Opinion
DOCKET NO. A-0950-12T4
04-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH E. ALLEN, a/k/a JOSEPH JOHNSON, JOE LINDSEY, Defendant-Appellant.
Marcia H. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent, and Manahan. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-05-1296. Marcia H. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant Joseph E. Allen of a crime and a disorderly persons offense: second-degree aggravated assault for severely beating a businessman who was visiting Atlantic City, and hindering prosecution for misrepresenting his identity to the police officer who arrested him. Defendant appeals his convictions as well as his aggregate eighteen-year extended term sentence. He seeks a new trial on the aggravated assault charge on the grounds that the State failed to prove his guilt beyond a reasonable doubt and the trial court committed three errors: it erroneously excluded evidence tending to negate an element of second-degree aggravated assault, refused to permit him to represent himself, and denied his motion to sever the hindering apprehension charge. Defendant also contends the jury acquitted him of hindering apprehension. Lastly, he contends his sentence is excessive.
The court instructed the jury that defendant could be found guilty of aggravated assault if he attempted to cause serious bodily injury to another, knowingly or purposely caused serious bodily injury to another, or caused serious bodily injury to another while acting recklessly under circumstances manifesting extreme indifference to the value of human life; and defined the phrase "serious bodily injury" as bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. The court did not, however, include separate questions on the jury verdict sheet addressing each of the ways in which defendant could commit the crime. Because the jury could have convicted defendant solely on the basis that he knowingly or purposely caused the victim to suffer a protracted loss or impairment of the function of a bodily member or organ, and because the court excluded evidence that had a tendency to negate that element of the offense, we reverse defendant's conviction and sentence as to aggravated assault. Finding no merit in defendant's remaining arguments, we affirm his conviction and sentence for hindering apprehension.
I.
Early one morning in August 2011, in an Atlantic City boardwalk casino hotel room, a businessman in town for a three-day show was severely beaten. A grand jury subsequently charged defendant in a three-count superseding indictment with first-degree robbery, N.J.S.A. 2C:15-1, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). Defendant filed or orally made numerous motions, including motions to dismiss the indictment and to sever the hindering apprehension charge, both of which the trial court denied.
The case was tried in two days in June 2012. On the first day, after the State had presented the testimony of several witnesses, defendant told the court he wanted to represent himself. He eventually agreed to continue with defense counsel provided she ask certain questions that he wanted witnesses to answer. The court ordered defense counsel to ask the questions defendant specified and later ordered counsel to make the points that defendant insisted she make in her summation.
The jury acquitted defendant of robbery, convicted him of second-degree aggravated assault, and convicted him of the lesser-included disorderly persons offense of hindering apprehension. Following the denial of defendant's post-trial motions, the court sentenced defendant on the aggravated assault offense to an extended prison term of eighteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and on the hindering apprehension offense to a concurrent six-month term. The court also imposed appropriate assessments and penalties.
The parties presented the following evidence at trial. The victim, an out-of-state businessman then age forty-two, was staying at a boardwalk casino hotel. On his last night in Atlantic City, he took a walk on the boardwalk and returned to his hotel room with defendant, then age thirty-two. A security camera recorded the two men walking into the room and defendant running out two minutes and twelve seconds later. During the time the two men were in the room, the businessman sustained multiple injuries: a subdural hematoma, that is, a blood clot between the skull and the brain; bruises around both eyes; a two-centimeter laceration above his right eyebrow; a laceration of the right eyelid; a right orbital (eye socket) floor fracture; bruising around both eyes; a small non-displaced nasal fracture; a one and one-half centimeter laceration on the right cheek; a one and one-half centimeter laceration of the upper lip; a one centimeter laceration of the lower lip; and two broken teeth.
Defendant did not dispute that he inflicted these injuries. The parties sharply disputed his motive. The businessman, who was gay, testified that after meeting defendant on the boardwalk and having drinks at a casino, they returned to his hotel room to have consensual sex. The businessman remembered little about what happened once he and defendant entered his hotel room but did remember that he had money in his wallet. An Atlantic City detective who arrived at the hotel room later that morning testified that the businessman's wallet contained no money. The State's theory was that defendant assaulted and robbed the victim.
Defendant testified that he was sitting on a bench getting ready to smoke some marijuana when the businessman approached him. The businessman said he enjoyed marijuana, but did not want to smoke it on the boardwalk, so he invited defendant to his room. The men went directly to the businessman's hotel room to smoke the marijuana and then gamble at the casino. According to defendant, he entered the hotel room and went to the bathroom. When he came out, the businessman "immediately groped in my genital area." Defendant "took two steps back and said, listen, I don't know what you're into, this ain't what I came up here for, but I'm going to leave[.]" Defendant further testified that as soon as he made that statement, the businessman "charged." The two men began to wrestle, and the "wrestling match went from the bathroom to the other end of the bed." All defendant could think about was "this is my life in stake, this is my sexuality, if I let him get the upper hand on me . . . ."
Defendant claimed that as he attempted to "get up off of [the businessman] without laying my hands on him . . . , he immediately jumps up. When he jumps up, that's when I hit him about [eight] to [twelve] times." Defendant explained that he threw the punches to defend himself. He could not get the upper hand during the wrestling match and did not think he could run to the door without the businessman "coming back at me."
Defendant insisted that he had no idea the businessman was going to make a sexual advance. There had been "no conversation, no agreement"; they had not discussed sex.
The businessman fell to the floor after defendant punched him. Defendant then ran out. His knuckle was bleeding, probably from punching the businessman in the teeth. Defendant neither intended to have sex with the businessman nor to rob him. He insisted he acted solely in self-defense.
To establish the extent of the victim's injuries, the State presented medical records, photographic evidence, the victim's and a detective's testimony, and the testimony of three doctors. The photographs depict an open gash above the victim's right eyebrow near the centerline of his nose; a cut, swelling, bruising, and dried blood around his right eye; bruising, and abrasions around his left eye, which is swollen shut; dried blood beneath his nose; a cut and swollen right upper lip; and blood around two broken right upper teeth. An Atlantic City detective who spoke with the victim five days after the incident documented that the victim's "right eye is pretty much completely swollen, looks like stitches above and beneath. The left eye is still discolored, bruised, bandage on [his] nose and hands, cuts."
The businessman described his injuries and testified that he was still seeing neurosurgeons "just to get checked up on my hematoma and I'm still trying to get back into a speech therapy program . . . but my speech has improved." He also testified that he sometimes had double vision in his right eye and that it was sometimes difficult for him to read and concentrate. During cross-examination, he acknowledged that he had resumed putting on shows for his company in mid-September 2011, one and one-half months after his hospitalization.
Defense counsel intended to cross-examine the victim by using the video of a presentation he had given in the latter part of January 2012, approximately five months after the incident. Defense counsel made the following proffer:
Your Honor, [the businessman] presented today as if he had trouble speaking and he has trouble walking when he approached the stand. It's clearly in direct contradiction to what's shown on the video. This was something done just two or three months ago. He continues to present in this way, and I think he's misleading the jury with the presentation here today. This video, just a clip of it, would show that he's able to speak clearly, he's able to continue his employment, he's able to walk. It is a direct contradiction to how he decided to present to this jury today. He made reference to ongoing speech therapy, he stuttered at the beginning of his
presentation, none of that is evident in this video, Judge, and that's why I believe it's relevant.
The prosecutor disagreed with defense counsel's characterization and objected to defense counsel playing the video. The prosecutor said the businessman's speech in the video "seemed exactly the same as it was today in his testimony[.] I'll argue that [the video is] not relevant."
After viewing the video outside of the presence of the jury, the court barred defense counsel from using it on cross-examination. The court noted that its review of the video "indicated that the victim interacted with his audience and presented jokes, pleasantries, instances of some vulgarity, audience interactions, catcalls and . . . trivia, all of which this court finds in no way relevant to any issue before this fact-finder or the court." The court also found "hollow" any "protestations" by defendant that the video would impeach the victim's credibility. The court concluded that "[t]his video and the defense's use of it is an attempt by the defendant to ridicule the victim, to hold him up to scorn, and to make him look like an object of sport."
