STATE OF NEW JERSEY v. JAMES E. GREISHABER JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0084-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES E. GREISHABER, JR.,

Defendant-Appellant.

__________________________________

November 21, 2012

 

Submitted October 22, 2012 - Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-06-172.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief).

 

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). Defendant contends primarily that the judge deprived him of fairly asserting the affirmative defense of self-defense by excluding evidence that the victim had acted violently toward another person in the past. Although the exclusion of this testimony was conceivably erroneous, we nevertheless conclude that defendant was not deprived of a fair trial as a consequence of that exclusion.

The State's proofs showed that the alleged victim,1 who had dated defendant's then-girlfriend, was walking home when defendant yelled at him from across the street. Defendant and the victim engaged in a heated verbal exchange and defendant then punched the victim in the face multiple times. Three witnesses testified that defendant was the aggressor. The victim sustained a cut on his chin and under his eye, a split lip, and a bump on the back of his head. Defendant sustained small lacerations. The two had a history of violence with one another.

Defendant asserted the defense of self-defense. He testified that the victim was the aggressor and stated that "[i]t's almost like [the victim] bent to punch me, but he changed his mind and just went to push me instead and . . . his hand kind of slid off my face. And I basically swung at the same time." Defendant admitted that he punched the victim one or two times and then, once the victim fell to one knee, defendant "pushed [the victim] with [his] foot," in a way that was "[k]ind of . . . but not really" a kick. Defendant did so "to knock him off balance" and to keep him from "coming at me" again.

Defendant further testified that he stood his ground in defending himself because he had walked away "many times before and [he] felt that [the victim] was just threatening [him] once again and how many times c[ould] [he] run from [the victim]?" Defendant claimed that the victim had been harassing him "for about two and a half years," and that his relationship with his girlfriend, the victim's former girlfriend, caused "a lot" of problems with the victim.

The judge conducted a three-day jury trial in December 2010. The State produced testimony from five witnesses and the victim. Defendant testified at the trial and called one witness. The jury found defendant guilty of third-degree aggravated assault, as a lesser-included offense of second-degree aggravated assault. Thereafter, [t]he judge sentenced defendant to three years in prison. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL JUDGE INAPPROPRIATELY BARRED DEFENDANT FROM INTRODUCING EVIDENCE THAT THE VICTIM HAD ACTED VIOLENTLY TOWARD ANOTHER IN THE PAST -- EVIDENCE THAT WAS INTRODUCED TO BOLSTER DEFENDANT'S CLAIM THAT HE ACTED OUT OF SELF-DEFENSE IN FEAR FOR HIS SAFETY; THE JUDGE INCORRECTLY LIMITED SUCH EVIDENCE TO A PRIOR FIGHT WHICH THE VICTIM HAD WITH THE DEFENDANT, DISALLOWING EVIDENCE THAT THE VICTIM HAD ATTACKED ANOTHER MAN, IN A SEPARATE INCIDENT, WITH A CROWBAR.

 

POINT II

THE JURY INSTRUCTIONS ERRED BY REPEATEDLY TELLING THE JURY TO RETURN A GUILTY VERDICT SOLELY IF THE JURORS FOUND DEFENDANT HAD CAUSED OR ATTEMPTED TO CAUSE THE REQUISITE LEVEL OF INJURY WITH THE REQUISITE MENS REA -- A POINT WHICH WAS NOT THE MAJOR ISSUE IN DISPUTE WHEN SELF-DEFENSE WAS THE SOLE DEFENSE IN THE CASE -- AND THEN THE ERROR WAS COMPOUNDED WHEN THE JUDGE OMITTED ANY REFERENCE TO SELF-DEFENSE FROM THE RE-CHARGE ON AGGRAVATED ASSAULT. (NOT RAISED BELOW).

 

POINT III

DEFENDANT SHOULD HAVE BEEN AWARDED JAIL CREDIT FOR TIME HE SPENT IN CUSTODY IN PENNSYLVANIA AFTER HE WAIVED EXTRADITION, BUT BEFORE THE ACTUAL TRANSFER TOOK PLACE.

I.

We begin by addressing defendant's contention that the judge erred by preventing him from testifying that he feared the victim because the victim had previously attacked another man with a crowbar, an incident about which defendant had no personal knowledge. Defendant argues that the crowbar incident is relevant to his defense of self-defense and constitutes admissible other crimes evidence pursuant to N.J.R.E. 404(b). As a result of excluding such evidence, defendant asserts that the judge deprived him of a fair trial.

