STATE OF NEW JERSEY v. BERNARD JENKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1317-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARD JENKINS,

Defendant-Appellant.

_______________________________________

December 13, 2012

 

Argued November 14, 2012 Decided

 

Before Judges Yannotti and Harris.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-09-2770.

 

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, on the brief).

 

Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).

PER CURIAM

Defendant Bernard Jenkins appeals from the judgment of conviction entered by the trial court on July 8, 2011, and challenges his convictions for second-degree aggravated assault, serious bodily injury, and other offenses, as well as the sentences imposed. For the reasons that follow, we affirm.

I.

Defendant was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two); and fourth-degree throwing a bodily fluid at certain law enforcement officers, N.J.S.A. 2C:12-13 (count three). Defendant was tried before a jury.

At the trial, Corrections Officer Russell Hicks (Hicks) testified that on June 27, 2008, he was working in the Camden County Correctional Facility. Hicks was beginning his shift at around 8:00 a.m., when he noticed a disturbance in the back of a cell, which consisted of banging and yelling. Hicks learned that defendant was causing the disturbance.

Defendant asked one of the officers to identify the staff person on duty, and defendant was told that it was "Hicks" or "Hickson." Defendant said that, "Hickson, huh, I don't like that motherfucker." Hicks asked the staff person to step away from the door to defendant's cell.

Hicks approached and asked defendant, "What is the problem? What do you need from us? What's going on?" According to Hicks, defendant replied, "[F]uck you." Defendant told Hicks "to get out of [his] face" and said that, if Hicks entered the cell, he would do what he said he would do to the officer on the previous shift. Defendant said, "I'm going to fuck you up too."

Hicks went to discuss the matter with his partner, Corrections Officer Michael Bush (Bush). Hicks returned to defendant's cell and told him he was going to confiscate his sneakers so that he could not bang and kick the cell door. Defendant threw a sneaker toward the door and the other sneaker toward his bed. Hicks ordered defendant to back away. Defendant backed up, and Hicks stepped into the cell. Bush followed him. Hicks testified that, when he leaned over to pick up one of the sneakers, defendant stepped forward and threw a punch at him. An altercation ensued. At one point, defendant lunged at Hicks and bit him on the face. Bush tried to stop defendant but was unable to do so. Defendant continued to bite Hicks. Eventually, defendant released Hicks. Hicks testified that defendant spit at him, hitting him in the face and arm. He later found out that it contained a piece of his skin. Hicks was taken to the hospital for treatment. He required stitches on his face, and he remained out of work for three weeks.

Bush testified that defendant had been kicking the door to his cell and yelling when he arrived to start his shift at around 8:00 a.m. Bush saw Hicks open the door to defendant's cell. He said that Hicks and defendant became "entangled." Hicks was trying to get defendant to the ground, but defendant reached up and bit him on the right side of his chin. Bush saw defendant spit out skin he had bitten off Hick's face.

Corrections Officer Ronald Makaymowicz (Makaymowicz) testified that he recorded in his log that defendant was "being a pain." After the incident, Makaymowicz took defendant for medical treatment. He heard defendant say, "Fuck all you mother fuckers. I told you what I would do." In addition, Corrections Officer Steven McComb testified that he heard defendant say, "I told you that I would get that motherfucker if he came into my cell."

Defendant testified on his own behalf. He stated that he had asked Hicks to call a sergeant because he was having medical issues, as a result of being shot nine times in the leg and face. Hicks refused. Defendant said that Hicks put on gloves, took out a walkie-talkie and entered the cell. According to defendant, Hicks started beating him with the walkie-talkie and his fists. Hicks claimed that Bush stood by and watched Hicks beat him.

Defendant said that he told Hicks to stop but he did not listen. Defendant thought his life was in danger. Defendant presented a photograph, which he described as showing his face bleeding from the gashes that Hicks inflicted with the walkie-talkie. Defendant claimed that Hicks had knocked out some teeth and chipped other teeth.

Defendant further testified that he could not remember biting Hicks. He stated that he received a concussion in the altercation. Defendant recalled trying to defend himself, but said that he was not in any condition to fight because of his many medical issues. On cross-examination, defendant again denied biting Hicks, but acknowledged that Hicks' face was injured in the incident.

