STATE OF NEW JERSEY v. MALCOLM J. WADE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5711-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALCOLM J. WADE,

Defendant-Appellant.

________________________________________________________________

March 18, 2011

 

Submitted March 1, 2011 - Decided

 

Before Judges Wefing and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-06-0495 and 08-06-0496.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, of counsel and on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney (SaraB. Liebman,Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Following a trial by jury, defendant Malcolm J. Wade appeals from his March 31, 2009 conviction under Indictment No. 08-06-0495 on a charge of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one). Shortly after the jury returned its guilty verdict on that indictment, defendant entered a negotiated plea of guilty to fourth degree certain persons not to possess weapons, N.J.S.A. 2C:39-7, under Indictment No. 08-06-0496. Both indictments pertained to defendant's possession, or use, of a knife during a single incident on February 29, 2008.

At the time of sentencing, on Indictment No. 08-06-0495, the judge imposed an eight-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2.1 On Indictment No. 08-06-0496, the judge imposed a concurrent eighteen-month term of imprisonment.

On appeal, defendant raises the following claims through assigned counsel:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE ALL ELEMENTS OF THE CRIMES OF AGGRAVATED ASSAULT, PURSUANT TO N.J.S.A. 2C:12-1; POSSESSION OF A WEAPON FOR [AN] UNLAWFUL PURPOSE, PURSUANT TO N.J.S.A. 2C:39-4(d); AND UNLAWFUL POSSESSION OF A WEAPON, PURSUANT TO N.J.S.A. 2C:39-5(d).

 

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF [THE] EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT.

 

A. The Jury Verdict Was Against The Weight of Evidence.

 

B. The Jury Verdict Was Inconsistent.

 

III. THE SENTENCE IMPOSED [ON] DEFENDANT'S CONVICTION OF AGGRAVATED ASSAULT, POSSESSION OF A WEAPON FOR [AN] UNLAWFUL PURPOSE, UNLAWFUL POSSESSION OF A WEAPON AND CERTAIN PERSONS NOT TO HAVE WEAPONS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

 

In addition, defendant has submitted a supplemental pro se brief

in which he argues:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROPERLY AND ACCURATELY INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES.

 

We reject these contentions and affirm defendant's convictions and sentence.

I.

The following facts were presented at trial. On the night of February 29, 2008, Shakee Harris finished work and drove to the Plainfield Police Department, which was the prearranged location for the transfer of defendant's and Harris's young daughter for purposes of visitation. Defendant and Harris argued over whether defendant would take the child with him for visitation that weekend. Ultimately, Harris and the child left the police station.

Harris then drove to her aunt's house, where she picked up Stephan Harry, her boyfriend of four years. While Harris was driving, with Harry in the passenger seat, and her daughter in the back, she observed a vehicle following them. When she stopped at a traffic light at the corner of Richmond Avenue and East Second Street in Plainfield, defendant jumped out of the car that had been following them, and pulled open the passenger-side door of Harris's car. Harry immediately stepped out of the car, both for his own protection and for the sake of Harris and the child. After trying unsuccessfully to grab defendant's hands, he and defendant began "throwing punches" at each other. Defendant continued to attack Harry, striking him on his left side. While Harry was attempting to defend himself, he heard defendant tell another male, whom Harry did not know, to hit him. Harry described what happened next:

And we [were] both throwing punches, tussling, and [defendant] he -- he said hit -- this mother-f***er and somebody came and struck me on my left side. Then I looked, they backed off, we still tussling. Then he said hit this mother-f***er again. Then the guy came, struck me again on my left side. He backed off. Then all -- I felt as though I was holding my own.

 

All of a sudden I lost all energy and I went back and then [defendant] was like, yeah, mother-f***er, then he struck me on my head. Then I pushed off. I was leaning against a light pole and I pushed off. And then [defendant] was like hit this mother-f***er again. Then I started trying to pull away from [defendant] and get out of harm's way of the other guy.

 

Harry explained that when he fell back against the pole, "it felt like everything left from [him], like [he] didn't have . . . nothing left." While Harry was leaning against the light pole, defendant struck him in his forehead. When asked to describe the interaction between defendant and the unidentified male, Harry explained that the unidentified male acted "like he was confused" and "didn't want anything to do with anything," but "only reacted when [defendant] called him." According to Harry, each time defendant called to the other male, "he would strike me on my left side, then he would back off." On each of the occasions that the other male hit him, it was, according to Harry, "on my left side."

Harry made it clear that when defendant called the other male over, the other male struck him on his face, not on his torso. The testimony was as follows:

Q: And when [defendant] called him what would he do?

 

A: Like he would strike me on my left side, then he would back off.

