State v. Johnson
| Decision Date | 30 April 2019 |
| Docket Number | DOCKET NO. A-4638-15T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE J. JOHNSON, JR., a/k/a WAYNE JAMEEL JOHNSON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-06-1855.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
Defendant Wayne J. Johnson, Jr. appeals his convictions of two aggravated assault counts and two weapon-possession counts, as well as the sentences he received for those convictions. We affirm defendant's convictions. However, we vacate the sentence imposed on the weapon-possession count of which defendant was acquitted, direct that defendant be sentenced on the weapon-possession count of which he was convicted but for which he received no sentence, and conclude that the two aggravated assault counts should have been merged. We therefore remand the matter for resentencing and correction of the judgment of conviction to accurately reflect the jury's verdict.
Shortly before midnight on November 15, 2012, Christopher Giles was alone in bed at his home in Camden County. He lived with his daughter, who was not home at that time, and his son, codefendant Justin Angelino. Giles was not in contact with his son for most of Angelino's life, having lost touch with him when he was a child. The two reunited in October 2011, when Angelino, by then an adult, began to live with his father. Giles described his relationship with his son during their cohabitation as infused with hostility and tension. Although the two had exchanged angry words, they had not had a physical altercation. On the night in question, Giles was not expecting Angelino at theresidence because he received a text message from his son stating that he was going to visit his aunt.
At approximately 3:00 a.m., Giles woke up to use the bathroom. He encountered his son and defendant walking from the hallway into Giles's bedroom. Although the lighting was low, Giles recognized defendant, who he had met at least two times before, as his son's acquaintance. Giles was surprised to see them both, in light of his son's earlier text message. After engaging in short conversation with the two men, Giles returned to bed.
Video from a nearby Walmart showed Angelino and defendant shopping at approximately 3:30 a.m. Angelino paid for several items. It was later discovered that charges were made on Giles's credit card at that hour. Giles had not authorized the use of his card.
At approximately 5:00 a.m., Giles awoke to find Angelino and defendant in his bedroom. Angelino was approximately three feet away from Giles, turned to him and said, "hey, Dad, here's your rent, I'm going to put it on the desk here." According to Giles, immediately thereafter Angelino and defendant began pummeling, bludgeoning, and stabbing him. He was "surprised, shocked, confused, [and] angry" by the unprovoked attack. Giles remembered getting hit on the left side of the head with a blunt object, and heading towardunconsciousness. He attempted to sit up and defend himself, but the attack, which lasted one or two minutes, suddenly stopped. Angelino and defendant left the residence.
Giles tried to get out of bed, finding it difficult to stand because he was bleeding profusely and there was so much blood on the floor that his bare feet were slipping. He applied a towel to a wound on his arm and dialed 9-1-1. Giles told the dispatcher that his son and "a friend of his" had attacked him. Giles did not identify defendant by name or give a physical description of him. He told the dispatcher that he could not locate his wallet, which he kept in his bedroom.
At a trauma center, a plastic surgeon reattached Giles's ear, and repaired his upper lip, which had been slashed. An examination revealed that one of his triceps was detached, requiring an emergency surgical repair. Giles also suffered ulnar nerve damage, leaving two of his fingers numb on his dominant hand. Damage to Giles's thumb muscle seriously impaired his use of that finger. Giles described himself as "maimed and disfigured" from cuts to his face, scalp, and body during the attack.
Investigating officers found a barbell on Giles's bloody bed, a fake handgun on the bedroom floor, and in the bathroom an open folding knife with the blade extended, a white t-shirt, and a blood-stained towel. The walls, door,floor, and furniture in the bedroom were smeared with blood, as was the kitchen table and walls, the entrance of the residence, the wall leading to the bathroom, the bathroom, and the walls and floor of the hallway leading to the bedroom.
While being interviewed by detectives, Giles identified his son and "another man" as the assailants. Officers found a bag of items that did not belong to Giles in his car, along with his wallet. Giles testified that he kept his car keys next to his wallet in his bedroom.
An officer conducting a perimeter search in the area of Giles's residence observed what he believed to be a male figure, later identified as defendant, moving in a crouched manner across the front of a building. When stopped by the officer, defendant had a large area of blood on his shirt and blood on his hands. He told the officer that he had been stabbed in his chest, abdomen, and hands. A medical examination revealed cuts and lacerations on defendant's hands, but no wounds to his chest or abdomen.
While in the emergency department, another officer heard defendant, without prompting by the officer, ask "how the person he had assaulted, attacked, how he was doing." In addition, when asked by medical personnel how he was injured, defendant stated that he cut himself. An expert witness testified that blood on defendant's tank top belonged to Giles.
A Camden County grand jury charged defendant with: first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e).1
At trial, defendant's counsel argued that there was doubt as to the identity of the person who assisted Angelino in attacking Giles because: (1) Giles neverexpressly identified defendant as one of his attackers; (2) there was no direct proof that defendant participated in the attack; (3) the wounds on defendant's hands suggested he was attempting to help Giles and stop the attack; (4) there were questions regarding the methods used to collect the shirt attributed to defendant that was stained with Giles's blood; and (5) defendant had no motive to attack Giles. Defense counsel argued to the jury that it was "critically important" to make sure that the "correct perpetrator of the crime" be identified.
Defendant did not testify. However, his statement in the ambulance that he participated in the assault only because he had been threatened by Angelino was admitted into evidence. Defendant's counsel did not seek a jury instruction on the affirmative defense of duress. See N.J.S.A. 2C:2-9(a). At the conclusion of trial, the court dismissed the two counts of the indictment charging robbery and conspiracy to commit robbery for insufficient evidence.
The jury convicted defendant of second-degree aggravated assault, third-degree aggravated assault, third-degree possession of a weapon for an unlawful purpose, and fourth-degree possession of a weapon. The jury acquitted defendant of attempted murder and possession of an imitation firearm.
For second-degree aggravated assault, the court sentenced defendant to eight years of imprisonment, with an eighty-five percent period of paroleineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a concurrent sentence of four years of imprisonment for third-degree aggravated assault. The court merged the third-degree possession of a weapon count into the second-degree assault count.
It appears that because of a change in the numbering of the counts after dismissal of the robbery counts, the court transposed two of the weapons counts at sentencing. The court imposed no sentence on the fourth-degree unlawful possession of a weapon count, of which defendant was convicted. In addition, the court imposed a consecutive sentence of fifteen months on the fourth-degree possession of an imitation firearm count, of which defendant was acquitted.
This appeal followed. Before us, defendant argues:
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