On appeal from the Superior Court of New Jersey, Law Division, Union County. Jacqueline E. Turner, Assistant Deputy.
Approved for Publication March 21, 1997. As Corrected.
Before Judges Michels and Muir, Jr. The opinion of the court was delivered by Michels, P.j.a.d.
The opinion of the court was delivered by: Michels
The opinion of the court was delivered by
Tried by a jury, defendant Manuel Jenkins was convicted of attempted burglary, a crime of the third degree, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The trial court, based on the proofs before the jury, then convicted defendant of a related offense of possessing burglary tools, a disorderly persons offense, in violation of N.J.S.A. 2C:5-5. The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for five years with a two-year period of parole ineligibility, assessed a $50 Violent Crimes Compensation Board (VCCB) penalty and a $75 Safe Neighborhood Services Fund (SNSF) assessment for the attempted burglary conviction. In addition, the trial court committed defendant to the custody of the Commissioner for a concurrent term of six months and assessed a $50 VCCB penalty and a $75 SNSF assessment for the possession of burglary tools conviction. Defendant appealed.
According to the State's proofs, at approximately 12:30 a.m. on August 26, 1994, Nuno Domingos, the owner of the Red Parrot Restaurant located on Broad Street in Elizabeth, New Jersey, was closing his establishment for the night. As he was turning off the lights in the upper level of the restaurant, Mr. Domingos heard a barmaid call to him from the downstairs area. Mr. Domingos went downstairs to investigate noise coming from the back kitchen door. The kitchen door from which the noise was emanating opens into a fenced-in, patio-like "beer garden" in the back of the restaurant used for dining, barbecues, parties, and other similar events. Mr. Domingos testified that he heard "a loud noise" coming from the door which sounded "like somebody hitting the door." He believed somebody was trying to break into the restaurant and immediately dialed "911." Mr. Domingos, who was afraid, then ran out of the front door of the restaurant and waited on Broad Street for the police to arrive.
Elizabeth police officers Alexandria Araujo and Jorge Hildalgo soon arrived and saw Mr. Domingos waving at them. Mr. Domingos then led the officers through the restaurant to the back kitchen door. As they opened the door, the officers saw a man, later identified as defendant, standing in the beer garden. Officer Araujo testified that when she entered the beer garden shouting "Police!", she noticed defendant raise his hands in the air and heard something fall to ground. Officer Araujo said that the something turned out to be a hammer. Officer Hidalgo also testified that when he entered the beer garden, he saw a hammer in defendant's hand, which defendant dropped when he put his hands up. The officers then placed defendant under arrest. While checking the area, the officers found pry marks on the side of the kitchen door facing the beer garden. The pry marks were fresh, as evidenced by the exposed wood on the door.
Defendant, on the other hand, denied that he had used the hammer in an attempt to pry open the door, and denied that he had intended to break into the restaurant to steal money or liquor. He testified that on the night in question, he had been in another bar, and when he left that tavern, an unidentified man followed and then chased him. At some point, he ran from the man, who was a half block behind, and entered the beer garden area of the Red Parrot Restaurant. To enter the beer garden, defendant scaled a six foot, barbed wire fence. When he reached the beer garden, defendant began banging on the back door with his hand to get help but was not heard. Defendant then found the hammer and began using it to bang on the door to get attention. Defendant testified that he "was in fear of [his] life," and stated that eventually the person who was chasing him also scaled the fence and entered the beer garden. Defendant noted, however, that when the police arrived, the other man fled.
At the Conclusion of the proofs, the jury found defendant guilty of attempted burglary. The trial court then found defendant guilty of possession of burglary tools. Defendant appealed.
Defendant, for the first time on appeal, contends that the prosecutor's comments during summation on his (defendant's) post-arrest silence violated his Fifth Amendment rights as well as his rights under State common law, thus requiring a reversal of his convictions and a new trial. We disagree.
On direct examination, defendant, in response to his counsel's questions, testified as follows:
Q: Did either of the two officers that arrested you ever ask what your version of the story was?
A: No, it wasn't -- no, sir, they didn't. I tried to explain it to them, but they just didn't want to hear what I had to say.
Q: What happened after you were cuffed?
A: They just put me in the police car and took me to the police headquarters.
Q: Now, after you were arrested, where were you brought?
A: Brought to Elizabeth police station.
Q: And how long were you there?
A: I was there until four o'clock, until I was transferred to Union County Jail.
Q: Did there ever come a time that any member of the Elizabeth Police Department or a detective or anyone ever attempted to take a statement from you?
Defendant's counsel also asked the following questions of Detective Kevin O'Leary, the Elizabeth police officer who conducted the follow[-]up investigation of the incident:
Q: Now, as part of your investigation follow up into the crime, when a crime occurs, one of the things you can do is attempt to ...