The court questioned whether defendant could authenticate the video. Deciding that "[N.J.R.E.] 403 is controlling here[,]" and noting "[t]he likelihood of confusion, undue delay, waste of time and misleading the jury are all very real concerns[,]" the court ruled that "the defendant will not be permitted to use this video before this jury." The court did, however, permit defendant to cross-examine the victim "regarding his activities after the fact[.]" Finally, the court reiterated that it heard nothing on the video "with relevance to any of the matters under the indictment. [The victim] did not make reference to the events [of the incident] or any sequelae that he may have following that incident."
The State presented the testimony of three doctors who treated the businessman during his hospitalization following the incident. The trauma surgeon who treated the businessman on the day he was hospitalized took a history, performed a physical examination, and diagnosed the injuries that we have previously enumerated. When asked by the prosecutor whether a subdural hematoma could be a life-threatening injury, the trauma surgeon replied: "A subdural hematoma, a[n] acute subdural hematoma which this was by description, radiographic description and that, an acute subdural hematoma is a life-threatening condition. The nature of that can threaten one's life."
The trauma surgeon recommended a consultation with a neurosurgeon. The consulting neurosurgeon also diagnosed the businessman's injuries as "a closed head injury with a left subdural hemorrhage." The patient also "[h]ad some mild diplopia which is double vision." The doctor recommended that the patient "be watched for serial neurologic evaluation when you're looking for signs of deterioration." The doctor also recommended that the patient be placed on medication to prevent seizures, a "standard protocol for which is usually done for the course of one-week period of time, and also it appeared that [the patient] was tolerating it well, although, if he were to deteriorate and if the blood clot were to become more significant, then I noted that surgery could well be necessary for him."
The last doctor to testify, a neuropsychologist, was called in for a consultation six days after the incident. The doctor noted the patient had "some deficits in naming common objects and he also showed some perseveration which is really repetition, so he got stuck on one of the objects and kind of gave the same response to a different object." The patient had no difficulty computing math problems, but appeared to have mildly impaired memory and reasoning skills. The neuropsychologist diagnosed him with "traumatic brain injury with some mild cognitive impairment following the injury." As to treatment, the neuropsychologist testified:
We follow a model of assessment and education which . . . by research seems to
help people get better more quickly, so I gave him some things to help with his recovery in terms of staying healthy, avoiding alcohol, gradually returning to activities. We find that if you follow the literature on concussions that we try to have people sort of take it easy, take it slow at first, and then gradually build up and not exert themselves at first, avoid alcohol for six months.The neuropsychologist was not asked whether the victim's injuries would result in any permanent residual symptoms.
After the trauma surgeon and neurosurgeon testified, but before the neuropsychologist testified, the State called as a witness the lead Atlantic City detective for the purpose of describing the physical evidence in the businessman's hotel room following the incident. Shortly after the testimony began, defense counsel informed the court that defendant did not agree "with the way I'm going to proceed with cross." During a break in the testimony, counsel further explained that defendant wanted her to cross-examine the detective about grand jury testimony that she did not think was admissible. Defense counsel explained, "that's what the source of the disagreement is." Defense counsel further explained that defendant's proposed cross-examination would elicit inadmissible hearsay and possibly even evidence favorable to the State. Upon further consulting with her client, defense counsel informed the court that defendant intended to make an application to represent himself during the remainder of the trial.
In response, the court conducted a hearing outside of the presence of the jury. After thoroughly questioning defendant about representing himself, the court announced that it would take a recess and make a decision. Defense counsel then asked to conduct a hearing under N.J.R.E. 104 so that defendant could observe how his proposed questions would play out during his counsel's cross-examination of the lead detective. The court accommodated counsel's request and conducted a hearing outside of the jury's presence. Following the hearing, defense counsel renewed her objections to questioning the detective as proposed by defendant.