The jury found defendant guilty on all three counts. The court found that defendant qualified for extended-term sentencing as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). On count one, the court sentenced defendant to a term of twelve years in State prison, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent five-year term on count two, and a consecutive eighteen-month term on count three. Appropriate monetary penalties also were imposed.

Defendant appeals and raises the following arguments for our consideration:

POINT I:

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BECAUSE THE JUDGE IMPROPERLY LIMITED DEFENSE COUNSEL'S SUMMATION ARGUMENT. U.S. CONST., Amends. VI, XIV; N.J. Const. Art. I, 1, 10.

 

POINT II

DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S. CONST., Amends. VIII, XIV; N.J. Const. Art. I, 1, 12.

II.

We turn first to defendant's contention that he was denied his right to a fair trial because the trial judge erroneously limited defense counsel's summation. Defendant contends that, in doing so, the judge violated his rights to present a defense and the effective assistance of counsel.

Defendant's argument is based on the following. Defendant testified at trial. When the assistant prosecutor cross-examined defendant, she asked about defendant's prior convictions:

Q. You actually have five prior felony convictions?

 

A. Yes, ma'am.

 

Q. Starting with the first one, on March 26, 2004, you were convicted of a third degree offense, isn't that correct?

 

A. Yes, ma'am.

 

Q. And on June 10, 2005, you were convicted of a fourth degree and a third degree offense?

 

A. Yes, ma'am.

 

Q. And you were ultimately sentenced to . . . three years in New Jersey State Prison, eighteen months without parole eligibility on both of those convictions?

 

A. Yes, ma'am.

 

Q. That was a fourth degree and the third degree?

 

A. Yes, ma'am.

 

Q. On June 10, 2005 you were again convicted of a third degree offense?

 

A. Yes, ma'am.

 

Q. You were sentenced to three years [in] New Jersey State Prison, eighteen months without parole eligibility?

 

A. Yes, ma'am.

 

Q. And on June 10, 2005 you were sentenced [on] another fourth degree offense, [to] three years [in] New Jersey State Prison, eighteen months without parole eligibility?

 

A. Yes, ma'am.

 

On re-direct, defendant's attorney asked defendant a series of questions regarding his prior convictions. Defendant testified that he pled guilty when he was guilty of an offense, and he pled not guilty when he was not guilty of the offense. The assistant prosecutor objected to the questions, but after a sidebar conference, defense counsel continued with this line of questions. The following colloquy ensued:

Q. I'll ask you again, Mr. Jenkins, when you're guilty of a crime, you plead guilty, don t you.

 

A. Yes, sir.

 

Q. Okay. But when you're not guilty, you don't plead guilty, you don't plead guilty, right?

 

A. Yeah. I'm not guilty because he had no business being with me in my cell.

 

Q. No, I'm not asking that. When you're guilty, you plead guilty, yes?

 

A. Yes, sir.

 

Q. And when you're not guilty, you don t plead guilty, is that right?

 

A. I'm not guilty.

 

During the charge conference, the assistant prosecutor moved to limit defendant's summation, arguing that defense counsel could not use defendant's testimony regarding his prior guilty pleas to show that he was a person of good character. The trial court ruled that the testimony regarding the pleas had been properly admitted, and defense counsel could use the testimony in arguing that defendant was a credible witness, but he could not argue that defendant's pleas demonstrated good character.

In his summation, defense counsel reminded the jury of defendant's testimony regarding his guilty pleas. Among other things, counsel stated that the matter was being tried because defendant pled not guilty. Counsel said, "He's pled not guilty and there's a reason for that. He's not guilty."

The trial judge instructed the jury concerning defendant's prior convictions:

Now you have also heard evidence that the defendant, Bernard Jenkins, has previously [been] convicted of crimes. This evidence may only be used in determining the credibility or believability of the defendant's testimony. You may not conclude that the defendant committed the crime[s] charged in this case or is more likely to have committed the crime charged simply because he committed a crime on another occasion. A jury has a right to consider whether a person, who has previously failed to comply with society's rules as demonstrated through a criminal conviction, would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of any crime. You may consider in determining the issue, the degree of prior convictions and when they occurred.

 

Our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the defendant and not for any other purpose. You are not, however, obligated to change your opinion as to the credibility of the defendant simply because of prior convictions. You may consider such evidence along with all other factors previously discussed in determining the credibility of the defendant.

 

Defendant contends that the trial judge's ruling limiting defense counsel's summation was erroneous. We do not agree.

"N.J.R.E. 404(a)(1) and 405(a) require that evidence of good character must concern a character trait pertinent to the charged offenses and must be in the form of reputation or opinion testimony." State v. Baluch, 341 N.J. Super. 141, 194 (App. Div.), certif. denied, 170 N.J. 89 (2001). Defendant's testimony that he pleads guilty when he is guilty, had no bearing upon any character trait "pertinent to the charged offenses." Ibid.

Furthermore, defendant's testimony regarding his prior guilty pleas was not in the form of "reputation or opinion testimony." Ibid. In addition, testimony regarding a person's character may not be based upon testimony as to specific acts or conduct. State v. Reyes, 50 N.J. 454, 468 (1967). See also N.J.R.E. 405 (providing that specific instances of conduct that are not the subject of a criminal conviction are inadmissible to prove character).

As the trial judge ruled, defendant's prior guilty pleas were admissible for the purpose of "affecting" his credibility. N.J.R.E. 609; State v. Hamilton, 193 N.J. 255, 256-57 (2008); State v. Sands, 76 N.J. 127, 144-45 (1978). Indeed, defendant's testimony concerning his pleas was offered in an apparent attempt to bolster his credibility. The testimony was not, however, admissible to prove that he "acted in conformity" with his prior practice when he pled not guilty in this case. N.J.R.E. 404(b). Moreover, evidence of other crimes, wrongs or acts 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." Ibid. However, defendant's testimony regarding his prior guilty pleas had no bearing on any material issue in this case, other than his credibility.

We are therefore satisfied that the trial judge correctly determined that defense counsel could not argue in his summation that defendant's testimony regarding his prior guilty pleas was evidence of his good character. The judge correctly instructed the jury that this testimony could only be considered in assessing defendant's credibility.

III.

Defendant also argues that his sentence is excessive. Here, the court sentenced defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The court imposed a twelve-year term of incarceration on count one, charging second-degree aggravated assault, serious bodily injury, with a period of parole ineligibility as prescribed by NERA. On count two, charging third-degree aggravated assault upon a law enforcement officer, the court imposed a concurrent five-year term. On count three, which charged fourth-degree throwing a bodily fluid at certain law enforcement officers, the court imposed a consecutive term of eighteen months.

We note initially that the State agrees that counts one and two should have been merged for sentencing purposes. Accordingly, we will address defendant's arguments, as they pertain to the sentences imposed on counts one and three.

Defendant argues that his sentences are excessive because the court found aggravating factor eight, N.J.S.A. 2C:44-1(a)(8) (offense committed against a law enforcement officer). Defendant contends that, by doing so, the court engaged in double-counting because count three involved an offense committed against a law enforcement officer.

The record reflects, however, that the judge made separate findings of aggravating and mitigating factors regarding each count, and the judge only considered aggravating factor eight when sentencing defendant on count one. Because the victim's status as a law enforcement officer is not an element of the offense charged in count one, the judge did not engage in impermissible double-counting when sentencing defendant.

Defendant additionally argues that a reduced sentence is warranted because the judge found mitigating factors three, N.J.S.A. 2C:44-1(b)(3) (defendant acted under a strong provocation), and four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct, though failing to establish a defense). The record reflects, however, that the judge specifically found that mitigating factor three does not apply. The court found and gave some weight to mitigating factor four. That finding does not warrant a different sentence.

We are therefore satisfied that the sentences imposed on counts one and three are not manifestly excessive or unduly punitive, do not represent an abuse of the court's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed and remanded to the trial court for entry of a corrected judgment of conviction merging counts one and two.