STATE OF NEW JERSEY v. EDWARD R. LINDSAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4368-07T44368-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD R. LINDSAY,

Defendant-Appellant.

____________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-07-0574.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lisa M. Commentucci, Designated Counsel, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edward R. Lindsay appeals from a final judgment of conviction and the imposed sentence. A jury found defendant guilty of three counts of fourth-degree retaliation for past official action, N.J.S.A. 2C:27-5 (counts one, two and three), and three counts of fourth-degree harassment, N.J.S.A. 2C:33-4(e) (counts four, five and six), resulting from June 14, 2006 telephone calls he made to a municipal court judge and the municipal court administrator. The court imposed an eighteen-month term of incarceration on count one, and eighteen-month terms on each of the remaining counts to run concurrently to the sentence imposed on count one. Applicable fines and assessments were imposed, along with a restraint against contact with the victim.

On appeal, defendant argues: (1) the trial court abused its discretion in allowing "an unfettered amount of other crimes and acts evidence," and (2) his sentence was manifestly excessive. We affirm.

These are the facts presented by the State during trial. On February 24, 2005, defendant appeared before the Watchung Borough Municipal Court (WBMC) for resentencing on a disorderly conduct charge. Municipal Court Judge Richard Sasso imposed a thirty-day sentence, to be served at the Somerset County Jail on weekends commencing Friday, March 4, 2005. Defendant failed to appear, as ordered, and a bench warrant was issued.

On March 10, 2005, defendant made an unscheduled appearance in the WBMC. Municipal Court Judge Sasso admitted he had "words" with defendant and admonished him. Municipal Court Judge Sasso was "upset" because defendant failed to present himself to the jail, as ordered, after he gave him "a break" in allowing the sentence to be served on weekends. Defendant told Municipal Court Judge Sasso that his attorney provided erroneous information regarding the date to appear. Municipal Court Judge Sasso rejected defendant's explanation because he recalled personally addressing defendant at sentencing. Municipal Court Judge Sasso immediately ordered defendant held for thirty days "straight time." At that point, defendant "started yelling," "got violent," "tried to attack [Municipal Court Judge Sasso]" and "tried to go over the bench[.]" Additional police officers were summoned and eventually subdued defendant after he was pepper-sprayed; thereafter they removed him from the municipal courtroom. As a result of that incident, defendant was charged with disorderly conduct.

On April 5, 2005, while presiding in the Warren Township Municipal Court, Municipal Court Judge Sasso noticed defendant seated among the litigants. Defendant did not have a matter before the court; he simply sat in the courtroom and stared at the municipal court judge. Two days later, defendant appeared in the WBMC. Although he had no scheduled business before the court, he sat in the courtroom and stared at Municipal Court Judge Sasso, moving his seat in order to retain a direct line of sight, holding a stack of money like a fan.

On June 12, 2006, defendant appeared before a conflict municipal court judge and pled guilty to disorderly conduct as a result of his actions in the WBMC on the March 10, 2005. Defendant was sentenced to a four-month custodial term and ordered to report to the Somerset County Jail on June 15, 2006 at 9 a.m. In the parking lot of the WBMC, defendant confronted the Assistant Prosecutor, Raymond Stine, stating "I'll see you on the streets." Stine took the comment as a threat.

On June 15, 2006, the court administrator of the WBMC, Pamela Steves, discovered three messages on her office answering machine left by an unidentified caller the prior evening. The first was directed to Municipal Court Judge Sasso, as follows:

This is for Mr. Sasso. Judge Sasso, you owe brother. I'm telling you right now all that yelling you did, brother, you owe and shit. So don't expect the unexpected when it happens, brother. Take it as a threat. I am going to tell you right now, it's a problem. You owe, brother. Justice will be served. Peace.

The second was similar and stated:

All that [] yelling at me and all that shit, brother, you gonna pay, man. I'm telling you, bro, you're going to pay for that shit.

The third was directed to Steves:

This message is for Pamela Stevens [sic]. You owe too. You owe. You owe big time. Paybacks come. They comin' yo. Don't expect the unexpected and all that shit. You do what the fuck you all had to do. I'm gonna to do what the fuck I got to do. It won't be my fucking surprise when it go down. You did the fuck what you had to do, I'm gonna do what the fuck I got to do. You take it as it is. It gonna be what it is. It gonna go down. You want to have a personal vendetta, there [] gonna be a personal vendetta.

Steves recognized the voice as defendant's. Municipal Court Judge Sasso also stated he believed he recognized the caller's voice as defendant's. After listening to the tapes, Stine identified the caller as defendant.