Ultimately, defendant informed the court: "[i]f you allow her to ask those questions, whatever the outcome may be, I'll continue with her to represent me as my counsel." The court ordered defense counsel to ask the questions and informed counsel that she would be given "great latitude to ask those questions." The court further informed counsel: "[y]ou should take guidance and direction from your client. You make strategic decisions, but it's his case and you should give him some deference in asking those questions and ask them before this jury. If the State decides to make an objection I'll rule on them as appropriate."
When court resumed the next morning, defense counsel again objected to defendant's proposed questions. Counsel said the questions sought to elicit incompetent evidence and did not advance the defense theory of the case. Defendant reiterated that he did not want to represent himself, but due to the tactical conflict about questioning the defendant, the conflict was making him go in that direction. Over defense counsel's objection, the court ordered her to ask the questions. The court also fully informed defendant of the consequences of his decision and defendant nonetheless insisted that defense counsel proceed as directed. When the trial resumed, defense counsel complied with the court's directive and asked the questions defendant had insisted be asked. Later, in summation, over her objection but in compliance with the court's directive, defense counsel made points defendant had insisted that she make.
The State presented one witness to prove the elements of hindering prosecution. Five days after the incident, an Atlantic City police officer arrested defendant. Approximately thirty minutes before seeing defendant on the street, the officer had viewed a hotel surveillance video depicting defendant. When the officer observed defendant walk into a store, the officer called for backup and then went into the store and confronted defendant. The officer explained why he had stopped defendant and requested identification. Defendant produced a driver's license, but the man depicted on the license was someone else. Defendant claimed to be that person. After noticing a cut on defendant's right hand, the officer arrested him and his true identity was later discovered. At trial, defendant testified that he produced the false identification to avoid being arrested on an outstanding Pennsylvania warrant.
II.
Defendant raises the following points for our consideration:
POINT I
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED SECOND-DEGREE AGGRAVATED ASSAULT.
POINT II
THE VIDEO SHOWING THE COMPLAINANT AT WORK FIVE MONTHS AFTER THE ASSAULT WAS RELEVANT TO DETERMINING THE DEGREE OF HIS INJURY; ITS EXCLUSION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE.
POINT III
THE COURT ERRED IN DENYING DEFENDANT'S REPEATED REQUESTS TO REPRESENT HIMSELF AND IN DIRECTING COUNSEL, OVER HER REPEATED OBJECTIONS, TO FOLLOW DEFENDANT'S SCRIPT FOR CROSS-EXAMINATION AND SUMMATION.
POINT IV
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER THE HINDERING-APPREHENSION COUNT BECAUSE HIS DEFENSE TO THAT COUNT REQUIRED HIM TO INTRODUCE AN UNRELATED CONVICTION THAT THE JURY WOULD NOT OTHERWISE HAVE HEARD ABOUT.
POINT V
THE CONVICTION FOR HINDERING APPREHENSION MUST BE VACATED BECAUSE THE JURY ACQUITTED DEFENDANT OF THE OFFENSE.
POINT VI
THE EXTENDED TERM OF 18 YEARS, 15 1/3 YEARS WITHOUT PAROLE, IS EXCESSIVE.
Defendant has filed a pro se supplemental brief in which he raises the following points:
POINT I
THE TRIAL JUDGE'S ERRONEOUS READING OF AND DEVIANCE FROM THE MODEL JURY CHARGE ON SELF[-]DEFENSE CONSTITUTED STRUCTURAL ERROR, OR AT A MINIMUM, AN ABUSE OF DISCRETION. (NOT RAISED BELOW).
POINT II
THE STATE DID NOW PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF AGGRAVATED ASSAULT[.] (Rebuttal to State's Point I)
POINT III
THE TRIAL COURT ERRED BY EXCLUDING A VIDEO DEFENDANT SOUGHT TO INTRODUCE[.] (Rebuttal to State's Point II)
POINT IV
THE STATE'S RELIANCE ON THE INVITED ERROR DOCTRINE, IN RESPONSE TO DEFENDANT'S POINT III, CONCERNING THE PRO SE REPRESENTATION DENIAL AND HAMPERING WITH HIS COUNSEL'S REPRESENTATION, WAS MISPLACED.
