July 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Parker and Messano.
Defendant Juan Robinson appeals from a judgment of conviction entered after the jury found him guilty of third-degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10a(1); one count of third degree possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1); one count of third degree possession of CDS with intent to distribute within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7; one count of third degree distribution of CDS, in violation of N.J.S.A. 2C:35-5a(1); and one count of third degree distribution of CDS within 1000 feet of school property in violation of N.J.S.A. 2C:35-7. After appropriate mergers, the trial judge sentenced defendant to a term of five years imprisonment, three of which were to be served without parole eligibility.
The State's proofs at trial demonstrated that on the morning of May 2, 2003, Detective Joseph Locante of the Passaic Police Department was conducting a surveillance of a known drug trafficking area in the city. He observed what he believed to be a drug transaction between a man, ultimately identified as defendant, and a woman, ultimately identified as co-defendant Miluska Torres. Other members of the police force arrested defendant and Torres after the transaction and found one bag of heroin on Torres, and three bags on defendant; all the bags bore the same "logo" or "brand" marking. The detective who arrested and searched defendant testified that defendant said, "You got me," when confronted by the police.
Defendant testified. He acknowledged that he possessed the heroin, but contended it was for his personal use. He testified that Torres approached him and asked where she could purchase drugs. He showed her the three bags he had purchased and directed her to this unnamed drug dealer around the corner. He denied selling her the heroin and denied saying anything to the police at the time of his arrest. Defendant explained that he began his day with $50, spent $30 on the three bags of heroin, and one dollar on a lottery ticket, leaving him with the $19 dollars he possessed when arrested by the police, implying that this small amount of money was inconsistent with someone selling heroin on the street.
Defendant raises two points on appeal.
THE USE OF A POWERPOINT PRESENTATION DURING PART OF THE JURY CHARGE UNDULY EMPHASIZED SOME PORTIONS OF THE CHARGE OVER OTHERS.
(Not Raised Below)
THE PROSECUTOR'S MISCONDUCT IN SUMMATION IN TESTIFYING, SPECULATING AND DENIGRATING THE DEFENSE REQUIRES THAT DEFENDANT'S CONVICTIONS BE REVERSED.
(Partially Raised Below)
We have carefully considered the record in light of defendant's contentions. We affirm.
The trial judge utilized a Powerpoint slide presentation during his charge to the jury. As he read the jury his charge, he displayed the salient points of what he was reading as a visual aid for the jurors. A short example of one of the slides is illustrative of the trial judge's methodology.*fn1 While charging the jury on direct and circumstantial evidence, the following side was displayed:
Direct and Circumstantial Evidence:
* Direct evidence directly proves a fact
* Circumstantial evidence proves a fact from which an inference of the existence of another fact may be drawn.
The judge utilized the demonstration for all of the generic portions of the model jury charge. However, when charging the substantive elements of the various offenses in the indictment, the judge did not use any slide presentation at all.
Although no objection was lodged at the time, defendant now contends that this format unduly emphasized various portions of the charge over others. He contends this runs afoul of the long-standing principle that the jury should "consider [the] instructions in their entirety and not pick out any particular instruction and overemphasize it." Criminal Model Jury Charge; State v. Wilbely, 63 N.J. 420, 422 (1973).
"[C]lear and correct jury charges are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994). In determining whether the jury charge was erroneous, the entire charge must be read as a whole. State v. Jordan, 147 N.J. 409, 422 (1997). "Where there is a failure to object, it may be presumed that the instructions were adequate," and "that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-135 (App. Div.), certif. denied, 177 N.J. 572 (2003). Since in this case defendant did not object to the charge or its methodology, we must determine whether the alleged error was "plain error" that is, was the error "clearly capable of bringing about an unjust result?" R. 1:7-2; R. 2:10-2.
For a number of reasons, we answer that question in the negative. First, defendant does not contend that the trial judge erroneously read any portion of the charge; our independent review of the charge indicates the judge accurately read the model jury instructions.*fn2 Second, the trial judge did not omit any portion of the model jury charge. Third, when the judge began to charge the jury on the substantive offenses in the indictment, he noted, "You don't have to look at the Powerpoint because you're not going to see any slides on this." He then immediately directed the jurors' attention to the indictment itself. Fourth, the judge instructed the jury to consider his entire charge and not place any undue emphasis on a particular portion of the charge. We are convinced, therefore, that the judge's use of the Powerpoint demonstration for only a portion of the charge did not prejudice the substantive rights of the defendant and bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
We turn to defendant's second point. He alleges that in her summation, the assistant prosecutor committed misconduct that requires reversal. He specifically argues that the prosecutor invited the jury to speculate without any evidential support, argued facts that were not in evidence, and denigrated the defense assertion that the three glassine bags found on defendant's person were for his personal use. Defense counsel only objected once to the prosecutor's comments, and that objection was overruled by the judge.
"Prosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). Prosecutorial misconduct provides no basis for reversal of a defendant's conviction unless it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Smith, 167 N.J. 158, 177 (2001). And, while a prosecutor is duty bound to confine his or her comments to the facts revealed during trial and the reasonable inferences to be drawn from that evidence, State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993), not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div.), certif. denied, 107 N.J. 647 (1987).
In evaluating whether prosecutorial misconduct warrants reversal, we also consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991), (quoting Ramseur, supra, 106 N.J. at 322-23), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "deprives the court of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 82 (1999).
Here, we find no misconduct on the part of the assistant prosecutor. Contrary to defendant's assertion, she was not calling upon the jury to speculate without any basis in the evidence. Having reviewed her comments, we are satisfied she was explaining how the jury could accept portions of defendant's testimony and still find him guilty as charged. Whatever references she made to the contradictions between defendant's version of the events and the police officers' version were permissible comments on the evidence. See State v. Tucker, 190 N.J. 183, 190 (2007) (permitting prosecutor to comment on inconsistencies in defendant's post-arrest statements to police). We also do not view any of her comments as disparaging defendant or his counsel.