STATE OF NEW JERSEY v. VALERIE M. SEALS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1759-05T41759-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VALERIE M. SEALS,

Defendant-Appellant.

____________________________________________________________

 

Submitted December 19, 2006 - Decided June 13, 2007

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 04-03-0088.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Jason D. Witcher, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Valerie M. Seals appeals from the judgment of conviction entered following a jury trial in which she was found guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); third degree possession of a weapon, a barbecue fork, with the intent to use it unlawfully against another, N.J.S.A. 2C:39-4 (count three); third degree aggravated assault by causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count five); and third degree possession of a weapon, a sharp object, with the intent to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a (count six). An additional charge of fourth degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count four), was dismissed by the court prior to the submission of the remaining charges to the jury.

The court imposed an aggregate prison term of twenty-seven years with a twelve year, nine months period of parole ineligibility. In doing so, the court merged defendant's conviction for aggravated assault (count one) into the conviction for attempted murder (count two), as to which a term of fifteen years, subject to eighty-five percent parole ineligibility under the No Early Release Program (NERA), was imposed. On all of the remaining counts, four year sentences, running consecutive to each other, were imposed.

On appeal, defendant asserts error in the following respects:

POINT ONE: THE TRIAL COURT VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN HE FAILED TO CHARGE THE JURORS THAT THEY MUST DISREGARD THE DEFENDANT'S WRITTEN STATEMENT IF THEY FIND THE STATEMENT WAS NOT CREDIBLE OR CORROBORATED BY OTHER INDEPENDENT EVIDENCE; THE FAILURE OF COUNSEL TO REQUEST SUCH A CHARGE VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10 (NOT RAISED BELOW).

POINT TWO: THE DEFENDANT'S CONVICTIONS ON COUNT THREE AND SIX FOR THIRD-DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE VACATED AS EACH MERGES WITH DEFENDANT'S CONVICTIONS FOR FIRST-DEGREE ATTEMPTED MURDER IN COUNT TWO AND THIRD-DEGREE AGGRAVATED ASSAULT IN COUNT FIVE (NOT RAISED BELOW).

POINT THREE: THE DEFENDANT'S FOUR CONSECUTIVE SENTENCES ARE MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

A. UNDER STATE V. YARBOUGH, THE DEFENDANT SHOULD NOT HAVE RECEIVED FOUR CONSECUTIVE SENTENCES.

B. THE COURT'S IMPOSITION OF THE BASE TERM SENTENCE IN EACH SENTENCE WAS BASED UPON A FLAWED WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.

For the reasons that follow, we affirm the convictions, but we reverse and remand for merger of the convictions for possession of weapons for an unlawful purpose with the convictions for attempted murder and aggravated assault.

According to the State's proofs, on the evening of August 22, 2002, defendant drank substantial quantities of brandy and moonshine and she smoked two or three wet blunts, cigars containing marijuana rolled in embalming fluid. Around 1:00 a.m., she went to the home of her friend, Phyllis Stewart and took a barbecue fork and knife that Stewart had left on the kitchen counter. Defendant then went to the corner of Magnolia and Union Streets in Salem City and met up with a group of women. While she was standing there, Tajuana Knight, another woman from the neighborhood, stopped her car and rolled down the window to talk.

At this point, defendant, without any obvious provocation, ran up to the vehicle, screaming and cursing at Tajuana, and began punching her through the window. Defendant stabbed Tajuana repeatedly in the chest with the knife and barbecue fork until Tajuana was able to roll up the window and drive away. Tajuana traveled a short distance before she realized that she had been stabbed and was bleeding. She blacked out and drove into a pole. As a result of the attack, Tajuana's lung and pancreas were punctured, and she spent a total of forty-three days in the hospital.

After Tajuana drove off, defendant sat in the middle of the road. She gave the utensils to her friend, Shauvon Hill (now Armstead), an eyewitness, who put them in the car of their friend Katina Brown. Armstead, who was charged with hindering apprehension and tampering with evidence, testified at trial as a condition of her plea bargain on the charges brought against her.

Faron Knight, Tajuana's younger brother, heard about the motor vehicle accident involving his sister and he began walking towards the scene. When defendant saw him she jumped on him and began pounding on his back, stabbing him with a sharp object. An unidentified person managed to pull the defendant off Faron, who did not initially realize that he had been injured, however, when he arrived at the scene of his sister's accident, someone told him that he had blood on the back of his shirt.

Detective Sergeant John Pelura testified that defendant gave an informal statement to police around 10:00 a.m. the next day and that she also gave a videotaped statement. In her statements, defendant recalled smoking and drinking around 8:00 p.m., going to Stewart's home, punching at Tajuana through the car window, breaking a bottle and repeatedly attacking Faron from behind. At trial, testifying in her own behalf, defendant could not remember leaving Stewart's house. She testified about the evening of smoking and drinking but then remembered only that she had blurry vision and "wanted to go lay down." She remembered being at Stewart's house, but she could not remember leaving there. The next thing she remembered after she had the drinks and the wet blunts was being awakened in jail. She claimed that she first found out that she had stabbed Tajuana when the police told her about it.

