On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
King, Dreier and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from convictions of possession of cocaine, N.J.S.A. 2C:35-10a(1); possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 5b(3); possession of cocaine, N.J.S.A. 2C:35-10a(1); and possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(2). The two simple possession convictions were
merged into the convictions with intent to distribute. Since there were two events which gave rise to these convictions, Judge Rodriguez sentenced defendant to concurrent four-year terms for the first possession with intent to distribute and distribution, and to a consecutive seven-year term for the second possession of a larger amount of cocaine found when the police raided the premises. The principal point on this appeal is the right of the State to comment in summation upon defendant's demeanor during trial.
Defendant was initially identified by an undercover officer who purchased cocaine from her, and on a later date was apprehended after a raid on premises where she was found in possession of 25.79 grams of cocaine.
On this appeal defendant raises three points. He first claims that "[t]he prosecutor's comments made in summation had the clear capacity to deprive defendant of a fair trial. (Partially raised below)." Defendant then asserts additional points, not raised below, challenging the mandatory Drug Enforcement and Demand Reduction (DEDR) penalties of N.J.S.A. 2C:35-15. Finally, defendant claims that the trial Judge imposed an excessive sentence.
Defendant challenges the prosecutor's summation in two respects. First, she disputes the prosecutor's reference to the fact that although defendant did not take the stand, the defendant could be seen crying during the trial. The prosecutor remarked that the jury should speculate whether she was also crying when she sold the cocaine to the undercover officer. Defendant claims that this comment infringed upon her right not to testify.
When defendant cried, she may have, in the words of State v. Fioravanti, 46 N.J. 109, 120-121, 215 A.2d 16 (1965), cert. denied, 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966), engaged in "testimonial behavior before the jury," even if she did not take the stand. Her actions therefore could properly be the subject of fair comment. Id. at 121, 215 A.2d 16.
We have little direct authority in New Jersey either supporting or prohibiting comment by the State on a defendant's behavior during trial. In State v. Capano, 125 N.J. Super. 383, 385, 311 A.2d 191 (App.Div.1973), certif. denied, 64 N.J. 500, 317 A.2d 712 (1974), we noted that comment on defendant's "obstreperous behavior" was not error. However, a prosecutor may not comment upon the failure of a defendant to act in a particular way during a trial. State v. Johnson, 120 N.J. 263, 295-296, 576 A.2d 834 (1990) (failure to make eye contact with jurors during a trial); State v. Sims, 140 N.J. Super. 164, 176, 355 A.2d 695 (App.Div.1976) (improper prosecutor's comment that officer walked up to defendants, pointed them out and looked at them, but defendants did not return his stare or say he was lying). Also, defendant's crying here falls far short of the full series of unsworn statements made by the defendant who acted as his own attorney in a closing statement to the jury in State v. Bontempo, 170 N.J. Super. 220, 240-242, 406 A.2d 203 (Law Div.1979). There on a post-conviction relief application Judge Baime held that the prosecutor had properly been permitted to comment on defendant's unsworn remarks.
Out-of-state authority is split concerning comments on a defendant's demeanor during trial. Some cases have held that a defendant's display of emotion may be the subject of comment, or at least that comment thereon is not reversible error. See State v. Norwood, 161 Wis. 2d 676, 468 N.W. 2d 741, 742-743 (Ct.App.1991) (defendant's laughter during the testimony of the rape victim's mother was noted in her testimony and later commented upon in the State's summation; held not to be error since the mother's testimony supplied evidence of the laughter, and no general rule concerning comment on a defendant's demeanor need be adopted); Campbell v. State, 65 Md.App. 498, 501 A.2d 111, 114-115 (1985), cert. denied, 305 Md. 599, 505 A.2d 856 (1986) (because defendant testified, demeanor evidence was not so improper as to warrant reversal); Black v. State, 402 So. 2d 1128, 1132-1133 (Ala.Ct.App.1981) (defendant who had alleged an insanity defense which prevented her from
talking and robbed her of all personality was observed during breaks talking to her family, walking around and acting normally; the State noted this behavior in summation, and the court stated that "[t]he conduct of the accused or the accused's demeanor during the trial is a proper subject of comment.") (emphasis in original); Frankoviglia v. Camp, 394 F. Supp. 1293, 1295-1296 (E.D.Mo.1975), cert. denied, 424 U.S. 915, 96 S. Ct. 1115, 47 L. Ed. 2d 320 (1976) (prosecutor requested that the jury compare defendant's crying during his attorney's plea for his life with the lack of emotion during testimony of the details of the murder; held to be at most harmless error); cf. Lesko v. Lehman, 925 F.2d 1527, 1544, 1554 (3rd Cir.1991), cert. denied, U.S. , 112 S. Ct. 273, 116 L. Ed. 2d 226 (1991) (not specifically deciding whether the prosecutor's statements violated defendant's right not to testify or were "simply an appropriate reference to [defendant's] demeanor at trial"); and cf. the separate issue of the probative value of an accused's demeanor in court where sanity ...