We review evidential rulings of a trial court under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483-84 (1997). "A trial court's ruling will not be upset unless there has been an abuse of that discretion, i.e., there has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied sub nom. Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless it has the capacity to give us a reasonable doubt about the verdict. R. 2:10-2. Although the judge may well have misapplied evidentiary principles in excluding the crowbar incident testimony, any error or abuse of discretion in that ruling, for the reasons we shall explain, was inconsequential.

The admission of evidence of "other crimes, wrongs, or acts" is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "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." Ibid. "Although N.J.R.E. 404(b) enumerates certain instances when other crime evidence will be admissible, the specification of particular instances is only illustrative." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b) (2012).

Although courts generally apply N.J.R.E. 404(b) to evidence of "other crimes, wrongs, or acts" of the defendant in a criminal case, the rule is readily applicable to "other crimes, wrongs, or acts" of a prosecution witness. See State v. Gookins, 135 N.J. 42, 46 (1994). "[A]n accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978). Thus, a defendant may "defensively" use evidence of "other crimes, wrongs, or acts" of a state's witness "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." Ibid.

The Supreme Court has stated that

[t]he standard for introducing defensive other-crimes evidence is lower than the standard imposed on "the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility."

 

[State v. Cook, 179 N.J. 533, 566 (2004) (alteration in original) (quoting Garfole, supra, 76 N.J. at 452-53).]

 

The Court has also held that

[e]ven if defensive other-crimes evidence passes the "simple" relevancy test,[2] however, a court must still consider whether "its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of . . . confusing the issues or of misleading the jury."

 

[Ibid. (alteration in original) (internal quotation marks omitted) (quoting Garfole, supra, 76 N.J. at 455-56).]

The "important coordinate factors [of N.J.R.E. 403(a)], highly material to the sound administration of the trial process, require appraisal along with the factor of the degree of relevance of defendant's proffered proofs." Garfole, supra, 76 N.J. at 455. Thus, a court must still determine whether the probative value of the evidence "is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a); Cook, supra, 179 N.J. at 567.

Here, the judge conducted an N.J.R.E. 403 analysis, concluded that testimony about the crowbar incident was more prejudicial than probative, and excluded testimony about the incident. The judge stated that

[t]he reason why I didn't permit [evidence about the crowbar incident] is because, obviously, we would go off on a tangent on this thing. How would the prosecutor be able to come back and say anything about [the alleged crowbar victim]. And[, defendant] had information, as I indicated at side-bar to you . . . his testimony was [that] on a prior occasion [the victim] came like a raging bull, attacked [defendant] in front of his girlfriend and his own child. And he got into a fight with him and he ended up getting I guess second best in that fight. So you already had this in the record. To go on a whim with any additional hearsay statements,[3] the prosecutor really can't rebut during the trial, I felt was, and I weighed the evidence, it appeared to me that the probative value is outweighed by the prejudicial fact. And also[,] how is the prosecutor going to[,] in the middle of trial[,] rebut something about [the crowbar victim]? That I just wanted to put on the record why I did what I did at side-bar. I mentioned it to you, but I went into it a little bit more.

 

The judge failed to address the degree to which the identified prejudice outweighed the claimed probative value of the crowbar incident testimony. As Rule 403 instructs, the court has the authority to exclude unfairly prejudicial evidence only if such prejudice "substantially" outweighs its probative value. The undifferentiated balance that the judge expressed in his oral ruling on the State's objection did not comport with the more rigorous standard expressed in Rule 403.

However, this apparent oversight does not compel our intervention, because the judge did allow defense counsel to explore the putative victim's history of violence with defendant himself in sufficient depth to present his claim of self-defense. It would have been merely cumulative for the defense to present testimony about the crowbar incident with a third party, a matter on which defendant significantly lacked any personal knowledge.