 

Q: And the times that he did strike you, where did he hit you?

 

A: On my left side.

 

Q: Where on your left side, what part of your body?

 

A: My face.

 

Q: And did he hit you on the left side of your face each and every time?

 

A: Yes.

 

On cross-examination, defense counsel attempted to have Harry admit that the unidentified male struck him near his abdomen, but, as he had done on direct examination, Harry insisted that the third party hit him only on his face:

Q: And at some point in time you were struck by this individual. Is that correct?

 

A: Yes.

 

Q: And that was in response, your testimony is to [defendant] telling him to -- you?

 

A: Yes.

 

Q: And where did he hit you?

 

A: My left side.

 

Q: What part of your body?

 

A: Face.

 

Q: You said your left side. Your body?

 

A: Face.

 

As soon as defendant and the other man drove off, Harry got into Harris's vehicle and told her he believed he had been stabbed. He lifted his shirt and saw a large amount of blood pouring down his side. They were able to flag down a police officer, who escorted them to the Muhlenberg Medical Center, where Harry underwent surgery. Harry remained at the hospital for more than four days. Asked to describe the continuing effects of the stab wound, Harry described pain and weakness in the area of the stab wound that had continued to the time of trial.

At the hospital, hospital staff removed a razor blade from Harry's pocket, which he explained was in his possession because he often helped his uncle with construction work. Harry stated that the razor blade, also described in the record as a box cutter, had never come out of his pocket while he was being attacked by defendant and the other man. At the time the razor blade was removed from his pocket at the hospital it was in a closed position.

Harris testified at trial, corroborating Harry's account of defendant's conduct. Both Harry and Harris were asked whether they had seen a knife in defendant's hand or in the hand of the other man. Both said "no." Harry commented that he had not been able to continuously watch defendant's hands during the incident.

The State also presented the testimony of Dr. Anish Nehalani, who was the on-call surgeon at Muhlenberg Medical Center on the night in question. He examined Harry and observed "a stab wound to the liver" as well as another stab wound to the "right upper quadrant of the abdomen." According to Nehalani, Harry would have "bled to death" unless surgery had been performed immediately. When asked whether he had been able to come to a conclusion about the cause of the injury, Nehalani answered, "no question about it, it was a stab wound." He opined that the wounds had been inflicted with an object "like a knife, . . . a sharp object" which penetrated through the "eight layers" of skin, muscle and subcutaneous fat between the surface of the body and the liver. Nehalani opined that a penetrating wound of that nature could not have been caused by a stick, or a tree branch. Nehalani also opined that the amount of force necessary to inflict such an injury was "a massive amount of force." When asked whether the box cutter that had been found in Harry's pocket could have caused Harry's injuries, he answered, "I don't think this would go through to the liver, no."

After the State rested, defendant moved for a judgment of acquittal, arguing that in the absence of any evidence that defendant possessed a knife, the jury would not be entitled to conclude that defendant was guilty of either possessing a knife or using it to stab Harry. The judge denied the motion, reasoning that in light of the nature of the deep and penetrating wound, and the opinion expressed by Dr. Nehalani, that the jury could infer that defendant was in possession of a knife or other sharp object, and used it to stab Harry while the two were struggling and "tussling." After the defense rested, defendant renewed his motion for a judgment of acquittal, which the judge denied for the same reasons he had earlier expressed.

During the charge conference, the judge discussed at considerable length the lesser included offenses he intended to present to the jury, which included: on count one, which charged second-degree aggravated assault, the lesser included offense of third-degree aggravated assault causing significant bodily injury, N.J.S.A. 2C:12-1(b)(7), as well as the disorderly persons offense of simple assault and the petty disorderly persons offense of mutual fighting; on count two, which charged aggravated assault for causing bodily injury purposely or knowingly with a deadly weapon, N.J.S.A. 2C:12-1(b)(2), the lesser included offense of aggravated assault by recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(3), and negligently causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(a)(2), simple assault and mutual fighting. The judge did not propose any lesser included offenses for either count three, possession of a weapon for an unlawful purpose, or count four, unlawful possession of a weapon. Defense counsel made no objection to the proposed lesser included offenses or to the verdict sheet, and, in fact, commented that he was satisfied with the instructions the judge intended to present to the jury.

As we have already noted, the jury found defendant guilty on count one of second-degree aggravated assault, and therefore did not reach any of the lesser included offenses for count one. On count two, after finding defendant not guilty of purposely or knowingly causing bodily injury with a deadly weapon, the jury found defendant guilty of the lesser included offense of recklessly causing bodily injury with a deadly weapon. The jury also returned guilty verdicts on counts three and four.