Prior to trial, the State filed an in limine motion regarding the admission of evidence as res gestae or under N.J.R.E. 404(b) to show defendant's purpose and motive to retaliate. Specifically, the State sought admission of defendant's appearance in the WBMC March 10, 2005; evidence regarding his prior interactions with Sasso on January 31 and February 24, 2005, when sentenced; a March 7, 2005 telephone conversation regarding municipal court matters between defendant and Steves; defendant's April 5 and 7, 2005 appearances in the municipal courts while Municipal Court Judge Sasso presided; and the alleged threat to Stine on June 12, 2006, following defendant's sentence for the incident before Municipal Court Judge Sasso.

Citing State v. Cofield, 127 N.J. 328 (1992), the motion judge found by clear and convincing evidence that the threat to Stine, if proven, was similar in kind to the offense charged, reasonably close in time, and presented a nexus between defendant's intent, motive and purpose for the charged offenses. The balance of the evidence was deemed admissible as res gestae, to show how Municipal Court Judge Sasso and Steves recognized defendant as the caller leaving the June 15, 2006 telephone messages and explaining the basis of defendant's alleged retaliation. Finally, the motion judge concluded that evidence of the interactions between Municipal Court Judge Sasso and defendant touched motive, intent, and identity.

In entering his order, the motion judge limited the State's evidence by providing that any municipal court interactions prior to February 2005 were inadmissible, granting defendant's request that the jury not be informed of the underlying charge for which he was sentenced on February 24, 2005; and reserving the determination of the admissibility of the incident with Stine pending a N.J.R.E. 104(c) hearing to discern whether the State could establish the statement was made to Stine by defendant.

At trial, Municipal Court Judge Sasso testified regarding the events of March 10, 2005. He also discussed his interactions with defendant on February 24, April 5 and 7, 2005. Based upon these prior interactions and the content of the messages, Municipal Court Judge Sasso affirmed it was defendant's voice on the June 14, 2006 voice messages.

Steves's testimony corroborated Municipal Court Judge Sasso's as to the court events of February 24, March 10, and April 7. Steves discussed her review of the voice messages discovered on her telephone the morning of June 15, 2006 and unequivocally identified the caller as defendant, based upon her past contacts with him. In addition to the court sessions where he sat adjacent to Municipal Court Judge Sasso, Steves testified defendant called her "five or six times" on March 8, 2005, "yelling" and demanding she "better recall [the bench] warrant." Defendant also called Steves to request file information sometime in 2006. Finally, Steves was the clerk present in the WBMC on June 12, 2006 when defendant pled guilty to disorderly conduct.

Detective William Kelly conducted the investigation surrounding the three voice messages left on Steves's telephone. Kelly acknowledged the telephone calls were untraceable and that there was no forensic evidence linking defendant to the calls. The only proofs of defendant's involvement were the voice identifications made by Steves, Sasso and Stine.

The remaining State's witnesses testified regarding events predating the June 2006 telephone messages. Deputy WBMC Administrator Loretta Shpunder testified to defendant's presence in court on April 7, 2006, although he had no matter scheduled. Maritza Martinez, a certified interpreter, was present in court on March 10, 2005, and witnessed defendant's actions and the officers' efforts to subdue him. She was also present on April 7, 2005, when she alerted the courtroom officer after noticing defendant sitting next to her waving money. Police Sergeants Jeffrey Skivenes and Gene McAllister were among the officers who subdued defendant on March 10, 2005. Police Sergeant Robert Faust provided security in the WBMC on April 7, 2005 and saw defendant in the courtroom.

The trial judge then conducted the N.J.R.E. 104(c) hearing, and found by clear and convincing evidence that defendant made the statement to Stine on June 12, 2006, following his sentencing on the disorderly conduct charge. Thereafter, Stine testified consistently with his statements provided at the N.J.R.E. 104(c) hearing.

At the conclusion of Stine's testimony, with counsel's agreement, the court provided this curative instruction, as required by N.J.R.E. 105:

Ladies and gentlemen of the jury, may I have your attention? The State has introduced evidence alleging that the defendant had interactions with Judge Sasso, the court administrator Pamela Steves, and court staff on a number of occasions between February of 2005 and June 14th of 2006.

This evidence was introduced through the following witness's testimony. You hear from Judge Sasso, from Ms. Pamela Steves, from Ms. Loretta Shpunder, from Ms. Maritza Martinez, from Sergeant Jeffrey Ski[v]enes, from Sergeant Robert Faust, from Detective William Kelly.

Now the State offered this evidence to prove that past official conduct was taken by the [c]ourt with respect to the defendant. The State also offered this evidence to show the defendant's motive, opportunity, and intent to retaliate against the [c]ourt and [c]ourt staff by leaving telephone voice messages on June 14th, 2006 at the Watchung Borough Municipal Court.

