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N.J.S.A. 2C:15-1a(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree unlawful possession of a weapon (a beer bottle), N.J.S.A. 2C:39-5d; and third degree possession of a weapon (a beer bottle) for an unlawful purpose, N.J.S.A. 2C:39-4d. "> Original

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0889-04T10889-04T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE BROWN, Defendant-Appellant. _______________________________

Argued: November 29, 2005 - Decided: Before Judges Axelrad and Miniman. On appeal from the Superior Court of New Jersey, Law Division, Warren County, 03-0279-I. Lori L. Posner argued the cause for appellant (Alan Dexter Bowman, attorney; Mr. Bowman, of counsel; Mr. Bowman and Richard W. Berg, on the brief). Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief). PER CURIAM Tried to a jury, defendant Lawrence Brown was convicted of first-degree robbery, N.J.S.A. 2C:39-4d. The convictions arose out of an altercation on September l2, 2002 between defendant and Paul Russell, who had been friends for about five years. Russell and defendant testified as to dramatically different versions of the events,

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each contending the other was the aggressor. Russell testified that he resided with his girlfriend, Christine Smith, at 527 Elm Avenue in Phillipsburg. On that date, he and defendant were at a party playing cards in front of Smith's house with three other men. According to Russell, defendant asked to borrow $5 so he could get back into the game. Russell claimed he did not have any money, to which defendant responded that he was a "bullshitter." Russell had $130 in his pocket, along with an open pocketknife, which he claimed he carried for protection. Russell went inside the apartment, and after about an hour he returned outside to smoke marijuana with defendant and some friends. Russell handed defendant a bottle of Yuengling. Russell sat down on the porch and again refused defendant's request for money, and defendant again called him a "bullshitter." Russell turned his head, and the next thing he knew he fell backward as he felt the impact of a beer bottle being slammed three or four times across his face. According to Russell, defendant then got on top of him and began stabbing his face with pieces of broken glass. Defendant then grabbed Russell's money from his pocket and fled. Russell pulled off his jersey, which was dripping with blood, and gave chase. He lost track of defendant and returned to the apartment complex, where he ran into Officer James Stettner. Russell refused to seek medical assistance, and muttered that, "[H]e wants to play street, I fix him on the street." In response to the officer's inquiry of "who?" Russell replied, "I'll handle this." Upon walking inside the apartment, Russell realized the seriousness of his injuries, and he was transported by ambulance to the emergency room. Russell was bleeding profusely in the head and neck, and a piece of his ear that was missing was found in a puddle of blood in front of the rear door of 523 Elm Street. Russell received over 900 stitches and his ear could not be reattached. His face was permanently scarred and disfigured. Russell also testified about permanent itching and numbness in his face. The officers found shards of green glass and a broken Yuengling bottle in a trail of blood near 523 Elm Street, and a blood-spattered $50 bill was recovered about fifty yards away. Defendant testified that at the time of the incident he resided in Ohio and was visiting friends in Phillipsburg, including Russell. According to defendant, Russell became upset about losing $20 in the card game, and when defendant refused to lend Russell money, Russell became more frantic. Russell's pestering of defendant for money became so annoying that defendant retrieved his stake money and quit the game. Defendant testified he then telephoned his mother and complained that Russell was hounding him, and she advised him to stay away from Russell. Defendant's mother testified and corroborated the phone call.

