NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0373-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RODNEY F. BATES, a/k/a RODNEY F. BATES, JR.,
Defendant-Appellant. ______________________________
Submitted December 19, 2018 – Decided June 10, 2019
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-12-3508.
Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his conviction of the second-degree burglary of
his sister's home and the third-degree aggravated assault of his niece. He also
appeals his aggregate sentence of ten years in prison, eighty-five percent of
which is to be served without parole eligibility, a requirement of the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. He presents the following arguments
for our consideration:
POINT I THE AMENDMENT OF THE INDICTMENT, THE MORNING TRIAL BEGAN AND OVER DEFENDANT’S OBJECTION, CHARGING DEFENDANT WITH A MORE SERIOUS OFFENSE THAN THAT FOUND BY THE GRAND JURY CONTRAVENED HIS RIGHT TO INDICTMENT BY THE GRAND JURY AND DEPRIVED HIM OF NOTICE OF THE PENAL CONSEQUENCES OF THE CHARGES.
POINT II THE JURY INSTRUCTION ON BURGLARY LEFT OPEN THE POSSIBILITY OF A NON-UNANIMOUS VERDICT AND WAS NOT SUFFICIENTLY TAILORED TO THE FACTS OF THE CASE. FOR BOTH REASONS, THE BURGLARY CONVICTION MUST BE REVERSED. (NOT RAISED BELOW)
A. The Jury Charge In This Case Was Insufficient To Ensure a Unanimous Verdict.
B. The Jury Instruction on Burglary Was
A-0373-17T3 2 Insufficient To Ensure That Defendant Was Properly Convicted Of Burglary.
POINT III THE TRIAL COURT’S REFUSAL TO SANITIZE THE 9-1-1 CALL ALLOWED THE BACKDOOR ADMISSION OF THE OTHER-BAD-ACT EVIDENCE THAT THE COURT HAD RULED WAS INADMISSIBLE AT TRIAL. THE RESULTING PREJUDICE NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT IV THE TRIAL COURT FAILED TO ACCOUNT FOR DEFENDANT’S AGE AND PHYSICAL INFIRMITIES WHEN SENTENCING DEFENDANT, RESULTING IN AN EXCESSIVE SENTENCE. THEREFORE, THE SENTENCE MUST BE VACATED AND THE CASE REMANDED FOR RESENTENCING.
In addition, in a pro se supplemental brief that has no point headings,
defendant argues there was insufficient evidence that he did not have permission
to enter his sister's home to visit his mother. He also argues: he did not receive
discovery; the prosecutor withheld exculpatory evidence; the attorney who
represented him before trial did not seek discovery of a police report containing
exculpatory evidence; his attorney did not call as a witness the police officer
who wrote the report containing the exculpatory evidence; and his original
attorney was replaced by an inexperienced attorney who did not seek to obtain
important discovery and exculpatory evidence.
A-0373-17T3 3 Finding merit in defendant's first point, we remand for correction of the
Judgment of Conviction to reflect that on the first count defendant was convicted
on the offense charged in the indictment – third-degree burglary – and for
resentencing on that count. Finding no merit in the remaining points, we reject
defendant's request for a new trial. Concluding that the only possibly
meritorious points in defendant's pro se brief are, in essence, allegations that the
attorneys who represented him did so ineffectively, we decline to consider them;
they are better suited for disposition in the context of a petition for post -
conviction relief.
I. A.
A Camden County grand jury charged defendant in a four-count
indictment with the following offenses: second-degree burglary, N.J.S.A.
2C:18-2(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(7) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d) (count three); and third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).
The Indictment's first count provided in pertinent part:
The Grand Jurors of the State of New Jersey, for the County of Camden, upon their oaths present that, on or about the 10th day of September, 2015, in the Borough
A-0373-17T3 4 of Somerdale, County of Camden, aforesaid, and within the jurisdiction of this Court,
RODNEY F BATES
did unlawfully enter the structure of [his niece] at [her address] with the purpose to commit an offense therein;
contrary to the provisions of N.J.S. 2C:18-2a(1), and against the peace of this State, the Government and dignity of the same.