The State has also introduced evidence to prove that the defendant was the person making the calls on June 14th, 2006.

The State also introduced evidence of a statement allegedly made by the defendant to the Watchung Municipal prosecutor Mr. Raymond Stine on June 12, 2006.

This evidence was introduced also as evidence of the defendant's motive, opportunity, . . . and intent to retaliate against the [c]ourt and [c]ourt staff by leaving the said voice mail messages.

Normally such evidence is not admitted in our Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or a tendency to do wrong and[,] therefore[,] must be guilty of the charged offenses.

Before you can give weight to any of this evidence, you must be satisfied that the defendant committed the other crime, wrong or act. If you are not satisfied, you may not consider it for any purpose.

However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific very narrow purposes. Here the evidence was introduced by the State to prove past official action taken by the . . . [c]ourt with respect to the defendant.

It was also offered to prove motive, opportunity, intent, and identity of the defendant in leaving the voice mail messages on June 14th, 2006.

Whether this evidence does[,] in fact[,] demonstrate past official action, motive, opportunity, intent, and identity is for you to decide. You may decide that the evidence does not demonstrate the purposes for which they were offered and is not helpful to you at all. In that case you must disregard the evidence.

On the other hand[,] you may decide that the evidence does demonstrate the aforesaid purposes and use it for that specific purpose.

However[,] you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is[,] you may not decide that just because the defendant has committed other crimes, wrongs or acts he must be guilty of the present crime.

I have admitted the evidence only to help you decide the specific question of the State's purpose in introducing the evidence. That is[,] that past official action was taken by the [c]ourt with respect to the defendant or his motive, his opportunity, his intent, and identity.

You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts.

The same charge was repeated in the final instructions given to the jury following summations. Defendant was found guilty on all counts of the indictment. Post-trial applications were denied, and this appeal followed.

Relying on N.J.R.E. 403, defendant contends any probative value of evidence regarding events prior to June 15, 2006 was outweighed by its prejudicial effect. The State maintains the motion judge's determination must be upheld, pursuant to N.J.R.E. 404(b), which provides:

Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b).]

The scope of our review of a trial judge's determination on the admissibility of other bad conduct evidence is narrow, deferential, and limited to whether the judge abused his discretion. State v. Lykes, 192 N.J. 519, 534 (2007); State v. Marrero, 148 N.J. 469, 483-84 (1997). The trial court is entitled to great deference because it is in the best position to engage in the balancing process required under Cofield. The trial court's conclusion with respect to the balancing test should not be disturbed unless there is a "clear error of judgment." Marrero, supra, 148 N.J. at 483 (quotation omitted).

In order to be admissible, the evidence must be (1) "admissible as relevant to a material issue;" (2) "similar in kind and reasonably close in time to the offense charged;" (3) "clear and convincing"; and (4) its "probative value . . . must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338 (quotation omitted).

Specifically, defendant's challenge is directed to the inclusion of (1) the incident on March 10, 2005; (2) defendant's attendance at the municipal court sessions on April 5 and 7, 2005; and (3) the alleged threat uttered to Stine on June 12, 2006.

The motion judge did not differentiate the evidence which he considered res gestae and the evidence of admissible bad acts. We confine our review to whether the evidence was properly admitted, pursuant to N.J.R.E. 404(b) and decline to determine whether the evidence falls within "[t]he ancient res gestae concept, now codified in N.J.R.E. 803(c)(3) and referred to as the state of mind exception, [which] covers statement[s] made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)[.]" State v. Long, 173 N.J. 138, 153 (2002)(internal emphasis and quotation omitted).

Defendant argues the first Cofield prong was not satisfied and suggests that even if some of the evidence had probative value as to motive, the scope of the evidence admitted was "without substantive limitation" and overwhelmingly prejudicial. Under the materiality prong, other bad acts evidence must be relevant to a material issue that is genuinely disputed. State v. Fortin, 162 N.J. 517, 529 (2000) (Fortin I); State v. Covell, 157 N.J. 554, 564-65 (1999). The evidence also must be "necessary" for proof of the disputed element, requiring the court to consider whether the disputed element can be proved adequately by other evidence. Marrero, supra, 148 N.J. at 482 (quoting State v. Stevens, 115 N.J. 289, 301 (1989)).

Defendant concedes that some evidence of the victims' prior contact with defendant was relevant to satisfy the elements of the offense of retaliation for official conduct and to establish motive. However, he suggests the evidence should have been limited to the basic facts of: defendant's sentencing on February 24, 2005; his failure to surrender to the county jail as ordered; his appearance on March 10; Municipal Court Judge Sasso's annoyance with defendant, which evoked a heated response and resulted in defendant being charged with another offense for which he was then sentenced. Defendant asserts, "[a]nything more [] gave the State the opportunity to exploit the evidence and turn the entire trial into a parade of bad acts evidence diverting the jury's attention from what this case was about -- which was three anonymous phone calls."

