Opinion
DOCKET NO. A-4237-12T3
03-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERRY J. VAZQUEZ, a/k/a JERRY J. VASQUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William P. Fisher, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-09-0954. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William P. Fisher, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from convictions stemming from his assault of his live-in girlfriend, who walks with a cane due to a herniated disc and knee surgery. The couple had a documented history of domestic violence. On one occasion, defendant was the victim. For the first time on appeal, defendant raises two issues regarding the judge's charge to the jury, which we find meritless. We affirm his convictions, except for criminal restraint, which we determine is not a separate crime under these circumstances. The elimination of this conviction does not affect the length of defendant's sentence.
A jury convicted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), (count one); third-degree aggravated assault with a metal broom pole, N.J.S.A. 2C:12-1(b)(2), (count two); third-degree possession of a weapon, the metal pole, for an unlawful purpose, N.J.S.A. 2C:39-4(d), (count three); fourth-degree unlawful possession of a weapon, the same metal pole, N.J.S.A. 2C:39-5(d), (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a), (count five). The judge merged count two into count one and count four into count three. On count one, defendant was sentenced to five years in custody, with 85% parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, defendant was sentenced to three years in custody, to run concurrently with count one. On count five, criminal restraint, defendant was sentenced to nine months in custody, to run concurrently with the other sentences.
At defendant's sentencing hearing, the judge mistakenly stated that criminal restraint was a fourth-degree offense and sentenced him accordingly. N.J.S.A. 2C:43-6(a)(4).
The victim testified to the following events. After an argument that began in the kitchen, defendant beat her with a metal broomstick while she sat on the living room couch. When she tried to get up, defendant pushed her back down and continued to hit her. At some point, the broom broke. In the course of the beating, the victim's legs were bruised and tendons in her arm were severed. The victim was bleeding when she ultimately left the apartment seeking help. The jury was shown photographs of her injuries from the night of the incident and at the time of trial. The officer who accompanied her to the hospital testified that the injuries on the victim's arm were so deep that "you could see the bone." The surgeon who treated her testified that her wound was a "blunt-force injury causing a severe laceration or gash" and that this injury was not like a puncture wound.
Defendant testified to the following version of events, claiming self-defense. The victim wanted to be taken to Trenton to obtain drugs. When he refused to take her, an argument began in the kitchen. As defendant walked toward the living room, the victim hit him on his head and back with the broom. When he turned around, the broom broke after hitting his arm. The broken piece fell between sections of the living room couch. Defendant claimed the victim was injured when she fell onto the broken broom handle after defendant pushed her so that he could get away.
On appeal, defendant raised the following issues:
POINT I: THE JURY INSTRUCTION: (A) CONFUSED THE BURDEN OF PROOF WITH REGARD TO SELF-DEFENSE, AND (B) ALSO ERRED BY REPEATEDLY TELLING JURORS TO RETURN A GUILTY VERDICT SOLELY IF THE JURY FOUND DEFENDANT HAD CAUSED THE REQUISITE INUURY WITH THE REQUISITE MENS REA; MOREOVER, SELF-DEFENSE PLAINLY APPLIED TO THE CHARGE OF CRIMINAL RESTRAINT AND SHOULD HAVE BEEN INSTRUCTED AS SUCH. (NOT RAISED BELOW)
POINT II: WHEN THE JURY ASKED A QUESTION DURING DELIBERATIONS, THE TRIAL JUDGE IMPROPERLY GAVE THE JURY WRITTEN INSTRUCTIONS WITHOUT ORAL INSTRUCTIONS IN ORDER TO ANSWER THE QUESTION. (NOT RAISED BELOW)
POINT III: THERE WAS NO PROOF OFFERED BY THE STATE THAT A CRIMINAL RESTRAINT OCCURRED IN THE CASE INDEPENDENT FROM THE ASSAULT.
The first two issues raised by defendant were not raised at trial and relate to the judge's instructions to the jury. Jury instructions not objected to at trial "must be evaluated under the plain error standard." State v. Savage, 172 N.J. 374, 387 (2002). "[A]n appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting R. 2:10-2).
"It is a well-settled principle that appropriate and proper jury charges are essential to a fair trial." Savage, supra, 172 N.J. at 387; see also State v. LaBrutto, 114 N.J. 187, 203 (1989). "[E]rroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990).
I
Defendant claims that the judge "badly muddled" the self-defense charge. Because the judge gave the jury the standard charge on self-defense, Model Jury Charge (Criminal), "Justification-Self Defense" (2011), it appears defendant is complaining that the model jury charge does not sufficiently emphasize that the burden of proof remains on the State to prove defendant's guilt. The judge told the jury:
The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue. This defense only applies if all of the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.
