STATE OF NEW JERSEY v. GOLDA HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1344-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GOLDA HARRIS,

Defendant-Appellant.

_________________________________________________

August 23, 2013

Submitted April 30, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from Superior Court of New Jersey,

Law Division, Hunterdon County, Indictment No. 10-05-0189.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Golda Harris appeals from her August 12, 2011 judgment of conviction and sentence. In March 2010, a Hunterdon County Grand Jury charged defendant, who was an inmate at the Edna Mahan Correctional Facility (EMCF) at the time of the incident, with: third-degree terroristic threats against Vicki Hartman (count one) and against Laleetha Holland (count two), N.J.S.A. 2C:12-3; fourth-degree throwing bodily fluid at certain law enforcement officers, N.J.S.A. 2C:12-13 (count three); and fourth-degree harassment against Hartman (count four) and against Holland (count five), N.J.S.A. 2C:33-4(a). A jury convicted defendant of counts one, four, and five, and acquitted her of the two remaining counts. The trial judge sentenced defendant to four years imprisonment on count one and concurrent one-year terms on counts four and five with the sentences to run consecutive to her current sentence.

On appeal, defendant argues that:

POINT I: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO HARRIS.

POINT II: THE TRIAL JUDGE ERRED IN DENYING HARRIS THE OPPORTUNITY TO PRESENT RELEVANT EVIDENCE.

POINT III: THE SENTENCE IMPOSED ON HARRIS'S CONVICTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

Having considered defendant's arguments in light of the applicable legal principles, we affirm.

We discern the following facts from the record. On September 2, 2009, Vicki Hartman, a licensed practical nurse employed at the EMCF, dispensed medication to inmates in the Administration Segregation ("Ad Seg") section of the facility, a specialized unit where inmates are housed for disciplinary reasons in single cells. Upon reaching defendant's cell, John Reynolds, a senior corrections officer accompanying Hartman on her rounds, unlocked the food port in defendant's cell door to enable Hartman to dispense medications to her. Defendant spoke softly to Hartman through the open port. When Hartman moved closer to hear her, defendant threw through the port a large wad of toilet paper containing a brown substance, striking Hartman in the face and shirt.

According to Hartman, after defendant struck her with the substance, defendant seemed "very joyous" about her actions, laughed, and said, "I fucking don't like you anyway, bitch, and I'm going to do it again." Defendant also said angrily that she was going to "get" Hartman and Holland when she "got out of lock," which Hartman understood to mean when defendant was released from "detention status" and had a "better range of getting [her]." Similarly, Senior Correction Officer Laleetha Holland testified that when she arrived at the scene defendant pointed at her and said in a loud, angry, and agitated voice, "I'm going to kill you." According to Holland, defendant then called Hartman "a fucking bitch," and said, "I threw shit in your face and . . . I'll do it again." Defendant also said, "I'm going to get you, you all going to pay for this . . . ."

Hartman, who was shaking, upset, and hysterical, screamed that defendant "just threw shit on me," and ran to wash the substance off and change her clothes. Hartman testified that she knew the substance was fecal matter because of its "consistency and formation . . . ." Three correction officers, Reynolds, Holland and Harriet Gray, testified that it was difficult to tell what the substance was but agreed it appeared to be potatoes and meat sauce from breakfast. Later that day, Gray asked defendant why she had thrown the substance at Hartman, and defendant responded that she wanted "to get that bitch back" for bothering her on some prior date while she had been standing in the medication line.

Defendant testified that on September 2, 2009, she had thrown "gravy meat" out of the port in her cell, not because she was angry at Hartman, but because she wanted to be charged with a violation of prison regulations and sent to another facility to get away from Holland and some EMCF inmates. She did not intend to hit Hartman, and denied making any threatening statements. She acknowledged that she had called Hartman a "bitch," but only in response to Hartman having called her a "bitch."

Defendant reported that she had a herniated disc and a "nerve impingement" and explained that a few months prior to this incident some inmates in the general population unit had threatened her because she walked with a cane. Since protective custody was generally not available in the facility, defendant committed minor rule infractions in order to be sent to the Ad Seg unit, where she was housed in a single cell away from the other inmates.

According to defendant, two months prior to the food-throwing incident, on July 30, 2009, while she was in the Ad Seg unit, Holland, who often called her a "fake" for walking with a cane, threw an orange at her through the food port, striking her in the stomach. Defendant reported the incident internally and to the prosecutor's office, and requested protective custody, which was denied. She also filed an administrative complaint and criminal charges against Holland. Defendant claimed that Holland threatened to "kill" her for filing the report, and threatened to have someone beat her when she returned to the general inmate population.

On appeal, defendant argues that the verdict is against the weight of the evidence and does not support her conviction for terroristic threats and harassment. First, we note that this contention generally will not be considered on appeal because defendant failed to move for a new trial on that basis as required by Rule 2:10-1. State v. Reininger, 430 N.J. Super. 517, 538 (App. Div. 2013); State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.), certif. denied, 102 N.J. 312 (1985).

"The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "There is no 'miscarriage of justice' when 'any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Jackson, 211 N.J. 394, 413-14 (2012) (quoting State v. Afanador, 134 N.J. 162, 178 (1993)). We can, however, absent a motion, reach the merits of such a claim "if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). After carefully reviewing the record, we are satisfied that there was no miscarriage of justice here.

Defendant was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3(a), for acts committed against Hartman. "To sustain a conviction for this offense, the State must prove, beyond a reasonable doubt, that defendant: (1) threatened to commit a crime of violence; and (2) he intended to terrorize the victim, or acted in reckless disregard of the risk of doing so." State v. Tindell, 417 N.J. Super. 530, 553 (App. Div. 2011) (citing State v. Conklin, 394 N.J. Super. 408, 410-11 (App. Div. 2007)). "The communication must be of such a character that a reasonable person would have believed the threat." Ibid. Here, the jury could rationally have found beyond a reasonable doubt that defendant threatened to commit a crime of violence against Hartman by threatening to "get" her after defendant "got out of lock." See State v. Muhammad, 182 N.J. 551, 577 (2005). Thus, the record contained sufficient evidence for the jury to find the essential elements of terroristic threats.

Defendant also was convicted of fourth-degree harassment for acts committed against Hartman and Holland, in violation of N.J.S.A. 2C:33-4(a).1 To sustain a conviction for this offense the State must prove: "(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997). "[A]nnoyance means to disturb, irritate, or bother." Id. at 580. "[T]here need only be proof of a single such communication, as long as defendant's purpose in making it . . . was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D. v. M.D.F., 207 N.J. 458, 477 (2011). "A finding of a purpose to harass may be inferred from the evidence presented." Hoffman, supra, 149 N.J. at 577. "Common sense and experience may inform that determination." Ibid.

We find there was substantial credible evidence that defendant called Hartman and Holland "bitch," used profanities, threatened to "get" Hartman and to "kill" Holland, and threatened to make them "pay for this." Additionally, she threw an offensive substance at Hartman. Based on this evidence, a jury could rationally find beyond a reasonable doubt that defendant made one or more communications to Hartman and Holland with a purpose to harass and in a manner that was likely to cause annoyance or alarm. Id. at 575. Thus, there was sufficient evidence for the jury to find all the elements of harassment. We conclude that the jury's findings of guilt on harassment against Hartman and Holland and terroristic threats against Hartman were not against the weight of the evidence.

We also are satisfied that the trial court did not err in excluding from evidence the results of defendant's polygraph test, the civil suit defendant filed against Holland and others, and defendant's statements to her psychologist. We review the trial court's evidentiary rulings under a deferential standard, that is, "it should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)).

"As a general rule, polygraph results are not admissible in evidence in New Jersey," because of ongoing, serious questions about the reliability of such evidence. State v. A.O., 198 N.J. 69, 83 (2009). A "very narrow exception" to the rule exists when there is a pre-polygraph stipulation between the parties that the results, which must be obtained by a qualified examiner and in accordance with established techniques, will be admitted into evidence. Id. at 86; State v. McDavitt, 62 N.J. 36, 46 (1972). Here, the defense attorney, without getting the pretest stipulation from the prosecutor, arranged a polygraph, which was not covered by the narrow McDavitt exception. Accordingly, the court properly excluded the results of the defense polygraph test.

Defendant also alleges that the court erred in not allowing her to present evidence about the civil complaint she filed against the Department of Corrections and some EMCF staff, including Holland, arising out of the July 2009 incident during which Holland allegedly threw an orange at her. She argues this evidence was relevant and admissible to show why the correctional facility employees had a motive to lie about the events that occurred on September 2, 2009. We disagree.

The trial judge allowed defendant to testify in great detail as to the "orange incident," including that she filed a criminal complaint against Holland, and the judge admitted into evidence defendant's administrative complaint about the incident. The jury thus heard the substance of the relevant and material information contained in the civil complaint, which defendant alleges proved the employees' motive for fabricating the incident. In light of the abundance of testimonial evidence to prove the same point, the probative value of the civil complaint was greatly diminished and we find no abuse of discretion in its exclusion. See State v. Taylor, 350 N.J. Super. 20, 37 (App. Div.) (character evidence properly excluded when dispute was collateral and might have confused the jury), certif. denied, 174 N.J. 190 (2002); Showalter v. Barilari, Inc., 312 N.J. Super. 494, 514 (App. Div. 1998) (evidence omitted as needlessly cumulative where other evidence established the fact).

We also find the trial court did not abuse its discretion in denying defendant's request to testify about her out-of-court statements to a psychologist and submit the psychologist's report in order to prove the truth of her testimony. Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible unless the statement falls within an exception provided by evidence rules or other law. N.J.R.E. 802; State v. Gore, 205 N.J. 363, 375 (2011). Defendant's statements to her psychologist are hearsay, and we find no indication in this record that any of the hearsay exceptions apply.

Lastly, defendant challenges her sentence as excessive. Our "review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). A reviewing court may only modify the sentence if the application of the facts to the law constitutes such a clear error of judgment that it "shocks the judicial conscience." State v. Roth, 95 N.J.334, 363-64 (1984). We may not substitute our assessment of aggravating and mitigating factors for that of the trial court. State v. Bieniek, 200 N.J. 601, 608 (2010).

In sentencing defendant the court found two aggravating factors: the risk that defendant will commit another offense, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (9). The court found no mitigating factors, N.J.S.A. 2C:44-1(b), and determined that the aggravating factors outweighed the nonexistent mitigating factors. The ordinary term of imprisonment for a crime of the third degree is between three and five years, and for a crime of the fourth degree, it shall not exceed eighteen months. N.J.S.A. 2C:43-6(a)(3), (4). The trial judge sentenced defendant to four years on count one, in the midpoint of that range, and to one year on counts four and five. We find that the judge stated sufficient reasons for imposing the sentence. R. 3:21-4(g).

We conclude that the judge's findings as to the aggravating and mitigating factors are supported by the record and the sentence does not shock our conscience.

Affirmed.

1 N.J.S.A. 2C:33-4(e) provides that "[a] person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment . . . as the result of a conviction of any indictable offense under the laws of this State, any other state or the United States." There is no dispute that defendant was serving a term of imprisonment at the time she committed the instant offense.