We review the issue under the plain error standard, which requires that any error be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). "[W]e will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006); State v. Jenkins, 178 N.J. 347, 361 (2004). To the extent inclusion of any evidence demonstrated actual error, we are convinced it did not affect the outcome of the case, Rule 2:10-2, particularly in light of the other evidence presented and the trial judge's repeated and comprehensive limiting instructions to the jury.

Evidence of defendant's conduct on March 10 was highly relevant to the retaliation charge and the proffered defense. Defendant's volatile and violent reaction to the sentence imposed resulted in additional charges and additional time in the county jail. The testimony elicited from Municipal Court Judge Sasso and Steves was not extended beyond that necessary to prove the court's official act and defendant's retaliatory motive for making the June 14, 2006 telephone calls. The brief testimony of the arresting officers, Sergeants Skivenes and McAllister, was essential to show defendant was charged with the additional offense of disorderly conduct following his March 10 outburst, although we agree the evidence admitted was cumulative. Testimony from Shpunder, Martinez, and Sergeant Faust supported defendant's course of harassing conduct attending municipal court to stare at Municipal Court Judge Sasso, on April 5 and 7, 2005.

The evidence was also relevant to demonstrate defendant's motive; that is, his desire to retaliate against Municipal Court Judge Sasso and Steves. Although the conduct is not entirely similar in kind, it demonstrated a chain of events, linked by defendant's animus towards Sasso and Steves, which culminated in the telephone threats on the date defendant commenced serving his sentence.

The evidence was clear and convincing, supported by corroborating testimony from multiple witnesses. Finally, its probative value in establishing defendant's motive for retaliating against court officials outweighed its potential prejudice. In short, other than the admission of some cumulative evidence, not necessary for the State's proofs, we conclude no error in its admission. Marrero, supra, 148 N.J. at 482.

We do not reach the same conclusion with regard to defendant's alleged comment to Stine. We specifically reject the State's contention that the evidence regarding the remark to Stine was sufficiently close in time to the underlying offense as to be "part and parcel" of the June 14 threats. Nevertheless, applying the plain error standard, we determine no basis to disturb defendant's conviction.

Here, the identification testimony offered by Municipal Court Judge Sasso, Steves and Stine was unwavering, even in the face of extensive cross-examination. Further, the suggestion that many others could have been angry with Municipal Court Judge Sasso and, therefore, would have reason to make such calls, pales when compared to Municipal Court Judge Sasso's responses on direct and cross-examination that he distinctly remembered defendant because, in the nine years he has served as a municipal court judge, defendant was the only litigant to attempt to attack him. He continued: "No one else in all the cases that I have handled at that juncture, . . . had complained about their verdict, their handling in the municipal court with one exception" involving a case heard long before defendant's matter involving an individual with a specific accent. Accordingly, we decline to disturb defendant's conviction.

Defendant also challenges his sentence as excessive. In imposing the maximum allowable sentence, the judge applied aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(1); two (the gravity and seriousness of the harm inflicted on the victims), N.J.S.A. 2C:44-1(a)(2); three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3); six (defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(6); eight (the defendant committed the offense because of the status of the victim), N.J.S.A. 2C:44-1(a)(8); and nine (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9).

The court discussed the factual basis supporting application of factor one, stating, "the court will not countenance such vile criminal acts which attempt to influence the administration of fair and impartial justice." In applying factor six, the court reviewed defendant's eleven adult arrests and convictions, one of which was an indictable offense. Finally, the need for deterrence is easily inferred from the court's comments. The court found no mitigating factors.

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). While "'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]'" State v. Cassady, 198 N.J. 165, 180 (2009)(quoting State v. Jarbath, 114 N.J. 394, 401 (1989), when the judge has followed the sentencing guidelines and the court's findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

We disagree with the application of factors one and eight. The offense was not committed "in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). Likewise, the status of the victims was an element of the offense charged, raising it to a fourth-degree offense. N.J.S.A. 2C:27-5. Eliminating these particular aggravating factors does not change the court's finding that the aggravating factors preponderate over the non-existent mitigating factors, see N.J.S.A. 2C:43-6(b), and the sentence was properly within the appropriate range for the offenses. State v. Ghertler, 114 N.J. 383, 389 (1989); Roth, supra, 95 N.J. at 362-64. We have no basis to interfere with the sentence imposed.

 
Affirmed.

A person commits harassment when with the purpose to harass another he "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4c

(continued)

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A-4368-07T4

November 30, 2009