If the State does not satisfy this burden and you do have a reasonable doubt, then it must be resolved in favor of the [d]efendant
and you must allow the claim of self defense and acquit the [d]efendant.We deem this issue to be without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).
For the first time on appeal, defendant also objects to when in the jury charge the self-defense instruction was given: after the instructions pertaining to the elements of the offenses charged. The judge, however, directed the jurors to "consider my instructions in their entirety and not pick out any particular instruction and overemphasize it." We expect that the jurors follow the instructions of the judge. State v. T.J.M., ___ N.J. ___, ___ (2015) (slip op. at 23). Some instructions must be given before others. It is pure speculation to assume that the jury made up its mind before listening to a later instruction.
To the contrary, it is generally accepted among trial practitioners that under the concepts of "primacy" and "recency," jurors retain best the first and last things heard. See Whiteplume v. State, 841 P.2d 1332, 1340 (Wyo. 1992).
Defendant's argument that the judge should have charged the jury that self-defense applied to criminal restraint is rendered moot by our decision to dismiss the charge of criminal restraint.
II
Defendant also raises for the first time on appeal that the judge committed plain error when he gave the jury only written instructions in response to a note that requested "the definition of serious bodily injury, significant bodily injury, as well as causing injury recklessly under [the] circumstances . . . and possibly to get a paper copy of the definitions." After receiving this note, with counsel present, as the jury was being dismissed, the trial court asked the jury foreperson, "[D]o you feel it is necessary for me to read it or do you think just a written copy . . . would suffice?" The foreperson replied, "I think a written copy would suffice."
This case was decided before the January 2014 revision of Rule 1:8-8 (b)(2) in which it became mandatory in criminal cases to submit all "written charges to the jury unless the court finds that preparation of written instructions will cause undue delay in the trial." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:8-8 (2015). The written instructions are for the jury's use during its deliberations. R. 1:8-8(b)(2).
The judge told counsel that he would either read the jury the requested definition or provide it to them in writing. Neither party objected. Defense counsel requested only that the entire packet of instructions, including all counts, be given to the jury. The judge sent the entire packet so that a single charge would not be "overemphasized."
It is firmly established that "'[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" Savage, supra, 172 N.J. at 394 (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). "[T]he trial judge is obliged to answer jury questions posed during the course of deliberations clearly and accurately and in a manner designed to clear its confusion, which ordinarily requires explanation beyond rereading the original charge. The court's failure to do so may require reversal." Pressler & Verniero, supra, comment 7 on R. 1:8-7. However, in State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), this court found no abuse of discretion when a trial judge only repeated instructions previously given.
"The failure of the jury to ask for further clarification or indicate confusion demonstrates that the response was satisfactory." State v. McClain, 248 N.J. Super. 409, 421 (App. Div.), certif. denied, 126 N.J. 341 (1991).
Here, the jury's request was seemingly unambiguous and the judge responded in the way specifically, if not exclusively, requested by the jury: in writing. No further clarification on the subject was requested, which "demonstrates that the response was satisfactory." Ibid.
Defendant relies on State v. Lindsey, 245 N.J. Super. 466 (App. Div. 1991). Defendant states, "The Lindsey court plainly held that all instructions must be read orally to a jury." There, we found reversible error when the judge failed to read aloud each charge in its entirety prior to the start of jury deliberation even though defense counsel had not objected. Id. at 470, 474. We stated, "At the minimum, the entire instructions should be read to the jury. We cannot assume that each juror will independently read a written instruction or that a foreperson will read it to the entire jury in an objective fashion, as a judge would do." Id. at 474. Unlike the judge in Lindsey, the judge here did read all of the instructions to the jury prior to its deliberation. We do not conclude that providing the jury with the complete written jury instructions, as suggested by defense counsel, constitutes plain error.
III
Defendant seeks a judgment of acquittal on his conviction for criminal restraint, a third-degree crime for which he was sentenced to a concurrent custodial term. Defendant argues that there was no evidence of criminal restraint that "was any more than incidental to any assault which occurred."
Criminal restraint, as charged here, is committed when a person "knowingly[] [r]estrains another unlawfully in circumstances exposing the other to risk of serious bodily injury[.]" N.J.S.A. 2C:13-2(a). At the close of the State's case, defendant sought an acquittal on the criminal restraint charge pursuant to Rule 3:18-1.