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Defendant went back outside and began smoking marijuana with some friends. Russell was sitting on the porch and defendant was standing. According to defendant, Russell demanded defendant's money, claiming he had forfeited the game, grabbed defendant's shirt and threatened him with a knife. As Russell began to stand up, defendant hit Russell in the head with the beer bottle in self-defense and ran. Defendant claimed he only hit Russell once, but acknowledged that the bottle could have broken and cut Russell's face. Defendant denied he took any money from Russell's pocket. Twelve-year-old Nakeisha Blake testified that while in her room at her apartment at 523 Elm Street, she could hear voices coming from the backyard area of the apartment complex. She heard Russell saying "Stop" and "Leave me alone" and heard someone else say, "Give me the money." She further testified she saw defendant on top of Russell. Blake ran downstairs and told her mother Candace Flyte that "someone was doing something" to Russell. Flyte testified that she opened the back door to the apartment, and she and her daughter observed defendant on top of Russell. She saw blood all over Russell's face and yelled at defendant to stop. She also saw defendant's arm plunging towards Russell's face, and assumed defendant was punching him. Flyte then called the police. Pertinent to this appeal, while defendant was running from Elm Street, he met some friends several blocks away and went with them to Easton, Pennsylvania. About a week later defendant telephoned one of his and Russell's mutual friends, who had been at the party, and was told that Russell's brothers were looking for him, and he should not return to Phillipsburg. Defendant subsequently went to New York and was arrested on a fugitive warrant relative to this indictment in August 2003, while riding in a car with tinted windows which was stopped at a checkpoint. On appeal, defendant argues: POINT I The State's Substantive Use of Appellant's Silence Was a Fatal Violation of His Due Process Rights (Not Raised Below). A. The State Improperly Elicited and Misutilized Evidence of Appellant's Pre- and PostArrest Silence. B. The Trial Court's Failure to Instruct the Jury On the Limited Admissibility of Appellant's Pre- and Post-Arrest Silence Constituted Plain Error. C. Appellant Was Clearly Denied Effective Assistance of Counsel. POINT II The Prosecutor's Misconduct Violated Appellant's Right to Due Process and Requires Reversal (Not Raised Below). POINT III

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There Was Insufficient Evidence of Appellant's Guilt and the Verdict Was Against the Weight of the Evidence. POINT IV The Trial Court's Failure to Properly Charge the Jury as to the Application of the Principles of Imperfect Self- Defense Deprived Defendant of Due Process (Not Raised Below). We are not persuaded by any of defendant's arguments and affirm. Defendant slashed Russell with the broken beer bottle on September 12, 2002. Immediately after the fight, defendant left the area. Russell made a statement to the police on September 25, 2002, and charges were promptly filed against defendant. Defendant did not return to Phillipsburg until he was apprehended on a fugitive warrant in August 2003. Defendant's failure during the ten-month period to report the incident or provide the police with his version of what occurred was elicited by the State in its direct examination of the investigating officer and its crossexamination of defendant, and was emphasized in summation. Detective Robert Schmeltzly testified that defendant never contacted any member of the Phillipsburg Police Department in the intervening ten-month period. Nor did defendant ever file charges against Russell. On cross-examination, defendant corroborated these facts in the following colloquy: Q Did you ever at any time after September 12, 2002 call the Phillipsburg police department? A No, I did not. Q Did you ever, since September 12, 2002, sign a complaint? A No, I did not. Q Did you at any time since September 12th, 2002 try to contact the prosecutor's office to explain your side of the story? A No, I did not. Q Did you ever any time, between September 12th, 2002 and August of '03, decide to come into Phillipsburg, either the police station or to the prosecutor's office or anywhere, and find out if there were any charges against you or anything? A No, I did not. The following line of questioning was pursued by the prosecutor relative to defendant's self-defense claim: Q. So you're claiming self-defense and I guess that defense would be that you had to do what you had to do, comes out to a cut or a slash or whatever, so be it, you had to do that to prevent being stabbed. Is that the self defense we're talking about? A. Yes.

