STATE OF NEW JERSEY v. RENEE D. EDWARDS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0284-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENEE D. EDWARDS,

Defendant-Appellant.

______________________________

January 16, 2013

Submitted September 11, 2012 - Decided

Before Judges Messano and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-3093 and 08-01-0109.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Camden County Grand Jury returned an indictment charging defendant with second-degree aggravated assault upon Christopher Eife, N.J.S.A 2C:12-1(b)(1) (count one); third-degree aggravated assault upon Larry Robinson, N.J.S.A. 2C:12-1(b)(7) (count two); third-degree subjecting a law enforcement officer, Camden County Sheriff's Officer Eife, to bodily fluid, N.J.S.A. 2C:12-13 (count three); third-degree resisting arrest by using or threatening physical force, N.J.S.A. 2C:29-2(a) (count four); and third-degree aggravated assault on law enforcement officers Eife "and/or" Sheriff's Officer Robinson "and/or" Sheriff's Officer William Murray, N.J.S.A. 2C:12-1(b)(5)(a) (count five).

Following a jury trial, defendant was acquitted on counts one and three; convicted of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1(a), on count two; and convicted on counts four and five.1 Defendant was sentenced to a five year term of imprisonment, subject to a parole ineligibility period of two and one-half years, on counts four and five, and to a six-month term of imprisonment on the lesser-included disorderly persons offense on count two, all to run concurrently. These sentences were to run consecutively to defendant's sentence for a violation of probation on an earlier conviction.2 Defendant now appeals from his convictions and sentence.

I.

We gather the facts from the trial record.

On November 29, 2006, at approximately 6:30 p.m., Laura Schreck, a sergeant with the New Jersey Division of Parole, and two other parole officers, Paul Kapp and Scott Allen, were outside the probation building on North 5th Street in Camden waiting to speak to defendant. Sergeant Schreck had asked the Camden County Sheriff's Office for assistance, if needed, and officers Eife, Robinson and Murray were on the scene to provide back-up to the parole officers. At the time, Schreck was assigned to "an electronic monitoring unit" that would "supervise offenders that are on the bracelet [while] on parole."

Shreck was dressed in plain clothes, but wore a badge on a lanyard around her neck. Kapp was also in plain clothes, but wore a badge and a police jacket. Eife wore plain clothes, but had his badge on a lanyard over a police vest. Murray was in full uniform.

As defendant left the probation building, he was followed by the sheriff's officers, and Schreck approached defendant, identified herself and asked to speak with him. Defendant at this point raised his arms in the air, and tried to walk past Schreck. She then told defendant to stop and stated he was under arrest. Defendant tried to push past her, and the officers on the scene reacted and tried to get defendant to put his hands behind his back for handcuffing. Defendant then began flailing his arms in resistance.

Schreck and the five other officers brought defendant to the ground in a prone position, employed by officers in response to "extreme resistance." Each officer attempted to control a different part of defendant's body. It took the officers approximately two minutes to subdue the struggling defendant.

During the struggle, Robinson and Murray suffered rotator cuff tears, Schreck was cut and bruised on her hand, and Eife claimed he was bitten by defendant and his hand was splattered by defendant's saliva. Eife sought medical attention and was given medication to address possible HIV exposure.

Defendant did not testify at trial, but did present testimony from a medical expert pertaining to injuries he claimed to have suffered during the event. The jury returned the verdict set forth above.

The State moved to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The trial judge denied the motion, and acknowledged that while defendant was eligible for sentencing as a persistent offender, "an adequate sentence [could] be administered to the defendant without the imposition of an extended term."

The trial judge found and applied aggravating factors (3) (risk that defendant will commit another offense); (6) (extent and seriousness of defendant's prior criminal record); and (9) (need to deter defendant and others), N.J.S.A. 2C:44-1(a), but found no mitigating factors. He concluded that the "aggravating factors control and dominate in a significant fashion over the [absent] mitigating factors[,]" and added, "I'm going to also impose parole ineligibility of up to one-half . . . of each term of incarceration that I impose." The trial judge then sentenced defendant as stated earlier.

On the probation violation, the judge re-weighed the aggravating and mitigating factors from the original sentencing, and concluded the aggravating factors now clearly and convincingly outweighed mitigating factor (10) (defendant is particularly likely to respond affirmatively to probation), N.J.S.A. 2C:44-1(b), which, in any event, he found no longer applied. Further, because the probation violation was based on a "completely different crime," the judge ordered the sentences on the indictment to run consecutive to the sentence on the probation violation, citing State v. Yarbough, 100 N.J. 627 (1985).

Defendant raises the following arguments on appeal:

POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED THE JURY THAT THERE "IS NO SUCH ANIMAL AS SIMPLE ASSAULT AGAINST A LAW ENFORCEMENT OFFICER." (Not raised below).

POINT II - THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE'S WITNESSES REPEATEDLY REVEALED, CONTRARY TO N.J.R.E. 404 (B), THAT THE DEFENDANT WAS ON PAROLE FOR A PRIOR OFFENSE AND THEREFORE, IMPLIEDLY, WAS A CONVICTED FELON.

POINT III - THE STATE'S USE OF THE PHRASE "AND/OR" THROUGHOUT THE INDICTMENT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO BE ADVISED OF THE CHARGES AGAINST HIM AND TO A FAIR TRIAL. (Not raised below).

POINT IV - THE SENTENCES OF 5 YEARS WITH 2 1/2 YEARS OF PAROLE INELIGIBILITY ON THE INDICTMENT, AND A CONSECUTIVE 18 MONTHS WITH 9 MONTHS PAROLE INELIGIBILITY ON THE VIOLATION OF PROBATION[,] WERE EXCESSIVE.

Having considered these arguments in light of the applicable legal principles, we affirm.

II.

In Point I, defendant argues that the trial judge erred in his response to jury questions regarding assault upon a law enforcement officer. These questions were tendered by the jury at the end of the first day of deliberations. The first requested the judge to "explain aggravated assault on a law enforcement official[.]" Responding, the judge explained:

Shorthand is, it's a simple assault plus the fact that the defendant knew or should have known that the person he was assaulting was a law enforcement officer either by what the person said or what he was wearing. And that he was in the enforcement of his law enforcement duties. That's basically what it is, but I'll give you the full one, because I need to give you the full one. I just wanted you to know that much.

The second queried, "[W]hat is the difference between simple assault and aggravated assault against a police officer?" The judge responded:

There is no such animal as simple assault against a law enforcement officer. The scenario is that if you have simple assault against a law enforcement the law makes it aggravated. All right?

But if you find that there was a simple assault against that person, and that person may actually be a law enforcement officer, but the defendant had no reason to know or believe that he was a law enforcement officer, then it still may be it still is a simple assault.

After these remarks, the judge promised the jury a "full-blown charge" on Monday, and excused the jury for the weekend, asking them not to "think much about it in the meantime" because they should be "deliberating together."

On the following Monday, the judge explained that he had provided the "shorthand version" previously and would now provide "the full definition." The judge proceeded to read the model charge to the jury again. In pertinent part, the judge told the jury that the State must prove beyond a reasonable doubt that defendant knew that the alleged victim "was a law enforcement officer acting in the performance of his duties," while in uniform, or exhibiting evidence of his authority. Finally, yet again, the judge explained: "it becomes an aggravated assault if you have a simple assault, as I previously defined it for you, plus the State beyond a reasonable doubt proves those other elements regarding the defendant and what he knew about the law enforcement status of . . . those individuals."

Defendant argues that the judge erred by suggesting that simple assault against a police officer is unrecognized in our criminal code, and further erred in his clarification of those remarks by misstating the law by which a defendant assaulting a law enforcement officer could be found guilty of simple assault. This claim was not raised before the trial court and thus must be analyzed under the plain error standard, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, supra, 57 N.J. at 333.

In the context of jury instructions, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). "In reviewing instructions to the jury, the court must not isolate the language challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).

Applying these standards, while the trial judge misstated the law in his initial "shorthand" remarks to the jury at the end of the first day of deliberations, the judge properly explained the law on the next trial day, prior to the jury retiring for continued deliberation. Consequently, while we do not find the judge's initial "shorthand" response to the jury's questions to have been flawless, the error was not "clearly capable of producing an unjust result." R. 2:10-2.

Defendant argues next that testimony by the State's witnesses implied defendant was on parole, and therefore "implied to the jury that defendant had a prior criminal conviction." Defendant asserts that because he did not testify, such evidence was inadmissible. Defendant challenges testimony by the parole officers as to their status as parole officers; testimony by the parole officers regarding their official garb; testimony by a sheriff's officer explaining that he was present to assist the parole division; and testimony establishing that a parole officer informed defendant he was under arrest.

