTO EVIDENCE AS S-3.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE TEMPORARY RESTRAINING ORDER INTO EVIDENCE AS A PUBLIC RECORD PURSUANT TO N.J.R.E. 803(C)(8).

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT ADMISSION OF THE TEMPORARY RESTRAINING ORDER DID NOT VIOLATE THE DEFENDANT'S RIGHT TO CONFRONTATION.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT ADMISSION OF THE TEMPORARY RESTRAINING ORDER WAS NOT PRECLUDED BY N.J.R.E. 403.

(D)

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A LIMITING INSTRUCTION.

POINT II

TESTIMONY THAT JUDGE MAISTO ISSUED THE TEMPORARY RESTRAINING ORDER DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW WAS PREJUDICED BY THE OFF-THE-RECORD SIDEBAR CONFERENCES THAT OCCURRED DURING THE TRIAL (NOT RAISED BELOW).

POINT IV

THE "PRESUMPTIVE" SEVEN (7) YEAR SENTENCE IMPOSED OF THE DEFENDANT'S CONVICTION FOR SECOND DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT TWO AND THE "PRESUMPTIVE" FOUR (4) YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR THIRD DEGREE UNLAWFUL POSSESSION OF A WEAPON ON COUNT THREE WERE MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCES OF FIVE (5) AND THREE (3) YEARS FOR CRIMES OF THE SECOND AND THIRD DEGREE WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B)

IMPOSITION OF THE "PRESUMPTIVE" TERMS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

We find reversible error and reverse and remand for a new trial.

The State's proffer for introducing the TRO was to corroborate both the testimony of the witness that she saw an assault and the victim's "excited utterance" to the police officer about the assault by his son. Defense counsel argued that admitting the TRO into evidence sent a message to the jury that the language included in the complaint was, in fact, what happened in this case, and that there was a prior judicial order accepting that defendant "assaulted" his father by striking him in the head with a handgun. Defendant urged that admission of the document bolstered the victim's credibility and became even more prejudicial in the absence of the victim testifying at trial. The trial judge admitted the document into evidence, finding it was a trustworthy public record under N.J.R.E. 803(c)(8), and that the jury could chose to accept it as probative information or not, considering the fact that it was only a TRO and no final restraining order had been issued.

We are not convinced the issuance of a TRO was relevant to the determination of the criminal prosecution for aggravated assault, terroristic threats and the weapons offenses, i.e., "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Moreover, even if deemed relevant and admissible under N.J.R.E. 803(c)(8), we are satisfied that any probative value of admitting the document was substantially outweighed by the risk of "undue prejudice, confusion of issues, or misleading the jury." Thus the TRO should have been excluded pursuant to N.J.R.E. 403(a).

For example, the jury would have no way of knowing that the TRO was issued against defendant on an emergent basis by a municipal court judge solely because it appeared, based on the statements relayed by the officer, that Willie Terrel "[was] in danger of domestic violence," N.J.S.A. 2C:25-28g, and the ex parte order was "necessary to protect [his] life, health or well-being," N.J.S.A. 2C:25-28f. Moreover, had defendant been served with the TRO, he could have sought immediate appeal for a "plenary hearing de novo not on the record" before a Family Part judge. N.J.S.A. 2C:25-28i.

Thus, as defense counsel argued, particularly in the absence of any limiting instruction as to the different standards of proof for the issuance of a domestic violence TRO and a criminal conviction, the jury could have been confused or misled as to the effect of the prior judicial adjudication. In light of the language of the complaint, the jury could easily have been left with the mistaken impression that, by issuing the TRO against defendant, an impartial judge had already credited the testimony of the victim, based on the same facts presented in this case by the eyewitness and responding police officer, and found defendant "guilty" of assault with a firearm, thus satisfying the elements of aggravated assault under N.J.S.A. 2C:12-1b(2). This bolstered the credibility of an absent witness and in many ways invaded the factfinding province of the jury. In fact, the judge's explanation for declining to give a limiting instruction, i.e., that the jurors would give more weight to what the court said than to what counsel said, is precisely the reason why reference to, and admission of the complaint/TRO, particularly without a limiting instruction, constituted reversible error.

 
Reversed and remanded for a new trial.

(continued)

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A-0705-04T4

October 26, 2006