POINT V
IT CONSTITUTED STRUCTURAL ERROR FOR THE TRIAL COURT TO DEPRIVE THE DEFENDANT THE ASSISTANCE OF COUNSEL AND HIS RIGHT TO PROCEED PRO SE[.]
Defendant contends in Points I and II that the State failed to prove beyond a reasonable doubt that he committed aggravated assault, and that the trial court excluded evidence relevant to determining the degree of the victim's injuries. We are unpersuaded by the first argument, but agree with the second.
The indictment charged defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), which provides:
A person is guilty of aggravated assault if he: (a) [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]Thus, the State could have proved the offense in at least three ways: by proving that he attempted to cause serious bodily injury to the victim; by proving that he purposely or knowingly caused serious bodily injury to the victim; or by proving that he recklessly caused serious bodily injury to the victim under circumstances manifesting extreme indifference to the value of human life.
The New Jersey Criminal Code defines serious bodily injury as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(b). Serious bodily injury is to be distinguished from "significant bodily injury," defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d). A person commits third-degree aggravated assault if he "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury [.]" N.J.S.A. 2C:12-1(b)(7).
The jury verdict sheet contained a single question concerning the charge of second-degree aggravated assault:
The [d]efendant, Joseph E. Allen, on or about the 1st of August, 2011 in the City of Atlantic City, County of Atlantic and within the jurisdiction of this Court, did attempt to cause serious bodily injury to [the victim], and/or did purposely or knowingly cause serious bodily injury to [the victim], and/or under circumstances manifesting
extreme indifference to the value of human life, did recklessly cause serious bodily injury to [the victim].The jury verdict sheet instructed the jurors to proceed to the hindering apprehension charge if they found defendant guilty of aggravated assault; but if they found defendant not guilty of aggravated assault, to proceed to the next question. The next question concerned third-degree "significant bodily injury" aggravated assault.
Because the jury verdict questionnaire did not include separate questions addressing the different ways in which the jurors could have convicted defendant of second-degree aggravated assault, we do not know the basis for their verdict. The omission is a problem.
The jury could have inferred from the victim's and the doctors' testimony that defendant purposely or knowingly caused the victim to suffer protracted loss or impairment of the function of a bodily member or organ. The medical testimony established, quite clearly, that defendant had suffered significant bodily injury; he had suffered mildly impaired memory and reasoning skills as well as blurred or double vision, a fracture of his eye socket, and a fracture of his nose. And though the doctors were not asked, and therefore did not address, whether any of those injuries would result in "protracted" or permanent impairment, the victim testified that some of the injuries were protracted. Specifically, he testified that he was still seeing many doctors, was attempting to get back into a speech therapy program to improve his speech, sometimes had difficulty reading and concentrating, and sometimes experienced double vision. Defendant's conviction cannot be upheld under that theory, however, because the court barred defendant from producing evidence that tended to negate the victim's testimony concerning the protracted nature of his injuries, namely, the videotape of the victim presenting a show five months after his hospitalization. We conclude the court misapplied its discretion by barring that evidence.
Because defendant did not raise the issue of whether the victim's lay testimony was competent without supporting testimony from a medical expert, we do not address the issue.
The trial court gave three reasons for barring the use during cross-examination of the videotape of the victim's performance: defendant might have difficulty authenticating the video, the video was irrelevant, and in any event, its probative value was outweighed by the risk of "confusion, undue delay, waste of time and misleading the jury." We disagree with the court's assessment for several reasons.
First, concern about whether the video could or could not be authenticated was not a basis for excluding it. The victim gave the presentation recorded in the video and presumably could have authenticated it. But any concerns about authenticating the video could have been addressed in a hearing conducted under N.J.R.E. 104 outside of the presence of the jury.