Prior to sentencing, defendant moved for a judgment notwithstanding the verdict (judgment n.o.v.), arguing that the guilty verdicts were against the weight of the evidence because the State failed to prove that he was the one who stabbed Harry. He also argued the verdict on count one, in which the jury found him guilty of aggravated assault by causing serious bodily injury, was inconsistent with the not guilty verdict on count two, which charged defendant with purposely or knowingly causing bodily injury with a deadly weapon. The judge denied the motion for judgment n.o.v.

II.

We turn to Point I, in which defendant argues that

the judge committed reversible error by refusing to grant his motion for involuntary dismissal at the end of the State's case. Defendant maintains:

The State failed to present any evidence that defendant was in possession of a weapon, or of anything that could be considered a weapon. The State also failed to adduce any evidence that it was defendant who stabbed Mr. Harry. This is particularly troubling when the State failed to establish that the stab wound to Mr. Harry's abdomen and laceration to [Mr. Harry's] liver could [sic] have been caused by the unidentified third party who had accompanied defendant. Likewise, there is no evidence that defendant inflicted upon Mr. Harry such a substantial blow as to lead to a laceration of Mr. Harry's liver.

 

[(Internal citations to the record omitted).]

 

When presented with a defendant's motion for a judgment of acquittal either at the close of the State's case or at the conclusion of all of the testimony, the judge is obliged to deny the motion if

viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

 

In deciding a motion under Rule 3:18-1 for acquittal at the end of the State's case, the judge is not concerned "with the worth, nature or extent (beyond a scintilla) of the evidence," but is concerned only with "its existence, viewed most favorably to the State." State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999) (internal quotation marks and citation omitted).

Moreover, as the trial judge correctly held, a jury's assessment of the proofs is not limited to direct evidence. Indeed, a jury may draw inferences from the evidence whenever it is more probable than not that such an inference is true. State v. Kittrell, 145 N.J. 112, 131 (1996). Such inferences of guilt may be based on circumstantial evidence alone, State v. Franklin, 52 N.J. 386, 406 (1968), which need not exclude every other conceivable scenario in order to establish the guilt of a defendant beyond a reasonable doubt. State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 87 (1997). Moreover, proof of possession of a weapon may be demonstrated by circumstantial evidence as well as direct evidence. State v. Latimore, 197 N.J. Super. 197, 210 (1984), certif. denied, 101 N.J. 328 (1985).

Turning first to defendant's claim that the State failed to prove that Harry's injuries were caused by a knife, we agree with the State's argument that the deep injury, which penetrated eight layers of skin, fat and muscle before reaching the liver, could not have been caused by anything other than a knife or other similar long and sharp object. The jury was also entitled to consider Dr. Nehalani's testimony that the blade on a box cutter is not of sufficient length to cause a stab wound to the liver. This testimony, in conjunction with Harry's statement that he was not able to watch defendant's hands at all times, was more than sufficient to enable the jury to find that Harry had been stabbed with a knife or other sharp object, and to thereby reject the inference that the stab wound was caused by a tree branch or the closed box cutter found in Harry's pocket. We therefore reject defendant's argument that the State failed to prove that Harry's injuries were caused by a knife or other similar long and sharp object.

We turn next to defendant's argument that the State failed to prove beyond a reasonable doubt that it was he, rather than the unidentified male, who stabbed Harry. Before analyzing that contention, we note that the State informed the judge that it was not proceeding on a theory of accomplice liability, but was instead asserting that it was defendant, not the other male, who had stabbed Harry. While the issue of who stabbed Harry is a closer call than the question of whether Harry's injuries were caused by a knife, we are nonetheless satisfied that the State's proofs, taken as a whole, were sufficient to establish that it was defendant, not the unidentified male, who inflicted serious bodily injury on Harry.

In particular, the proofs established that defendant, and not the unidentified male, was the person who had a motive to attack Harry, who was Harris's boyfriend. Second, Harry made it clear that on the two or three occasions that the unidentified mail complied with defendant's command to "hit this mother-f***er," the blows were inflicted to the left side of Harry's face, not to his body. Third, when Harry stepped out of the car, he and defendant were fighting among themselves, and the unidentified male had not yet begun to participate. The jury was entitled to conclude that it was during this period of time that defendant stabbed Harry. When such evidence is viewed in combination, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that it was defendant, not the other male, who stabbed Harry. We thus reject all of the arguments defendant advances in Point I.

III.

 

We turn to Point II, in which defendant maintains that the judge erred in denying his motion for judgment n.o.v. because the guilty verdicts were against the weight of the evidence, and the jury's verdicts on counts one and two were inconsistent.