Defendant first argues that the court gave only a generic credibility charge, and that it was obligated to give a charge, pursuant to State v. Hampton, 61 N.J. 250 (1972), instructing the jurors that they were required to weigh the credibility of her out-of-court statements to determine whether they were credible before they could consider them as evidence. "Whether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given." State v. Jordan, 147 N.J. 409, 425 (1997). Nevertheless, "[t]he failure of a court to give a Hampton charge . . . is not reversible error per se. It is reversible error only when in the context of the entire case, the omission is 'clearly capable of producing an unjust result[.]'" Ibid. (quoting R. 2:10-2). In situations where a defendant's statement is not required to prove his or her guilt, such as when there is other evidence that clearly establishes guilt or if the defendant has acknowledged the truth of the statement, failure to give a Hampton charge will not constitute reversible error. Id. at 425-26.

Defendant did not request a Hampton charge before the trial court. Consequently, she must now show error "clearly capable of producing an unjust result." R. 2:10-2; R. 1:7-2. She has failed to meet that burden. At trial, the State presented the testimony of several eyewitnesses who all gave consistent testimony tending to establish defendant's guilt. The victim, Tajuana Knight, testified that she knew defendant and identified defendant as the person who stabbed her. Shauvon Armstead testified she was a few feet away from the stabbing, and she saw "defendant come out of her house and run over to Tajuana with a kitchen knife and a pitch fork" and started stabbing her. Michelle Busch testified that she knew both defendant and Tajuana Knight and that she witnessed the assault from her second floor window. Phyllis Stewart testified concerning defendant's presence in her kitchen that evening and identified the weapon, the barbecue fork, as hers. Similarly, Faron Knight, the second victim, testified that as he turned from defendant to go check on his sister, whose car had collided with a pole, defendant started pounding him on his back. He later discovered his shirt was bloody and he had been stabbed.

In light of the consistent testimony of the victims and eyewitnesses, all of whom were well-acquainted with defendant, defendant's statements were not necessary to support her conviction. Under such circumstances, the failure to give the Hampton charge was not clearly capable of producing an unjust result.

Defendant also claims that trial counsel's failure to request a Hampton charge constituted ineffective assistance of counsel. However, "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). See R. 3:22-4(a). As a result, New Jersey courts have "expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Preciose, supra, 129 N.J. at 460. Other than determining it was not reversible error for the court not to give a Hampton charge where such charge was not requested, we decline to reach the merits of defendant's claim of ineffective assistance of counsel.

Defendant next argues on appeal that the convictions for possession of deadly weapons with intent to use them unlawfully against another should have been merged into the conviction for the greater offense contained in counts two and five. We agree.

As our Supreme Court has noted, often "the charge of possession of a [weapon] for an unlawful purpose 'is coupled with a charge of an act accomplished with the [weapon] -- a robbery, an assault, a homicide -- which the court tells the jury is unlawful.'" State v. Diaz, 144 N.J. 628, 636 (1996) (quoting State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989)). In such situations, where the only unlawful purpose is to commit the substantive offense, the charges must be merged. Ibid.

In this case, the judge instructed the jurors that they were not to consider any purpose other than defendant's unlawful purpose to use the weapons. The jury must have determined that defendant's unlawful purposes were to attack Tajuana and Faron. Consequently, the failure to merge possession of weapons with the purpose to use them unlawfully count three and count six with the attempted murder of Tajuana and the aggravated assault upon Faron count two and count five, respectively and the failure was clearly capable of producing an unjust result. Where the jury has been properly instructed and the "only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense, merger is required." Id. at 636. Here, the possessory offenses must merge into the substantive offenses.

Finally, defendant alleges that her consecutive sentences were manifestly excessive and inconsistent with State v. Yarbough, 100 N.J. 627 (1985). We disagree. We are satisfied that the court considered and applied the various Yarbough factors in this case. The defendant's attacks had two separate victims and occurred at two separate times. It is unclear what motive, if any, defendant had in committing these attacks so it is impossible to state whether they had a common purpose or goal, however, we perceive no abuse of discretion by the judge in imposing consecutive sentences.

We also find that the court's decisions to apply three of the aggravating factors in N.J.S.A. 2C:44-1(a), (3) risk of recidivism, (6) prior criminal record, and (9) need to deter, and to give only "slight" weight to one mitigating factor, N.J.S.A. 2C:44-1(b)(4) - intoxication as a substantial ground tending to excuse or justify defendant's conduct, though failing to establish a defense - are amply supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We affirm defendant's convictions and sentence, except that we reverse and remand for resentencing to reflect the merger of the counts charging possession of weapons for an unlawful purpose with the respective charges for attempted murder and aggravated assault.

Affirmed in part, reversed and remanded for merger of counts two and three and counts five and six.

 

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A-1759-05T4

June 13, 2007