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Q. Okay. Fine. So you must have known you did some damage to his face with the bottle, right? A. Yes. Q. Okay. You had a prior conviction. You know what it's like to be charged, right? You know the process the police do? A. Yes. Q. Okay. . . . [L]et's say someone has hit someone with a bottle and cut someone. Would you say they'd know they'd be charged with aggravated assault or some kind of crime? A. Yes. If you just walk up to -- yes. Q. So unless you come forward and say, he cut me, he tried to cut me first, Phillipsburg police, unless you do that, didn't you realize that you would very possibly be charged with aggravated assault by the Phillipsburg police department? A. No, because at the time I didn't know the damage what was done. .... A. When I say that, I mean, I didn't know if he was going to the police, telling the police, what he was telling, if that was the case, if he brought charges up on me. Q. Well, were you positive he wouldn't? A. I got stabbed. I didn't pull no charges. I mean . . . [i]t just so happened I didn't think about it like that. . . . The prosecutor also questioned defendant about his failure to contact the police after there was an article in the newspaper about the incident in September 2002. Defendant responded, however, that one of the women from the party simply told him his name had been in the paper. Although he "figured it had to be for [the incident]," he did not know the content of the article, so he had no reason to contact the police. In summation, the prosecutor sought to impeach defendant's credibility and his self-defense story. He emphasized that for ten months following the incident defendant was in flight and chose not to avail himself of the opportunity to tell his side of the story, even after being aware the incident had been reported in the newspaper. Defendant argues for the first time on appeal that this line of questioning and the prosecutor's comments in summation pertaining to defendant's pre-arrest silence violated his state law right against self-incrimination. Defendant's reliance on State v. Deatore, 70 N.J. 100 (1976), State v. Lyle, 73 N.J. 403 (1977), and State v. Muhammed, 182 N.J. 551 (2005) is misplaced as those cases are factually inapposite, as they pertain to pre-arrest silence occurring in a custodial setting or near the time of defendant's arrest. State v. Deatore involved a defendant's failure to make an exculpatory statement to the police at the time of his arrest as to an alibi that he asserted at trial. The Court concluded that the State could not impeach a defendant with

