On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-06-1067.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2006
Before Judges Lefelt and Sapp-Peterson.
For stealing two necklaces from a jewelry store, an Atlantic County jury convicted defendant Charles Stewart of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and Judge Garofolo sentenced him to a five-year prison term with two and one-half years of parole ineligibility. Defendant appeals claiming his conviction should be reversed because "the prosecutor's summation exceeded the bounds of fair comment" and because his sentence was excessive and in violation of State v. Natale, 184 N.J. 458 (2005). We agree that defendant must be resentenced under Natale. See State v. Thomas, 188 N.J. 137, 154 (2006). We therefore do not consider the excessiveness argument. After considering defendant's remaining argument in light of the record and pertinent law, we affirm his conviction.
Defendant points out that during summation the prosecutor admonished the jury "not to consider the absence of evidence against defendant," and argues that this "confused the jurors, exceeded the bounds of fair comment, and denied defendant a fair trial." During summation, the prosecutor stated:
Now in that eloquent summation [defense counsel] gave she indicated to you to think about the things you did not see in the case. Well, you shouldn't do that because you took an oath to follow the law in this case, to apply the law as the judge charges you. And he's going to tell you at the conclusion of my summation that what you cannot do, absolutely cannot do in this case is to decide it on speculation or conjecture. To decide in on the things you didn't see is speculation and that is an absolute no-no when you get in the jury room. In her opening statement [defense counsel] said to you that the case against my client will not be corroborated, will not be corroborated by any other evidence in the case but for the statements of [the victim].
Well, I took a little time last night to compile a list, and thinking what to call, title that list I decided to call it the top ten list of corroborating proof. These are at least 10 reasons, members of the Jury, I'd like to take now to tell you why the evidence points to Charles Stewart as the person who on April the 21st of 2004 stole Randy's Jewelers' jewelry.
No objection was made to these comments, and hence the plain error standard pertains. R. 2:10-2. In addition, by failing to object, we infer that defendant did not consider the remarks prejudicial when made, and acknowledge that he deprived the judge of any opportunity to provide an immediate curative instruction. State v. Frost, 158 N.J. 76, 82-84 (1999).
Defendant nevertheless claims plain error arose because the State must prove its case against defendant beyond a reasonable doubt and evaluation of the sufficiency of the evidence presented by the State is the most important function of the jury. What is absent from the State's proofs is often key to deciding whether the State has met its heavy burden of proof.
We agree with defendant's basic assertions. See State v. Hudson, 38 N.J. 364, 375-76 (1962). However, when they are considered in the context of the entire trial, and especially given the judge's jury instructions, the argument is unavailing. We interpret the prosecutor's argument as inartfully linking the absence of evidence with speculation. It is clear that a jury may not speculate in reaching a verdict, and the judge issued such an instruction, but the judge also correctly instructed the jury about the State's "burden of proving the defendant guilty beyond a reasonable doubt."
The judge advised the jury that a "reasonable doubt" was "an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence." The judge then made clear that "[a] reasonable doubt may arise from the evidence itself or from a lack of evidence." The judge also told the jury to determine "not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt but also whether the State has proved beyond a reasonable doubt that the defendant is the person who committed it." In short, the judge's careful, thorough, and precise instruction ameliorated any misstatement the prosecutor's brief comments may have conveyed.
This was a simple prosecution where the issues were carefully delineated, and where we can say categorically that the brief inaccurate comment by the prosecutor did not deprive defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987). For that reason, ...