Defendant's reliance on State v. Jenewicz, 193 N.J. 440 (2008) is misplaced. In Jenewicz, the defendant admitted that he fatally shot the victim, but claimed that he acted in self-defense. Id. at 446. The Court stated that N.J.R.E. 404(b) "permits defendants alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant's belief that deadly force was necessary." Id. at 462. Here, defendant did not demonstrate that he had sufficient knowledge of the crowbar incident, unlike Jenewicz who "had knowledge of [an] incident in which [the victim] chased Jenewicz with a shotgun." Id. at 463. The Court stated that

[p]lainly, Jenewicz had knowledge of the incident in which [the victim] chased him with a shotgun. Although Jenewicz could not testify that he saw [the victim] chasing him with a shotgun, Jenewicz testified that (1) he and [the victim] had just argued; (2) [the victim] followed him after he ran upstairs; (3) he heard a loud noise on the staircase; and (4) he went to the staircase where he saw the broken shotgun and [the victim] with an injured right arm.

 

[Ibid.]

 

As a result, the Court concluded that "Jenewicz's testimony demonstrated sufficient knowledge of [the victim's] behavior during the [shotgun] incident to permit . . . testimony concerning the incident under Rule 404(b)." Ibid. No such personal knowledge was established here.

Here, although the judge excluded testimony about the crowbar incident, he afforded defendant great latitude to explain why he feared the victim. Defendant testified as follows on direct examination:

Q: Have you ever had an altercation with [the victim] prior to that night?

 

A: Yes.

 

Q: What happened?

 

. . . .

 

A: [T]here were so many incidents . . . . It's like an ongoing thing. . . .

 

Q: [The victim testified about a prior] incident . . . of rolling around on the ground . . . . What actually happened?

 

A: [Yes,] I remember [seeing the victim] charging up [an] alley [towards me] . . . looking like a raging bull . . . .

 

. . . .

 

Q: Was he striking you while you were on the ground?

 

A: Yeah. . . .

 

. . . .

 

Q: Now, what was going through your mind [during the confrontation in question]?

 

A: I was upset too. I was scared.

 

Q: Why were you scared?

 

A: [I]t was just like [the] last time. I didn't want it to be like [the] last time. The last time we got into a fight.

 

Q: And [the victim] ended up on top [of you the last time]?

 

A: Yes.

 

Q: [A]re there any other reasons you might be scared of [the victim]?

 

A: Yeah.

 

Q: Like what?

 

A: Well, he's a tough guy, you know. He's been in fights before and . . . I know how he is.

 

Q: As to what you heard about [the victim] being a very tough guy and getting into other fights, any particular stories [that] stick out in your mind?

 

A: Yeah.

 

Q: What story is that?

 

A: When he got into a fight with somebody else at a bar.[4]

 

. . . .

Q: Were you afraid of [the victim]?

 

A: Yeah.

 

On cross-examination, defendant testified as follows:

Q: [T]here was a prior history with you and [the victim]?

 

A: Yes.

 

. . . .

 

Q: Why didn't you just . . . go [on] your way . . . ?

 

A: I was scared of him when we were face-to-face.

 

. . . .

 

Q: [Y]ou know his reputation, and you were scared of him, from what happened in the past . . . . [W]hy didn't you just . . . leave?

 

A: Because I've done that many times before and I felt that he was just threatening me once again and how many times can I run from this guy? How many times can I retreat? Why should I have to, you know.

 

We are not dealing with a situation where defendant's only basis for fearing the victim was that defendant had heard about the crowbar incident. On the contrary, defendant provided detailed testimony that he was scared of the victim based on his ongoing dispute with the victim for approximately two and a half years. Defendant explained to the jury that the victim had previously attacked him "like a raging bull," acted like a "tough guy," engaged in "other fights," and threatened him in the past. Therefore, the judge did not deprive defendant of a fair trial because defendant provided an extensive basis from which the jury could have reasonably concluded that he kicked or push-kicked the victim while acting in self-defense. Indeed, the not guilty verdict on the charge of second-degree aggravated assault suggests that the jury did take into account, albeit not fully, defendant's explanation of his state of mind.

II.

Next, defendant contends that the judge deprived him of a fair trial by failing to timely instruct the jury on the defense of self-defense and omitting any reference to self-defense in response to the jury's request for a re-charge "on the various forms of assault."

It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied sub nom. Wakefield v. New Jersey, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Because defendant did not object to the charge, we must determine whether any error contributed to an unjust and unwarranted result. R. 2:10-2; Wakefield, supra, 190 N.J. at 471.