A jury's verdict is entitled to considerable respect. Therefore, a trial judge's refusal to set aside a jury verdict will not be reversed on appeal unless it clearly and convincingly appears that there was a miscarriage of justice under the law. R. 2:10-1; State v. Carter, 91 N.J. 86, 96 (1982). Here, we are satisfied that the evidence was sufficient to enable the jury to find defendant guilty of possessing a knife or other sharp object, and using it to stab Harry on the night in question. As we have noted, the testimony at trial clearly established that Harry was stabbed, that the wounds could not have been inflicted by any other method, and that the role of the unidentified male was confined to attacking and punching Harry in the face, thereby supporting the inference that it was defendant who stabbed Harry in the abdomen and liver. Consequently, no miscarriage of justice occurred, and the judge correctly refused to set aside the verdict on the grounds that the evidence was insufficient to warrant conviction.

We likewise reject defendant's argument that the verdict was inconsistent and required reversal. As the Supreme Court explained in State v. Muhammad, 182 N.J. 551, 578 (2005), "'[e]ach count in an indictment is regarded as if it was a separate indictment.'" (quoting State v. Banko, 182 N.J. 44, 53 (2004)). When evaluating the verdict of a jury, the judge should not attempt to reconcile the counts on which the jury returned a verdict of guilty or not guilty, but must instead confine the analysis to the narrower question of whether each guilty verdict was adequately supported by proof beyond a reasonable doubt. Ibid. So long as that standard is satisfied, even if the verdicts on the various counts are facially inconsistent, a court will not interfere. Ibid. Because each of the guilty verdicts was supported by proof beyond a reasonable doubt, we need not address defendant's arguments any further. We therefore reject all of the arguments advanced in Point II.

IV.

We turn to the claim advanced in defendant's pro se brief. Relying on State v. Villar, 292 N.J. Super. 320, 329 (App. Div. 1996), rev'd, 150 N.J. 503 (1997), he maintains that the lesser included offenses of inflicting bodily injury with a deadly weapon should have been presented to the jury as lesser included offenses of count one, which charged second degree aggravated assault, rather than as lesser included offenses of count two, which charged purposely or knowingly causing bodily injury with a deadly weapon.

Reversing our decision in Villar, supra, 292 N.J. Super. 320, the Supreme Court held that the trial court properly instructed the jury on the second degree aggravated assault, even though the judge did not include the offense of bodily injury with a deadly weapon as a lesser included offense of second degree aggravated assault. State v. Villar, 150 N.J. 503, 517 n.4 (1997). The Court reasoned that because defendant was already charged with those lesser included offenses in the indictment, there was no need to also include them as lesser included offenses of second degree aggravated assault. Ibid. The Court instructed trial courts to "construct with counsel a sequence of the offenses to be charged." Ibid. If there is no objection by counsel to the offenses to be charged, "reviewing courts should hesitate to reverse convictions because of the [jury] charge." Ibid.

Here, during the charge conference, the judge discussed at length the lesser included offenses he intended to present to the jury. Defense counsel did not object to the proposed lesser included offenses or to the verdict sheet, and even commented that he was satisfied with the jury instructions. Since the lesser included offenses were charged as separate offenses, and because no objection was made during the charge conference, defendant's reliance on Villar is misplaced. We therefore reject the claim defendant advances in his supplemental brief.

V.

In Point III, defendant maintains his sentence was excessive. When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:

The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . . , they need fear no second-guessing.'" State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).

 

[Ibid.]

 

If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608 (internal quotation and citation omitted).

Defendant's prior record included a 1997 conviction for second degree drug distribution and a conviction later that year for fourth degree resisting arrest. He also has a number of municipal convictions. In light of that prior record, the judge's finding of aggravating factors three, six and nine -- the risk defendant would commit another offense, the extent of his prior record and the need for deterrence -- were well-supported. Therefore, the sentence the judge imposed, which was only one year above the midpoint of the sentencing range for second-degree aggravated assault, does not satisfy the standard articulated in Bieniek and Roth for disturbing a sentence, and was well within the broad discretion afforded trial judges when imposing sentence. We therefore reject the claim defendant advances in Point III.

We do, however, remand for the correction of the judgment of conviction (JOC) on Indictment No. 08-06-0495 to correct the portion of the JOC that specifies the conviction was the result of a negotiated plea. Defendant makes no argument respecting his conviction on Indictment No. 08-06-0496.

Affirmed. Remanded for the correction of the JOC on Indictment No. 08-06-0495.

1 The convictions on the remaining counts, which charged fourth-degree aggravated assault, possession of a weapon for an unlawful purpose and unlawful possession of a weapon, were merged with count one.