2C:18-2a(1) Burglary – Second Degree [1]
Defendant's jury trial took place in March 2017. On the morning
testimony was to begin, after giving the impaneled jury preliminary instructions
but before the attorneys gave opening statements, the court heard defendant's
motion to dismiss the indictment's first count. The court listened to a recording
of the grand jury presentment and then heard the attorneys' arguments. During
argument, after implicitly acknowledging that count one as drafted did not state
the elements of a second-degree offense, the prosecutor "move[d] to amend the
body to support or reflect exactly what was said in the grand jury proceedings."
1 Contrary to the suggestion flowing from the "Second Degree" following the statutory reference, N.J.S.A. 2C:18-2(a)(1) is not a second-degree crime; it is a third-degree crime. N.J.S.A. 2C:18-2(b) (providing that with two exceptions involving the infliction or attempt to inflict bodily injury, or the display of what appear to be explosives or a deadly weapon, "burglary is a crime of the third degree"). A-0373-17T3 5 The court granted the prosecutor's motion. In granting the prosecutor's
oral motion to amend the indictment, the court noted:
In the body of the indictment on count one it does not have the language that bumps it to a second-degree, which would mean that in the course of committing the offense the actor - - and I'm citing from [N.J.S.A. 2C:18-2(b)(1) and (2)] - - "purposely, knowingly or recklessly inflicts, attempts to inflict, or threatens to inflict bodily injury on anyone or is armed with or displays what appears to be explosives or a deadly weapon."
The court nonetheless determined the testimony the State elicited from a
police officer before the grand jury "fits the definition, at least a prima facie
definition of a prima facie case, of second-degree." The court reiterated the
officer's testimony "sets forth a prima facie case and enough evidence to
formally charge the defendant with second-degree." In addition, the court noted
that the prosecutor, when asking the grand jury "to rule on or make a vote on
what the indictment would be, . . . said 'that's actually a second-degree offense.'"
The court disposed of three other motions, none of which are at issue on
this appeal. The jury convicted defendant on the indictment's first two counts
and acquitted him of the third and fourth counts. At sentencing, the judge
A-0373-17T3 6 merged the third-degree assault into the second-degree burglary and sentenced
defendant to a ten-year prison term subject to NERA. 2
B.
The parties presented the following proofs at trial. Defendant's elderly
mother lived in Somerdale with her daughter, who was defendant's sister; and
her granddaughter, who was defendant's niece. Defendant's mother had deeded
the home to defendant's sister in July 2004. His sister and niece cared for his
mother. Defendant was not permitted to enter the home unless his sister was
present.
His sister was not at home on September 10, 2015. She was working a
twelve-hour shift. Defendant's niece was caring for his mother that day. His
niece testified that she had moved into the Somerdale home to help her mother
care for her grandmother, who had fallen ill. She described defendant as, among
other things, "a little bit of a bully to everybody in the family including [his
mother]."
Defendant's niece explained that defendant was not permitted to come to
the house unless he first made an appointment. He was allowed to use the
2 The Judgment of Conviction specifies the statutory offense of third-degree aggravated assault as 2C:12-1(a)(1), not 2C:12-1(b)(7), the offense charged in the indictment of which defendant was found guilty. A-0373-17T3 7 detached garage, where he stored some of his belongings. Defendant's niece
also testified that defendant never came to the home when she was alone with
her grandmother, because she felt uncomfortable around him.
Defendant's niece was up early on September 10, 2015. She was alone
with her grandmother in the home when she heard the trash trucks and realized
she had forgotten to take out the trash. She ran out to take out the trash, and
while doing so, defendant pulled up in her grandmother's Cadillac and began to
ridicule her. He got out of the car and began "gunning" for the door. She
pleaded with him not to go in, saying he was not allowed, her grandmother was
not well, and her grandmother was sleeping.