In defense counsel's closing, he noted that "the evidence has shown [the jury] that [defendant] acted in self-defense . . . and . . . the wors[t] thing he did was engage in a mutual fight with another man." After summations, the judge charged the jury on the aggravated assault and lesser-included offenses5 and then stated: "All right, [time for] deliberations." Defense counsel then informed the judge that he "didn't read [the] self-defense instruction." Thereafter, the judge instructed the jury on self-defense and stated that

A person may also use nondeadly force in his own defense. If you find that the defendant did use nondeadly force to defend himself, then you must determine whether that force was justified. . . .

 

A person may use nondeadly force to protect himself in the following conditions: (1) the person reasonably believes that he must use force; and (2) the person reasonably believes that the use of force was immediately necessary; and (3) the person reasonably believes that he was using force to defend himself against an unlawful force; and (4) the person reasonably believes that the level of the intensity of the force he uses is proportionate to the unlawful force he is attempting to defend against.

 

. . . .

 

The State has the burden of proof to prove to you beyond a reasonable doubt that the defense of self-defense is untrue. . . . The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.[6]

 

. . . .

 

Now[,] you'll notice the jury sheet . . . does not have a question on there about self-defense. Self-defense is one of the things that the State has to prove beyond a reasonable doubt. So, that he's not entitled to that. The defendant isn't entitled to that. So if you feel that the State has not met its burden and has not proven that the defendant did not act in self-defense, then you must find the defendant not guilty.

 

During a sidebar discussion, the judge asked counsel, "While you are here[,] any corrections or changes to the charge?" Defense counsel answered: "Judge, I thought you gave a wonderful charge." Although it was preferable to instruct the jury on the defense of self-defense when the judge instructed the jury on the assault offenses, we conclude that the charge as a whole did not contribute to an unjust and unwarranted result. R. 2:10-2.

After some deliberation, the jury "asked for a read-back of the charges." The judge then stated that he was "just going to read back the aggravated assault and the lesser-included offenses" because "[t]hey didn't ask for anything else." After re-instructing the jury on the assault charges the following day, defense counsel said: "Judge, I believe you read exactly what we agreed to." The jury had also requested further clarification on the terms "temporary loss of senses," "attempt," and "reckless," which the judge provided without objection. He did not provide the jury with a re-charge on self-defense because they did not request one. See State v. Gallicchio, 44 N.J. 540, 549 (1965) (stating that "[h]ad the trial court been in error as to its interpretation of the plain words of the jury's request, the jury would certainly have made a further request"). As such, we see no plain error.

III.

We conclude that defendant's remaining argument that the judge erred by not giving him jail credit for certain days that he spent incarcerated in Pennsylvania awaiting extradition to New Jersey is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief comments.

Defendant's custody in Pennsylvania is attributable to Pennsylvania charges. The Pennsylvania charges were dismissed, defendant was available for transport to New Jersey on August 11, 2010, and he was transferred six days later. The judge did not grant defendant jail credit for time served before August 11, 2010, because he was held on Pennsylvania charges. See State v. Hemphill, 391 N.J. Super. 67, 71 (App. Div.) (stating that "credit is impermissible if the confinement is due to service of . . . another charge"), certif. denied, 192 N.J. 68 (2007). Rather, the judge gave defendant credit for the six days while waiting extradition.7

Affirmed.

1 We acknowledge that defendant claims that he himself was the victim.

2 Relevant evidence is any evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "Courts consider evidence to be probative when it has a tendency to establish the proposition that it is offered to prove." State v. Burr, 195 N.J. 119, 127 (2008) (internal quotation marks omitted). "In evaluating the probative value of evidence, our inquiry focuses on the logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (internal quotation marks omitted).

3 We disagree that any statements about the crowbar incident constitute hearsay. Any statements about the crowbar incident were not offered for their truth, but rather to show that defendant feared the victim. See N.J.R.E. 801(c) (defining hearsay).

4 The judge sustained the assistant prosecutor's objection but did not strike the answer from the record.

5 The judge charged the jury on second-degree attempt to commit aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), simple assault, N.J.S.A. 2C:12-1a(1), and disorderly persons offense, N.J.S.A. 2C:33-2a(1).

6 These three paragraphs mirror the New Jersey self-defense model jury charge. Model Jury Charge (Criminal), N.J.S.A. 2C:3-4, "Justification Self Defense" (2011).

7 The judge awarded a total of 194 days of jail credit for time served.