Second, the video was relevant to whether the victim had sustained injuries resulting in protracted loss or impairment of the function of any bodily member or organ. The State produced no medical evidence concerning the protracted or non-temporary consequences of the victim's injuries. The only testimony came from the victim, but his engaging performance five months after his hospitalization had a "tendency in reason to . . . disprove" that he suffered from continuing — and therefore protracted — impairment, notwithstanding his trial testimony. As our Supreme has noted, photographs possess a "persuasive representational nature." Brenman v. Demello, 191 N.J. 18, 30 (2007); see also State v. Moore, 122 N.J. 420, 466 (1991); State v. Smith, 27 N.J. 433, 449 (1958). That observation applies with equal if not greater force to videotaped events. The evidence was therefore relevant. N.J.R.E. 401.
Nor should the videotape have been excluded under N.J.R.E. 403, which authorizes a court to exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." The probative value of the evidence was substantial; it tended to negate an element of the offense. It is difficult to hypothesize evidence with greater probative value. It is also difficult to perceive undue prejudice to the State; the video merely depicted the victim engaging in a routine performance as part of his business. As a federal court has observed in the context of Rule 403's federal counterpart,
[Fed. R. Evid. 403] does not offer protection against evidence that is merely prejudicial, in the sense of being detrimental to a party's case. Rather, the rule only protects against evidence that is unfairly prejudicial. Evidence is unfairly prejudicial only if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. It is unfairly prejudicial if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.
[Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (footnote, citations, and internal quotation marks omitted).]
In concluding that the trial court erred, we are not disregarding the longstanding principle that "a trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, [i.e.], there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Here, however, because we are able to view the video evidence, the trial court is in no better position than we are to assess what the video depicts. See State v. Diaz-Bridges, 208 N.J. 544, 566 (2012) (holding that "[w]hen the trial court's factual findings are based only on its viewing" of a recording and are not dependent on any testimony uniquely available to the trial court, "deference to the trial court's interpretation is not required[,]" and "[a]ppellate courts need not, and . . . will not, close [their] eyes to the evidence that [they] can observe in the form of [a] videotape[]").
Moreover, in view of the constitutional implications of barring evidence that negates the element of a crime — a criminal defendant is constitutionally entitled to present a meaningful defense, including the presentation of relevant evidence, see U.S. Const., amends. VI, XIV; N.J. Const. art. I, paragraph 1, 10 — such evidence should generally be admitted. See State v. Allen, 139 N.J. Super. 285, 287 (App. Div. 1976) (noting that if competent evidence is exculpatory and "material to the issue of guilt of defendant[,] . . . the evidence could not have been excluded on any theory of discretionary power . . .").
To be sure, the jury could have properly based its verdict on one of the other sets of elements establishing second-degree aggravated assault. For example, having rejected defendant's self-defense claim, the jury reasonably could have inferred from the number and force of defendant's blows to the victim's head, the consequent injuries, and the medical testimony, that defendant attempted to cause the victim serious bodily injury. But the jury could also have found defendant guilty solely on the theory which defendant was precluded from attacking with the excluded videotape. Because the jury verdict sheet did not separately inquire as to each of the theories of aggravated assault the State presented to the jury, and because the jury could have found defendant guilty on a theory that defendant was prevented from attacking with the videotape, we are constrained to reverse the aggravated assault conviction.
We have considered defendant's arguments in Points III through VI as well as the remaining Points in his pro se supplemental brief and determined that they are without sufficient evidence to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only these comments. The court did not deny defendant's request to represent himself. Rather, defendant agreed to continue to have counsel represent him provided she asked certain questions of a witness and made certain points during her closing argument. And we can discern no basis for concluding that the questions counsel was ordered to ask and the points she was ordered to make in her summation had any likelihood of affecting the outcome of defendant's hindering apprehension conviction. R. 2:10-2. Nor did the court abuse its discretion in severing the hindering apprehension charge; it was probative of defendant's consciousness of guilt.
For the foregoing reasons, we reverse defendant's conviction and sentence as to aggravated assault and remand for a new trial, but affirm defendant's conviction and sentence as to hindering apprehension.
Affirmed in part, reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION