August 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY JOHNSON, A/K/A JEFFREY GIBSON DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Ind. No. 02-09-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Gilroy and Lihotz.
On May 5, 2004, George Pritchett was assaulted and robbed by two males, one of whom struck him with a baseball bat, as he was leaving the residence of a companion, Attrell Johnson (Attrell). The police recovered no physical evidence implicating the perpetrators. From a photo array, Attrell identified defendant Jeffrey Johnson a/k/a Jeffrey Gibson and co-defendant, Jerome Campbell as the men she saw that evening.
Defendant and Campbell were charged with first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count one); (2) third-degree theft, N.J.S.A. 2C:20-3a and 2C:2-6 (count two); (3) third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) and N.J.S.A. 2C:2-6 (count three); (4) third-degree possession of a weapon (a metal baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6 (count four); and (5) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d and N.J.S.A. 2C:2-6 (count 5).*fn1 Campbell accepted a plea agreement; he entered a guilty plea to first-degree robbery in exchange for a recommended ten-year sentence and the requirement that he provide truthful testimony regarding defendant's role in the robbery.
After a four-day jury trial, defendant was convicted on counts one through five and sentenced to eleven years incarceration with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, 85% period of parole ineligibility on count one; four-year terms of imprisonment on each of counts two, three and four to run concurrently with the sentence on count one; and a twelve-month period of incarceration on count five to run concurrently with the sentence on count one. Defendant was additionally sentenced to two concurrent eighteen-month terms for fourth-degree probation violations. Applicable penalties and assessments were imposed.
Defendant raises the following arguments for our consideration on appeal:
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS, AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
SINCE THE STATE'S WITNESS, JEROME CAMPBELL, NEVER MADE EITHER AN OUT-OF-COURT OR AN IN-COURT IDENTIFICATION OF DEFENDANT, THE COURT'S INSTRUCTIONS ON THESE SUBJECTS CONSTITUTED PLAIN ERROR (Not Raised Below).
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO EGREGIOUS PROSECUTORIAL MISCONDUCT (Partially Raised Below).
A. DEMONIZATION OF THE DEFENDANT.
B. PROSECUTOR'S PERSONAL OPINION OF DEFENDANT'S MOTIVE.
C. PROSECUTOR'S COMMENT ON DEFENDANT'S POST-ARREST SILENCE.
DEFENDANT'S CONVICTIONS ON COUNTS TWO THROUGH FIVE SHOULD BE MERGED FOR SENTENCING PURPOSES.
THE SENTENCES IMPOSED WERE DISPARATE AND MANIFESTLY EXCESSIVE.
Our review discloses no error in the trial judge's denial of defendant's motion for acquittal, pursuant to Rule 3:18-2, presented at the close of the State's case. Viewing the evidence in its entirety and after giving the State the benefit of all favorable inferences reasonably drawn from that evidence, we determine more than substantial evidence was presented to enable the jury to determine defendant's guilt on the charges presented, which was established beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974) certif. denied, 67 N.J. 72 (1975).
Similarly, we conclude that defendant's motion for a new trial, contending that insufficient evidence was presented identifying him as one of the individuals involved in the assault and robbery of Pritchett, was properly denied. While an individual witness's formal in-court identification of a defendant may bolster the State's case, it is not required when other sufficient proofs are presented from which the jury may reasonable conclude that defendant committed the crimes charged, as was presented in this matter.
Pritchett stated there were two males involved. On cross-examination, he explained how he knew there were two men even though he did not see them as he heard two distinct voices, and further said "[b]ecause one was hitting me with the bat, one was holding the door. One was hitting me with the bat, and one got the money out of the pocket." Although Pritchett did not identify defendant, other State trial witnesses did so.
Attrell, who knew Campbell and defendant because they all lived in the same neighborhood, told the investigating detective, Albert Piepszak, that Campbell and defendant were involved in Pritchett's assault and robbery. She made an outof-court identification of defendant and Campbell from a photo array. Detective Robin Gittens conducted that identification process. Gittens testified that she followed department procedure in conducting the array, explaining she had no prior knowledge of the case and "did not know any suspect's name." During trial, Attrell vacillated on this issue, stating Piepszak threatened arrest if she did not come to the police station, and Gittens told her which photographs to choose. Attrell then stated: "I don't want to testify. I'm scared for me and my child's life. I don't want to testify." When instructed to answer the question posed by the prosecutor as to who she saw when she left her apartment that night, Attrell replied "Jeff [defendant] and Fro [Campbell]."
Finally, Campbell's testimony was unequivocal regarding the fact that defendant participated in the assault and robbery. Campbell, who had known defendant since childhood and also knew him as "Jeffrey Gibson," detailed defendant's actions of accompanying him to beat and rob Pritchett. During extensive cross-examination, the inconsistencies between Campbell's prior statements and his trial testimony were highlighted.
It is the jury which evaluates the factual issues. We will not set aside a jury verdict "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly appears that there was a miscarriage of justice under the law. Reyes, supra, 50 N.J. at 463-64 (citations omitted). Accordingly, as found by the trial court, we determine that the jury verdict was grounded in the evidence, and it did not constitute "a manifest denial of justice under the law." R. 3:20-1.
Related to this point is defendant's challenge that, because Campbell did not make a specific in-court identification of defendant, the trial court's jury instruction regarding identification constituted was error. No objection to the charge was raised below. Under Rule 1:7-2, a defendant waives the right to contest an instruction on appeal "if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Because we find the identification testimony was sufficient, we determine the charge, as a whole, was accurate and thorough and that it adequately explained the law. See State v. R.R., 183 N.J. 308, 324-25 (2005). We discern no error in the charge to the jury, let alone plain error. See ibid.; see also R. 2:10-2.
Defendant's suggestion that defense counsel's motions for acquittal and judgment notwithstanding the verdict were "perfunctory" and failed to articulate the arguments supporting the motion for acquittal may be raised in any future application for post-conviction relief. We decline to consider defendant's arguments in the present context, applying the general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992).
Defendant next asserts prosecutorial misconduct in the State's opening and closing arguments, contending the prosecutor "demonized" the defendant, "interjected her own personal opinions of defendant's motivations and guilt," asked "the jury to draw inferences about defendant's conduct from 'facts' not in evidence but propounded by the prosecutor," and made improper references throughout the trial that witnesses had been threatened by defendant, which were not supported by the evidence.
To warrant reversal, a prosecutor's misconduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Because defendant raises these objections for the first time on appeal, we consider the issues under the plain error rule. R. 2:10-2.
Various trial testimony was elicited during direct and cross-examination regarding potential witnesses' refusal to provide information during the police investigation. Officer Baez, upon first responding to the scene on the day of the incident, spoke to Earl Moore who was sitting across the street from Attrell's apartment building. Moore pointed to Pritchett, who was sitting in the passenger seat of his car. When later questioned about what he viewed, Moore told Baez he wanted to "remain anonymous." At trial, Attrell asserted: "I don't want to testify. I'm scared for me and my child's life." Campbell specifically expressed his fear of defendant. Piepszak testified that based on his experience, people in the neighborhood would not talk to him. On cross-examination, Piepszak stated he interviewed one person who first admitted witnessing the events of May 4, 2004, but then recanted.
In his summation, defense counsel spent considerable time attacking Campbell's credibility, particularly the comment that he lied to police because he was afraid. Also, when addressing Attrell's statement that she was afraid, defense counsel emphasized that either Campbell or Attrell was untruthful, and that Attrell was afraid of the police.
In closing argument, the assistant prosecutor addressed Attrell's equivocal identification testimony by stating:
So[,] based on what Detective Piepszak told you, does it surprise you that when she finally had to come to court, when she finally had to face the defendant in court, [Attrell] didn't want to point him out. I submit to you, ladies and gentleman, that gives that first I.D. even more believability because she couldn't do it here. Because she was too afraid to do it to his face. Because, ladies and gentleman, she has to go back out on the streets of Trenton.
Another challenged comment includes a remark during the State's opening argument, as follows:
[C]ertain people, they feel they are entitled to money. They don't feel that they have to go out and earn it. In this case, the defendant, he felt he was entitled to . . . Pritchett's money. This is the way he got it, by robbing him and beating him, kicking him, leaving him like a lump of trash.
"Prosecutors are afforded considerable leeway in [opening and] closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Mahoney, 188 N.J. 359, 376 (2006) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). "[T]he assistant prosecutor's duty is to prove the State's case based on evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
We specifically note that after counsel concluded summations, the trial court properly instructed the jury that it must be "the judges of the facts," including a determination of the credibility of the witnesses. The trial judge further stated:
Arguments, statements, remarks, openings and summations of counsel are not evidence. Although the attorneys may point out what they think is important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial. . . . Any comments by counsel are not controlling.
After our full review of the record, we conclude the assistant prosecutor's comments in her closing argument are best understood as a counter to the defense strategy, on cross-examination and in summation, to call into question the credibility and motive of the State's witnesses. Taken in context, the challenged comments were not demonizing or name calling, but were generalizations drawn from the testimony. As to the opening comment referencing defendant's motivation for the robbery, it was inappropriate and better left unsaid; nevertheless, we find it does not rise to the level of plain error. R. 2:10-2. The comment was isolated, was not repeated and did not deny defendant a fair trial. See State v. Jang, 359 N.J. Super. 85, 97 (App. Div.), certif. denied, 177 N.J. 492 (2003).
Defendant next contends that the prosecutor improperly commented on defendant's right to remain silent by evoking testimony that he did not give a statement to the police. We find this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
Lastly, we address the challenges raised to defendant's sentence. The first asserted issue regards the trial judge's failure to properly merge appropriate charges at sentencing. The State agrees with defendant's assertion inasmuch as counts two and three should have been merged with count one, and that count five should have been merged with count four and also merged with count one. A remand for the purpose of resentencing is, therefore, warranted.
Secondly, defendant argues his sentence was excessive and disparate when compared with that ordered for Campbell. We do not substitute our judgment for that of the sentencing judge. State v. Roth, 95 N.J. 334, 365 (1984). Modification of a sentence is warranted if the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1980)). We cannot agree that defendant's sentence was excessive. The trial judge properly considered defendant's prior criminal record and balanced applicable aggravating and mitigating factors when imposing sentence. See N.J.S.A. 2C:44-1; see also State v. Hodge, 95 N.J. 369, 379-80 (1984). Even though the trial judge found the aggravating factors preponderated, she ordered a sentence that was at the lower end of the statutory sentencing range for a first-degree offense. See N.J.S.A. 2C:43-6(a)(1). We find no abuse of discretion.
Addressing the question of whether defendant's sentence was disparate when compared to Campbell, who confessed shortly after arrest and accepted a plea agreement, the law recognizes that "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." Roach, supra, 146 N.J. at 232 (other citations omitted). After reviewing the trial evidence, including the fact that defendant approached Campbell, provided the bat used in the assault, and emptied defendant's pockets,*fn2 we cannot agree that a "grievous inequity" resulted due to the sentencing differences between Campbell and defendant. We conclude that their sentences were not so disparate as to be "unjustifiable." Ibid.
We affirm defendant's conviction. The matter is remanded for re-sentencing on counts two, three and five.