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his silence while under interrogation by the police "at or near" the time of his arrest, and affirmed our reversal of defendant's conviction. 70 N.J. at 108-109. In State v. Lyle defendant shot and killed a man allegedly involved in a romantic relationship with defendant's wife. 73 N.J. at 405. When the detective arrived at the murder scene, the store where defendant worked, defendant admitted he shot the victim, and after being Mirandized, made no further statements. Id. at 406. At trial, defendant claimed he had acted in self-defense and had gotten a gun out of the drawer in his store and shot the decedent only after he had lunged at defendant with a screwdriver. Id. at 405-06. The prosecutor repeatedly questioned both the officer and defendant about defendant's failure to give that account at the time he admitted the killing, and argued that point in summation. Id. at 406-09. Relying on Deatore, the Court reversed defendant's conviction, concluding that a defendant who remains silent after giving a partial account of the crime to the police at or near the time of his arrest may not be impeached at trial with that silence. Id. at 405-06. In State v. Muhammad the prosecutor elicited evidence respecting defendant's silence at the Paterson Police Department headquarters. Muhammad, a Passaic police officer, brought the victim at her behest to the Paterson police station and told the duty officer that he had picked up the victim to scare her into stopping harassing his family. 182 N.J. at 560-61. The victim immediately complained that Muhammad had raped her and produced a used condom as proof of the rape. Id. at 561. Muhammad fell silent after this evidence was presented, and he was arrested after the victim was interrogated. At trial, the prosecutor examined the staff sergeant and investigating officer, and commented in his opening and closing, on defendant's failure at police headquarters to state that he had consensual sex with the victim or claim she was a prostitute, which defenses he asserted at trial. The Court held that after the victim accused defendant of raping her, the sergeant told defendant he could not leave, and effectively placed him in custody. Id. at 572-73. The Court noted that the prosecutor drew inferences of guilt from defendant's silence both "at or near" the time of his arrest and when he was in police custody. Id. at 573. The Court held that the references to defendant's silence were patent violations of Deatore and Lyle and reversed his conviction. Ibid. We are in accord with the State that the present case is factually similar to and governed by State v. Brown, 118 N.J. 595 (1990). In Brown the Court held that a defendant's pre-arrest silence could be used for impeachment purposes if that silence "significantly" preceded his arrest and did not arise in a custodial or interrogation setting. Id. at 610. In that case, defendant Emm and co-defendant Brown played a "cat and mouse" game on a highway until Brown's car struck and killed an innocent motorist traveling in the opposite lane of traffic. Id. at 600. Emm then drove to a volunteer fire company of which he was a member and returned to the accident scene to assist the victim. Id. at
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602. Emm did not disclose to the investigating police officers that he had been involved in the accident until two days later. Id. at 602-03. When Emm testified at trial he was a victim of Brown's reckless driving, the prosecutor and Brown's counsel impeached Emm with his silence at the accident scene. Id. at 610. The Court held that "pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved" because the jury was entitled to infer "that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his . . . involvement in the criminal episode." Id. at 613. The Court further stated: We conclude, therefore, that evidence regarding pre-arrest silence is admissible if, when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's apparent exculpatory testimony. [Id. at 615.]. It is thus up to the jury to determine whether defendant's silence entails "a consciousness of guilt, a desire not to become involved [or] a feeling that it was simply unnecessary." Ibid. Here defendant's ten-month silence significantly preceded his arrest and did not arise in a custodial or interrogation setting. Defendant was undisputedly under no governmental compulsion in the period between the incident and his arrest during the motor vehicle stop. We reject defendant's argument that if he had spoken to the police, he would have been at risk of criminal prosecution for illegal drug use and illegal gambling, the activities that preceded the assault. Thus, defendant's pre-arrest silence during that ten-month period was properly admitted for impeachment purposes, from which the jury could have inferred that his "silence was indicative of prevarication when measured against his testimonial version" of the incident. Id. at 616. It would have been preferable for the trial court to have provided a limiting instruction confining the jury's consideration of defendant's pre-arrest silence to impeachment only, as did the court in Brown. Id. at 616. We are not convinced, however, the challenges pertaining to pre-arrest silence raised for the first time by defendant rose to the level of plain error, prejudicially affecting defendant's substantial rights and having the clear capacity to cause an unjust result. R. 2:10-2; State v. Chew, 150 N.J. 30, 82 (1997). There was ample evidence of defendant's guilt as to the aggravated assault, robbery and weapons offenses. The jury heard Russell's and defendant's versions of the altercation, and was able to observe each man's demeanor. The jury also heard the observations of the two neighbors, who if the jury believed they were actually eyewitnesses to the beer bottle incident, corroborated Russell's testimony that defendant was the aggressor and he was the victim. Furthermore, the seriousness of Russell's injury, requiring 900 stitches, belies defendant's claim that he merely struck Russell once with the beer
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bottle, and supports a finding that defendant then proceeded to repeatedly slash Russell's face with the pieces of broken glass. Defendant's explanation for the extent of Russell's injury, i.e. that defendant hit him with the bottle coming down with force because Russell was seated, is completely unconvincing. Moreover, even if the jury believed Russell had been the aggressor, it could have concluded self-defense was unreasonable because Russell was seated and defendant had time to retreat. Alternatively, it could have found self-defense but concluded that defendant's conduct was excessive. Additionally, defense counsel himself referenced defendant's pre-arrest silence in summation, attempting to transfer the blame to the police for not locating defendant during the ten months following the incident: Why didn't the police try to locate Mr. Brown? Why did they wait? Why did they just have a warrant issued and wait until he happened to be stopped in New York for a traffic stop? That's another question that isn't answered. Why didn't they bother to get his side of the story? Moreover, as defendant's silence and his flight were intertwined, the trial court's charge on flight adequately addressed defendant's concerns. The other arguments advanced by defendant are without merit and do not warrant further discussion. R. 2:113(e)(2). Any claim of ineffective assistance of trial counsel may be raised by defendant in a post-conviction relief petition.

Affirmed. The court subsequently instructed the jury that defendant's conviction could only be considered for credibility purposes. This is not an issue on appeal. (continued) (continued) 16 A-0889-04T1 December 19, 2005

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