According to defendant's niece, defendant entered the home. She ran
behind him and grabbed the door knob. He reached for the slide lock and she
"ripped" open the door and was able to stand in front of the door, her body
between the door and defendant, so that he would not lock her out of the house.
He pushed his body into hers, and hers in turn was propelled against the door
and shattered the glass. Defendant picked up a piece of triangular-shaped glass
and held it near his niece.
Defendant's niece testified that she and defendant struggled. During the
struggle, he managed to get a fistful of her hair at the top of her head. As the
A-0373-17T3 8 struggle continued, defendant's niece fell to the ground and he jumped on top of
her and pinned her down with his hands. She cried and screamed, and she
eventually stood up. She was able to re-enter the house, grab her cell phone,
and call 9-1-1. Defendant went to her grandmother's room.
Defendant's niece heard defendant talking to her grandmother and
attempting to blame her for the broken door. He came out while she was
speaking to the dispatcher, grabbed her by the neck, pinned her against the wall,
and punched her in the face twice. Her grandmother came out with her walker.
Defendant's niece called 9-1-1 again, having been disconnected during the first
call. Defendant left.
Recordings of the two 9-1-1 telephone calls where played for the jury. In
the first call, defendant's niece told the dispatcher her uncle had broken the glass
in a door and broken into the house. "My uncle just broke into the house. We
were just wrestling outside. He broke the glass. . . . he's coming after me right
now. He just punched me." When defendant's niece called 9-1-1 the second
time, she said her uncle "had me pinned under the chair pounding me in the
face." In the second call, in response to the dispatcher's question, "what's going
on there," defendant's niece responded: "I have an abusive, crazy uncle who
stops by from time to time. Today he decided to break the glass on my
A-0373-17T3 9 grandmother's porch, break in and then proceeded to punch me in the face and
pull my hair."
Defendant's niece explained during her testimony that when defendant
arrived at the house, the door was unlocked because she was taking out the trash.
She normally locked the doors. She locked the doors to keep defendant out,
because when he came in, he would refuse to leave or display a "bully kind of
mentality." Defendant's niece also explained that defendant had locked her out
of the house on previous occasions.
Clumps of defendant's niece's hair had fallen out after he pulled it. The
State presented photographic evidence of her hair as well as her two black eyes.
The State also presented photographic evidence of the area where the struggle
occurred, including a photograph of the shattered door.
Defendant testified to a different version of the events. He said he was
unaware of any understanding among his mother, sister, and niece that he was
not allowed to enter the house unless his sister was present. According to him,
the opposite was true; his mother wanted him there. He had no idea his mother
had deeded the home to his sister until he saw the deed a couple of days before
trial when he and his attorney were reviewing discovery. Neither his mother nor
A-0373-17T3 10 his sister had ever told him that title of the house had been transferred to his
sister.
Turning to the events of September 10, 2015, defendant said he drove to
his mother's home that morning to visit her. He drove into the driveway, passed
his niece, who was taking out the trash, and walked toward the door. He thought
he heard his niece say something but he told her did not have time and continued
to walk toward the door.
Defendant said that as he began to open the door to enter the home to see
his mother, his niece came from behind him, slipped under his arm, and got
between him and the door. According to defendant, her hair got caught in the
latch and lock and she thought he was pulling it. She stomped on his foot three
times and broke his toe. In pain, he lifted his foot, and she pushed him to the
ground.
As he lay on the ground he watched his niece rip her hair out from the
lock, screaming "ouch" as she did so. She then came at defendant with her foot
and tried to kick him again.
Defendant had to hop into the house to see his mother, because his foot
was severely injured. He told his mother his niece was starting something and
asked his mother to come out and intercede. His mother came out. It appeared
A-0373-17T3 11 to him that his niece was getting a knife out of a kitchen drawer, so he told his
mother he was leaving and he left, wanting to get away from his attacker.
Defendant repeated that he had gone to the home for no other reason than
to visit his mother. He explained that he lives in Florida during the winter, and
when summer is over, he returns there. He knew his mother's health was failing
and wanted to visit her before returning to Florida for the winter.