Defendant does not argue that any direct evidence of his probation or parole status was presented at trial, and much of the evidence defendant now challenges was not the subject of objection. The judge ruled in a pre-trial motion that the defendant's prior convictions and "the fact that he was on probation[,] . . . should not be discussed by the State's witnesses." At the outset of trial, after Schreck testified that she wanted to speak to defendant about "an issue that involved the Division of Parole []," the trial judge sustained an objection, and informed the jury to disregard that response. Defendant did not object to testimony that Schreck, Kapp and Allen were parole officers and that the sheriff's officers were present to assist the Division of Parole. Such failure to object suggests a lack of prejudice. See State v. Frost, 158 N.J. 76, 84 (1999).

We also observe that while defendant stipulated that "the law enforcement officers . . . who . . . encountered [defendant] at that time and place . . . were lawfully [there, and] had a right to encounter [defendant]," the State still had to prove that defendant knew they were law enforcement officers acting in the performance of their duties while in uniform or exhibiting evidence of their authority. N.J.S.A. 2C:12-1(b)(5)(a); State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000). We find no error in the admission of this testimony.

Defendant next argues that the use of "and/or" in the indictment denied his right to be advised of the charges against him, and that the use of the language in the jury instructions relieved the jury of its duty to render a unanimous verdict. Initially, the failure of defendant to raise pretrial an objection on the basis of defects in the indictment constitutes a waiver of that objection. R. 3:10-2(c). Consequently, defendant has waived any objection based on the language in the indictment.

Beyond this procedural bar to an attack upon the indictment, however, defendant's claim has no substantive basis. Defendant can hardly argue that he was unable to ascertain if he were being charged with assault offenses. The indictment clearly set forth the date and place of each offense; the victim of the offense; and the offense charged. The indictment thus was not defective. In State v. LeFurge, 101 N.J. 404, 415 (1986), the Court stated:

First, an indictment must "inform the defendant of the offense charged against him, so that he may adequately prepare his defense . . . ." Second, the indictment must be sufficiently specific to enable the defendant to avoid a subsequent prosecution for the same offense. Finally, the indictment must be sufficiently specific "to preclude the substitution by a trial jury of an offense which the grand jury did not in

fact consider or charge."

[citations omitted.]

Here, the indictment was specific enough to prevent a subsequent prosecution for the same offense, and defendant does not suggest that the jury could have substituted an offense that the grand jury did not consider or charge.

Also, as to count five of the indictment, the trial judge explicitly instructed the jury it had to consider the charge separately for each named officer, and drafted the verdict sheet to reflect that requirement. There is no basis for concluding that the trial judge's instructions invited the jury to convict the defendant without being "in substantial agreement as to just what a defendant did before determining his . . . guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). Indeed, the jury understood its task as is evidenced by the fact that it acquitted the defendant on that charge as to officer Eife. Accordingly, there is no question that the jury understood its duty to be unanimous in its verdict, and that defendant was able to prepare his defense.

Defendant's reliance on State v. Gentry, 370 N.J. Super. 413 (App. Div. 2004), rev'd, 183 N.J 30 (2005), is misplaced. There, the jury disagreed over which of two store employees defendant had used force against during a robbery. The jury sought instruction from the trial judge on the issue of unanimity, and indicated that some jurors believed force was used against one employee, while the remainder of the jury believed that force was used against another employee. The judge instructed the jury that unanimity as to which employee was subjected to force was unnecessary, provided they all agreed that force was used or threatened. Thereafter, the jury returned its verdict of guilt. We affirmed, but the Supreme Court reversed adopting Judge Coburn's dissent that "the jurors had to agree unanimously on which acts were committed against which victim." 183 N.J. at 33.

Here, as noted, the jury was specifically instructed that it had to consider the charge specified as to each officer and drafted the verdict sheet accordingly. Hence, the error at issue in Gentry is absent here.

Defendant next challenges his sentence as excessive and argues the trial judge erred in imposing consecutive sentences. Our standard of review of the trial judge's sentencing determinations is limited. State v. Carey, 168 N.J. 413, 426-27 (2001). A sentence that is supported by the record, and consistent with our sentencing guidelines, should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

Applying this limited standard of review, we find no reason to disturb the sentence imposed by the trial judge. The trial judge identified and balanced the aggravating and mitigating factors and his findings were supported by the record. The sentence, further, does not shock the judicial conscience. Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 611-12 (2010) (discouraging appellate courts from "second-guessing" the sentencing assessments of trial judges that are

based upon the pertinent aggravating and mitigating factors).

1 The conviction on count five pertained only to the charge as to Sheriff's Officers Murray and Robinson; the jury returned a verdict of not guilty on the charge as to Sheriff's Officer Eife.

2 At the time of the events giving rise to the indictment, defendant was on probation for a conviction for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The trial judge found a violation of probation and sentenced defendant to an eighteen month term of imprisonment, subject to a nine month period of parole ineligibility.