STATE OF NEW JERSEY v. JAMES BURNETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1859-06T41859-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BURNETT,

Defendant-Appellant.

______________________________

 

Submitted September 11, 2008 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

00-06-1229.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Susan Brody, Assistant Deputy

Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant James Burnett was tried before a jury and convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), by purposely attempting to cause significant bodily injury to the victim. The same jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon other than a firearm, N.J.S.A. 2C:39-5(d). Sitting as the trier of fact, the trial judge found defendant guilty of the disorderly person offense of simple assault, N.J.S.A. 2C:12-1(a), against a woman named Sandra Hicks. The court continued defendant's bail status pending sentencing.

Defendant failed to appear for sentencing, and the court issued a bench warrant for his arrest. Defendant was arrested in California in May 2004 for offenses committed in that State. After serving his sentence, California authorities turned defendant over to New Jersey's custody in July 2006.

Prior to sentencing on the New Jersey offense, defendant moved for a new trial arguing that information revealed by his wife in a letter sent to the trial court constituted sufficient basis to set aside his conviction. On October 13, 2006, the court denied the motion. That same day, the court sentenced defendant to a term of five years. We gather the following facts from the evidence presented at trial.

Defendant was separated from his wife at the time of the incident leading to his conviction. On the evening of February 7, 1999, defendant returned his young daughter to her mother's custody after spending the weekend with the child. On that same night, his wife telephoned her friend Sandra Hicks to complain that defendant had returned the child sick and in need of medical attention.

Hicks advised her to call Pamela Lee, a licensed practical nurse. Lee, who had not previously met defendant, was at home recuperating from carpal-tunnel surgery and had her right arm and hand in a cast. At Hick's request, Lee agreed to give defendant's wife medication for the child.

Lee was waiting on the porch of her house when defendant and his wife arrived. The wife got out of the vehicle to get the medicine; defendant remained in the car. At this point, Lee and defendant began to argue. Lee called down from the porch and berated defendant for not taking "the baby" to the hospital when he knew that his wife was unemployed and lacked medical insurance. Defendant responded in kind, yelling obscenities at Lee, and urging her to mind her own business. Defendant's wife intervened and asked both sides to refrain; defendant apparently heeded his wife's advice, and drove away.

Hicks testified that she and Lee had been on the telephone immediately before defendant arrived, and she remained on the line while the argument ensued. Hicks had driven to Lee's house earlier that night to make sure that she was fine. Responding to Hicks's concerns, Lee agreed to accompany her to defendant's wife's mother's house to make sure she was also fine. No one answered the doorbell when they arrived, so they decided to wait in the car.

Defendant and his wife arrived about fifteen to twenty minutes later. Hicks got out of her car and walked over to defendant's car. She immediately began to argue with defendant and his wife, exhorting her to leave defendant because he was "no good." After a few minutes, Lee joined in the argument. She testified that at this point, Hicks and defendant were still "hollering and screaming back and forth."

Defendant and Hicks eventually finished arguing. As defendant began to drive away, Lee hit the rear of his car with her left hand. Defendant immediately jumped out of his car and yelled at her for "kicking" the car. Lee replied: "I didn't kick your car. I hit your car." Defendant then ran to the car's trunk and retrieved a stick.

Lee ran toward the house when she saw the stick. According to Lee, defendant chased her; when he caught up with her he began to beat her on her back and on the lower part of the back of her head until the stick broke. She then fell to the ground and lost consciousness for a few minutes. She testified that when she regained consciousness, defendant was punching her in the face and head and kicking her on her back and legs.

Hicks's testimony corroborated Lee's account of the incident. She testified that when she tried to pull defendant away from Lee, defendant turned around and punched her in the jaw. She then saw that the stick had been broken and part of it was on the ground. When defendant got into his car and drove away, Hicks began to follow him. Hicks testified that she was "blowing the horn and yelling out the car" to get attention. She saw a bystander she knew and yelled for that person to call the police because defendant "just beat up somebody."

Hicks stopped following defendant after he drove onto a highway. She turned around after driving a short distance and saw an occupied police car in a post office parking lot. She told the officer about the incident and waited with him while he radioed headquarters with a description of defendant's vehicle. After a few minutes, the officer told her that defendant had been apprehended. On the question of her credibility, Hicks admitted at trial that she had a 1993 conviction for receiving stolen property.

Teaneck Police Officer Sean Gaffney responded to a 911 call about the incident. When he arrived at the scene he spoke with defendant's wife, Lee, and Hicks. They all gave a similar account of what transpired. Gaffney observed "significant" swelling on Lee's forehead and around her eyes, and "severe bumps" on her forehead. She was "woozy" and "not very coherent." An ambulance took her to the nearest hospital where she received treatment for an eye that was swollen shut, a lump on the back of her head, and a swollen jaw. She also had two "bent" fingers on her left hand from trying to fend off the blows from the broomstick.

Later that evening, Hicks appeared at police headquarters to give a statement. She was unable to do so at the time, however, because she was in so much pain. She returned the following day and gave a formal statement as to what had occurred. The police took photographs of her injuries during both of her visits, which were admitted into evidence.

Lee testified that the assault left her with severe pain in her back and buttocks, and with severe headaches "radiating down [her] neck into [her] shoulder [and] the side of [her] face." She missed two weeks of work due to her injuries.

Officer Gaffney found a wooden stick in the driveway of defendant's wife's mother's house. It was approximately two feet long and had one jagged end. According to defendant's wife, the stick was the one used by defendant to beat Lee. Gaffney took the stick into evidence. His police report did not mention that he found the stick at the scene.

Teaneck Police Officer Christopher Kurschner took the statements at police headquarters. He recalled seeing the stick in the police department's evidence storage facility on October 1, 2001, the day that he executed a request to bring it to the county prosecutor's office. Assistant Prosecutor John Higgins explained that an erroneous computer entry falsely indicated that this case had been dismissed on the State's motion. In response, the broomstick was destroyed on September 6, 2002, in accordance with the office's practices.

Against these facts, defendant now appeals raising the following arguments:

POINT I

BECAUSE THE TRIAL WAS TAINTED BY IMPERMISSIBLE AND EXTREMELY DAMAGING N.J.R.E. 404(b) TESTIMONY THAT DEFENDANT HAD A HISTORY OF ASSAULTING HIS EX-WIFE, AND THE PROBLEM WAS COMPOUNDED BY THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION, REVERSAL IS REQUIRED. (Partially Raised Below)

POINT II

THE PROSECUTOR'S OPENING AND SUMMATION WERE SO OUTRAGEOUSLY IMPROPER AND PREJUDICIAL TO DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL THAT HIS CONVICTIONS MUST BE REVERSED. (Not Raised Below)

POINT III

BECAUSE THE COURT ERRONEOUSLY READ TO THE JURY THE INSTRUCTION ON DEFENDANT'S ELECTION NOT TO TESTIFY, CONTRARY TO DEFENDANT'S REQUEST THAT IT NOT DO SO, REVERSAL IS WARRANTED.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

POINT V

IN IMPOSING THE MAXIMUM ORDINARY TERM FOR THIS UNEXCEPTIONAL THIRD-DEGREE OFFENSE, THE COURT CREATED A MANIFEST INJUSTICE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

POINT VI

BECAUSE THE SENTENCING COURT GROSSLY UNDERCOUNTED THE JAIL CREDITS TO WHICH DEFENDANT WAS ENTITLED, THE MATTER MUST BE REMANDED FOR AN ACCURATE RECALCULATION OF CREDITS.

We reject these arguments and affirm. The argument raised in Point I is predicated upon a fleeting reference made by Hicks while testifying about the argument that preceded the assault. We first note that defense counsel did not object to this testimony at the time, thus requiring us to review this issue under the plain error standard. R. 2:10-2. We are satisfied that the fleeting reference by this witness of defendant's alleged prior abuse of his wife was not clearly capable of producing an unjust result. Ibid.

The argument raised in Point II concerning the prosecutor's conduct must also be reviewed under the plain error rule. Here, the record simply does not support defendant's contentions. There is no evidence that the prosecutor's remarks to the jury were in any way improper or capable of undermining defendant's right to a fair trial. State v. Smith, 167 N.J. 158, 181 (2001).

Defendant's claim in Point III that the court erred by denying his plainly stated request not to give the jury an instruction concerning his election against testifying is clearly without merit. As the Supreme Court noted in Lakeside v. Oregon, 435 U.S. 333, 339, 98 S. Ct. 1091, 1095, 55 L. Ed. 2d 319, 325 (1978), instruction containing a correct statement of the law "cannot provide the pressure on a defendant" that an adverse comment on the election against testifying would impose. Id. at 339, 98 S. Ct. at 1095, 55 L. Ed. 2d at 325. "It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Id. 98 S. Ct. at 1095, 55 L. Ed. 2d at 325.

We reached a similar result in State v. Jackson, 204 N.J. Super. 13, 21-22 (App. Div. 1983), aff'd sub nom., State v. Hardison, 99 N.J. 379 (1985), where we held that when one co-defendant wants the jury to be instructed on the election against testifying and the other co-defendant does not, the instruction must be given, and severance is not required to protect the other co-defendant's constitutional rights. Stated differently, a trial court's legally correct instructions to the jury cannot form a basis to impeach defendant's conviction.

Defendant's argument raised in Point IV is clearly without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Nothing in defendant's wife's correspondence with the trial court constitutes any basis to set aside the jury's verdict. We thus discern no basis to conclude that the trial court abused its discretion in denying defendant's motion for a new trial. State v. Puchalski, 45 N.J. 97, 108 (1965); State v. Artis, 36 N.J. 538, 541 (1962); State v. Henries, 306 N.J. Super. 512, 529-30 (App. Div. 1997).

 
We reach the same conclusion with respect to defendant's attack on his sentence, as reflected in argument Points V and VI. The sentence imposed by the court was amply supported by the evidence and defendant's personal history. See State v. Garcia, 195 N.J. 192, 209 (2008). Finally, with respect to the jail time credits, the trial court amended the judgment of conviction on March 6, 2008, granting defendant 315 additional days of jail credit for the time he was incarcerated in California. Defendant has failed to demonstrate that this new calculation is incorrect.

Affirmed.

(continued)

(continued)

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A-1859-06T4

October 22, 2008