During cross-examination defendant was confronted with photographs of
his niece's injuries. He denied inflicting them. He said the photographs of her
face looked "like all smeared makeup." As to her other injuries, he testified: "I
feel as though she inflicted them upon herself by attacking me from behind and
putting her head in a position where her hair was caught and the way she ripped
her hair out." Defendant insisted he was "not responsible for her actions. She
was the aggressor, not [him]." He claimed he never touched her.
The jury rejected defendant's version of the events and convicted him of
burglary and aggravated assault.
II. A.
In his first point, defendant argues that by permitting the State to amend
the indictment immediately before the parties presented their opening statements
to the jury, the trial court deprived him of his constitutional right to indictment
A-0373-17T3 12 by grand jury. Defendant adds that the last-minute amendment deprived him of
his right to fair notice of the charges against him and resulted in his conviction
on a charge for which he had not been indicted.
The State responds that the first count's deficiency is nothing more than a
clerical error. The State emphasizes defendant could not have been prejudiced
because during the pretrial conferences and the pretrial plea negotiations
defendant heard the trial court and the prosecutor discuss the charges against
him, including the crime of second-degree burglary. The State also points out
that in all of the plea negotiations, including those for which there were on-the-
record discussions, defendant was informed of the penalty for second-degree
burglary. Consequently, defendant could not have been prejudiced by the
clerical error in the indictment.
The New Jersey Constitution guarantees that
[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases now prosecuted without indictment, or arising in the army or navy or in the militia, when in actual service in time of war or public danger.
[N.J. Const. art. I, ¶ 8.]
A-0373-17T3 13 "That constitutional provision requires that the State present to the grand
jury proof to support every element of the offense before the return of an
indictment and that every element must be alleged in the indictment." State v.
Fortin, 178 N.J. 540, 633 (2004) (citing State v. Hogan, 144 N.J. 216, 227
(1996)). Moreover, "under the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment, any fact (other than
prior conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a reasonable
doubt." Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v.
United States, 526 U.S. 227, 243, n.6 (1999).
Our Supreme Court has explained that a defendant's right to a grand jury
indictment is satisfied if the indictment informs the defendant of the offense
charged so that he can adequately prepare his defense, "and is 'sufficiently
specific' both 'to enable the defendant to avoid a subsequent prosecution for the
same offense' and 'to preclude the substitution by a trial jury of an offense which
the grand jury did not in fact consider or charge.'" State v. Dorn, 233 N.J. 81,
93 (2018) (quoting State v. LeFurge, 101 N.J. 404, 415 (1986)). The Supreme
Court has further explained that "[t]o meet those criteria, an 'indictment must
allege all the essential facts of the crime.'" Ibid. (quoting LeFurge, 101 N.J. at
A-0373-17T3 14 418). "Thus, 'the State must present proof of every element of an offense to the
grand jury and specify those elements in the indictment.'" Id. at 93-94 (quoting
Fortin, 178 N.J. at 633).
A court "may amend the indictment . . . to correct an error in form or the
description of the crime intended to be charged or to charge a lesser included
offense provided that the amendment does not charge another or different
offense from that alleged and the defendant will not be prejudiced thereb y in his
or her defense." R. 3:7-4. The Supreme Court has cautioned that "[a]n error
relating to the substance or 'essence' of an offense cannot be amended by
operation of that rule." Dorn, 233 N.J. at 94 (citing State v. Middleton, 299 N.J.
Super. 22, 34 (App. Div. 1997)). Thus, "a 'trial court may not amend an
indictment to charge a more serious offense,' State v. Orlando, 269 N.J. Super.
116, 138 (App. Div. 1993), because the amendment would subject the defendant
to a charge of 'an entirely different character and magnitude,' thereby depriving
him of the opportunity to mount a meaningful defense, cf. State v. Koch, 161
N.J. Super. 63, 65-67 (App. Div. 1978)." Id. at 96.
C.
These principles should have precluded the amendment of the indictment.
The amendment did not merely "correct an error in form or the description of
A-0373-17T3 15 the crime intended to be charged," but rather "charge[d] another or different
offense from that alleged." R. 3:7-4. The amendment related to the substance
or essence of the offense, and therefore was precluded by the rule. Dorn, 233
N.J. at 94.
The State argues that because the evidence presented to the grand jury
established second-degree burglary, because the grand jury was asked to
consider returning an indictment for second-degree burglary, and because the
plea negotiations during many pretrial proceedings centered around a plea to
second-degree burglary and included a judge explaining to defendant the
maximum exposure he would face for that crime if he proceeded to trial, th ere
was no prejudice to defendant. We disagree that such circumstances, even if
true, can substitute for a proper grand jury indictment.
We have previously concluded, in the context of a robbery indictment,
that the indictment was inadequate, notwithstanding that the presentation to the
grand jury supported it:
In the absence of the inclusion of either facts or statutory language constituting a first-degree robbery, there can be no determination by a reviewing court as to whether or not the grand jury, although hearing sufficient evidence to constitute a first degree robbery, accepted or rejected such evidence. The indictment in question does not demonstrate a grand jury
A-0373-17T3 16 determination that it was satisfied that a first-degree crime had occurred.
[State v. Catlow, 206 N.J. Super. 186, 195 (App. Div. 1985).]
Prejudice is certainly a consideration. Rule 3:7-4 provides that an
indictment may be amended "to correct an error in form or the description of the
crime intended to be charged . . . provided that the amendment does not charge
another or different offense from that alleged and the defendant will not be
prejudiced thereby in his or her defense." The terms of this rule are conjunctive,
not disjunctive; the amendment must not charge another or different offense,
and must not prejudice the defendant. Thus, if the indictment charges a different
offense – as is the case here – it may not be amended under the rule, even in the
absence of prejudice.
We thus reverse the conviction for second-degree burglary. Because the
trial court's charge to the jury clearly encompassed the lesser-included offense
of third-degree burglary, we remand this matter to the trial court to re-sentence
defendant and to amend the Judgment of Conviction accordingly.
III.
In the second argument in his first brief, defendant contends the jury
instruction on burglary left open the possibility of a non-unanimous verdict and
A-0373-17T3 17 was not sufficiently tailored to the facts of the case. Noting the State's theory
was that he "entered the home with the intent to commit the offense of
harassment," defendant asserts the court's charge on burglary was confusing and
"created a risk of a non-unanimous verdict because it presented the jury with
two different potential victims of the alleged harassment and three different
theories of harassment without telling the jury it had to unanimously agree on
both the victim and the crime."
Defendant did not object to the trial court's instructions to the jury on
burglary. We find the argument he raises for the first time on appeal to be
without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We reach the same conclusion as to defendant's third argument: the trial
court's failure to redact the niece's reference to defendant as "an abusive , crazy
uncle who stops by from time to time" requires a new trial. Defendant's niece
testified, without objection, that she kept the doors locked in her mother's home
specifically to keep defendant out, because, among other things, of his bullying
tactics. The niece's testimony about why she kept the doors locked, as well as
her testimony describing what defendant did when he assaulted her, render
relatively innocuous – harmless error in legal terminology, R. 2:10-2 – the
A-0373-17T3 18 comments she made to the dispatcher while in a state of emotional turmoil. This
argument warrants no further discussion. R. 2:11-3(e)(2).
IV.
In his pro se brief, defendant raises numerous instances in which he claims
that both the first attorney who represented him and the attorney who
represented him at trial were ineffective. We generally decline to consider
ineffective-assistance-of-counsel claims on direct appeal, "because such claims
involve allegations and evidence that lie outside the trial record." State v.
Preciose, 129 N.J. 451, 460 (1992). Defendant's allegations concerning the
attorneys who represented him are based on numerous assertions in his pro se
brief for which there is no support in the record. Accordingly, we decline to
hear them without prejudice to defendant's right to file a petition for post-
We have considered defendant's remaining arguments and find them to be
without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-0373-17T3 19