Rule 3:18-1 states, in pertinent part:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
In denying defendant's motion for dismissal of this charge, the judge discussed each element of the offense. The judge reasoned that a jury could find that defendant knowingly restrained the victim as evidenced by her testimony that defendant "kept holding her down; and therefore, a jury could interpret . . . that she was restrained, that he would not let her up off the couch and that he continued to hit her with the metal pole."
The judge reasoned that a jury could find that defendant knew the restraint was unlawful, stating, "[O]bviously, I think that when he held her down, the jury can certainly find this was unlawful[.]" As to the third element, exposing the victim to serious bodily injury, the trial court stated that when defendant "would not let her up despite the fact he repeatedly struck her[, the jury could] find that her restraint was under circumstances in which the [d]efendant knowingly exposed her to the risk of serious bodily injury." The judge further stated that the third element could be seen to be satisfied "when [defendant] refused to let her up off of the couch and he continued to hit her . . . ." The judge did not identify any risk of injury to the victim from not being permitted to get up from the couch other than the assault itself nor was the manner in which she was "pushed down" separate from the assault.
At closing, the State argued:
[Y]ou heard [the victim] explain that when she tried to get up while he was hitting her, he shoved her back down and continued to hit her. He was restraining her movement and it was easy for him to do so given her mobility issues. He knew that the restraint was unlawful and that he knowingly exposed [the victim] to the risk of serious bodily injury."The State does not point to any risk of injury to the victim other than from the assault itself.
Prior to the assault, the victim sat on the couch: defendant did not place her there. Nor did he keep her there before the assault began or after the assault ended. She had not been using her cane inside the apartment at that time: defendant had not taken it away from her. There is no evidence she was at risk of serious bodily injury other than from the assault by this defendant.
"The offense of criminal restraint occupies an intermediary position between the crime of kidnapping and the disorderly persons offense of false imprisonment." New Jersey Practice, Criminal Law § 10.2, at 358 (Gerald D. Miller) (rev. 4th ed. 2005) (footnotes omitted). "The essence of N.J.S.A. 2C:13-2(a)] is that the restraint exposes the victim to a risk of serious bodily injury." Ibid. (emphasis added). "There should be no separate conviction for criminal restraint when that restraint is merely incidental to the commission of another crime." Id. at 360. In Savage, supra, 172 N.J. at 400, our Supreme Court held that a charge of criminal restraint, as the lesser included offense of kidnapping, was warranted when, having accompanied his brother and the victim to an isolated stairway, and knowing that his brother intended to assault the victim, the defendant kicked the victim when he tried to get up during the assault. "[T]he jury could have found that, by assisting [his brother] in restraining [the victim], [the defendant] exposed him to 'serious bodily injury' at [his brother's] hands, meeting the elements of criminal restraint." Ibid.
In State v. Marks, 201 N.J. Super. 514, 523 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986), an employee-defendant locked the front door of his employer's store after one of his accomplices directed the owner, at gunpoint, to unlock the safe. Thereafter, the defendant and his accomplice beat and bound the victim, who was subsequently placed, bleeding, in a store bathroom while the robbery was completed. Id. at 524. Before leaving, the accomplices bound the defendant and left him lying on the store owner, feigning to be a victim as well. Ibid. The defendant was convicted of criminal restraint in addition to robbery, assault and other charges. Id. at 520. Because criminal restraint was not the subject of the appeal, it is unclear which of defendant's actions led to the criminal restraint conviction. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:13-2 (2014-2015) cites to Marks, stating, "[Criminal restraint] had been held applicable in some situations where victims were prevented from leaving their own premises during a robbery." (emphasis added).
Unlike Savage and Marks, here there is no act of restraint separate from the assault and no risk of substantial bodily injury other than that inflicted directly by defendant during the assault. See State v. Lyles, 291 N.J. Super. 517, 527 (1996) (finding no independent crime of kidnapping during a date-rape when victim was not put at risk of any other or more serious crime than the rape itself), certif. denied sub nom. State v. R.F.L., 148 N.J. 460 ( 1997); State v. La France, 117 N.J. 583, 585 (1990)(reinstating a kidnapping conviction when a husband was bound and struck by an robber inside his home and his wife was sexually assaulted, because his restraint was for a substantial period and more than "merely incidental" to the underlying crimes).
The fact that defendant shoved the victim back down on the couch and continued to hit her was incidental to the aggravated assault and not the separate crime of criminal restraint. Thus his third-degree conviction for criminal restraint is vacated.
We affirm in part, reverse in part and remand for the entry of a revised judgment of conviction reflecting our decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION