STATE OF NEW JERSEY v. RODNEY F. EDISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0264-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY F. EDISON, a/k/a

ROBERT FRANKLIN, RODNEY

FRANKLIN, RODNEY EDISON,

RODNEY FRANCIS EDISON,

RODNEY EDISON, JR.,

SLIM EDISON, ANTHONY JASPER,

GEORGE EDWARDS, RODNEY EIDSON,

and RODNEY FRANCES EDISON,

Defendant-Appellant.

__________________________

October 10, 2013

Submitted September 11, 2013 - Decided

Before Judges Fuentes, Simonelli and

Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-07-0674 and 09-04-0684.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Rodney F. Edison was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), as a lesser included offense of second-degree aggravated assault; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.1 The charges stemmed from defendant's assault of Darrin Shefton with a large stick. In a separate trial, the same jury found defendant guilty of fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a.

The trial judge granted the State's motion to impose an extended-term sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to an aggregate eight-year term of imprisonment with four years of parole ineligibility on the first convictions and a consecutive eighteen months with nine months of parole ineligibility on the second conviction.

The record reveals that between 1:00 p.m. and 2:00 p.m. on January 5, 2009, Shefton was walking with his friend, Pam, on a street in New Brunswick. Shefton saw defendant, whom he knew, holding a "big stick," which Shefton described as a piece of wood approximately three inches in diameter and approximately two and one-half to three feet long. Shefton denied the stick was a two-by-four and did not know where that description of the stick came from.

Shefton stopped to use a pay phone and Pam stopped to talk to a friend. While Shefton was on the pay phone, defendant approached him and asked angrily, "you got my money?" Shefton responded, "what are you talking about. I don't have any money. Get out of here." Defendant replied, "I think you got my money," and struck Shefton in the leg with the stick. Defendant then ran away with Shefton in pursuit. Defendant stopped and struck Shefton in the forehead, causing a two-inch laceration. When defendant tried to strike Shefton again, Shefton blocked the blow, grabbed the stick, and threw it toward defendant as defendant ran away. The stick missed defendant and landed underneath a parked car. Although the police searched the area later on, the stick was never found.

Shefton told the two police officers who had responded to the scene what happened and gave defendant's nickname and a description. He subsequently gave the police a videotaped statement and identified defendant from a photo array. Defendant was arrested and, after waiving his Miranda2 rights gave a videotaped statement. Defendant admitted he had kicked Shefton in the leg, but claimed they had engaged in a mutual fight without weapons. Defendant denied he struck Shefton in the head with an object, and gave a cavalier and mocking response when asked about Shefton's forehead injury.

Shefton was bleeding profusely from his forehead wound and believed he might bleed to death. He instructed Pam to call 9-1-1. The State sought to introduce the 9-1-1 call to show how the term "two-by-four" came to describe the stick, not to prove that defendant had used a two-by-four. The judge ruled the call was admissible because Pam's comments were "clearly to assist in an emergency, to assist [an] individual who was hurt"; there was nothing indicating that Pam "would reasonably believe [the call] would later be used at trial"; and Pam's comments were non-testimonial. Thereafter, with defendant's consent, a six-second redacted version of the call was played to the jury. After Pam told the dispatcher that the attacker had used a "stick," the following colloquy occurred:

DISPATCHER: And what kind of stick did he use, a two-by-four?

PAM: Yeah. Yeah. Something like that.

DISPATCHER: Huh? He used a piece of wood?

PAM: Yeah.

The judge then instructed the jury as follows:

Okay. Folks, you just heard a portion, as the State asked, through this witness, of a 911 call. And, as you may have realized, that from time to time, there are breaks in the audio, what you're hearing. That's because you're not hearing the entire interview or the entire tape. You're hearing various selections from the tape, that the [p]rosecutor, and the [d]efense [c]ounsel, and the [c]ourt have agreed are appropriate as evidence in this case.

Now, you're not to speculate or wonder, in any way, what you're not hearing. You will just recall what you did hear. That's what you are supposed to consider. Again, keep in mind, that the tape, what you hear on the tape, is evidential. And you're not to speculate about anything that you do not hear on the tape. Okay. You just heard a portion of it. Just keep that in mind.

It is against these facts that defendant raises the following contentions:

POINT I

PAM'S 911 CALL, MADE AFTER ALL DANGER TO SHEFTON HAD PASSED, WAS IRRELEVANT; IT WAS TESTIMONIAL AND NOT ADMISSIBLE AS A PRESENT SENSE IMPRESSION. ITS ADMISSION INTO EVIDENCE VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S CONFRONTATION RIGHTS UNDER CRAWFORD V. WASHINGTON BECAUSE PAM WAS NOT CROSS-EXAMINED. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. [1], [PARAS.] 1, 9 AND 10.

A. Establishing the derivation of the term "two-by-four" was irrelevant to any issue to be decided by the jury and, consequently, the 911 tape was inadmissible.

B. Pam's hearsay declaration in the 911 tape was inadmissible under Crawford v. Washington, even if it might formerly have been admitted under an exception to the rule against hearsay.

C. Pam's 911 call contained a testimonial statement that was not a present sense impression[] and [was] inadmissible under Crawford.

D. Pam's testimonial statement[s] on the 911 tape were inadmissible under Crawford because Pam was not unavailable to testify and had not been cross-examined.

E. Conclusion

POINT II

NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST.[,] AMEND VI[;] N.J. CONST. (1947), ART. [1], [PAR.] 10. (Partially Raised Below).

A. The prosecutor misstated the law effectively telling the jurors that if they had reasonable doubt, they should "write a letter" rather than acquit.

B. The prosecutor's comments distorting the facts and arguing facts that were not in evidence misled the jury.

1. Comment that [defendant] removed the weapon from the scene was contrary to the evidence.

2. Comments about the fictitious "Susie" were speculative and improperly expanded the facts in order to excuse the police for failing to seek out the potential witness.

3. The visual aid referring to Pam as "a witness" violated the court's order regarding the 911 tape and hopelessly confused the jury in a manner that was unaffected by the court's attempted curative instruction.

C. The prosecutor improperly exaggerated and exalted his own role as representative of the citizens of our State while demonizing the defendant and denigrating the defense.

D. Conclusion.

POINT III

THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL OR, IN THE ALTERNATIVE, TO ISSUE AN EFFECTIVE CURATIVE INSTRUCTION WHEN, DISREGARDING THE COURT'S EARLIER ORDER ADDRESSING WHAT PAM, THE 911 CALLER, HAD SEEN, THE PROSECUTOR REFERRED TO HER AS A "WITNESS." U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. [1], [PARAS.] 1, 9 AND 10.

POINT IV

THE COURT'S DECISION TO GIVE A FLIGHT INSTRUCTION, TO THEN OMIT IN THE INSTRUCTION DEFENDANT'S EXPLANATION FOR HIS DEPARTURE FROM THE SCENE, AND TO PERMIT THE PROSECUTOR TO INVITE THE JURY TO INFER GUILT FROM THE MERE FACT OF [DEFENDANT'S] DEPARTURE WERE GRIEVOUS ERRORS THAT DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST.[,] AMEND[S]. V, XIV; N.J. CONST. (1947)[,] ART. [1], [PARAS.] 1, 9, 10. (Partially raised below).

POINT V

THIS MATTER MUST BE REMANDED FOR RE-SENTENCING BECAUSE THE TRIAL COURT FAILED TO TAKE INTO ACCOUNT THE FULL RANGE OF EXTENDED[-]TERM SENTENCES AVAILABLE TO IT AND FAILED TO GUARD AGAINST DOUBLE COUNTING [DEFENDANT'S] PRIOR RECORD.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

Pam's statements to the 9-1-1 operator described an ongoing emergency. Thus, the statements were non-testimonial under Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-75, 165 L. Ed. 2d 224, 237 (2006), and did not violate defendant's right of confrontation under Crawford v. Washington, 541 U.S. 36, 50-53, 124 S. Ct. 1354, 1363-66, 158 L. Ed. 2d 177, 192-93 (2004). In any event, defendant consented to playing the redacted version, thus precluding him from raising this as a ground for reversal. State v. Smith, 262 N.J. Super. 487, 516-17 (App. Div.), certif. denied, 134 N.J. 476 (1993).

There was no prosecutorial misconduct. The prosecutor's summation comments properly responded to defendant's attack on the alleged deficiencies in the police practices used in this case, and the comments were based on reasonable inference and were not substantially prejudicial.

Defendant did not object to the flight charge, never requested that the judge include an explanation for his flight, and never provided an explanation as to why he fled. Further, the charge given mirrored Model Jury Charge (Criminal), "Flight" (2010). Thus, there was no error, let alone plain error, in the flight charge. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004).

Defendant met the statutory predicates for an extended-term sentence as a persistent offender and was sentenced within the extended-term range for a third-degree conviction. There was no double counting of defendant's prior convictions, the record supported the aggravating and mitigating factors found by the judge, and the sentence does not shock our judicial conscience. State v. Miller, 205 N.J. 109, 127-28 (2011); State v. Bieniek, 200 N.J. 601, 608 (2010).

Affirmed.

1 The jury found defendant not guilty of two counts of first-degree robbery, N.J.S.A. 2C:15-1.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).